1971 PLP 20 (SCMR)

CORNELIUS, J.‑This appeal by one Dad alias Allah Dad, against a conviction under section 302, P. P. C., and sentence of transportation for life is brought as of right, since he had been acquitted at his trial, and the conviction was recorded by the High Court of West Pakistan upon appeal by the State under section 417, Criminal Procedure Code. The acquittal was ordered in the face of a volume of circumstantial evidence of the most convincing type. It was based solely upon the evidence of two doctors, Dr. Nur Muhammad and Dr. Zafar Ali Shah who performed the post mortem examination of the body of the deceased, Ghulam Muhammad. There was proof of motive sufficiently strong to explain the crime. There was proof that very shortly before the murder, Ghulam Muhammad was taken by Dad from his house upon a pretext. There was proof that the report of a crate gun shot was heard from Dad's house, and that a number of persons going to the house, found Ghulam Muhammad lying on the ground, bleeding from a shot wound in the chest, and Dad standing there with a pistol in his hand. There was proof that when questioned "why he had shot Ghulam Muhammad", Dad replied that it was because "the deceased wanted to marry Ghulam Fatima, while the accused wanted to get her married to the son of his maternal uncle". There was proof that the pistol which contained a spent cartridge was taken away from him, and he was seized and held on the spot by a lambardar and others, while arrangements were made to have the matter reported at the thana. Ghulam Muhammad died on the spot very soon after having been wounded. When the investigating Police arrived, the accused and his pistol were handed over to them. They found a loaded cartridge in the dab of Dad's loin cloth. When the body of Ghulam Muhammad was screened by X‑rays, a piece of metal was observed, lodged in his lung, and this being removed, proved to be a part of the jacket of the bullet, and to be of metal similar to some metal attached to the shell found in the breech of the pistol. Against this large volume of evidence, given mostly by disinterested persons, the plea of the accused was merely false implication, and no evidence was led in defence. The assistance which the accused received in the case was from the aforementioned doctors, who gave evidence of so plainly suspicious a character, as to raise the gravest doubts regarding their suitability for the functions they performed in this case and for all we know may still be performing in other similar cases. When Dr. Nur Muhammad was examining the body post‑mortem, he first noted a bullet wound of entry in the chest, and no exit wound, and he further noted a bullet hole in the vest on the body corresponding to the wound. These entries he scored out later, and the new entries showed an incised wound in the chest, and a corresponding cut in the vest. The explanation he gave for the correction was that in making the first entries, he was misled by the Police report saying that the injury was due to a gun shot. When he noted the discrepancy, he stopped his examination, and called Dr. Zafar Ali Shah, Medical Superintendent, and the further examination was conducted by both doctors, who gave it as their opinion that the injury was, "an oblique incised penetrating wound going deep into the chest cavity in the front of the chest, in the left fourth intercostal space, just outside the lateral border of the sternum. It measured 3/8" x 1/4" going deep into the chest cavity." On internal examination, they found that the "left pleura was punctured under the injury" and the "pericardium showed a cut of 3/8" x 1/4' through its whole thickness". The heart was also injured. No bullet was recovered. It was only after the investigating Police, being completely dissatisfied with the reports of the local Doctors, asked for an X‑ray examination of the corpse, that the metal referred to above was noted, and then Dr. Zafar Ali Shah made the necessary incision, and extracted it. When shown a certain piece of metal which was exhibited as Exh. P. 7, this doctor denied that it was the same piece which he had extracted, and thereupon he was subjected to severe cross‑examination by the Prosecuting Deputy Superintendent of Police. Dr. Nur Muhammad was also cross‑examined at length by the same officer. Neither doctor was cross‑examined by defence Counsel at all. A clue to the attitude of the local doctors in the case is furnished by Dr. Zafar Ali Shah's explanation regarding the piece of metal found inside the body, viz., that it was, in his opinion, a part of the decorative metal band covering the junction of the blade and the handle of a knife or dagger, and had been carried into the wound by the blade. A more disingenuous explanation is difficult to conceive. How by a single blow, a piece of metal attached to the handle could be carried 5 inches deep into the body, it is impossible to see. In these circumstances, the argument that no bullet was found in the wound is of no avail. If the evidence of these learned doctors is to be regarded as misleading in relation to the injury, the non‑discovery of the bullet is perhaps to be explained by its having been made away with. In that case, it might seem fortunate that the piece from the metal jacket penetrated so deep into the body and was lodged so securely at the root of the lung that it could not be felt with a probe. The Sessions Judge accepted the evidence of these doctors, and did not hesitate to discard the entire body of circumstantial evidence which pointed clearly to the accused, and the accused alone as the murderer of Ghulam Muhammad. In the High Court, the evidence of the doctors was evaluated more correctly circumstance placed before the High Court was that the pistol when examined by experts was found to have a firing pin so weak that it was. incapable of setting off a percussion cap. Tile learned Judges thought this was probably due to defective manufacture (the weapon was country‑made) and we agree that it affords no reason for doubting that the shot which caused Ghulam Muhammad's death was fired from this pistol. It play easily be that the shock caused the loosening of parts which resulted in the condition later found. Mr. M. B. Zaman, arguing the case for the appellant, appeared to be attempting to spell out from the evidence, a case of accident, which was never put forward by the accused, and clearly appears from the cross‑examination of the witnesses not to have been within the contemplation of the defence at the trial. We can see no scope for such an explanation of the death of F Ghulam Muhammad. The conclusion of the High Court that he met his death at the hands of the appellant appears to us to be the only conclusion which can reasonably be reached on the facts of the case. The appeal is accordingly dismissed. A copy of this judgment should be sent to the Home Secretary of the West Pakistan Government for information of the Government. Appeal dismissed.