P L D 1956 Federal Court 62 (PLP)

MUHAMMAD MUNIR, C. J.‑

This is an appeal by special leave from the judgment of a Division Bench of the High Court of Lahore in a criminal appeal. Together with four other persons the appellant, Khan Beg, was tried by the Sessions Judge, Multan, on charges of rioting, criminal trespass and murder. The learned Judge convicted them all of the offences charged and sentenced them to transportation for life and with substantial terms of imprisonment for the other offences. The convicted persons appealed to the High Court where four of them were acquitted. The appellant's appeal was, however, dismissed. The trial was in respect of the murder of one Ashiq Muhammad in the dera of Zafar Ali in village Chunipur on the morning of 27th April 1951. There were several eye‑witnesses of the occurrence including Zafar Ali who himself was injured in the assault but the learned Judges who determined the appeal thought that since none' of the witnesses was independent, a conviction do their evidence was unsafe, unless it was corroborated by some material circumstance. Such circumstance in the case of the appellant was found in the fact that on the day following the day of the murder the appellant produced before the investigating officer a hatchet stained with a blood‑looking substance which was subsequently discovered to be human blood. Special leave to appeal in this case was granted by the Court in order to consider whether there was sufficient evidence on the record to prove that the hatchet which was Produced by the appellant was stained with human blood. The weapon was produced by the appellant on the 28th April 1951 before the investigating officer, Sub‑Inspector Mehr Ghulam Muhammad. The production was in the presence of Muhammad Arif (P. W. 9) and Manzur Husain (P. W. 10). The investigating officer prepared a sealed parcel of the hatchet which was sent to the malkhana on 5th May. On 14th May this parcel was handed over by Khuda Bakhsh, Muharrab Head Constable (P. W. 8) to Hazir Muhammad Constable (P. W. 11) who was to take it to the Chemical Examiner. The parcel, however, was delivered to the Chemical Examiner at Lahore on 15th May by foot‑Constable Muqarrab Khan together with a letter date 24th May from the Superintendent of police to the Chemical Examiner. The Chemical Examiner found that the hatchet was stained with blood which was subsequently found by the serologist to be human blood. As there was no evidence of the despatch of the parcel from the malkhana to the Chemical Examiner, an argument was addressed in the High Court by the learned counsel for the appellant that the evidence did not establish that the weapon which was examined by the Chemical Examiner was the one that had been taken into possession by the investigating officer on its production by the appellant on the 28th April. The contention was repelled by the High Court, the learned Judge who wrote the main judgment observing: "Some argument was addressed on the point that the constable who carried the parcel from the police station to the Chemical Examiner has not been produced, and hence the identity of the hatchet that was examined by the Chemical Examiner is not established with the hatchet which was despatched from the police station. 1t does not impress us because the slip bearing the name of the case and the number of the first information report was found in the parcel when it was opened in the office of the Chemical Examiner." The other learned Judge who wrote a short note dealing with only this part of the case said :‑ "I agree with the order but will a‑lid a few remarks with regard to the argument addressed by Mr. Manzur Qadir that because the Constable, who' is mentioned in the Chemical Examiner's Report (Exh. P. Q.), to have taken the parcel containing the axe recovered from Khan Beg appellant to the Chemical Examiner was not produced as a witness at the trial, it could not be said to have been established that the axe mentioned in the report of the Chemical Examiner (Exh. P. Q.), and that of the Serologist to Government of Pakistan (Exh. P. S.), was the same which was recovered from Khan Beg appellant. While it cannot be denied that the Court must be satisfied that the article subjected to chemical examination is the same which the prosecution claims it to be, it cannot be laid down by what evidence that fact is to be proved. To say that the fact that the article subjected to chemical examination was the same which the prosecution says it must be proved by a particular type of evidence will be ignoring section 3 of the Evidence Act, which lays down that a fact is said to be proved if after considering the matters before it the Court either be lieves it to exist or considers its existence so probable that a prudent. man, ought, under the circumstances of the particular case, to act upon the supposition that it exists. This section leaves the Court a discretion in the matter of considering evidence sufficient to prove a fact subject to this condition that the evidence is relevant and admissible and, in my view, it is not permissible to argue that only one type of evidence should be considered sufficient to prove that the report of the Chemical Examiner relates to the article to which it purports to relate." If the argument of Mr. Manzur Qadir has been correctly reproduced in the judgment of the High Court, and we have no reasons to think that it is not, his only grievance was that Foot Constable Muqarrab Khan who had taken the parcel to the Chemical Examiner was not called as a witness, and that therefore the possibility of some other hatchet having been sent to the Chemical Examiner could not be ruled out. Before answering the question whether in the absence of the evidence of Hazir Muhammad and Muqarrab Khan such possibility can reasonably be made out, it will be useful to reproduce the rules relating to how bloodstained articles recovered by the police during the investigation are dealt with and transmitted to the Chemical Examiner. Rule 41 of Chapter XXV, Volume 3, Punjab Police Rules, 1934, states :‑-- "(1) Superintendents of Police are authorised to correspond with, and submit articles for analysis to, the Chemical Examiner direct in all cases other than human and cattle poisoning cases ....... (2) . . . . . . (iv) Blood‑stained weapons, articles or clothes, 'shall be marked with a seal and made up into sealed parcels. The entire article shall be sent. (vi) On each . . parcel, and also on each article or set of articles contained therein, the separate identification of which has to be proved, shall be affixed a label describing the con tents, giving full particulars and stating where each article was found. On such label shall be impressed a counterpart of the seal used to secure the fastening of the . . . parcel. A copy of each label, and a counterpart impression of the seal, shall be given in the inquest report, and, in the case of cattle poisoning, in the case diary . . . In Appendix 25.41 (4) to the same volume the manner in which blood‑stain cases are to be handled is described as follows:‑

"The entire garments or other articles suspected to be stained with blood should be sent, if possible, not portions removed or cut from them. A label with number Lind description of the articles should be stitched or tied (not gummed or pasted) to each separate article, care being taken that the labels correspond with the invoice list of articles. When the label is tied to the articles the string should be sealed. Documents which should be forwarded :

A.‑--By post‑‑ (1) Forwarding memo. and invoice list of articles for examination. (2) Impression or imprint of seal used in the case. B.‑

With the articles‑ (1) Duplicate copy of forwarding memo. and invoice list. (2) Duplicate impression or imprint of seal used in the case." It is obvious from the rules that if the prescribed procedure is followed. (1) the weapon recovered has to be marked with a seal; (2) a label giving full particulars of the weapon and stating where it was recovered from has to be affixed on it or tied to it under seal ; (3) the weapon has to be wrapped in a sealed parcel ; (4) a label has to be affixed to the parcel giving full particulars of the contents ; (5) the label on the parcel has to be impressed with the counterpart of the seal used to secure the fastening of the parcel ; (6) an invoice list of the articles has to be made with which the label on the parcel must correspond ; and (7) the parcel of the article has to be sent to the Chemical Examiner with a forwarding memo., the invoice list of, the article and the impression or imprint of the seal used in the case. In the present case, some blood‑stained earth had been taken into possession during the investigation and this also was sent to the Chemical Examiner together with the parcel containing the hatchet. According to the evidence of Khuda Bakhsh Muharrar Head Constable, two different sealed parcels were handed over to Hazir Muhammad Constable, one of which puported to contain a hatchet and the other blood‑stained earth. There is no direct evidence of what Hazir Muhammad did with these parcels, but the Chemical Examiner's report shows that Foot Constable Muqarrab Khan produced before him two parcels alleged to have been des patched to him by the Superintendent of Police on 14th May 1951, that the details of these parcels were referred to in Superintendent of Police's Office letter No. 12337, dated the 14th May 1951, that one of the parcels consisted of a tin box containing earth and the other an axe wrapped in cloth, that the parcels were sealed with a seal bearing the impression on the invoice list, and that the tin box had six and the parcel of axe five seals entire. That report further states that he parcels related to F. I. R. No. 20, dated the 27th April 1951, alder sections 148, 149 and 302 of the Penal Code, of Police Station Alpa. Thus the report which is evidence of its own contents under section 510 of the Code of Criminal Procedure proves that the parcel of axe related to the present case which was investigated on the basis of F. I. R. No. 20, dated the 27th April 1951 of Police Station Alpa, that it had on it a seal which had also been impressed on the invoice of the articles and that all the five seals on it were intact. Sub‑Inspector Mehr Ghulam Muhammad while giving evidence in Court identified a hatchet as the one which had been produced before him by the appellant and deposed that it had stains of blood on it when the appellant produced it, and that he prepared a sealed parcel of it. He also proved a memorandum, Exh. P. J., relating to that production, which states that the hatchet that was produced by the appellant was in the presence of Manzur Husain and Muhammad Arif packed into a sealed parcel bearing five seals. The Sub‑Inspector was not questioned as to why he did not send the parcel of the hatchet immediately to the malkhana, and in the absence of any cross‑examination on that point it cannot reasonably be urged that his retention of the parcel upto the 5th May was in any way dishonest or suspicious. We cannot, there fore, act on the assumption that during this interval the parcel was tampered with. Hence, it must be held that the parcel that was delivered at the malkhana was in the same condition in which it was made by the investigating officer at the time of the pro duction of the hatchet, because the safe custody of that parcel while it remained in the malkhana is proved by the direct evidence of Muharrar Head Constable Khuda Bakhsh. As regards the question why Hazir Muhammad himself did not take the parcel to the Chemical Examiner, the obvious explanation is that the tin box and the parcel of the hatchet which were separately delivered to Hazir Muhammad had both to be taken to the Chemical Examiner with a forwarding memo. from the Superintendent of Police. The Chemical Examiner's report shows that the tin box and the parcel of the axe were accompanied by a letter from the Superintendent of Police and an invoice list of the articles. There is no direct evidence how the two parcels were dealt with after they were delivered to Hazir Muhammad, but the Chemical Examiner's report shows that they were both brought to him by Muqarrab Khan. Now if, on the circumstantial evidence, it can be held that the parcel of the axe which was delivered to the Chemical Examiner was in the same condition in which it was when it was prepared at the time of the recovery of the hatchet, it will have to be held that the hatchet which was examined by the Chemical Examiner was the same as was produced by the appellant on the 28th April. The report of the Chemical Examiner states that the hatchet reached him wrapped in a parcel "sealed with a seal bearing the impression on the invoice", and that all five seals on this parcel were intact. It', therefore, the seals on the parcel were intact and tallied with those on the invoice, it must be held that the parcel contained the hatchet that was taken into possession from the appellant on the 28th April and that it had not been tampered with after it was made into a parcel on that date. The hypothesis that the parcel might have contained a hatchet taken into possession in the investigation of some other case is negatived by the fact that the number and date of the First Information Report of the present case are given in the Chemical Examiner's report. We have to presume that all official acts have been regularly performed, and if the rules mentioned above were observed in this case, then there must have been full particulars of the weapon, sufficient to identify it, not only on the label or the parcel but also on a chit which must have been stringed to the hatchet, and this chit must have been on the weapon when it was produced in Court and identified by the investigating officer, and there is not the slightest suggestion that when the hatchet was exhibited in Court it had no chit or that the particulars of the chit were different or insufficient. It is stated in the judgment of the High Court that when the parcel was opened in the office of the Chemical Examiner, a slip bearing the name of the case and the number of the First Information Report was found inside it. Of this there is however no evidence, though it can be presumed that the parcel bore a label giving the particulars of the weapon including the name of the person from whom and of the case in which it was recovered. Further the Report of the Chemical Examiner mentions the number of the First Information Report, and this number must have been taken by him from the letter o the Superintendent of Police or the Invoice list of articles which he received with the parcel. This fact alone, is, in our opinion, sufficient to establish the identity of the hatchet. Mr. Manzur Qadir objected to the admissibility of this evidence but the evidence is clearly admissible under section 9 of the Evidence Act being evidence of a fact establishing the identity of the hatchet. Nor do we see any substance in the learned counsel's further con tention that the reference in the Chemical Examiner's report to the First Information Report is inadmissible for the reason that,: such reference is not a part of the Examiner's opinion. What the law makes admissible is the report and not merely the opinion part of it, and it cannot possibly be urged that the reference to the First Information of the case in which the weapon was recovered was foreign to the Chemical Examiner's Report. We have therefore, not the slightest doubt that the evidence mentioned above was quite sufficient to prove that the hatchet examined by the Chemical Examiner was the same as had be6n taken into possession by the investigating officer from the appellant on 28th April in the course of the investigation. In view of this, it is wholly immaterial that there is no evidence of how the parcel was dealt with after it was delivered from the malkhana to Hazir Muhammad I till it reached the Chemical Examiner. In fact, the identity of the hatchet having been established in the manner mentioned above, it does not at all matter whether the‑parcel containing it was taken to the Chemical Examiner by Muqarrab Khan, or Hazir Muhammad, or somebody else. We now come to the authorities which were cited by Mr. Manzur Qadir or which we have been able to discover for our selves. The first of these is the Division Bench judgment of the Calcutta High Court in Queen Empress v. Autal Muchi (I L R 10 Cal. 1026). In that case, a small packet containing some white powder was found on the person of the accused and it was proved that this packet was made over to the Civil Surgeon of the station for transmis sion to the Chemical Examiner to Calcutta. There was, however, no evidence to connect the packet produced in Court with the packet alleged to have been sent by the Civil Surgeon to the Chemical Examiner. The learned Judges held that there was no evidence on the record to show that the packet received by the Chemical Examiner in Calcutta was the packet taken from the prisoner, because the packet was traced into the hands of the Civil Surgeon and no further. These observations were obiter because the conviction was set aside on the ground that the report of the Additional Chemical Examiner was not admissible in evidence. Further unlike that case there is in the present case definite evidence of the identity of the hatchet i.e. the reference to the First Information of this case in the Chemical Examiner's report. In Muhammad Din and another v. Emperor (A I R 1926 Lah. 79) a Division Bench decision, some blood‑stained clothes were removed from the person of the accused on 18th September 1924. They were made into sealed parcels and sent by a constable to the Assistant Surgeon at Hazro which was four miles from the site of the crime. These parcels were despatched from the thana of Hazro on the 21st September and reached the Assistant Surgeon on the 22nd September. Thus there was a gap of three days which remained unexplained. The learned Judges remarked that in' an important matter of this sort it was absolutely essential to show that ordinary diligence was exercised and ordinary procedure followed. They also observed that there was no evidence connecting the parcels which reached the Chemical Examiner with those which were alleged to have been despatched by the Assistant Surgeon. The omission was not considered to be a merely technical defect and the entire evidence relating to the fact that the clothes of the accused were found stained with human blood was held to be far from being satisfactory. This case also, like Queen‑Empress v. Autal Muchi, emphasis the necessity of proving the identity of the substance examined by the Chemical Examiner with that alleged to have been sent to him by the Civil Surgeon and is not in point where the question is whether the article examined by the Chemical Examiner is proved to be the article that was seized by the investigating officer from an accused during the investigation of a particular case. In Ofel Molla v. Emperor (15 Cr.LJ 147), it was observed that in such cases the jury should be warned that before using the Chemical Examiner's report they must be satisfied on the evidence that the substances examined were in fact what they were said to be. There is, however, in the report of the case no indication of what the precise evidence in the case was and where the omission lay. Much more important observations on the subject are, however, to be found in the opinion of Abdur Rahim, J. In re Chukkapalli Ramayya (11 Cr.LJ 222). In that case, some powder was found on the person of the accused, which was alleged by the prosecution to be picric acid. This was sent to the Chemical Examiner for examination, but his report did not show that he had received any powder. All that was mentioned in the report was that picric acid was detected in certain pieces of paper but there was no proof that those pieces of paper were found‑at the search. No initials were put on the papers containing the powder and the man who packed the exhibits in order to send them to the Chemi cal Examiner was not examined. It further appeared from the Chemical Examiner's report that besides the objects found on the person of the accused or on the scene of explosion many other objects were sent in the same parcel to the Chemical Examiner. These objects had not remained exclusively in the custody of the Sub‑Magistrate or of any other responsible officer until their despatch. The learned Judges remarked that a report of the Chemical Examiner is of no use unless there is proof of the identity of the articles found during the investigation and sent to the Chemical Examiner with the articles examined by him. The learned Judge proceeded to say: "It must be remembered that it was the duty of the prosecu tion to prove their allegations by means of sufficient and reliable evidence and if the evidence of the prosecution is neither satisfactory nor conclusive that defect cannot be cured by the fact that the accused is unable to make out positively that such evidence is false and has been manufactured by any particular person or persons interested in the prosecution. The Court trying a case is not ordinarily in a position when it must either pronounce a particular piece of evidence to be false and fabricated or act upon it. And in a criminal trial even if the evidence in support of a charge is in fact false, it would more often than not be impossible for an accused person on his trial to show how it came to be fabricated. I have been constrained to make these general observations, especially as the learned Counsel, who appeared for the Crown, on more than one occasion in the course of his argument seemed to assume that there was no alternative for us but either to accept the case of the prosecution‑ as regards the finding of Material Object No. 13 and the picric acid as proved or to find that the Police Officers concocted the evidence on the point. In my opinion we are faced with no such difficulty as will be obvious from what I have already said". The point of distinction between that case and the present ‑one is obvious. In the forever it was not proved that the powder recovered from the person of the accused was the substance that was found by the Chemical Examiner in the packet of paper examined by him whereas the identity of the hatchet in the present case is established by the fact that only one hatchet was recovered during the investigation and the hatchet examined by the Chemical Examiner was the one that had been recovered in course of the investigation of First Information Report No. 20, dated the 27th April, of Police Station Alpa. The case in Kala and another v. Emperor (A I R (31) 1944 Lah. 206), cited by Mr. Manzur Qadir is really against him. In that case two hatchets were recovered, one from Kala and the other from Rashid accused. These were sent to the Chemical Examiner who found blood on both of them. The Chemical Examiner then sent the scrapings from the hatchets to the Imperial Serologist who reported that there was human blood on one of them, and that the blood on the other was too disintegrated for the determination, of its origin. The evidence, however, did not make it clear which of the two hatchets was stained with human blood and which was the one with disintegrated stains, nor which was recovered from Kala and which from Rashid accused. Comparison of the hatchets with the fullscale drawings oil the back of the Chemical Examiners report, however, made it clear that the blades of both hatchets were extensively stained with blood, and that there was also blood on the wooden handle of one of them. Bearing in mind the fact that scrapings from the blades are frequently found to be disinteg rated when examined by the Imperial Serologist owing to admixture of oil or rust while scrapings taken from the wooden handles where there is no rust have less chances of admixture with such foreign substances and can be more easily tested, the learned Judges were of tile opinion that human blood could, confidently be held to have been proved to exist oft the hatchet which showed that scrapings had been removed from its wooden handle and that since that hatchet was marked with the label "recovered from Rashid" though there was no evidence of its having been recovered from that accused it could further be held that human blood was found on the hatchet recovered from the accused of that name. The learned Judges then observed. "While therefore we have no doubt that the two hatchets exhibited in this case were those recovered from Kala and Rashid respectively and that both were stained with blood, we take this opportunity of pointing out that the police should be careful when sending exhibits to the Chemical Examiner to mark each one in such a way that its identity can be fixed and safeguarded throughout, and to specify the origin and ownership of each in the covering letter to Chemical Examiner. Care should also be taken to see that the evidence tendered in Court establish beyond doubt the origin and ownership of each exhibit sent for examination". We have pointed out above that if the police rules were followed in the present case, and we have to presume that they were followed, there must have been full particulars of the weapon not only on the chit attached to it but also on the parcel sent to the Chemical Examiner and that these particulars must have tallied with those in the invoice list. We, therefore hold it proved that the hatchet produced by the appellant had human blood on it, and that this circumstance could rightly be treated by the High Court as corroborating the direct evidence of the witnesses that the appellant was one of the persons who attacked and murdered Ashiq Muhammad. The appeal is there fore dismissed. Before we close this judgment we take the opportunity to point out that in crimes involving violence the fact that the accused was found in possession of or produced a weapon or clothes stained with human blood is sometimes a determining circumstance and to repeat the warning that has more than once been sounded by high judicial authority that in such cases it is of the greatest importance that the substance found by the Serologist to be human blood must be connected with the weapon or article traced to the possession of the accused. It is of course true that the law does not prescribe the manner in which this incriminating circumstance has to be proved, but the legal position remains that if a fact is intended to be relied on by the prosecution it must be proved with reasonable certainty and that if such fact can only be established by proof of several subordinate facts, each of the latter must be proved with the same degree of certainty as is required for the proof of the main fact. The omission to prove a necessary link may break the whole chain and thus deprive the prosecution of the benefit of valuable circumstantial evidence. A.H Appeal dismissed.