Convicted murderer Zaman freed-because pathologist’s certificate was not admissible until 1972
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CONSEQUENT to an appeal, murder accused Mohamed Zaman who pleaded not guilty to murder but guilty to manslaughter had his appeal allowed and prison sentence quashed.
The appellant was charged with murder, but as there was no medical evidence before the magistrate at the preliminary enquiry as to the cause of death of the deceased, the magistrate committed Zaman for felonious wounding.The Director of Public Prosecution indicted Zaman for murder and on being arraigned for that offence, he pleaded guilty to manslaughter and was sentenced for the latter offence.
Zaman then appealed to the Court of Appeal urging that based on the evidence disclosed in the depositions , the Director of Public Prosecution could not properly indict him for murder, contending that the indictment and the ensuing evidence was bad in law.
The Court of Appeal which was constituted by Justices Guya Persaud, P.A. Cummings and Victor Crane held that: (1)in view of the provisions of Section 113 (2) of the Criminal Law (Procedure) Ordinance Chapter 11 (G), and having regard to the fact that as the law then stood, the Pathologist’s certificate was inadmissible, the indictment was bad and also the conviction for manslaughter.
Consequently the conviction and sentence were quashed.
Subsequently an Editor’s note stated: The pathologist’s certificate as to the cause of death is now admissible in evidence by virtue of the Law Revision Act, 1972 (No.11) enacted on July 21, 1972
Mr. J. O. F. Haynes, S.C represented the appellant and Mr. Godfrey Persaud, Senior State Counsel appeared for the State. Justice Persaud delivered the judgment.
According to him, the case against the appellant in this matter as disclosed in the depositions taken by the magistrate was that he and the deceased had an altercation in a house on Saturday April 29, 1972 about 7 p.m when the appellant, armed with a knife, stabbed the deceased in the region of the abdomen and the deceased was injured. He was taken to the hospital where the doctor examined him and found he suffered the following wounds:
(1) 2 cm laceration on both sides of neck
(2) 4 cm laceration on the left arm
(3) 2 cm laceration on left hand; and there was a stab wound with evisceration in the anterior auxiliary line of the abdomen.
The doctor expressed the view that the injuries could have been fatal, and admitted the deceased as a patient at the hospital where he died on May 6, some seven days later.
On April 29, 1972 the deceased had been examined by another doctor at the hospital who confirmed the previous findings, except that he found another 2 cm wound on the left wrist, and he described the wound to the abdomen as being located over the left eighth intercostal space, anterior auxiliary line.
The doctor expressed the view that the injuries were dangerous to life, and that an X-ray of the chest showed pneumo thorax on the left side, but there was no further explanation as to what this meant.
On these facts, the appellant was charged with murder. But no evidence as to the cause of death was given before the magistrate who thereupon committed the appellant for the offence of felonious wounding.
At the preliminary enquiry, the counsel appearing for the State attempted to put in evidence the pathologist’s report on the post-mortem examination which sought to indicate the cause of death. The document was then, having regard to the state of the law, clearly inadmissible as even though Sub-section 4 of Section 43 of the Evidence Ordinance, Chapter 25 was amended by the Miscellaneous Enactments (Amendment) Ordinance, 1961 (No. 29) to include the Government Bacteriologist and Pathologist. However, it was still the case that the pathologist’s certificate was inadmissible in cases involving homicide. This situation has since been remedied by the Law Revision Act, 1972 (No. 4), enacted on the July 21, 1972,so that such a document would now be admissible in evidence to prove the cause of death.
The defence counsel did not impeach the order of committal. He submitted however, that the indictment is bad with regard to Section 113 (12) of Chapter 11, as amended by the Criminal Law ( Procedure) (Amendment) Ordinance, 1961 (No. 22) which reads as follows:
“(2) The indictment against the accused person may include, either in substitution for or in addition to counts charging the offence for which he was committed, any counts founded on facts or evidence disclosed in any examination or deposition taken before a magistrate in his presence, being counts which may lawfully be joined in the same indictment.”
The State counsel conceded that if the indictment was bad, the trial was a nullity; and he accepts that notwithstanding the accused pleaded guilty to manslaughter, the subsequent conviction and sentence would in the circumstances be invalid.
“In our view, this case is not to be equated with the case of R. v- Thomas, (1948) 32 Cr. App, R. 50, where all that was necessary was the formal production of the relevant Statutory Rule and Order in order to complete the case against the appellant, as apart from such Statutory Rule and Order, the offence had been sufficiently disclosed on the face of the depositions.
The question before us is, as it was in the case of R v. Chairman, London Quarter Sessions, Ex parte Downes, (1953) 2 All E. R. 750, whether the depositions or examination taken before the magistrate in the presence of the accused disclosed the offence of murder. This is to say whether it has been disclosed from the evidence that the deceased died from the wound or wounds inflicted upon him by the appellant.
In our view, the evidence on the depositions does not disclose from what because the deceased died. In all probability he did die from the wounds he received, but in a criminal trial, probability is not, in our view, the same as a prima facie case.
Because of the factual aspects of the case we must with some regret, accede to the submission made by the counsel for the appellant, and hold that the indictment was bad, which fact rendered all subsequent proceedings null and void. The appeal is therefore allowed and the conviction and sentence set aside. The other judges concurred.
By George Barclay

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