MUSHTAQ HUSSAIN MUNIR, J.-Muhammad (40) and Abdullah (2z) sons of Karam Ali, were tried along with their brothers Ahmad and Mahmood and one Muhammad Nawaz son of Muhammad Khan, by the learned Additional Sessions Judge, Layallpur, at Jhang, under section 302, read with sections 140 and 148 of the Pakistan Penal Code, on the allegation that on 16th July 1968, at about dophar wela in the area of village Pathanewala, in police station Lalian, they formed an unlawful assembly, while armed with deadly weapons with the intention of murdering their sister's husband Muhammad Nawaz and in furtherance of the common object of the unlawful assembly, committed rioting and the murder of Muhammad Nawaz deceased aforesaid. Muhammad and Abdullah were convicted under section 302 read with section 34 of the Pakistan Penal Code. Their companions were acquitted. Muhammad was sentenced to death. Abdullah was sentenced to transportation for life. The convicts have come up in appeal. The case of Muhammad appellant is also before us under section 374 of the Code of Criminal Procedure for confirmation of the death sentence. This judgment shall dispose of the appeal preferred by the convicts as also the murder reference.
2. The appellants and the deceased are related. They are collaterals, having descended from their common ancestor, Bakhta. The deceased, who is the only son of his parents, was married to Mst.
Sattan, sister of the appellants, while the only sister of the deceased Mst. Sakina is the wife of Ismail, brother of the appellants.
3. The prosecution story is, that Muhammad Nawaz deceased was married to Ma. Sattan about 13 years prior to his death. At the time of their marriage he was about nine years of age, whereas, his wife Mst. Sattan was about 22 years of age. The latter was a divorcee. Before she martiad the deceased, she was the wife of Ahmad, an uncle of the deceased, Ahmad divorced her. Mst. Sattan gave birth to a son to the deceased, who died. Since the deceased had no other issue from Mst.
Sattan, and in view of the disparity between their ages, the relations between the spouses became strained, as a result whereof, about six months prior to the occurrence, Mst. Sattan went away to the house of her parents. Muhammad Nawaz deceased decided to divorce her and marry Mst.
Aisha (P. W. 10), who was his cousin. The four brothers of Mst. Sattan, who were accused ire this case, did not like that Muhammad Nawaz should re-marry. They openly proclaimed that the second marriage of the deceased shall not take place.
4. The main reason for the aforesaid accused to restrain the deceased from re-marrying is stated to be, that the deceased owned some agricultural land and in case, he did not re-marry, and had no off spring, in the event of his death, they would, being the brothers of his wife, inherit his property.
The aforesaid motive is stated to have prompted the appellants and their co-accused to take the life of the deceased, as he was bent upon divorcing Mst. Sattan and re-marrying.
5. On the eventful day, Muhammad Nawaz accused is stated to have gone to the house of Muhammad Nawaz deceased, the latter being sarbrah Lambardar on behalf of his uncle, and told him, that he was an official of the Forest Department. He informed him that a shisham tree had been cut from the Government land and requested him to assist him in finding out tile culprit. Upon this, the aforesaid accused and the deceased left for the haveli of the latter, which is about 2 killas away from the village abadi. While they were there, the deceased sent for food and both of them had their lunch together, which was sent to them by Mst. Jantan (P. W. 11), the mother of the deceased, through a barber. After taking their food, the deceased and the aforesaid accused, went to sleep under a jaman tree. Mst. Jantan P. W., who was always apprehensive of the safety of her deceased son, left for the haveli to see him. She was at a distance of about a killa from the spot, when she saw the appellants and their brothers Ahmad and Mahmood, coming towards her havell from their dharl, which was close-by. Muhammad appellant had a kassi. Mahmood had a hatchet.
Abdullah appellant had a vahola. Muhammad Nawaz, the acquitted accused, who was already at the spot, got up from his cot and caught hold of the deceased from his feet. Muhammad appellant then gave two or three kassi blows on the neck of the deceased. Abdullah appellant gave a vahola blow on the head of the deceased. Ahmad and Mahmood, the acquitted accused, gave him hatchet blows in the cervical region. Besides Mst. Jantan (P. W. 1), the occurrence is stated to have been seen b) Muhammad (P. W. 12), Sardara (P. W. 13) and Saleh Muhammad (P. W. 14). The deceased expired immediately on receipt of the Injuries.
6. After fatally assaulting the deceased, the appellants and their brothers Ahmad and Mahmood ran away towards their dhart, whereas Muhammad Nawaz accused was apprehended at the spot.
Since the latter was a stranger, he was forced to disclose his identity, when he provided his name, father's name and place of residence. Armed with the aforesaid information, Mst. Jantan P. W. Left for police station Lalian, which is six miles from her village and arriving there on the same day, lodged report Exh. P. C./2 at 2-30 p.m. Recorded by Sub-Inspector Malik Ata Muhammad (P. W. 15).
7. After recording the first information report, Sub-Inspector Malik Ata Muhammad P. W. Left for the spot. Arriving there, he prepared injury statement (Exh. P. J.) and inquest report (Exh. P. K.) of the dead body and sent the same to the mortuary for post-mortem examination under the custody of Foot-Const--able Muhammad Yar (P. W. 4). Muhammad Nawaz accused was arrested. He was at the spot in the custody of Ahmad Chaukidar and others. Blood-stained earth was recovered from spot, was sealed into a parcel and taken into possession vide memo. Exh. P. E.
8. The appellants and their brothers Ahmad and Mahmood were arrested on 17th July 1968. Chadar (Exh. P. 7) which appeared to be stained with blood, was recovered from the person of Mahmood accused. It was sealed and taken into possession vide memo. P. F. On interrogation on 18th July 1968, Muhammad appellant disclosed, that he could lead to the recovery of the kassi. He led the police officer to Killa No. 5 of square No. 12, where sugar cane was growing and from there produced blood-stained kassi (Exh. P. 8). It was taken into possession vide memo. Exh. P. G., after being sealed. Plan of the place of recovery of the kassi was prepared. It is Exh. P. G./1.
9. Doctor Muhammad Ashraf (P. W. 1), performed post---mortem examination on the dead body of Muhammad Nawaz deceased on 17th July 1968, at 8-00 a.m. And found the following injuries :-
(i) Neck completely cut except 1 -- " wide tag of skin on the right lateral side.
(ii) Incised wound 3 -- " x 2 -- on the upper most part of back of neck and adjoining part of head.
(iii) Incised wound 3 -- " x 3/4" x 2 --" on the middle part of right clavical, which was completely, cut underneath. Superiorly this wound was confluent with injury No. 1.
(iv) Incised wound 2 --' x -- " x -- " on the lateral most part of right clavical which was partially cut underneath.
Injury No. 1 was at the level of 4th cervical vertebra. It was the result of multiple blows, at least two.
Larynx, vertebral column, blood vessels, and other structures were completely cut. Stomach contained ten ounces of undigested tinda and roti. Small intestines contained semi-solid matter.
Large intestines contained faecal matter in the upper part. Lower part was empty. Death was due to complete cutting of the vital organs of the neck, as a result of injury No. 1. The injury was sufficient to cause death in the ordinary course of nature. Death occurred instantaneously. Time that elapsed between the death and post-mortem was within 24 hours. Exhibit P. A. Is the carbon copy of the post-mortem report.
10. Earth recovered from the spot, chaddar of Mahmood accused and kassi (spade) recovered at the instance of Muhammad appellant, were sent to the Chemical Examiner on 24th July 1968, through Foot-Constable Muhammad Amin (P. W. 3). The reports of the Chemical Examiner (Exh. P.
M.) and Serologist (Exh. P. N.) reveal that earth recovered from the spot and the spade were stained with human blood. Chaddar was not stained with blood.
11. The appellants denied their guilt. It was admitted by them that Muhammad Nawaz deceased was related to them. He was their sister's husband. They, however, denied that the deceased had decided to divorce their sister and marry Mrs. Aisha (P. W. 10). It was also denied that Mst. Sattan had left the house of her husband six months before the occurrence. Muhammad appellant did not admit that kassi (Exh. P. 8) was recovered at his instance. In his statement, which was adopted by his co-appellant, while explaining the case against them, he said.
"Hayat son of Momand, the son of our paternal aunt was murdered. Shera, Fatoola and Mahla were challaned in that case. They were acquitted in the Sessions Court. I was summoned as a C. W. In that case by the learned Sessions Judge. I made a statement against all three accused mentioned above. Shera, Fatoola and Mahla are related to Muhammad, Sardara and Salehon P. Ws. They have involved us on that account in this case. Moreover, Khanun, father of Salehon P. W. Stole my bullock.
He was challaned and sentenced to one year's R. I. And was later on released under section 56 2, Cr. P. C."
Some documents were produced by Muhammad appellant in order to rebut the prosecution case.
However, no oral evidence was adduced.
12. The learned trial Judge did not believe the motive part of the prosecution version. He did not accept the prosecu--tion contention that by putting to death Muhammad Nawaz deceased, the appellants and their brothers would be in a position to inherit the land of the deceased, because the real paternal uncle of Muhammad Nawaz deceased and the latter's mother were still alive and the accused were his collaterals in the sixth degree. Without adverting- to the question, as to whether, Muhammad Nawaz accused, who is stated to have been used as a decoy by his co- accused, was physically present at the time of the occurrence, it was observed :- "It is hardly conceivable that they should have asked him to bring him to his dera; where the possibility of the presence of the tenants of Muhammad Nawaz deceased could not have been excluded."
It was further found that since Muhammad Nawaz accused ran in a direction different from that followed by his co-accused, he could not have been in league with them. It was thus held that the case against the aforesaid accused was not free from doubt. He was given the benefit of the same and was acquitted. Mahmood and Ahmad, the brothers of the appellants, were also given the benefit of doubt and were acquitted, inasmuch as, from the evidence adduced as the trial and especially the medical evidence, in the opinion of the learned Additional, Sessions Judge, their participation in the crime was doubtful. In the case of the appellants, the prosecution story was believed because of the corroborative evidence, which in the case of Muhammad appellant was kassi (Exh. P. 8), found to be stained with human blood and in the case of Abdullah appellant, the presence of an injury "on the upper most part of back of neck and adjoining part of head,", of the deceased.
13. We are not inclined to agree with the findings that the murder of the deceased is motiveless. We may agree with this finding to the extent that the impression of the mother of the deceased that after her sons' death, the appellants and their brothers would inherit his property, if he died issueless, may not be true. However, there is no reason for us to doubt that there was an apparent disparity between the ages of the deceased and his wife Mst. Sattan. They had no child. It is thus not improbable, that the deceased, as stated by his mother in the first information report, wanted to re-marry and, there--fore, the relations between the spouses were strained. We are conscious of the fact that at the trial, it was attempted to establish that the deceased wanted to marry Mst.
Aisha (P. W. 10). In that connection, it was asserted that a fatwa was obtained with regard to the earlier alleged nikah of Mahmood accused with aforesaid Mst. Aisha P. W. To the effect that there was no legal marriage between them, as the same was stated to have been performed during the minority of Mst. Aisha P. W. An attempt was also made to show that the deceased had already divorced his wife Mst. Sattan. The alleged divorce deed is Exh. P. D. Since no reference was made to this document or to these allegations in the first information report and the divorce deed was not produced before the investigating officer during the investigation, we hold that to this extent, the prosecution version is not believable. However, we have no reason to doubt the version of Mst.
Jantan (P. W. 11), that her son wanted to divorce Mst. Sattan, the sister of the appellants. Mst. Jantan P. W. Could not have made this assertion, if it was not true, for her own daughter Mst. Sakina was the wife of Ismail, a real brother of the appellants, and she was her only daughter. We are, therefore, of the opinion, that the appellants had a grudge against the deceased, inasmuch as he had deserted their sister Mst. Sattan and wanted to re-marry.
14. Ocular evidence had been provided by Mst. Jantan (P. W. 11), Muhammad (P. W. 12), Sardara (P.
W. 13) and Saleh Mohammad (P.W.14). Their testimony has been challenged on the ground that they are related to the deceased and were chance witnesses. In the case of the eye-witnesses except Mst. Jantan P. W., it was also stressed that it was highly doubtful that in the month of July they would visit the haveli of the deceased for the settlement of their land revenue account and would also know chat the deceased would be there, unless it was usual with him to be there at that time. We have given our anxious thought to these contentions, and have come to the conclusion that since the deceased was sarbrah Lambardar, it is not improbable that people would visit him in connection with the settlement of their land revenue account. The village is not far away from the haveli of the deceased. It is located hardly at a distance of two killas from it. Therefore, it is not inconceivable that the witnesses would know that the deceased was at his haveli. What is really important is, that the parties are intimately related. Mst. Jantan P. W., the mother of the deceased is patrair of the father of the appellants. Her son Muhammad Nawaz deceased was the husband of Mst. Sattan, the sister of the appellants, having been married to her thirteen years prior to the occurrence. Her daughter Mst. Sakina was the wife of Ismail, the brother of the appellants. Her brother Noora was the husband of Mst. Bakhi, the sister of the appellants. The deceased himself was a collateral of the appellants, all of them having descended from the same common ancestor Bakhta. It cannot be said, therefore, that Mst. Jantan is involving the appellants on account of enmity, there being no estrangement of relations between the appellants and Mst. Jantan except the impending re-marriage of her son after divorcing Mst. Sattan. Muhammad (P. W. 12) is almost equally related to the deceased and the appellants. He is the grand-son of Jowaya son of Mahmoora son of Bakhta aforesaid. It was stressed about him that he was inimical to the appellants, inasmuch as, Muhammad appellant appeared as a Court witness against his son-in- law Shera, in the case of the murder of Hayat son of Momand. The appellant, while making statement under section 342 of the Code of Criminal Procedure in the trial Court produced a copy of the judgment of the aforesaid case. From its perusal, it seems that the contention of the appellant that he made statement against the accused in that case, is not correct. In para. 7 of the judgment of that case it was observed :- "I examined Rehman and Muhammad as C. Ws. In this case because the learned Public Prosecutor gave them up as having been won over by the other party. These two witnesses stated that they heard cries and hurried to the spot. They saw Mahla, Fateh Ullah and Shera accused present at the spot and running away. They, however, did not see them giving any blow to the deceased."
In para. 15, it was observed :- "In this case, there is the solitary evidence of Lala P. W., who is closely related to the deceased.
Rehman P. W. Who is the maternal uncle of the deceased does non-support Lala and his version.
Lala has stated that the blows were given in his presence while Rehman stated that he did not see any of the accused giving blows to the deceased in his presence. The weapons given by each of these two witnesses are also different. Similarly Muhammad C. W. Who is also related to the deceased, does not support Lala P. W. In any respect. The two C. Ws. However, state that they saw the three accused present at the spot."
It is thus clear from the aforesaid passages from the judgment that although originally a prosecution witness, Muhammad appellant did not support the prosecution story against the accused. There is, therefore, no apparent enmity between Muhammad P.W. (P. W. 12) and the appellants. In fact, Muhammad P. W. Should be thankful to Muhammad appellant because he did not support the prosecution case against his son-in-law Shera.
15. The next witness is Sardara (P. W. 13). Like the previous witnesses, he is also related to both the parties, being the grandson of Salehon son of Jowaya son of Mahmoora son of Bakhta, the common ancestor. In his case also, the same argument was raised as had been done in the case of Muhammad P. W. In that, Muhammad appellant appeared as a Court witness in the murder case of Hayat against Shera, Fateh Ullah and Mahla. The suggestion is, that the aforesaid persons are the relatives of this witness, as also Saleh Muhammad (P. W. 14) when questioned, he stated that it was a fact that Muhammad had appeared as a Court witness in that case, but added that he did not support the prosecution case. Next is Saleh Muhammad (P. W. 14). He is the grandson of Raja son of Muhammad son of Bakhta. He is thus, like the other witnesses, related to both the parties. It was suggested to him that his father Khanun was convicted for the theft of a bullock of Muhammad appellant and in lieu of the sentence of imprisonment imposed upon him, was bound down to be of a good behaviour. The allegation was denied. Thus in support thereof, the appellant at the time of making his statement at the trial, produced a copy of judgment which shows that on 22nd June 1956, Khanun son of Raja was convicted under section 411, P. P. C. And bound down for a period of one year by a Magistrate for having been found in possession of a stolen bullock belonging to one Muhammad. The judgment does not disclose, whether the owner of the bullock was Muhammad appellant or some-body else. The aforesaid so-called enmity between the prosecution witnesses and the appellants, was adverted to by the learned trial Judge in the instant case and it was observed that so far as the murder case in which Muhammad appellant is stated to have been produced as a Court witness was concerned, the position is that the prosecution witnesses could have no grudge against Muhammad appellant, for he did not support the prosecution version. With regard to the theft case, it is observed that since the identity of Muhammad in the case of theft had not been established and it was not proved that he was the same person, who is an accused in the instant case, it cannot be said that Saleh Muhammad P. W.
Had any grudge on that score against him. The net result, therefore, is that the eye-witnesses, who have supported the prosecution version, have no reason to falsely implicate the appellants, as they are their own kith and kin. They have, as a matter of fact, no enmity worth the name against them, so as to falsely implicate them. There is no reason, therefore, why implicit reliance should not have been placed on their testimony. However, it appears to us that out of abundant caution, the learned trial Judge did not rely on their statements and looked for corroboration, as a result of which, he acquitted three of the accused.
16. Mr. M. Saleem, learned counsel for the appellants vehementaly urged that there was no corroboration worth the name against the appellants. He maintained that the main corroboration for the implication of Muhammad appellant is the alleged recovery of kassi (Exh. P. 8), at his instance, which according to him, does not connect him with the said weapon. Mr. Saleem challenged the recovery. He also urged that it is highly doubtful that the kassi which was sent to the Chemical Examiner was the same as was alleged to have been recovered from him. It was further contented that reports of the Chemical Examiner and the Serologist do not show personal examination and were thus inadmissible. At any rate, no weight could be attached to them.
17. Muhammad appellant was arrested on 17th July 1968. He was interrogated, as a result whereof, on 18th July 1968, he led Sub-Inspector Malik Ata Muhammad (P. W. 15) to the recovery of blood- stained kassi (Exh. P. 8) from the crop of sugar cane growing in killa No. 5 of square No. 12, in the presence of Muhammad Yaqub (P W. 6) and Mahni (P. W. 7). The recovery was believed by the learned trial Judge. He relied on the testimony of the attesting witnesses and the memo of recovery. He observed that Muhammad Yaqoob P. W. Was a natural witness because he happened to be the tenant of the deceased. The place of recovery, it may be pointed out, is hardly a killa away from the place of murder. Under the circumstances, his presence at the spot at the time of recovery cannot be seriously doubted. He has no animus against the accused and there is no reason, why he should depose against them falsely. Mahni (P. W. 7) is equally related to both the parties and besides these two witnesses we have the testimony of the investigating officer. We, therefore, do not doubt the genuiness of this recovery in spite of the fact that there is no allegation that the kassi was buried underground.
18. We next come to the objection, as to whether the kassi examined by the Chemical Examiner and the Serologist was the same as the one, which was recovered at the instance of the aforesaid appellant. In this connection, our attention was drawn by Mr. M. Saleem to the statements of Head - -Constable Muhammad Shag (P. W. 8) and Muhammad Amin F. C. (P. W. 3). The former deposed that he gave three sealed parcels containing blood-stained earth, kassi and chaddar to Foot- Constable Muhammad Amin (P. W. 3) on 24th July 1968. The latter stated that he took the parcels to the head office and after getting prepared their docket, took them to Lahore to be delivered at the office of the Chemical Examiner. According to their testimony, it was on 24th July 1968, that the parcels were received by Foot-Constable Muhammad Amin (P. W. 3). The report of the Chemical Examiner (Exh. P. M.) on the other hand, reveals that the parcels were despatched by the Superintendent of Police, Jhang, on 23rd July 1968, and were referred to in his office letter No. 14907 dated 23rd July 1968. These were received in the office of the Chemical Examiner on 25th July 1968.
It is on the basis of this discrepancy in the date of the docket and the statements of the aforesaid police witnesses, that Mr. M. Saleem urged that the prosecution had failed to establish that the spade received by the Chemical Examiner was the same as was stated to have been recovered at the instance of Muhammad appellant. Such a situation arose in the case of Khan Beg v. The Crown (PLD 1956FC62) although in slightly different circumstances. What had happened in that case was that the alleged weapon of crime-a blood--stained hatchet-was produced before the investigating officer. It was sealed into a parcel and sent to the malkhana, where--from, it was made over to Foot-Constable Hazar Muhammad who was to take it to the Chemical Examiner.
However, the parcel was actually delivered at Lahore by Foot Constable Muqarrab Khan along with the parcel containing blood--stained earth, with a letter from the Superintendent of Police to the Chemical Examiner. Muqarrab Khan was not produced as a prosecution witness. In the opinion of the Serologist, the hatchet was stained with human blood. In the aforesaid circumstances, it was contended on behalf of the accused, that the identity of the hatchet delivered to the Chemical Examiner with the one produced by the accused before the investigating officer had not been sufficiently proved. In order to answer the question that arose in that case, their Lordships of the Federal Court, after reproducing the relevant rules relating to the manner in which blood-stained articles recovered by the police during the investigation are transmitted to the Chemical Examiner, took note of the fact, that the Moharrir Head Constable had delivered two sealed parcels to Hazir Muhammad Constable. One of which purported to contain a hatchet and the other blood-stained earth. There was no direct evidence as to what Hazir Muhammad did with those parcels, but the Chemical Examiner's report revealed that it was Foot-- Constable Muqarrab Khan, who produced these two parcels before him, which were alleged to have been despatched by the Superintendent of Police on 14th May 1951, and the details of the parcels were referred to in Police's office letter No. 12337 dated 14th May 1951, and to the effect that one of the parcels contained a tin-box and the other an axe wrapped in cloth. These were scaled with a seal bearing the impression on the invoice list. The tin box had six seals, while the parcel of axe had five. The report also revealed that the parcels related to F. I. R. No. 20 dated 27th April 1951, under sections 148, 149, and 302 of the Penal Code, Police Station Alpa. It was thus held:-- "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 the five seals on this parcel were intact. If, 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 identity of the weapon was further established by the fact that the number and date of the F. I.
R. Were mentioned in the Chemical Examiner's report and these had been taken from the letter of the Superintendent of Police and the invoice accompanying the parcel.
19. When we apply the facts of the aforementioned case to the facts of the case before us, we find, that in the report of the Chemical Examiner (Exh. P. M.) it is clearly mentioned, that in connection with F. I. R. No. 144, dated 16th July 1968, under section 302/148/149, P. P. C., Police Station Lalian, District (hang, he received three sealed parcels with their seals intact with a seal bearing the impression on the invoice "hereunto attached" containing earth, chaddar and spade with 4, 3 and 3 seals respectively, by office letter No. 14907 dated 23rd July 1968, from the Superintendent of Police, Jhang and these were opened in his presence. This being the situation in spite of the statements of Mobarrir Head Constable and Foot-Constable mentioned above, that the parcels were sent through the Foot-Constable for the delivery to the Chemical Examiner on 24th July 1968, we hold that the identity of kassi (spade) sent to the Chemical Examiner, in connection with the present case, has been fully established. Moharrir Head Constable and the Foot-Constable appeared at the trial almost a year after the occurrence. They were making statements from memory. There is no indication that the Moharrir Head Constable was in possession of the daily diary when he made statement. It is thus possible that he might have been mistaken about the actual date of the delivery of the parcel to Foot-Constable Muhammad Amin (P. W. 3). At any rate, from the contents of the report of the Chemical Examiner, reproduced above, no doubt is left in our mind that the spade (kassi) received by the Chemical Examiner, is the same, which was recovered by the police officer during the course of investigation, at the instance of Muhammad appellant.
20. The last contention of Mr. Saleem is that the report of the Serologist has little weight, inasmuch as he has not been examined at the trial. He maintained that section 510 of the Criminal Procedure Code, was an exception to the ordinary rule of evidence and, therefore, should not be relied upon, as neither the report of the Chemical Examiner nor that of the Serologist show that they had personally examined the weapon of offence. In support of his contention, he relied on the case of Venkataswa mi alias Chinnasawai Achari ((1905) 3 Weir 661) and Happu v. Emperor (AIR 1933 All.
837). A perusal of these cases would reveal that these have no application to the facts of the instant case. In both these cases, death was allegedly the result of arsenic poisoning. In the former case, an objection was raised at the time of appeal by the condemned prisoner that the report of the Chemical Examiner did not state that arsenic was detected "by him". The objection was considered to be well founded. Therefore, before using the report of the Chemical Examiner under section 510 of the Code of Criminal Procedure, he was summoned and his evidence was taken. The conviction was maintained. In the latter case, Happu, the convict was acquitted of the charge of murder without the Chemical Examiner having been called to given evidence in Court because of the finding that there was no evidence that he had administered arsenic to Babu Singh. It was observed :- "In a charge of murder by arsenic poisoning it is essential for the prosecution to prove: (a) that the person alleged to have been murdered died of arsenic poisoning, (b) that the accused person administered arsenic to the deceased with intent to murder."
It was also observed :- "If the prosecution wishes to establish (a) by means of the Chemical Examiner, and weight is to be attached to his evidence, he must be called, sworn and offered for cross-examination. By his evidence, he must prove that at least two grains of arsenic were administered to the deceased before death. He can do this by proving the discovery of this amount in the body of the deceased or by accounting for its absence in part. He may attribute the loss to vomiting, purging, or the natural elimination of the poisons from the body before-- death taking into consideration the lapse of time between the hour the arsenic had been taken and the hour of death."
It would be seen that the aforesaid authorities do not have any relevancy in the present case, which is covered by an observation of their Lordships of the Federal Court in Khan Beg's case that the Chemical Examiner's report was evidence of its own contents under section 510 of the Code of Criminal Procedure and the law had made admissible the report and not only the opinion part of it.
It may be added that para. 3 of the report of the Chemical Examiner reveals, that the seals of the packet containing, earth, chaddar and spade were opened in his presence and the contents thereof were duly examined by him, and these remained under his immediate custody until the examination was completed. The report of the chemical Engineer reveals that a parcel consisting of two packets, containing spats earth and scrapings from the spade were received by him from the Chemical Examiner "enclosed within a cloth cover sealed with the impression" of the official seal of the Chemical Hussar" and related to case F.
1. R. No. 144 dated 16th July 1968, Police Station, Lalian. These reports would indicate that articles received by the Chemical Examiner and the Serologist, were personally examined by them. The reports being admissible in evidence, there was no question of examining either the Chemical Examiner or the Serologist at the trial.
21. It is asserted that so far as Abdullah appellant is concerned, there is no corroboration in his case. The cor--roboration in his case comes from the fast that according to the prosecution evidence, he is stated to have given a vahola blow on or near the head. The medical evidence reveals that the deceased had an injury upper most part of back of on the upper most part of the neck and adjoining part of head". Besides this, he had grudge against the deceased, who though related to him, had deserted his sister and wanted to divorce her.
22. For the aforesaid reasons, we are of the view that the motive for the assault upon the person of the deceased by the appellants is established. If we ignore it, we find that there is no enmity worth the name between the parties and, therefore, they would have no occasion to falsely implicate the appellants, who are their close relatives. We also believe the ocular evidence and feel that no corroboration for the same was needed. However, if any corroboration was in fact Necessary, it has come by the production of a kassi, found to be stained with human blood, by Muhammad appellant coupled with the motive, and the medical evidence. Similarly, there is corroboration in the case of Abdullah appellant, which has been pointed out above. We, therefore, find no merit in the appeal, which is hereby dismissed. The death sentence awarded to Muhammad appellant is confirmed.