MUHAMMAD SIDDIQ, J.--According to the version given by Zafar Khan P. W., he runs a kebari shop at Dil Muhammad Road, Lahore, and Muhammad Jamil deceased was his partner in business. He knew Ghulam Mustafa appel--lant who was known as a Goonda. The appellant visited his shop twice before the occurrence and each time took Rs. 10.00 as Goonda-tax. On the day of occurrence, namely, 21-10-1967, the appellant again visited the shop and this time demanded a sum of Rs. 500.00 as Goonda-tax from the deceased. He threatened the deceased that in case this amount was not paid to him, be would shoot the deceased. There ensued an exchange of hot words between the deceased and the appellant. The appellant is then alleged to have taken---out .32 bore revolver (Exh. P. 1) from his left dub and fired the same hitting the deceased. At that time the deceased was standing on the thara. On receiving the firs-shot the deceased fell down on the ground. Zafar Khan and Ghulam Husain P. Ws. Were present there. F. C. Khurshid Hussain Shah who was present at Dil Muhammad Road, also witnessed the occurrence. He caught hold of the accused red-handed on the spot. Zafar Khan and Ghulam Hussain P. Ws. Assisted the Foot Constable in overpowering the appellant. According to the Foot Constable, the appellant fired two more shots in the air in order to release himself from his clutches, but these shots did not hit anyone. F. C. Khurshid Husain Shah, Zafar Khan and Ghulam Husain P. Ws. Then took the appellant to Police Station Naulakha and handed him over to S. I. Muhammad Shafi along with the revolver (Exh. P. 1) containing three empty cartridges (Exhs. P.2/1-3) and three live bullets (Exhs. P.3/1-3).
Zafar Khan P. W. Lodged the F. I. R. Exh. P. A. The Investigating Officer took into possession the revolver along with the empties and the live bullets vide Memo. Exh. P. B. He arrested the appellant also. On the search of the appellant a handkerchief (Exh. P. 4) was recovered which contained six live bullets (Exhs. P. 5/1-6) and the same were taken into possession vide Memo. Exh. P. C. He got prepared site plan (Exh. P. J) from Inayat Ullah Draftsman. Muhammad Jamil injured was then taken to the Mayo Hospital for medical aid. Dr. Nasir Ahmad on 21-10-1967, at 10. a. m., medically examined him and found the following injury on his person:---
(i) A fire-arm wound of entry with burnt edges at lower part of left chest, swelling around it. Patient was X-rayed and admitted in the hospital.
The injury was caused by a firearm and was grievous in nature. The duration of the injury was six hours. The Police Officer through various applications enquired from the doctor concerned whether the injured was in a fit condition to make a statement and every time the reply given by the doctor was that Muhammad Jamil injured was not in a fit condition to make any statement. Dr. Major Muhammad Khalid Chaudhary on 24-10-1967, when he was work--ing as Assistant Radiologist in Mayo Hospital, Lahore, had examined the X-ray film (Exh. P. F/2) of Muhammad Jamil deceased and his report (Exh. P. F/1) was "bullet seen on the left side". Muhammad Jamil ultimately died in the hospital on 2nd November, 1967. On the receipt of the informa--petition about the death of Muhammad Jamil, S. I. Muhammad Ibrahim (P. W. 9) reached the hospital on the same day and prepared the inquest report (Exh. P. L.) and sent the dead body for post-mortem examination.
2. On 3-11-1967, at 1-15 p. m., Dr. Nusrat Ullah conducted the post---mortem examination on the dead body of Muhammad Jamil and found the following injuries on it:-
(1) Stitched operated wound 9' long; at left hyposhondrium transversely bearing 14 stitches,
(2) Stitched operated wound 3--- long left lower chest at the level of tenth inter-costal space. It was bearing five stitches. The wound was in the healing process.
Cause of death in the opinion of the doctor was shock and haemorrhage due to bullet injury which entered the left chest from 10th inter costal space. Duration between the injury and death was 12 days, while between the death and post-mortem examination was about 16 hours. The doctor also recovered one bullet from the body of the deceased and handed over to the police in a sealed bottle which was taken into possession vide recovery memo. Exh. P. D. The Investigating Officer sent the various parcels to the Forensic Science Laboratory. According to their report, three empties and one .32 bore crime bullet recovered from the body of the deceased were fired from the .32 bore revolver (Exh. P. 1) recovered from the appellant. After the usual investigation, the present appellant was challaned under section 302, P. P. C. For the murder of Muhammad Jamil deceased. He was tried by the Additional Sessions Judge, Lahore (who vide the impugned judgment dated 29-9-1972 found him guilty under section 302, P. P. C. And sentenced him to death. He was also sentenced to pay a fine of Rs. 1,000.00 which if recovered, half of it was to go to the heirs of the deceased. The appellant has challenged his conviction and sentence through the present appeal. His case is also before us under section 374, Cr. P. C. For the confirmation of the sentence of death. This judgment will dispose of both the criminal appeal as well as the Murder Reference.
3. The appellant when examined under section 342, Cr. P. C. Denied the prosecution allegations. He even denied his statement recorded by the committing Magistrate. When asked to explain the injuries on his person, he stated that is was given a beating by Yasin and the police at the police station. When asked why this case was made out against him, he stated as under:--- "I used to repair the steel buckets (baltis) by roaming about as a pheriwala in the city. Yasin had a shop of kites (Patangs) in Bansanwala Bazar. Again said he had a shop in Krishna Gali, Gowalmandi. Jamil deceased had a shop in Bansanwala Bazar. Jamil had brotherly relations with me. About eight days before my arrest Jamil deceased took me to Yasin Bombaywala at Beadon Road in order to get his share of the money from Yasin with whom he had partnership in the business of gambling. Yasin had reduced the share of Jamil. Again said Yasin had stopped paying him any share. Jamil and I removed the dart (carpet) on which Yasin was gambling with others.
Yasin got annoyed with us and told both of us that he would teach us a lesson for what we had done. After eight days I was sitting at the shop of Yasin patang farosh in Krishna Gali. There came four persons along with a Foot Constable. They told us that Jamil and Yasin Bombaywala had quarrelled with each other. They told me further that Jamil had called me to the police station. I went to the Police Station. On reaching there I found that Jamil was not there. Yasin Bombaywala was present. The police beat me and arrested me. I have been involved in this case at the instance of Yasin Bombaywala."
4. In support of its case, the prosecution has relied upon the testimony of three eye-witnesses, namely, Zafar Khan (P. W. 12), Ghulam Husain (P. W. 14), and Khurshid Husain Shah (P. W. 15). The recoveries are also supported by these witnesses. Mr. Anwarul Haq (P. W. 11) is the Firearm Expert Forensic Science Laboratory, Lahore. According to him, the three crime shells marked as C 1 to C 3 had been fired from the revolver (Exh. P. 1). He has further stated that a .32 bore crime bullet marked as B had also been fired from the same .32 bore revolver. Haji Inayat Ullah P. W. Is the Draftsman who appeared before the committing Magistrate but died later on and consequently his statement was transferred to the Sessions File. The other witnesses are more or less formal.
5. Although the appellant in this case had produced as many as ten D. Ws., in support of his version, yet during the arguments his learned counsel did not press the defence plea. However, we have also examined the same and find that it was rightly rejected by the trial Court.
6. Since the appellant was caught red-handed on the spot alongwith the weapon of offence and was produced in the police station by the witnesses in the same condition; the learned defence counsel did not seriously contest this aspect of the case. F. C. Khurshid Husain Shah P. W. Who happened to be near the place of occurrence at the relevant time succeeded to capture the appellant red-handed along with the weapon of offence. This witness is the most independent and disinterested one. In spite of lengthy cross-examina--petition, the defence has not been able to bring out any thing to shake his testimony. He had no motive to falsely implicate the appellant.
After minutely going through his statement, we have no hesitation to believe the same. The testimony of Zafar Khan and Ghulam Hussain P. Ws. Fully supports the statement of F. C. Khurshid Hussain Shah P. W. Although Zafar Khan P. W. Claims to be partner --f the deceased, yet this will not make him an interested witness, because the defence has not been able to establish any enmity against him. Ghulam Husain P. W. Runs a tea shop near the place of occurrence. He is also a natural and independent witness. After carefully going through their statements, we find that they have been rightly believed by the trial Court. Since the occurrence in this case had taken place in broad daylight and the appellant was apprehended on the spot alongwith the weapon of offence and was straightaway taken to the police station. The learned counsel for the appellant tried to avoid this aspect of the case and did not even read the statements of these eye-witnesses, Consequently he did not argue the case on merits. However, he tried to raise a technical plea.
According to him, the statements of Dr. Nusrat Ullah, Dr. Major Muhammad Khalid Chaudhary and Dr. Nasir Ahmad P. Ws. Are inadmissible in evidence. According to him, these statements have not been formally proved. It is not denied that the statement of Dr. Nasir Ahmad was recorded as P. W.
2 by the committing Magistrate and this witness was duly cross-examined by the defence counsel.
During the trial when sum--mons were issued to this doctor at the address of Mayo Hospital, the Resident Medical Officer and the Registrar, Mayo Hospital, made the follow--ing report on the summons:--- "Dr. Nasir Ahmad Ex.-C. M. O. Has gone abroad for course arid service from 29-5-1972 forenoon:"
The above endorsement duly bears the seal of the Resident Medical Officer and the Registrar, Mayo Hospital, Lahore. Accordingly, Khurshid Ahmad Constable No. 158 returned the summons without service with the following report:- Dr. Nusrat Ullah was examined by the committing Magistrate on 5-10-1968 as P. W.
7. He could not be cross-examined and for this purpose we find the following note at the end of his statement:- "The defence counsel is busy in High Court. Therefore, the cross-examination reserved for the next date of hearing."
Later on the proceedings were adjourned due to one reason or the other. Ultimately we find the following order of the Magistrate passed on 9-6-1969:- A perusal of the above order shows that the learned counsel for the defence did not press the cross-examination of this witness before the committing Magistrate but reserved that right to cross-examine him before the Sessions Judge. During the trial the learned Additional Sessions Judge summoned this witness for 8 -9-1972. These summons came unserved with the following report dated 25-8-1972: "Dr. Nusrat Ullah has gone to U. K. For higher study. The summon may please be issued in the name of dispenser."
This endorsement is duly signed by the Head Clerk on behalf of the Surgeon Medico-Legal (Police Surgeon), Punjab, Lahore, and bears his seal. On the reverse of the summons is the following report dated 25-8-1972 by Muhammad Siddiq Constable No. 854:--- Similarly, the statement of Dr. Major Khalid Chaudhary was recorded by the committing Magistrate on 24-4-1969. He was not cross-examined although opportunity was given to the defence.
7. On the factual plane the position boils down to this that out of the three doctors one namely, Dr. Nasir Ahmad was duly cross-examine by the defence, while Dr. Major Khalid Chaudhry was not cross-examined although opportunity was duly given to the defence. In this background, no cause of grievance can possibly to the defence Moreover, Dr. Major Muhammad Khalid Chaudhary at the relevant time was working as Assistant Radiologist in the Mayo Hospital and had only examined the X-Ray film (Exh. P. F./2) of the deceased. His report was only to the following effect:--- "Bullet seen on the left side."
It may be mentioned here that subsequently at the time of post-mortem examination of the deceased, this bullet was extracted from the dead body of the deceased. The statements of these two doctors were, therefore, rightly transferred to the Sessions file. The summons for these two doctors before the Sessions Court were entrusted to Khurshid Ahmad, F. C. No. 358, who submitted his reports regarding non-availability of these doctors. He also appeared as P. W. 1 before the Sessions Court in support of his reports. In cross-examination by the defence he has stated that he had no direct knowledge regarding the non-availability of the doctors. The other objection raised on behalf of the appellant is that to prove these reports that these two doctors had gone abroad, either the author of the report himself or somebody from his office who knew his signatures should have appeared as a witness to formally prove his reports on the summons. It may be observed here that this objection is purely technical. When asked whether the said reports by the Resident Medical Officer and Registrar of the Mayo Hospital were forged or genuine ones; the learned counsel for the g appellant could not point out any doubt about the genuineness of the said reports. Rather he half-heartedly conceded that most probably the said reports were genuine, but his argument was that the same should be proved formally in accordance with law. We have given our careful consideration to this objection and find no substance in it. If this objection is accepted as correct, the only consequence will be to prolong the disposal of the case.
8. As regards the summons for Dr. Nusrat Ullah, they were entrusted to Muhammad Siddiq F. C. No. 854 and he has not been produced by the prosecution. F. C. Khurshid Ahmad in his statement has wrongly stated that he got summons for the service of Dr. Nasrat Ullah as well and that he submitted his report regarding his non-availability. The correct position is that summons for Dr. Nusrat Ullah were entrusted to F. C. Muhammad Siddiq who submitted the report as reproduced above. As mentioned earlier, the report regarding non-availability of this doctor is signed by the Head Clerk on behalf of Surgeon Medico-Legal (Police Surgeon) Punjab, Lahore. The appellant could not point out anything to doubt the genuineness of this report. It is nobody's case that these doctors were in fact available in Pakistan at the relevant time. The other objection regarding the statement of Dr. Nusrat Ullah is that on 5-10-1968 when he was examined by the committing Magistrate, he could not be cross-examined because the defence counsel was busy in the High Court. Accordingly, the cross-examination was reserved for the next date of hearing. As observed earlier, the case was adjourned several times and ultimately on 9-6-1969 the defence counsel stated that. This indicates that the appellant did not insist before the committing Magistrate that without the cross-examination of this witness the case should not be committed to the Sessions Court. On the other hand, impliedly it shows that the appellant himself gave up his right to cross- examine this doctor before the committing Court and showed his desire to cross-examine him before the Sessions Court.
It was during the teal before the Sessions Judge that this doctor went broad and could not be available for cross-examination. The objection a raised by the learned defence counsel is that without the cross-examination by the defence, the statement of this witness is incomplete. As is blear from the proceedings before the committing Magistrate, the witness could not be cross- examined, because the learned defence counsel was not available on the day when the statement of the doctor was recorded. Thus, it was due to the convenience of the learned defence counsel that the appellant could not cross-examine this witness before the committing Magistrate when his statement was recorded and subsequently he himself desired to cross-examine him before the Sessions Court. The appellant in these circumstances possibly could have no grievance in this behalf before the committing Magistrate. If during the trial before the Sessions Judge this witness went abroad and could not be available for cross-examination, nobody is to be blamed, because it was beyond the control of everyone ton make him available at that stage. Production of this witness would have resulted either in enormous expense or unnecessary delay. According to the learned counsel for the appellant, the expense or delay was immaterial and the formality of law should have been complied with at all costs. We do not agree with him, especially when the appellant himself did not cross-examine this witness before the committing Court and did not insist to do so before committing the appellant to the Sessions Court. As regards the production of F. C. Muhammad Siddiq to support his report regarding non-availability, we find that this is a pure formality.
9. A perusal of the judgment of the trial Court shows that this technical objection was also raised before it and we find that the same has been rightly rejected. We have examined the entire material available on the record and have come to the conclusion that the occurrence having taken place in broad daylight and the appellant having been apprehended red-handed on the spot along with the weapon of offence and then pro--duced in the Police Station, leave no doubt in our mind that it was the appellant who fired at the deceased as a result of which he later on died.
The eye-witnesses, especially F. C. Khurshid Husain Shah, are natural and disinterested witnesses and have been rightly believed by the trial Court. Their statements are duly corroborated by the testimony of the Firearm Expert according to whom the three empties and the crime bullet recovered from the body of the deceased were fired from the revolver (Exh. P. 1), which was recovered from the appellant. Thus, the prosecution hasp proved the guilt of the appellant beyond any shadow of doubt. Since the case against the appellant on merits stands fully established, mere technical objection should not be allowed to stand in the way of doing substantial justice. It is not denied by the learned counsel for the appellant that no prejudice has been caused to the case of the appellant due to this technical plea.
10. After minutely going through the entire material available on the record, we find that the appellant has been rightly convicted and sentenced by the trial Court. We see no legal justification to interfere with the same. Accordingly, we maintain his conviction under section 302, P. P. C. For the murder of Muhammad Jamil deceased and confirm the sentence of death awarded to him by the trial Court. The appeal is consequently dismissed.