1. M. R. KHAN, J.-Mohammad Aslam, Raja and Arsala were tried by the Additional Sessions Judge, Rawalpindi, for the murder of Nur Dad, a Head Constable and for attempting to commit the murder of Mehdi Khan, a Foot Constable. The learned trial Judge convicted Mohammad Aslam under section 302 of the Pakistan Penal Code and sentenced him to death, but acquitted Raja and Arsala altogether. Mohammad Aslam appealed to the High Court of West Pakistan, Lahore, against his conviction and sentence, being Criminal Appeal No. 458 of 1966. A reference was also made for confirmation of Aslam's sentence of death.
2. On behalf of the State, Criminal Appeal No. 784 of 1966 was preferred against the trial Court's order acquitting Raja and Arsala. The High Court dismissed the State appeal as against Arsala but admitted it against Raja for regular hearing.
3. Criminal Appeals Nos. 458 of 1966 and 784 of 1966 and the death reference were heard together by a Division Bench of the High Court and were disposed of by a single judgment. The learned Judges dismissed the appeal of Mohammad Aslam and confirmed his death sentence. They, however, accepted the appeal of the State against the acquittal of Raja. Accordingly, they convicted Raja under section 307 of the Pakistan Penal Code and sentenced him to rigorous imprisonment for 7 years.
4. Aslam was separately tried for an offence under section 13 of the West Pakistan Arms Ordinance, 1965 and sentenced to one year's rigorous imprisonment. He preferred Criminal Appeal No. 459 of 1966 to the High Court against his conviction and sentence under the Arms Ordinance.
5. Raja also was tried separately for an offence under section 13 of the said Ordinance and was convicted and sentenced to one year's rigorous imprisonment. Against this conviction and sentence, he preferred Criminal Appeal No. 469 of 1966.
6. Aslam filed two separate petitions for special leave to appeal one of which was directed against his conviction and sentence under section 302 of the Pakistan Penal Code and the other against his conviction and sentence under section 13 of the Arms Ordinance. Leave in both these petitions was granted, and the appeals arising out of them are Criminal Appeals Nos. 58 and 59 of 1969.
7. Raja also filed two separate petitions for special leave to appeal against his convictions and sentences under section 307 of the Pakistan Penal Code and section 13 of the Arms Ordinance.
8. Leave was granted in these petitions as well, and the appeals arising out of them are Criminal Appeals Nos. 60 and 61 of 1969.
9. All these four appeals namely, Criminal Appeals Nos. 58, 59, 60 and 61 of 1969 were heard together, and this judgment will dispose of all of them.
10. The facts which are common to all these appeals are as follows Nur Dad (deceased) was in charge of the Police Post at Nasirabad, Rawalpindi. Mehdi Khan (P. W.
11. 15) was posted as Foot Constable in the said police post. On the 11th of January 1966, at about 3-00 p.m., Mehdi Khan was on gusht in front of Kohinoor Mills, G. T. Road, Rawalpindi. Nur Dad, deceased was then present at the bus stand in front of Kohinoor Mills, along with Ali Akhtar Patwari (P. W. 18).
12. Mehdi Khan, Ali Akhtar and Nur Dad started together from the bus stand and went towards the guest house of the Kohinoor Mills. They met Muhammad Iqbal (P. W. 17) and Muhammad Miskin (P.
13. W. 19) in front of the guest house. Nur Dad, Muhammad Iqbal and Muhammad Miskin stood on the left side of the road leading from Peshawar to Rawalpindi, while Mehdi Khan and Ali Akhtar stood on the other side of the road. In the meanwhile, the appellants Aslam and Raja along with Arsala came from the side of Nasira--bad. While at a distance of about 6/7 karams from Nur Dad and others, they shouted lalkara at Nur Dad and immediately thereafter Aslam came forward and fired a shot from a pistol at Nur Dad which hit the latter in his abdomen as a result of which he fell down.
14. Mehdi Khan warned Aslam and his co-accused whereupon Raja fired at him from his pistol, but he was not hit. Mehdi Khan then started running towards the Kohinoor Mills and the assailants chased him for some distance. Mehdi Khan entered the Kohinoor Mills and thereby saved himself. The assailants then made good their escape. From the Kohinoor Mills Mehdi Khan contacted the Cantonment Police Station over telephone and reported the incident. Mehdi Khan then came back to the place of occurrence and found that Nur Dad was lying senseless. The victim was carried by two foot constables in injured condition to the Civil Hospital, Rawalpindi where he expired.
15. The telephonic message about the murder of Nur Dad sent by Mehdi Khan was received by Nisar Haider Shah, A. S. I. He recorded the message the same day at 3-32 p. m. And immediately thereafter came to the spot and took into possession one cap, one belt, a board containing some papers and one crime empty (Exh. P. 18) from the spot. The crime empty was then made into a sealed parcel. He then recorded the statements of Mehdi Khan, Muhammad Iqbal, Ali Akhtar and Miskin. On the same day, at about 4-30 p.m., Malik Waris Khan, S. H. O. Cantonment Police Station received information about the murder of Nur Dad. He went to the spot and took over the investi-- gation. He sent the dead body of Nur Dad to the mortuary for post-mortem examination. The crime-empty (Exh. P. 18) was sent to the Arms Expert for examination.
16. According to the prosecution, sometime before the occur--occurrence, Nur Dad as Head Constable in charge of the Police Post at Nasirabad, had registered a case under section 392 of the Pakistan Penal Code against the appellant Aslam. Nur Dad had registered yet another case under section 452 of the Pakistan Penal Code against Anwar, brother of the appellant Raja. The accused in those cases were challaned, and this was said to have provided a motive for commission of the offences by Aslam and Raja.
17. On post-mortem examination, one fire-arm injury was found on the left side of the deceased's abdomen which had caused extensive damage. The lead of a bullet (Exh. P. 17) was found stuck up in the body of the deceased. The doctor extracted it from the dead body and made it over to the investigation officer. This crime bullet was also sent to the Arms Expert for examination.
18. On the 19th January 1966, at about 2-30 a.m., Malik Muhammad Waris, S. H. O. Received a secret information that Aslam and Raja would proceed from Dhoke Gujjran to Bakramandi, Rawalpindi after sehri time. That was the month of Ramazan. On receipt of this information, the S. H. O., along with some other police officials and P. Ws. Amir Khan and Muhammad Akram, proceeded to Bakramandi and held anakubandi there. At about 6-00 a. m., Aslam and Raja appeared there when they were encircled by the police party. Both of them were arrested. One revolver (Exh. P. 10) and five live bullets were recovered from the person of Aslam. From the person of Raja, one pistol (Exh. P. 12) and 7 live bullets were recovered in the presence of P. Ws. Amir Khan and Muhammad Akram both of whom became witnesses to the recovery memos, namely, Exh. P-H and Exh. P-J.
19. Both the revolver and the pistol were then sent to the Arms Expert for examination.
20. After necessary examination, the Arms Expert gave the opinion that the crime bullet (Exh. P. 17) was fired from the revolver (Exh. P-10) which had been secured from the parson of Aslam. His further opinion was that the crime empty (Exh. P. 18) was fired from the pistol (Exh. P. 12) recovered from the person of Raja.
21. At the trial, both Aslam and Raja pleaded innocence and alleged that they had been implicated in the case out of suspicion. Raja examined one witness in defence to prove his alleged alibi. The prosecution produced Mehdi Khan (P. W. 15), Muhammad Iqbal (P. W. 17), Ali Akhtar (P. W. 18) and Miskin (P. W. 19) as witnesses who had actually seen the occurrence. Of them, Ali Akhtar and Miskin made certain statements in examination in-chief which were damaging to the prosecution case.
22. Accord--ingly, they were declared hostile and were cross-examined by the public prosecutor with the permission of the trial Court. Both Ali Akhtar and Miskin had deposed in the committing Court fully supporting the prosecution case. Both of them were confronted with their statements made in the committing Court and those statements were then transferred to the Sessions record under section 288 of the Code of Criminal Procedure.
23. Mehdi Khan (P. W. 15) gave evidence fully supporting the prosecution. He stated that he and P. W.
24. Ali Akhtar were standing on one side of the G. T. Road in front of the guest house of the Kohinoor Mills, whereas Nur Dad, deceased and P. Ws. Iqbal and Miskin were standing on the other side of the road at the time of the occurrence. As they were standing in that position, Aslam and Raja came there. After giving a lalkara, Aslam at once fired a shot at Nur Dad from his pistol which hit him in the abdomen. As he warned the assailants, Raja fired a shot from his pistol at him, but it missed. He further stated that he started running away being chased by Aslam and Raja and took shelter in the Kohinoor Mills and from there telephoned the Cantonment Police Station about the occurrence.
25. This telephonic message was recorded by A. S. I. Nisar Haider Shah (P. W. 20) at 3-32 p. m. And was treated as F. I. R. In this case. This message which was sent without the least delay fully corroborated the statement of Mehdi Khan at the trial. The names of P. Ws. Iqbal, Ali Akhtar and Miskin were mentioned in the recorded message as eye-witnesses to the occurrence.
26. Mr. Saleem, learned counsel for the appellant Aslam submitted that the High Court erred in treating Mehdi Khan to be an independent witness, for he was one of the persons against whom Aslam had filed a complaint under sections 392, 379 and 323 of the Penal Code. The record of the case started on that complaint was produced before the trial Court by Raja Abdur Rahman (P. W. 10). It is true that Aslam filed a complaint against a number of persons including Mehdi Khan. But the evidence of P. W. 10 indicates that Mehdi Khan was not summoned in that case up to the time of the present occurrence. Hence, it can not be said that Mehdi Khan had an animus against Aslam at the relevant time on account of the aforesaid complaint.
27. Referring to the statement of Mehdi Khan under section 161, Cr. P. C., the learned counsel contended that Mehdi Khan went to the Police Post after he had sent the telephonic message, but he suppressed it at the trial. The apparent purpose of this conten--tion of the learned counsel is to show that Mehdi Khan was in league with the Police. But this contention is of no substance. Mehdi Khan sent the telephonic message to the Cantonment Police Station which is at a distance of 4 miles and not to the Police Post at Nasirabad. Therefore his visit to the police post to which he was attached was nothing unnatural. At any rate, Mehdi Khan's attention was not drawn to his police statement as regards his visit to the police post. Hence, the evidence of Mehdi Khan does not deserve to be discredited for the reason put forward by the learned counsel.
28. P. W. Iqbal (P. W. 17) fully supported the statement of Mehdi Khan made at the trial. He was definite that Aslam gave a lalkara and fired a pistol shot which hit the abdomen of Nur Dad and that on being warned by Mehdi Khan, Raja fired a pistol shot at him, but it was ineffective. According to this witness, Aslam and Raja chased Mehdi Khan. The crime empty (P. 18) was recovered from the spot by the A. S. I. In his presence and he became a witness to the recovery memo. Exh. P. G. The occurrence, as stated by him, had been witnessed also by P. Ws. Ali Akhtar and Miskin.
29. Mr. Saleem contended that the evidence of P. W. Iqbal is no worthy of any credit in as much as he was under the influence of the police. In his cross-examination, Iqbal admitted that three criminal cases were pending against him at the relevant time and that he had been released on bail about 10 or 15 days before the occurrence. Learned counsel wanted to deduce from this that police secured release of Iqbal on bail in order to get his support to the prosecution case. Iqbal denied the suggestion that he had been bailed out at the instance of the police. It is true that he was involved in some criminal cases and was even convicted in 1964 for an offence under section 307 of the Pakistan Penal Code, but there is no room for doubt that Iqbal was present at the place of occurrence as his name was mentioned in the very telephonic message sent by Mehdi Khan to the police station without any loss of time, moreover, he was examined by the A. S. I. (P. W. 20) on the spot, and he himself became one of the witnesses to the recovery of the crime-empty (P. 18) from the spot. Hence it cannot be said that the Courts below were wrong in accepting the evidence of Iqbal as true, although he may not be a man of respectable standing.
30. Ali Akhtar (P. W. 18) stated at the trial that he saw that a shot was fired at Nur Dad which hit him in the abdomen. He however, could not say who had fired that shot. Thereupon he was declared hostile and cross-examined. His attention was drawn to his statement made in the committing Court, and that statement was transferred to the Sessions file under section 288 of the Criminal Procedure Code.
31. Miskin (P. W. 19) also deposed that Nur Dad sustained a fire-arm injury, but could not say who had fired the shot. He was also confronted with his statement in the committing Court, and that statement was similarly transferred to the Sessions file under section 288 of the Criminal Procedure Code. It is significant that both the P. Ws. Ali Akhtar and Miskin admitted their presence near the place of occurrence. Their names were also mentioned in the telephonic message sent by Mehdi Khan to the police station. It is also significant that both these witnesses admitted in examination- in-chief that they were witnesses to the recovery memo. Relating to the crime empty (Exh. P. 18) which was recovered from the spot soon after the occurrence. P. W. Ali Akhtar admitted to have put his signature in the recovery memo. (Exh. P. G) and P. W. Miskin admitted to have thumb-marked that recovery memo. Furthermore, both of them, as stated by the A. S. I. Nisar Haider Shah, were examined under section 161 of the Criminal Procedure Code on the spot. It is thus abundantly clear that both these witnesses, though they were obliged to make some statement favourable to the accused persons, were present at the place of occurrence at the relevant time. Their statements in the committing Court as transferred under section 288 of the Criminal Procedure Code can be treated as evidence in this case for all purposes subject to the provisions of the Evidence Act. In the committing Court, both the P. Ws. Ali Akhtar and Miskin categorically stated that Aslam fired a pistol shot at Nur Dad which hit the left side of his abdomen and that Raja fired a shot at Mehdi Khan, but it did not hit him. They were cross-examined in tic committing Court at length, but their evidence in the main remained unshaken. Hence the statement of Ali Akhtar and Miskin in the committing Court can be taken as fully corroborating the evidence of Mehdi Khan and that of Muhammad Iqbal.
32. Malik Muhammad Waris, S. H. O. (P. W. 21) gave a detailed account as to how he and the other police officials arrested Aslam and Raja in the early morning of the 1966, in the presence of Amir Khan (P. W. 13) and Muhammad Akram (P. W. 14). Having received a secret information about the movement of Aslam and Raja towards Rawalpindi, the police party held a nakabandi and arrested them near Bakramandi after sehri time on the 19th January 1966. The revolver (Exh. P. 10) with 5 live cartridges were recovered from the person of Aslam as per recovery memo. (Exh. P. H), while the pistol (P. 12) with 7 live bullets were recovered from the person of Raja as per recovery memo. (Exh.
33. P. G). These recoveries were made in the presence of P. Ws. Amir Khan and Muhammad Akram both of whom signed the recovery Memos. Mr. Saleem challenged the alleged recovery of the weapons from Aslam and Raja and contends that the recovery memos. Produced in the trial Court were not the recovery memos. Which had been prepared at the time of the recovery. In support of this contention, he referred to the evidence of P. W. 13 Amir Khan who stated "I think the revolver was recovered from Raja accused with 5/6 bullets. From Aslam accused a pistol was recovered probably with 7 bullets."
34. From the above statement of Amir Khan (P. W. 13), learned counsel wanted to say that the revolver was recovered from Raja and the pistol from Aslam, but the recovery memos. Show the contrary. It is true that this witness attempted to attribute the pistol to Aslam and the revolver to Raja, but his statement was not positive. However, this witness definitely stated that the two recovery memos.
35. Had been read out to him by the investigating officer and it was thereafter that he put his signature thereon. On this point, the evidence of Muhammad Akram (P. W. 14) is definite. He was sure that the revolver was recovered from the person of Aslam and the pistol from the person of Raja. He put his signature in both the recovery memos. The evidence of the S. H. O. And that of P. W. Muhammad Akram leaves no room for controversy that the revolver was recovered from Aslam and the pistol from Raja.
36. According to the evidence of both Amir Khan and Muhammad Akram, both the revolver and the pistol were made into separate sealed parcels in their presence. It appears from the letter of the Senior Superintendent of Police, Rawalpindi (Exh. D. A) that the crime bullet (Exh. P. 17) and the crime empty (Exh. P. 18) were sent to the Arms Export on the 17th January 1966. Next, it appears from the letter of the Senior Superin--tendent of Police (Exh. D-A/I'V) that the sealed parcels containing the revolver and the pistol along with live bullets were sent to the Arms Expert on the 22nd January 1966.The evidence of Ch. Muhammad Nawaz (P. W. 4), a police official shows that the weapons and bullets were duly sent to the Arms Expert for examination. The Arms Expert Mr. Muhammad Din who deposed as P. W. 12 gave the opinion that he crime bullet (Exh. P. 17) had been fired from the revolver (Exh. P. 10). He was further of the opinion that the crime empty (Exh. P. 18) was fired from the pistol (P. 12). He gave reasons in support of his opinion. Thus the opinion of the Arms Expert provides a very strong corroborative evidence in support of the prosecution case that Aslam fired the fatal revolver shot at Nur Dad and that Raja fired an ineffective pistol shot at Mehdi Khan.
37. Mr. Saleem challenged the correctness of the opinion of the Arms Expert. The learned counsel contended that the Arms Expert fired only one test bullet from the revolver, whereas one test bullet, in the opinion of Major Sir Gerald Burrard as stated in his book entitled "The Identification of Firearms and Forensic Ballistics", is not enough for carrying out a test. It is true that Sir Burrard has suggested more than one test bullet. But he does not appear to have maintained that any opinion formed by an Arms Expert after microscopic comparison of one test bullet with the crime bullet should be rejected. What Sir Burrard has stated in this regard at page 148 of his book is: "So, on the whole, I am inclined to think that from the point of view of `bullet evidence' alone the best number of test bullets is probably three."
38. The above quotation from Sir Burrard's book does not necessarily mean that the opinion formed on the basis of one test bullet has no value.
39. Learned counsel then submitted that the opinion of the Arms Expert in this case suffers from infirmity as he did not take Photographs of the crime bullets and the test bullet. In support of this contention, reference was made to the opinion of Sir Burrard at page 154 of his book which is as follows: "But even if the investigator is satisfied in his own mind that he has married the `crime' bullet to the suspect weapon, more evidence is needed to satisfy a jury. Such evidence can only lie provided by means of photographs taken through the microscope, and probably the best plea is to make up a series of composite photograph . . . . . . . ."
40. It will be noticed from the above quotation that photographs, even in the opinion of Sir Burrard, are needed to satisfy the jury. This implies that photographs are not so essential for the investigator's own satisfaction as he obtains satisfaction and forms opinion on microscopic comparison of the crime bullet with the test bullet. However, Sir Burrard himself at page 177of his book doubted about the accuracy of photographs because of distortion. He said: "For this reason it is impossible to obtain any accurate comparison of the size or position of two objects by means of photographs."
41. "For this reason I must confess that I have never been entirely happy in my own mind about the employment of composite photographs of fired bullets and cartridge cases as evidence of identity."
42. As already stated, photographs of crime and test bullets, in the opinion of Sir Burrard, are needed to satisfy the jury. In the present case, the Arms Expert also said the same thing. He stated: "The bullet or empties are actually compared under the comparison microscope in each and every detail and then opinion is formed. The photographs are only for the illustration to the Court."
43. Nevertheless, the Arms Expert here did, in fact, take a composite photograph of the crime bullet (P.
44. 17) and test bullet (P. 20) which is on the record of the Sessions case. In his evidence, he, mentioned about this composite photograph. Therefore, then opinion of the Arms Expert that the crime bullet (P. 17) extracted, from the dead body of Nur Dad was fired from the revolver' (P. 10) recovered from the appellant Aslam which is based ors reason holds good and can not be rejected on the grounds as; alleged by Mr. Saleem.
45. The Arms Expert, no doubt, admitted that he did not take photographs of the crime empty (Exh. P.
46. 18) recovered from the spot and the test empty (P. 19) fired by him from the pistol (P. 12) recovered from Raja. But he found similarities between the said crime empty and the test empty on as many as ten counts. His opinion that the crime empty (P. 18) was fired from the pistol recovered from the appellant Raja, therefore, equally holds good.
47. Mr. Saleem then criticised the evidence of Mehdi Khan with regard to the weapon alleged to have been used by Aslam. Mehdi Khan stated that Aslam had fired a shot at Nur Dad, deceased from a pistol. As this witness did not attribute any revolver to Aslam, the learned counsel contended that Aslam is entitled to a benefit of doubt because the death of Nur Dad was caused by a shot from a revolver and not from a pistol. It is common knowledge that a pistol and a revolver are similar in size and that the real difference between them can be ascertained only after an examination of the weapons themselves. When a shot at the deceased was fired all of a sudden, it was quite likely on the part of Mehdi Khan and, for that matter, on the part of any other eye-witness to make a confusion about the exact nature of the weapon carried by the assailants and to treat the weapon used by Aslam as a pistol instead of a revolver. In fact, P. W. Iqbal one of the eye--witnesses of the occurrence also made the same confusion and stated that both Aslam and Raja had been armed with pistols. Also P. W. Ali Akhtar who turned hostile had stated in the committing Court that both Aslam and Raja fired shots from pistols. It thus appears that these witnesses took the weapons in the hands of As Jam and Raja to be pistols, although the weapon used by Aslam was found on evidence to be a revolver. The evidence of Mehdi Khan and the other eye-witnesses with regard to the nature of the weapon used by Aslam is, therefore, of no assistance to the defence.
48. Mr. Saleem next contended that the recovery of the revolver from Aslam was doubtful inasmuch as two empty shells were found in its chamber by the Arms Expert, whereas the witnesses to the recovery stated that the revolver with five live cartridges had been recovered from the person of Aslam. It is true that two empty shells were found by the Arms Expert in the chamber of the revolver, and no explanation about it was offered by the prosecution. But one significant fact that has come to notice in this connection is that only three out of the five live bullets recovered from the person of Aslam were sent to the Arms Expert along with the revolver. This fact goes to show that two out of the five seized bullets had been fired from the revolver by some one before their dispatch to the Arms Expert. Be that as it may, when the crime bullet extracted from the dead body was found to have been fired from the revolver seized from Aslam, it is immaterial how the two empty shells found their way into the chamber of that revolver.
49. Having regard to the evidence discussed hereinbefore, it cannot be said that Courts below were wrong in holding that it was Aslam who had fired a shot from the revolver and thereby caused the death of Nur Dad. Aslam was, therefore, rightly held guilty of the offence of murder. As regards penalty, Mr. Saleem submitted that Aslam was sentenced to death on the 14th June 1966 and that he has been suffering from the pangs of death since then. It is on this ground that the sentence of death, according to the learned counsel, deserves to be altered to one for transportation for life. It is true that the sentence of death was passed on Aslam more than 3 2 years ago. During these years, he has no doubt, suffered from the agony of death. But it is for the executive Government to decide whether the death sentence should be commuted on that ground. As, however, the sentence of death is a legal sentence in this case the same should be maintained. Aslam's appeal against the High Court's order confirming the sentence of death, therefore, fails. The revolver recovered from the person of Aslam was unlicensed. Accordingly his appeal against his conviction and sentence for possession of an unlicensed revolver is liable to be dismissed.
50. As regards the appellant Raja, the trial Court disbelieved the plea of alibi taken by him and found on evidence that he was present at the place of occurrence and fired a shot from a pistol after a warning had been given by Mehdi Khan. The trial Court, however, acquitted Raja on the view that he had fired a shot from his pistol not in an attempt to kill Mehdi Khan but to scare him away. The learned Judges of the High Court disagreed with the trial Court as to the intention of Raja in firing a shot from his pistol. According t9 them, Raja fired a pistol shot at Mehdi Khan in an attempt to kill him as he intervened immediately after the fatal blow to Nur Dad. All the eye-witnesses including Mehdi Khan unanimously stated that Raja had fired a pistol shot at Mehdi Khan but it missed him. 7 hey were also unanimous that the pistol shot was -fired at Mehdi Khan as soon as he held out a challenge. In view of this evidence, it cannot be said that the learned Judges of the High Court were wrong in taking the view that Raja had fired a pistol shot in an attempt to kill Mehdi Khan.
51. The grievance of Dr. Tassadduque Hussain, learned counsel for Raja was that the High Court did not consider the evidence of D. W. 1 who had been examined to prove the plea of alibi taken by Raja. It is true that the learned Judges did not specifically refer to the evidence of D. W. 1 Faiz Ahmad examined on behalf of Raja. The trial Court, however, on a consideration of the evidence as a whole, rejected the evidence of D. W. 1 Faiz Ahmad who was the time-keeper of the Kohinoor Mills at the material time. This witness stated that Raja who was employed in the said mills attended the mills on the date of occurrence and that, according to a note on the attendance card, he left the mills at 3-02 p. m. Relying on this evidence, it was contended that Raja was not present at the place of occurrence. To that end, the learned counsel also referred to the statement of Mirza Khan (P. W. 2) as regards the probable time of the occurrence and that of Mehdi Khan that the laborers of the Kohinoor Mills had not started coming out of the mills at the time of his entry therein. It is to be remembered that the time of the occurrence mentioned by Mehdi Khan, P. W. Mirza Khan and the other witnesses was only an approximate time. When Mehdi Khan and the other eye-- witnesses were definite that Raja was in the company of Aslam at the time of the occurrence in front of the Kohinoor Mills Guest House and that Raja also had fired a pistol shot, his presence, in spite of the evidence of D. W.1, cannot be doubted, and the trial Court rightly refused to put any reliance on the evidence of D. W.
1. Moreover, the evidence of the Arms Expert that the crime empty recovered from the spot matched Raja's pistol goes to show that Raja was present at the time of the occurrence and fired a shot at Mehdi Khan as stated by the eye-witnesses.
52. The next contention of Dr. Tassadduque Hussain was that the learned Judges erred in convicting Raja under section 307 of the Pakistan Penal Code as no charge under that section was framed against him. It is true that no specific charge under section 307 was framed against Raja, but it appears that he was clearly accused of having made an attempt to commit the murder of Mehdi Khan by pistol shot. The prosecution evidence was led to that effect. It appears that Raja was asked both in the committing Court and the trial Court if he had fired a pistol shot at Mehdi Khan as he shouted out because of Aslam's firing at Nur Dad. Raja, of course, answered this question in the negative in both the Courts, but he was clearly aware of the definite accusation leveled against him personally. The trial Court's judgment shows that the trial was held for several offences including the offences of murder and an attempt to commit murder under sections 302 and 307, respec--tively. The appeal preferred on behalf of the State was one against the trial Court's order acquitting Raja of an offence under section 307 of the Pakistan Penal Code. Lastly, Raja himself made a petition for special leave to appeal against his conviction and sentence under section 307.
53. Thus, Raja was all along aware that he was tried for an offence under section 307 of the Pakistan Penal Code, although no charge under that section was expressly framed against him. This was nothing but an omission of a formal charge under section 307 of the Pakistan Penal Code in respect of Raja. As he was already aware of the exact nature of the accusation against him, no prejudice was caused to him by the omission of a charge under section 307 against him. In view of the provisions of section 535 and clause (b) of section 537 of the Code of Criminal Procedure, as introduced by the Code of Criminal Procedure (West Pakistan Amendment) Act, 1964, the omission to frame a formal charge under section 307 against Raja is of no consequence, and his conviction and sentence under that section cannot be called in question only on the ground of that omission.
54. As Raja was found to have fired a pistol shot at; Mehdi Khan in an attempt to kill him, his appeal against his conviction and sentence under section 307 of the Pakistan Penal Code is liable to be dismissed. Also his appeal against his conviction and sentence for illegal possession of a pistol is liable to be dismissed as the pistol recovered from him was unlicensed.