ASLAM RiAZ HUSSAIN, J.--This petition is directed against the appellate order of a learned Single Judge of the Lahore High Court dated 15th of November, 1976. Muhammad Saeed and Muzaffar Hussain respondents and Mazhar Hussain, co-accused, were tried by the learned Additional Sessions Judge Sahiwal for the murder of Farooq Ahmad, deceased, by judgment dated 20th of April, 1976. He convicted Muzaffar and Saeed respondents under section 302/34, P. P. C. And sentenced them to imprison--ment for life and a fine of Rs. 1,000 each and in default whereof they were to undergo six months' R. I. He acquitted Mazhar Hussain of the charge under section 302/34, P. P. C., but found him guilty of offence under section 352, P. P. C. And sentenced him to three months' R. I. Muzalfar Hussain and Saeed respondents preferred an Appeal (No. 657 of 1976) while Mazbar Hussain filed a separate Appeal (No. 492 of 1976) in the High Court against their convictions and sentences. Fazal Muhammad com--plainant filed a Criminal Revision for the enhancement of the sentence of three accused. The learned Single Judge disposed of the three matters by a single judgment dated 15th of November, 1976, whereby he accepted the two appeals filed by the convicts and dismissed the complainant's revision. The present petition is directed against the above-mentioned order acquitting Muzaffar and Muhammad Saeed respondents.
2. The F.
1. R. In this case is on the basis of a statement by Farooq Ahmad deceased himself which has been recorded in the hospital while he was still alive, It was subsequently treated as a dying declaration.
3. The prosecution version, briefly, is that on the morning of 28 of August, 1973, at about 8-30 a.m.
When Farooq Ahmad deceased was going on a bicycle on the service road of Lower Bari Doab Canal, in the area of Chak No. 78/5-R, the three accused blocked his way and felled him from theth bicycle. Saeed and Muzaffar (respondents) then inflicted knife blow on him. Thereafter all the three ran away. The motive for the attack is stated to be that two close relatives of the accused were murdered by the relatives of the deceased Muhammad Farooq was brought to the D. H. O. Hospital in an injured condition. On medical examination he was found to have five incised injuries on his person. The doctor informed the Police. A. S. I. Faizullah Khan Niazi P. W. 8, arranged for the recording of the statement of Farooq through Mr. Mansoor Ahmad Bajwa. Magistrate (P. W. 2), which was treated as his dying declaration after his death. The accused were arrested on various dates, in the following month. The prosecution case rested on: -
(1) The dying declaration of the deceased,
(2) the motive,
(3) The medical evidence,...
(4) The abscondence of the accused, and
(5) The testimony of Muhammad Aslam P. W. 9, Khan Muhammad P. W. 10 and Faqir Muhammad P.
W. 11. y,._
4. The learned trial Court disbelieved Faqir Muhammad P. W. I1 and partially accepted the testimony of Khan Muhammad P. W. 10 who was stated to be the only eye-witness in the case.
Muhammad Aslam P. W. 9 is not an eye-witness. He has only stated that he saw the three accused on the service road when he was going to his office in the morning,-- shortly before the occurrence.
5. We have heard the learned counsel for the petitioner at length an have perused the impugned judgment and gone through the relevant portion of the evidence. We feel that the learned High Court Judge has rightly disbelieved Khan Muhammad P. W. 10 and Muhammad Aslam P. W. 9 and agree with the reasons given by him for discarding their testimony. The result is that we are not left with any ocular testimony. The question that arises for decision is whether in the present case the conviction could have been maintained o the dying declaration to ether with the pieces of circumstantial evidence mentioned earlier, i.e the abscondence of the accused and medical evidence.
6. The learned counsel for the petitioners urgedvehemently that the High Court Judge had not at all adverted to the medical evidence which, according to the counsel, fully corroborates the version given in the dying declaration.. This contention overlooks the fact that the medical evidence, i.e. The presence of five incised injuries on the person of Farooq deceased could, at the most, corroborate to ascertain that he was attacked and injured with knives, but it could not be said to corroborate the state--ment of Farooq with respect to the identity of the assailants as given in the dying declaration. Moreover, In the present case the dying declaration itself is not reliable piece of evidence. The learned high Curt judge. Has given very cogent reasons in paragraph No. 11 of the impuged judgment forholding that it would not be safe to place implicit reliance on the dying declaration which (in this case) would be the statement of a interested witness, without the benefit of cross-examination". We are in respectful agreement with his reasoning as well as the conclusion reached by him with respect to the dying declaration, in this case. The result is that there is noting left to be corroborated by the remaining pieces of circumstantial evidence. In any case, it may be mentioned that the motive for the offence alleged in this case, i.e. previous enmity could easily have led the deceased to name the enemies of his family in place of the actual assailants whom he did not know previously and could not, therefore, identify.
As for the alleged abscondence of the accused, there is nothing on the record to show that they had been declared proclaimed offender. It cannot, therefore, be said that they had `absconded' merely because they were no.-I readily available to the Police.
For the foregoing reasons we do not find any merit in the petition, which is consequently dismissed.
Petition dismissed