1. SALAHUDDIN AHMED, J.-This appeal by special leave is from an order of the erstwhile High Court of West Pakistan. Lahore, maintaining the conviction of the appellant under sections 302/34 and 307/34 of the Pakistan Penal Code but reduc--ing the sentence of death passed on him under the former charge to transportation for life. He along with' co-accused Akbar and Ibrahim, had been tried by the Additional Sessions Judge, Lahore on the aforesaid two charges and they were all convicted and sentenced on both the charges.
2. The Doctor who held the autopsy was examined before the committing Magistrate and his evidence was brought on record before the Court of Session under section 509 of the Criminal Procedure Code. The dead body of the murdered person, Qaimuddin, had been found on a Railway line. This Court gave leave to appeal to consider the effect of the non-production of the said doctor in person at the trial.
3. It appears that at about 9 p.m. On 10-12-1963, the appellant along .With the. Two co-accused Akbar and Ibrahim, came to the house of Qaimuddin and took him along with them. The appel--lant's father was like a father to Qaimuddin and the appellant was considered as a brother by Qaimuddin. After about one hour the appellant and his two companions returned to the house of Qaimuddin without him and on inquiry by his wife, P. W. 3, Sardar Bibi, told her that Qaimuddin had gone to Kala Khatai. This aroused the suspicion of the wife as there was ill-feeling between co- accused Akbar and Qaimuddin over one Mst. Hussaina who had to be returned to her people by Akbar at the instance of Qaimuddin. This incident happened about a month before the occurrence.
4. As P. W. Sardar Bibi insisted on knowing about the whereabouts of her husband, the appellant asked co-convict Akbar to kill the witness so that she might not depose against the convicts.
5. Thereupon Akbar started striking P. IV. Sardar Bibi with knife and caused her several injuries. Her alarm brought to the scene her son, P. W. Ismail, her brother-in-law, P. W. Rehmat son of Allah Dad, and P. W. Ch. Rehmat son of Barkhurdar, and they saw Akbar assaulting her and tried to apprehend the assailants but they escaped. Qaimuddin was searched and his dead body was found lying on the railway track. At about 10-5 p.m. P. W. 7, driver of a goods train had noticed a dead body on the railway line and informed the guard of the train about it and the latter informed the Assistant Station Master, Naurang, The Assistant Station Master sent a telegraph com--munication to Police Station, Naurang, about the discovery of the body and the information was duly recorded in the Roznamcha Exh. P. W. 17/A at 11-10 p.m. Assistant Sub---Inspector of Police, P. W. 17, reached the spot 6/7 miles away at 3 a.m. On 11-12-1963 and recorded the First Information Report of P. W.
6. Sardar Bibi.
7. The assault on P. W. Sardar Bibi has been proved by her and P. Ws. Ismail and two other witnesses, and corroborated by medical 'evidence showing fifteen incised wounds on her, including :-
(1) An incised wound 1' x 3/4" x 1" deep in the centre of the left Taxilla.
(2) An incised wound 1" x 1/4" x 1/4" on the outer side of the left-chest about 2" below injury No. 10.
(3) An incised wound 3" x 1--x 1 --" obliquely on the left back in the middle from themedian line towards laterally. Wound was also crossing the middle line towards the right.
8. The recovery of blood-stained earth and a blood-stained knife from the house of the deceased fully supported this part of the prosecution case.
9. As regards the charge of murder, the medical evidence as furnished by P. W. 1, Col. Hassan Din, has disclosed that among the injuries found on the body of the deceased were the three following injuries:-
(1) Clean cut wound on the skin over the neck below the chin about 5--" transverse in direction going down up to the shattered soft parts into one and quarter inch deep.
(2) A cut wound on the chin 12" x 3/4' bone deep.
(3) Two oblique cut wounds on the right side of the chest 1--" x 1" going into chest nearby.
10. These injuries were the result of sharp-edged weapon and were anti-mortem cut wounds and caused the death of the victim. The other injuries were found to be post-mortem, and were the result of crushing effect of railway train.
11. This doctor was not cross-examined before the committing Magistrate although the accused were represented by a counsel. There appears the following note at the end of his deposition : "The defence counsel requests that the witness, may be summoned in the Court of Session at the time of trial for cross-examination."
12. It appears from the record of the Sessions Court that the evidence of the Doctor was read over in open Court and admitted in evidence, and transferred to Sessions file under section 509, Cr. P. C.
13. Without any objection from the defence counsel or any request from him to summon the doctor.
14. Even in the appeal before the High Court no objection was taken to such admission of the doctor's evidence. Objection was, however, taken for the first time before this Court in the appellant's leave petition. In these circumstances the unchallenged medical evidence coupled with the unchallenged evidence of the driver and the guard of the goods train, P. Ws. 7 and 8, respectively, to the effect that a dead body was found lying on the Railway tract as well as the evidence of P. Ws.
15. Sardar Bibi, Ismail, Rahmat son of Allah Dad and Ch. Rahmat son of Barkhurdar, proved beyond any reason--able doubt that Qaimuddin was murdered. Within less than two days of the occurrence the appellant and another convict Akbar were arrested and blood-stained clothes were recovered from their person. The dead body of Qaimuddin itself was discovered almost within an hour of the time when Qaimuddin was evidently decoyed from his house on the pretext of some urgent business. The conduct of the convicts including the appellant first giving a vague explanation about the absence of the deceased and then suddenly attacking his wife P. W. Sardar Bibi leave no room for doubt that they abetted the murder of Qaimuddin and were thus guilty of an offence under section 302/109, P. P. C. And should have been convicted and sentenced thereunder instead of section 302/34, P. P. C.
16. There is no substance in this appeal and it is accordingly dismissed with the modification that the conviction of the appel--lant is hereby altered to one under section 302/109, P. P. C.
17. The sentence of transportation, for life, however, remains unaltered.