1. NASIM HASAN SHAH, J.-This appeal by special leave to appeal is directed against the judgment dated 12-5-1976 passed by a learned Single Judge of the Lahore High Court, whereby the appeal of respondent No. 1 against the judgment of the Sessions Judge, Campbellpur was accepted and he was acquitted of the charge under section 304, Part 11, P. P. C.
2. The relevant facts are that the incident took place at late peshiwela on 16-1-1977 (Eid day) in the area of village Bhata, Tehsil Pindigheb. The deceased Umar Hayat himself lodged the F.I. R. At Makhad Police Station at 8 p.m. The same evening.
3. The prosecution case, briefly, was that on the day of occurrence, Umar Hayat after exchanging Eid greetings with his cousin, Mst. Hussain Bano in Mauza Miro, was returning to his village Mauza Bhata when he was attacked by. Muhammad Khan respondent No. 1 (armed with knife) and his cousin Anwar Khan, the acquitted accused, who was empty handed. The latter allegedly caught hold of the deceased by his hair, while Muhammad Khan allegedly inflicted three knife bellows on the body of deceased including an injury on the finger which the deceased sustained in an attempt to ward off the attack. The alarm raised by the deceased attracted Qalandar Khan, P. W. 10 and Ghulam Hussain, P. W. 11, both of whom are related to each other. The deceased was the son-in-law of Ghulam Hassan P. W.
4. Umar Hayat was first taken to the Police Station to lodge the F.I. R. And, subsequently, removed to the hospital where his dying statement was recorded at 11-35 a.m. By Maqsood Rabbani, Naib- Tehsildar in the presence of A. S. I. Muhammad Sadiq and Dr. Muhammad Rafiq, who had certified as to the fitness of the deceased to make the said declaration. As to motive, the deceased stated that three years prior to the present occurrence Muhammad Khan respondent No: 1, was found by the deceased in a compromising position with Mst. Rahmat Jan wife of Musalli Khan the brother- in-law of the deceased, which resulted in an altercation between the two and Muhammad Khan felt disgraced by the notoriety given to this incident.
5. Muhammad Khan respondent No. 1, was arrested on 20-1-1973 and led to the recovery of the blood-stained knife (Exh. P. 3) in the presence of Farash Din and Mian Muhammad (both of whom were initially not produced on the ground of having been won over) and the Investigating Officer himself: According to the report of the. Serologist, the blood found on the knife had disintegrated. At the trial, the ocular evidence was furnished by Qalandar Khan and Ghulam Hassain P. Ws.
6. Qalandar Khan is also stated to have attested the recovery memo in respect of the knife Exh. P. 3 and the blood--stained earth.
7. Muhammad Khan respondent and Anwar Khan acquitted accused pleaded innocence and averred that they had been implicated in this case due to enmity. The learned trial Judge discarded the recovery of the knife for the reason that since the two alleged recovery witnesses had not been produced at the trial, the evidence of the Police Officer lacked independent corroboration on this point. The motive against Muhammad Khan alone believed on the ground that Ghulam Hussain P. W. (the father-in-was law of Mst. Rehmat Jan) had also supported it and that he would never have done so unless the story about the illicit relationship between the respondent and Mst. Rehmat Jan had been true.
8. The dying declaration Exh. P. R. Was also disbelieved by the learned trial Judge as being doubtful in view of the conflicting statement made by Doctor Muhammad Sadiq and Naib-Tehsildar Maqsood Rabbani as to whether the deceased spoke in Pashto or Punjabi. However, the learned trial Judge relied upon the ocular evidence as supported by the medical evidence and the contents of the F. I.
9. R. But only in so far as it implicated Muhammad Khan respondent. Notwithstanding, the respondent was not imputed the intention to cause death in view of the seat and the nature of the injuries sustained by the deceased and it was held that he was at the most guilty of culpable homicide not amounting to murder. Consequently, he convicted the respondent under section 304, Part II, P. P. C.
10. And sentenced him to ten years' R. I. Or in default of payment thereof further R. I. For two years.
11. Anwar Khan was given the benefit of doubt and acquitted.
12. On appeal by the respondent and revision petition filed by the com--plainant, the learned Judge in the High Court was of the view that trial Judge was in error in placing reliance on the ocular evidence of Ghulam Hassan and Qalandar Khan P. Ws. Without any corroboration in view of admitted fact of their relationship with the deceased coupled with the fact of enmity between them and side of the respondent and particularly so when the evidence of Ghulam Hassan P. W.
13. Had been disbelieved by the trial Court so far as the recovery of knife and allegation against Anwar Khan were concerned. Further the learned Judge was of the view that the statement of the deceased contained in the F. I. R. Had been wrongly relied upon by the trial Court for the reason that since the deceased had been disbelieved in respect of Anwar Khan, sanctity of such evidence stood completely destroyed regarding the present respondent also. Thus, the learned Judge was of the opinion that without any piece of corroborative evidence it would be unsafe to maintain the conviction of respondent Muhammad Khan solely on the basis of the testimony of two eye- witnesses who were not only inimical and interested but also did not inspire confidence in view of the glaring contradictions. In the result, the appeal was accepted and the revision filed for the conversion of the conviction of Mohammad Khan under section 304, Part 11, P. P. C. To that of under section 302, P. P. C. Was dismissed by Judgment dated 21-5-1976.
14. Aggrieved by the above judgment, the petitioner moved a petition for leave to appeal before this Court and it was, inter alia, contended that the learned Judge in the High Court had fallen into error by discarding a very vital piece of evidence viz., the dying declaration made in the presence of disinterested witnesses simply on the ground of some discrepancy on the question whether the deceased spoke in Punjabi or Pashto, especially as the Doctor was not confronted with his previous statement on this point. Leave to appeal was granted to consider the question whether the dying statement of the deceased had been rightly discarded and to consider why the conviction and sentence recorded by the trial Court should not be restored.
15. We have heard Ch. Nazir Ahmad, learned counsel for the appellant, who has taken us through the relevant record. We are inclined to agree with the learned Judge in the High Court that the ocular evidence furnished by Qalandar Khan P. W. 10 and Ghulam Hussain P. W. 11 was that of partisan and interested witnesses and after they had implicated totally innocent person namely, Anwar Khan their evidence was suspect. So far as the evidence o motive is concerned which was relied upon by the learned trial Judge a furnishing corroboration to the ocular testimony it was rightly pointed out that the motive in this case was double-edged in the sense that if it could have led Mohammad Khan to commit the crime it was also possible to argue that because of it he had been wrongly implicated. In fact as pointed out by the learned Judge in the High Court, the motive in this case was hard sufficient to burden the respondent with the commission of the crime and, in fact, if anybody was aggrieved by the act of Mohammad Khan, it would be the complainant party and not Mohammad Khan. Similarly, the recovery of blood-stained knife at the instance of Mohammad Khan could not b relied upon not only because the recovery witnesses had not appeared to support it at the trial but also because the place of recovery was accessibleto the general public and even the recovery memo had been fabricated.His is apparent from the evidence of Fazal Abbas P. MI. 12 who admitted that both the thumb impressions on the recovery memo were that of P. W. Mian Mohammad alone. Thus, the only evidence left for consideration was the dying declaration. This was rejected by the learned trial Judge on the ground that whereas in the evidence of Doctor Mohammad Rafiq P. W. 4, Umar Hayat was stated to have spoken in Pashto while making the dyin declaration, while the person accompanying by him translated it in Punjabi.
16. Mr. Maqsood Rabbani P. W. 5, Naib-Tehsildar, who was a Third Clas Magistrate and who recorded the dying declaration (even though under the rules he was not competent to do so as an officer lower than Second Class Magistrate cannot do so clearly stated that the dying declaration was made in Panjabi. In view of this conflict, the authenticity of the dying declaration was considered doubtful and this piece of evidence was not depended upon for "want of sanctity".
17. Before us, it was argued that there was only one person present with the injured Umar Hayat at the time of making the dying declaration and the evidence of the Doctor that he had made the dying statement in Pashto which was translated by his companion in Panjabi was false. He also submitted that the role of the Doctor was most unsatisfactory as he had refused to certify the injured Umar Hayat as being fit to make the dying declaration and it was at the insistence of the police that he had reluctantly certified Umar Hayat to be a fit person to make dying declaration, which was then recorded at 8-30 p.m. In these circumstances, the Doctor's evidence that the dying declaration was made in Pashto should be ignored and the statement of the Naib-Tehsildar (Mr. Maqsood Rabbani should be preferred.
18. We have considered this aspect of the case and find that the questions raised pertains purely to the appreciation of the evidence and in view of this conflict in the evidence the view taken that the dying declaration was not reliable, was a possible view. Even otherwise, we feel that in view of the nature of the case where an innocent person was also involved and the evidence of partisan and interested witnesses is generally unsatisfactory ands in the dying declaration, the innocent man (Anwar Khan) has also been involved not much reliance can be placed on it. As we are not satisfied that the judgment of the High Court in acquitting Mohammad Khan has resulted in gross miscarriage of justice, this appeal must, therefore, fail and is dismissed hereby. Mohammad Khan will be set at liberty forthwith if not required in any other case.