1. ' ANWARUL HAQ, C. J.-This judgment will dispose of Criminal Appeals bearing Nos. 66 and 67 of 1977, by the convicts Yasin alias Cheema and Haider alias Mullan, both of whom stand convicted under section 302, P. P. C. For the murder of one Muhammad Tufail. While Yasin has been sentenced to death, Haider has been sentenced to undergo transportation for life. They were jointly tried along with five other persons, out of whom Munir and Bashir were acquitted by the trial Court, whereas Muhammad Amin, Said and Siddique were acquitted by the High Court, but the convictions and sentences recorded against the two appellants were maintained.
2. ' The incident took place in village Kukkripur, in the jurisdiction of police station Sharaqpur in the Sheikhupura District, on 4-5-1970, after Maghrib-prayers time, when the deceased Muhammad Tufail, along with his brother Abdul Ghafoor, mother Mst. Hussain Bibi and sister Mst.Marghoob Bibi, was proceeding from the village Abadi to his well. The deceased was a little ahead of his companions, and was attacked by all the seven accused persons when he passed in front of the Haveli of the acquitted accused Muhammad Amin. Bashir was empty handed, while Munir accused was holding a Safa (Turban) in his hand, which he put around the neck of the deceased, whereupon Bashir held him by his legs. Then the assailants dragged the deceased inside the Haveli. Appellant Yasin gave him a blow with the Toka, virtually cutting the neck of the deceased, while appellant Haider gave him hatchet blows. Three of the acquitted accused gave him Barchhi blows. The alarm raised by the companions of the deceased attracted among othere Amir Ali, Muhammad Ishaque, Rashid, Raja (P. W. 6) and Bashir (P. W. 7). The accused persons managed to escape from the scene leaving Muhammad Tufail dead. The F. I. R. Was lodged at the police station at 10-30 p. m. By Abdul Ghafoor (P. W. 9).
3. ' The motive for the crime is stated to be long standing blood feud between the parties extending over 35 years, during which a number of persons on either side have been killed at different intervals.
4. ' At the trial, Amir Ali, Muhammad Ishaque and Rashid as well as Marghoob Bibi were not produced, and the ocular account of the incident was given by Raja (P. W. 6) and Bashir (P. W. 7). Besides the mother and brother of the deceased, namely, Mst. Hussain Bibi (P. W. 8) and Abdul Ghafoor (P. W.
5. 9). The prosecution also relied upon the recovery of the blood-stained Toka at the instance of appellant Yasin and of the bloodstained hatchet at the instance of appellant Haider, on both of which human blood was found on chemical examination. The weapons recovered at the instance of the other accused persons were not found to be blood-stained, and, accordingly, they did not provide any corroboration of the ocular evidence.
6. ' The appellants and their companions pleaded not guilty at the trial, denied all the allegations against them, and asserted that they had been falsely implicated due to enmity. They placed certain documents on the record to show the existence of previous litigation. However, the learned trial Judge relied on all the four eye-witnesses, and found corroboration in the recoveries.
7. Nevertheless, he gave benefit of doubt to Munir and Bashir, who were alleged to have taken the deceased inside the Haveli but otherwise had not caused any injuries to him. In the High Court, the learned Judges found the eye-witness account satisfactory, but in view of the long standing blood-feud between the parties they thought that corroboration was necessary, and as this was forthcoming only against the two appellants, they acquitted Muhammad Amin, Said and Siddique.
8. ' Leave to appeal was granted by this Court on the 9th of. October, 1975, to examine the question whether the High Court had rightly exercised its discretion in refusing a request by the defence to summon the medical witness for cross-examination, as the accused had not cross-examined him when he appeared during the commitment proceedings, stating that they would reserve their cross-examination for the Sessions Court, but in the Sessions Court the Doctor was not summoned.
9. ' The post-mortem examination of the body of the deceased was conducted by Doctor Muhammad Akhtar Hussain Chata Medical Officer of the District Headquarters Hospital, Sheikhupura, on the 5th of May, 1970, at 4-15 p.m. He did not find any mark of ligature on the neck of the deceased, but noticed the following injuries on his person
(1) Whole of the throat was cut from anterior side in the middy of cervical vertebra, and only the poterior part of the skin was present. The neck was present with which the head was hanging.
(2) A stab wound 2' x 1' bone deep (lateral part of seventh rib was cut) on the lateral side of the right chest 3' lateral to right nipple,
(3) A stab 2 3/4' x 1/2' cavity deep 1' above the umbilicus.
(4) A stab 2 3/4' x 1/4' cavity deep on the right side of abdomen 3 below and lateral to umbilicus.
(5) A stab 1' x 1/2' cavity deep on the left side of abdomen 1}' below umbilicus.
(6) Multiple contusions on the whole of the dorsal surface of right hand.
(7) An abrasion 2' x 1/10' on the back of right side of chest 3' below and medical to right inferior angle of scapula.
(8) An incised wound 3/4' x 1/4' muscle deep on the right lumber region 3' from mid line.
(9) A stab wound 1' x 1/4' on the right lumber region 24' below No, 8.
(10) An incised wound 64' x 14' muscle deep on the back of right side just above the popliteal fossa.
(11) An incised wound 1/2' x 1/6' muscle deep just above the right knee joint.
10. ' The abdomen of the deceased was found to contain 12 ounces of semi-digested rice. Small intestine contained faecal matter and the lower part was cut. Large instestine also contained faecal matter and bladder was full of urine, Probable time between injuries and death was 3 to 6 minutes, and between death and post-mortem examination within 24 hours.
11. ' At the close of the examination-in-chief, it is recorded that "counsel requests that witness may be summoned in the Court of Session". The trial commenced in the Sessions Court on the 7th of March, 1972, and on that very date the learned Additional Sessions Judge, Sheikhupura, made an order that the Doctor's statement recorded by the Committing Magistrate on the 24th of February, 1971, be transferred to the Sessions file under section 509 of the Criminal Procedure Code as P. W.
1. There is no indication on the record to show that any process was issued for the attendance of the medical witness at the trial, nor is there anything to show that defence brought this omission to the notice of the trial Court. As a result, the trial proceeded on the basis of the evidence already recorded in this behalf during the commitment proceedings, and transferred to the Sessions file under the provisions of section 509 of the Criminal Procedure Code.
12. ' When the case came up before the High Court, this omission was pointed out by the learned counsel for the appellants, and an application was made that the Doctor be summoned in the High Court for cross-examination. It was urged that the medical evidence contradicted the narrative given by the eye-witnesses as the sequence of injuries on the various parts of the body of the deceased. The learned Judges, however, refused this request, observing that the appellants had waived their right to cross-examine the medical witness in the committing Court, and that even otherwise the points raised by the defence in respect of the medical evidence were capable of being resolved by reference to text books on medical jurisprudence, and, therefore, it was not necessary to summon the Doctor, who had performed the post-mortem examination of the dead body. On examining the contentions raised by the learned counsel for the appellants, the learned Judges reached the conclusion that there was no irreconcilable conflict between the ocular evidence and the nature of the injuries found on the body at the time of post-mortem examination.
13. ' It is contended by Sh. Nasim Hassan, learned counsel for the appellants, that the learned Judges in the High Court were in error in refusing to summon the medical witness for cross-examination, as the accused had specifically made a request in this behalf at the time this witness was examined during the course of the commitment proceedings, and that such a request could not be refused by trial Court, or for that matter by the High Court, who were under a duty to summon the Doctor unless the request was refused on the ground of being vexatious and frivolous. The learned counsel submits that the omission on the part of the trial Court, and the refusal on the part of the High Court, to summon the medical witness had gravely prejudiced the appellants.
14. ' The first question is whether the appellants had any legal right to have the medical witness summoned in the trial Court or in the High Court, simply for the reason that they did not consider it appropriate or expedient to cross-examine this witness during the course of commitment proceedings, and stated that they would like to summon this witness at the trial. Another question, which would require consideration is whether, irrespective of the fact whether the appellants had any such right or not, they had been prejudiced in their defence by the failure of the Courts below to summon the Doctor for cross-examination, and whether the High Court was right in thinking that the contentions raised by the defence in regard to the nature of the injuries could be resolved without summoning the Doctor.
15. Section 509 of Criminal Procedure Code is in the following terms :- "(1) The deposition of a Civil Surgeon or other medical witness taken and attested by a Magistrate in the presence of the accused, or taken on commission under Chapter XL, may be given in evidence in any inquiry, trial or other proceeding under this Code, although the deponent is not called as a witness.
(2) Power to summon medical witness. The Court may, if it thinks fit, summon and examine such deponent as to the subject-matter of his deposition."
16. ' It will be seen that the primary object of this section is to avoid the presence of the medical witness at the trial if his deposition has been recorded and attested by a Magistrate in the presence of the accused. Subsection (2.) gives power to the Court to summon and examine such a witness as to the subject-matter of his deposition, if the Court thinks fit. It follows that the section does not give any right to an accused person to demand that the medical witness be summoned in the Court ; the matter is left to the discretion A of the Court. The learned counsel was not able to point out any provision in the Criminal Procedure Code, which permits an accused person to reserve his cross-examination of the medical witness for the Sessions Court. The learned Judges in the High Court have rightly observed that it is an established rule that the proper time for cross- examination is after the examinationin-chief of the witness. That opportunity was not availed of by the defence.
17. ' The learned counsel referred us to Shivadhina Singh v. Empero (I) in (1) 22 Cr. L J 262 support of his submission that, in the circumstances of this case, the accused had a right to have the medical witness summoned in the trial Court. In that case the question had come up before the High Court in connection with a transfer application alleging that the learned Sessions Judge had illegally admitted the evidence of the medical witness under section 509 of the Code of Criminal Procedure without giving an opportunity to the accused to cross-examine him. During the commitment proceedings the cross-examination had been reserved for the Sessions Court, and the witness was summoned at the trial, but he did not attend on a particular date, whereupon the Sessions Judge refused to summon him again and insisted upon his being called as a defence witness. In these circumstances, the High Court observed that though the evidence already recorded might have been rightly admitted under section 509 of the Code of Criminal Procedure, the accused had a right to cross-examine the witness and the Court was apparently in error in refusing to summon him when he did not attend on the previous date, and in insisting that he should be summoned as a defence witness. In the instant case, although cross-examination was apparently reserved for the Sessions Court, yet during the trial no effort was made by the defence to bring it to the notice of the trial Court that the medical witness had yet to be cross-examined. We are of the view that the case relied upon by Sh. Nasim Hassan really proceeds on its own facts, and is not an authority for the proposition that an accused has a legal right to reserve cross-examination, and to have the medical witness summoned at the trial. In any case these considerations, are, at best, relevant to the conduct of the trial, and in that connection the omission of the accused has to be given due weight. As far as the High Court was concerned, the application for additional evidence really fell under section 540 of th Code of Criminal Procedure, and the summoning of the medical witness was entirely in the discretion of the High Court.
18. ' However, Sh. Nasim Hassan drew our attention to section 217 of the Code, which has since been omitted on the abolition of the commitment proceedings, and submitted that this section enjoins the Magistrate to bind down the witnesses to appear before the Sessions Court when called upon to do so. The learned counsel argued that this section makes it clear that it was the duty of the Magistrate to summon the Doctor so that he should have been available when the trial commenced before the Sessions Court.
19. We regret we do not see how sections 217 and 509 of the Criminal Procedure Code spell out a right in the defence to insist on the presence of the medial witness at the trial, even though his deposition has been recorded and attested by a Magistrate during the inquiry proceedings, when opportunity for cross-examination was afforded, and the Sessions Court does not require his presence for any purpose, as contemplated by subsection (2) of section 509. Section 217 enjoins a certain procedure to be observed by the committing Court, but it does not spell out any right in favour of the accused, as the summoning of the medical witness still remains within the discretion of the Sessions Court. In the circumstances, it was the duty of the defence to have availed itself of the right and opportunity for cross-examination at the time the medical witness was examined in the inquiry proceedings. There being no procedure in the Criminal Procedure Code enabling an accused person to reserve cross-examination for the Sessions. Court, the appellants did not have any right to demand that the medical witness must be summoned at the trial.
20. ' As already stated, the defence also failed to bring it to the notice of the Sessions Court that the Doctor had not been cross-examined during the inquiry proceedings and, accordingly, he may be summoned at the trial. The previous! Deposition of the Doctor was transferred to the Sessions' file on the very first day of the trial in the presence of the appellants and their counsel, but no objection was taken to the adoption of this procedure, and no request " was made on the lines stated in the inquiry proceedings. For this reason as well the appellants cannot now insist that they had a right to demand the presence of the medical witness.
21. However, the question still remains whether the failure of the Courts below to summon the Doctor and make him available for cross-examination has, in any manner, prejudiced the defence and whether it is, indeed, not possible to properly appreciate and dispose of the various submissions made by the defence with reference to the nature of the injuries and a possible conflict between the medical evidence and the ocular evidence. It is necessary for this purpose to set out the submissions made by Sh. Nasim Hassan in this behalf : ' It is contended by the learned counsel that:-
(a) The prosecution witnesses say that the acquitted accused Munir put a turban around the neck of the deceased and his brother Bashir held him by the legs, and both dragged him into the ha veli at a distance of 10 or 12 karams, but there were no marks of dragging on the dead body, thus falsifying this part of the ocular evidence;
(b) That the first blow having been given by appellant Yasin with a toka on the neck of the deceased, and the neck having been almost completely severed at the seventh cervical vertebra it could not have been possible for the other accused persons to cause injuries on the back of the chest and the back of the right knee, as the very first blow must have caused a complete paralysis of all the four limbs of the deceased, and he could not have turned so as to expose his back;
(c) injury No, 6 consists of contusions on the dorsal surface of the right hand, which could only be caused by a blunt-weapon, but none of the assailants had any such weapon, nor is any such injury alleged to have been inflicted on the deceased by any of the assailants; and
(d) That as the stomach of the deceased contained 12 ounces of semi-digested rice and his bladder was full of urine, it was clear that the incident had taken place much later in the night, and not immediately after Maghrib-prayers, with the result that it was an un-witnessed crime and the assailants could not have been identified.
22. It will be seen that the submissions made by Sh. Nasim Hassan with reference to the nature of the injuries and their possible conflict with the ocular evidence, are not such as would require the presence of the medical witness for cross-examination, as all of them proceed on the description of the injuries already given by the Doctor in his deposition during the inquiry, and their implications need to be examined with reference to expert opinion stated in text books on medical jurisprudence. The learned Judges in the High Court were, therefore, right in not summoning the Doctor for cross-examination, and their refusal to do so cannot be said to have caused an prejudice to the defence of the appellants.
23. ' Turning now to the submissions made by the learned counsel for the appellants as to the conflict between the medical evidence and the ocular evidence, we find that it is not correct to say that there were no indications of dragging on the body of the deceased. Injury No, 7 consisting of an abrasion on the back of right side of chest is clearly the result of dragging. Similarly injury No, 6 consisting of multiple contusions on the dorsal surface of the right hand could have been caused by dragging as much as by a blunt-weapon.
24. ' The learned counsel devoted considerable time to explaining that once the deceased had received the toka blow resulting in almost complete severance of his head from the neck, he would have been completely paralysed and could not have turned so as to receive injuries on his back, thus showing that the ocular account as to the sequence of the injuries received by the deceased is incorrect. Sh. Nasim Hassan referred to the remarks appearing on page 283 of Modi's Medical Jurisprudence and Toxicology (Karachi Edition); The Science & Practice of Surgery by W. H. C.
25. Romanis and Philip H. Mitchiner at pages 92-99; and The Physiological Basis of Medical Practice by Charles Herbert Best and Norman Burke Taylor, Seventh Edition at page 1210. The view stated by these learned authors is that a sudden or rapidly progressive complete interruption of the continuity of the spinal results in complete loss of voluntary power and paralysis of both the lowerlimbs; whereas complete division of the cord in the lower cervical region will result in paralysis of all the four limbs. There can be no cavil with the soientific statements based on proper observation, but the question is as t their application in the present case.
26. ' In the first place, it is to be noticed that all the eye-witnesses were outside in the street when the deceased was grabbed by the acquitted accused Munir and Bashir and taken inside the haveli.
27. The witnesses rushed to the open entrance of the haveli and it is from there that they saw the blows being inflicted by seven persons, who had felled the deceased on the ground. In these circumstances, it cannot be predicated that they could see the sequence of the blows with exact precision and certainty. In the second place, the injuries on the back are in the nature of stab or incised wounds on the lateral side of the chest or lumber region, and one injury on the back of the right knee joint, which need not necessarily have been received by the deceased voluntarily turning on his side after receiving the toka blow on his neck. Some of them could be caused even when he was lying on his back, and there is also the possibility that the others might have been caused during the struggle, which preceded the infliction of the toka blow. There is no inflexible rule that evidence of witnesses whose presence at the time. Of the incident is accepted by the Court as natural, must be rejected simply account of a possible conflict with medical evidence or opinion.
28. Any such conflict is obviously a relevant factor, but it cannot be conclusive irrespective of the other circumstances of the case.
29. ' This brings us to the question of the time of the incident. The post-mortem examination of the deceased was conducted at 4-15 p. m. On the 5th of May, 1970, and in the opinion of the Doctor death had occurred within 24 hours of that time, meaning thereby that the deceased could have been killed at the earliest at 4.15 p.m. On the 4th of May, 1970, or at any time thereafter. According to the witnesses the killing took place soon after sunset time, when the deceased and witnesses were proceeding towards their cattle-shed for milching the cattle at evening time, and about an hour and a half or two hours before leaving their house they had taken their evening meal, consisting of rice. The presence of 12 ounces of semi-digested food in the stomach of the deceased does not, in any manner, contradict this statement; or was it unnatural for the family members of the deceased to accompany him to their cattle-shed for the purpose of milching the cattle at evening time. In these circumstances, there is no support on the record for the submission that this was an unwitnessed crime, having been committed much after sunset. In any case, it would have been unnatural even for the deceased to proceed to his tube-well or cattle-shed at such a late hour of the night, and that too passing alone in front of the haven of the accused, when there was a long standing blood-feud between them. It seems to us, therefore, that there is no reason for us to differ from the appreciation of the two Courts below to the effect that there was no irreconcilable conflict between the medical evidence and the ocular evidence; nor was there any reason to hold that the offence was committed in the hours of darkness when the deceased was proceeding alone.
30. ' As the witnesses were found by the High Court to be inimical and interested, the High Court rightly looked for satisfactory corroboration of the eye-witness account, and found the same in the recovery of the weapons of offence at the instance of the two appellants, which weapons were found to be stained with human blood. The learned counsel contended that the evidence as to the recoveries was not reliable; and that, in any case, the weapons were sent to the chemical examiner with considerable delay, and, accordingly, no value could attach to his opinion as to the presence of human blood on them.
31. ' The main argument on the first point is that the recoveries were not attested by the Lambardar or member of the Local Council. The learned trial Judge has rightly remarked, in paragraph 23 of his judgment, that there had been six murders between the parties and it was therefore understandable that no independent person would volunteer to come forward to witness the recoveries; and that Lambardar Ghulam Muhammad of the village was related to the accused. As to the second point, the submission is that although the recoveries were effected at the instance of the appellants on the 11th of May, 1970, the weapons were not sent to the Chemical Examiner until the 19th of June, 1970, and they were received by him on the 23rd of June, 1970. The learned Judges in the High Court have rightly pointed out that no specific question was put to the Investigating Office as to the reasons for this delay, and it appeared from the record that as on of the accused persons Muhammad Amin had not been arrested until the 14th of June, 1970, it is possible that the delay might have been on that account. This seems to us to be a reasonable view to take.
32. ' Relying upon the observations appearing in Muhammad Ryas v. The State (1), Muhammad Shaft v.
33. The State (2) and Gulzar v. The State (3), the learned counsel contended that delay in despatching the recovered weapons to the Office of the Chemical Examiner was fatal, and no reliance could, therefore, be placed on the report of the Chemical Examiner. We have perused these cases, and find that they proceed on their own peculiar facts. In the first case the hatchet was recovered 12 days after the crime from a heap of dung cakes, and the result of the chemical examination was doubted by the Court in view of probable disintegration of blood by putrefying dung during the period of 12 days. In the present case, there is no such indication that the blood disintegrated during the time the weapons were kept safely sealed in the Police Malkhana. In the second case from the Lahore High Court, the crime empty was sent to the expert after the recovery of the weapon of offence, and for this reason the recovery was held to be of no value. These observations clearly have no application in the present context. In the
(1) PLD 1967 SC 443 (2) PLD 1968 Lah. 869
(3) 1976 P Cr. L J 419 ' third case relied upon by Mr. Nasim Hassan, a Division Bench of the High Court had taken the view that as the blood-stained weapons were sent to the Chemical Examiner one month after recovery, the delay had rendered the recovery useless. In reaching this conclusion the learned Judges had placed reliance on the case of Muhammad Shaft and another v. Muhammad Ilyas and 5 others already referred to by us. It will be seen that the circumstances in those two cases were entirely different from those obtaining in the instant case, and, accordingly, we are of the view that the observations made in those cases are not attracted. As a result, we are satisfied that there is reason in the present case to doubt the report of the Chemical Examine to the effect that human blood was found on the weapons recovered at the instance of the two appellants before us.
34. ' For the foregoing reasons we are satisfied that the learned Judges in the High Court were right in placing reliance upon the ocular account of the incident given by the witnesses, who were accompanying the deceased at the relevant time; and also in looking for corroboration in view of the longstanding blood-feud between the parties. Such corroboration being forthcoming only against the two appellants, their convictions and sentences were rightly upheld by the High Court.
35. Both the appeals, accordingly, fail and are hereby dismissed.