1. HAMOODUR RAHMAN, C. J.-The petitioner along with his brother Akhtar was convicted under section 326/34 of the Pakistan Penal Code and sentenced to three years' rigorous imprisonment as also a fine of Rs. 200 or in default a further two months' rigorous imprisonment. On appeal the Additional Sessions Judge, Lahore acquitted Akhtar but maintained the conviction and sentence of the petitioner. The petitioner went up in revision to the High Court but a learned Single Judge of the High Court of West Pakistan at Lahore refused to interfere. He now seeks special leave to appeal.
2. The case against the petitioner was that on the 1st July 1968, he and his brother had attacked - one Riazul Hassan with a chhuri when the latter had gone to the tap outside the Railway Quarters to fetch drinking water. Mohammad Saleem, who was at that time- staying with his brother Abid Hussain, a Railway Fireman, in the Railway Quarters, went to the rescue of Riaz on hearing his outcries. Riazul Hassan it appears, was also then staying in the house of Abid Hussain with him. This vas at about 6-05 p.m. Saleem saw the petitioner and his brother quarrelling with Riazul Hassan.
3. The petitioner was armed with a chhuri. His brother had caught hold of Riaz and the petitioner was giving him chhuri blows. Mohammad Saleem tried to intervene but he too received a blow on his hand. He was carried to the hospital but his statement could not be recorded on that day, as he was not in a fit condition. It is claimed, however, that his statement was recorded on the next day at about 10 a. m. And a formal First Information Report was drawn up on the basis of this statement.
4. The motive alleged in the First Information Report is that a couple of days before the occurrence there had been a quarrel between Riazul Hassan on the one hand and the petitioner and his brother on the other, when they objected to Riazul Hassan taking his bath in the street under the public water-tap.
5. The petitioner and his brother, however, pleaded that Riazul Hassan was making indecent overtures to a girl living in that street and the residents of that street had sent applications against him to various authorities. The petitioner and his brother were taking an active part in this matter and it is for this reason that they had been falsely implicated.
6. That prosecution case at the trial was supported by Mohammad Saleem, his cousin Rashid Ahmad and one Abdur Rahim as also by the evidence of recovery of the chhuri at the instance of the petitioner himself. The trial Court did not rely on the recovery and also discarded the evidence of Abdur Rahim as he was not named in the First Information Report, but accepted the evidence of Mohammad Saleem and Rashid Ahmad as there did not appear to be any background of previous enmity between them and the petitioner.
7. Before the High Court it was contended that the petitioner had been seriously handicapped by reason of the fact that there was no First Information Report in this case. Mohammad Saleem himself, it was pointed out, had admitted in an answer to a question put to him by the Court that he had made to statement to the Police and that it was his brother Rashid Ahmad' who had informed him that a report had been registered.
8. Relying on the observation of this Court in the case of Siraj Din v. Kala (PLD 1964SC26) that the First Information Report was a very important document and the admission of Mohammad Saleem, it was contended, that the accused had, by the absence of an F. I. R., been deprived of the' opportunity of confronting Mohammad Saleem with it and contradicting his version given in Court.
9. Rashid Ahmad himself was an eye-witness of the incident and if he had made the statement, as stated by Saleem, he could have been confronted with it and the statement could have been used for contradicting him. This question is, however, merely of academic interest now, for, there is no material contradiction between the statement of Mohammad Saleem, and the First Information Report. Indeed, as the High Court has pointed out, Mohammad Saleem must have been in some confusion, because, when the report was read over to him he admitted that he had made it. 'It may be that when the Court questioned him he got confused and was perhaps not quite sure as to whether he had made that statement or not. But since there was no material contradiction, no prejudice has thereby been caused to the petitioner.
10. The next contention advanced in support of this petition is that the prosecution has not examined Riazul Hassan over whom the incident allegedly occurred. The prosecution is not bound to produce every witness but if a material witness is no produced without any satisfactory explanation, the Court is; of course, entitled to presume that he would not have supported the prosecution case. In spite of this inference if the Court is satisfied that the other evidence is reliable, there can be no bar to its basing the conviction upon that evidence.
11. If Riazul Hassan would have supported the defence, he could have been called on behalf of the defence. But it seems that no attempt was made on the part of the prosecution to withhold this witness. According to the statement of the petitioner himself Riazul Hassan was repeatedly summoned by the Court but he did not turn up and it is for this reason that the trial Court did not believe the motive alleged by the prosecution. Motive is, however, immaterial if the other evidence is sufficiently reliable and the present case the Courts have found the ocular testimony of Mohammad Saleem and Rashid Ahmad to be so reliable.
12. The questions now raised merely go to affect the veracity of these witnesses. These cannot constitute a valid ground for granting leave to appeal, particularly, since we are satisfied that no miscarriage of justice has taken place.
13. This petition is, accordingly, dismissed.