1. SALAHUDDIN AHMED, J.-This appeal by special leave is from an order of the Lahore High Court altering the conviction of the appellant from under section 302/149, P. P. C. To one under section 302/34 of the Pakistan Penal Code, and confirming the sentences of death passed on each of them. Their conviction and sentences as well as the convictions of seven other convicts under section 148 of the Code were also maintained but the sentences of imprisonment of one year's rigorous imprisonment each there under of the said seven convicts were reduced to the period already undergone by them.
2. The occurrence took place on the 2nd of August, 1968, at about 7-30 a.m. In which two persons viz., Rahmat and Asghar were killed. According to the prosecution case Muhammad Din, father of a girl called Surayya, had com--plained to Asghar (one of the deceased) 3/4 days before the occurrence that Muhammad Sadiq had been causing annoyance to the girl and that this should be put a stop to. Asghar asked Muhammad Sadiq not to come there. Muhammad Sadiq did not pay heed to the warning and came again near the residence of Muhammad Din earlier on the day of occurrence, and there was an altercation between him and Asghar over the matter and it was followed by a fight between them. P. W. Hakam Beg, father of Asghar intervened and separated the parties. After some time while Asghar was giving water to his buffalo at the well of a mosque close to his house, and P. W. Mustafa was standing nearby, the accused persons including the two appellants came from the bazar side. The appellants were armed with pistols. The accused started throwing brick-bats at Asghar as a result of which he was injured. P. Ws. Muhammad Tufail and Mustafa raised an alarm. They were both injured at the occurrence, the former had a contusion on the left eye-brew and an abrasion on the left upper lip, and the latter and three contused wounds near the left eye and on middle of the left upper lips and five abrasions on middle of left eye-brew, back of right hand, back of left elbow, right shoulder blade and back of left hand. Asgher ran to his cattle-shed and came back with a Phaura and he was fired at by Muhammad Sadiq with a pistol.
3. The shot missed Asghar and accidentally hit Rahmat (the other deceased) who was then returning from the mosque. Rahmat fell down. Asghar advanced towards appellant Akhtaruzzaman, and the latter fired at the former with a pistol. It appears, however, that Asghar succeeded in giving a Phaura blow to Akhtaruzzaman. In the meantime P. Ws. Mst. Resham Bibi and Hakam Beg, mother and father respectively of Asghar deceased, had also arrived and seen the occurrence. P. W. Mst.
4. Resham was also injured on the head with a brick-bat. Each of the appellants fired once again but ineffectively. All the assailants then escaped in a waiting tonga. Asghar and Rehmat were still alive and they were removed in a tonga to the Civil Hospital, three miles away from the spot.
5. Subsequently, the other three injured persons also went to the hospital. P. W. Hakam Beg then went to the City Police Station and lodged a first information report at 9-45 a.m. The same day.
6. The medical evidence revealed that Asghar deceased had a bullet wound of entry in the abdominal cavity and a bullet wound of exit 1/2" x 1/2" on the back of trunk on the left side 3" from the spine and about 6" below the angle of shoulder bone. Asghar had also suffered four contused wounds, two of them being on the head. According to the medical evidence Rahmat was found to have a bullet wound of entry 1/4' x 1/4" penetrating the epigastrium. There was blackening and tattooing of the skin around the wound. A bullet from the posterior chest was recovered. The medical evidence also disclosed that P. W. Ghulam Mustafa had eight injuries including three contused wounds 7/8" x 1/8" X 1/8" over the left parietal region, 4 -- " behind left eye-brew and 4" above the left ear, 1/8" x 1/8" X 1/8" just below outer part of left eye and a third one 1/4" x 1/4" X 1/4" on middle of left upper lip. P. W. Muhammad Tufail according to medical evidence had contused wound 1/2 X 1/8" X -- on the middle of left eye-brew and an abrasion 1/4" X 1/8" on the middle of left upper lip. According to the medical evidence Mst. Resham Bibi had a swelling in the centre of head.
7. Medical evidence also showed that appellant Akhtaruzzaman suffered a contused wound 3 --" X 1 /3" X scalp deep on left parietal region and there was bleeding from the nose and mouth, and he was vomitting blood.
8. The appellants denied the charges levelled against them. Appellant Sadiq, however, took up a plea of alibi and said that he was at the time of the alleged occurrence present in his office in the National Industrial Co-operative Bank where he was employed, and he examined an official of the bank D. W. Khadim Hussain in support of his plea. Appellant Akhtaruzzaman also stated that he had been falsely implicated due to enmity with P. W. Ghulam Musfata. The said appellant further stated that he was injured with a spade by P. W. Ghulam Mustafa and that a complaint had been instituted against the said witness. From the suggestion given to P. W. Ghulam Mustafa it appears that the appellants' grievance was against Ghulam Nabi, brother of P. W. Ghulam Mustafa, for having engaged one Zahoor, who had left the joint business with the said appellant after having misappropriated some money belonging to the latter.
9. The prosecution has relied in support of its case upon the ocular evidence furnished by P. Ws.
10. Ghulam Mustafa and Tufail, both of whom were injured at the occurrence. It also relied on the dying statements of the two deceased, Rahmat A.I and Muhammad Asghar, recorded by P. W. Dr. Muhammad Bashir. The prosecution also relied upon the evidence of the recovery of two revolvers at the instance of the two appellants, and the recovery of a bullet from the body of Rahmat deceased.
11. Having regard to the injuries suffered by P. Ws. Ghulam Mustafa and Muhammad Tufail their presence at the occurrence could not be doubted. Appellant Akhtaruzzaman alias Akree has admitted the presence of P. W. Ghulam Mustafa at the occurrence. No reasonable ground has been suggested as to why their evidence should not have been accepted.
12. The ocular evidence has received ample corroboration from the medical evidence which disclosed that the two deceased had received injuries with a revolver. It may be mentioned here that the revolver seized from Akhtaruz--zaman was never sent to the Ballistic Expert although the revolver P.
13. 2 seize from Muhammad Sadiq and the bullet recovered from the body of Rehmat were sent to the expert for examination. The expert found that the revolver sent to him was of '32 bore while the bullet was of '38 bore. The evidence of the expert lends support to the prosecution case that both the deceased had been fired at by revolvers. It may be mentioned that the revolver found at the instance of appellant Akhtaruzzaman was of '38 bore. It is indeed curious that this revolver was not sent to the expert for examination. The two dying statements were recorded by the doctor and they supported the ocular evidence although the dying statement of Rehmat did not mention any assailant, except saying that they were `Niaras' by case. The names of the assailants were, I however, mentioned in Asghar's dying statement.
14. The fact that the box which contained revolver P. 2 recovered at the instance of appellant Sadiq was opened with the key which had been earlier seized from appellant Sadiq, lent strong corroboration to the ocular evidence implicating Sadiq.
15. The non-examination of P. W. Mst. Resham Bibi in the facts and circum--stances of the case does not in any way affect the prosecution case. The medical evidence proved that she was found injured. She was tendered for cross---examination but the defence declined to cross-examine her.
16. The learned Judges of the High Court have not relied upon the evidence of P. W. Hakam Beg and I do not have anything to say against this. Even the learned counsel appearing for the State conceded that Hakam Beg was not an eye--witness. The elimination of his evidence has not caused harm to the prosecution case.
17. Mr. Manzoor Qadir learned counsel for the appellants has, however, pointed out certain infirmities in the prosecution evidence and has argued that they have affected the prosecution case. The infirmities are as follows:-
(1) Inconsistency about the time of occurrence as contained in the dying statement of Rahmat deceased and the other evidence.
(2) Rehmat deceased did not name any assailant.
(3) As regards the identity of the person who was complained against by the father of Surayya, Asghar deceased merely mentioned Sadiq Kumhar. Furthermore as Asghar told Sadiq "this is our Mohalla, do not come here", and this indicated that Sadiq was a person other than appellant Sadiq for the latter lived in the very Mohalla of Asghar deceased.
(4) It was improbable for Asghar to return to his house in course of the occurrence `and come back only with a Phaura to fight with the assailants who were armed with revolvers.
(5) The evidence of the defence witness supported the alibi of appellant Sadiq.
18. I do not think that the so-called infirmities have, in any way, caused harm to the prosecution case.
19. As regards the time of occurrence, it may be stated that the first information report was lodged at 9 a.m. And the police officer, who recorded the report was not challenged upon the time of the report. It appears from the doctor's evidence that he had examined at the hospital Asghar at 9-25 a.m. And Rehmat at 9-45 a.m. On the 2nd of August, 1968 i.e. The date of occurrence. This shows that the time of the report as given in the first information report is correct. That being so, the time of occur--rence as given in the first information report namely, 7-30 a.m. Appears to be correct.
20. I have already said that non-mention of the assailants by Rehmat decease did not detract from the other evidence about the identity of the assailants.
21. As regards the identity of the assailants there are the evidence of the eye-witnesses and the statement of Asghar deceased. The occurrence took place in broad daylight and there was no suggestion of any mistake in the identity. It is highly improbable that Asghar being a neighbour of Muhammad Sadiq appellant as well as of the father of the girl Surayya would not know the man complained against by the father of the girl. It was never suggested to any of the witnesses that the man complained against by the father of the girl was a person other than Sadiq. I do not think that the non-examination of the father in the facts and circumstances of the case should afford a reasonable ground for the inference that if he had been examined he would not have supported the prosecution case of motive.
22. As regards No. 4, having regard to the clear evidence furnished by the eye-witnesses and the medical evidence it has been proved that Asghar really had a `Phaura' in his hand at the time of the occurrence. The medical evidence proves that appellant Akhtaruzzaman was injured with a Phaura.
23. As regards the alibi of Muhammad Sadiq the evidence shows that the distance between the bank and the place of occurrence is only 2 or 3 furlongs and it was quite possible for Muhammad Sadiq to have been present at the place of occurrence at 7-30 a.m. And soon after go to his work in the bank at 8 a.m. Besides, D. W. 1 the Bank Manager never appeared before the police. It seems he appeared at the trial for the first time. The ocular evidence which I have no reason to disbelieve and which have been corrobo--rated in material particulars established the presence of Muhammad Sadiq at the place of occurrence. In these circumstances both the trial Court and the High Court have rightly refused to accept the alibi.
24. Mr. Manzoor Qadir has further contended that in view of the medical evidence if appellant Akhtaruzzaman had received the Phaura injury first, it would not have been possible for him to fire thereafter and then to leave the scene of occurrence. The ocular evidence showed that, the firing at Asghar by this appellant and the attack on him by Asghar deceased was almost simultaneous.
25. The evidence of P. W. Dr. Bashir is that after the appellant had received that injury it was less probable and was not likely that he would be able to inflict any injury. To a Court's question however, the doctor said that if the fire-arm was in the hand of the are appellant he might fire and cause injury. The medical evidence in my opinion, has thus not affected the prosecution evidence about Akhtaruzzaman having fired at Asghar.
26. HAMOODUR RAHMAN, C. J.-I agree.
27. MUHAMMAD GUL, J.-I agree.