1. M. R. KHAN, J.-This appeal, as of right, has been preferred by Ejaz Hussain, Sher Muhammad and Muhammad Ashraf against the order of the High Court convicting and sentencing them after setting aside the trial Court's order of acquittal.
2. These three appellants, along with Muhammad Nawaz, were tried under section 302/34 of the Pakistan Penal Code for having committed the murder of Muhammad Asghar and under sec--tion 324/34 of the Code for causing simple injuries to P. W. 15 Abdul Haq. The learned Additional Sessions Judge, Lyallpur, acquitted all of them. The State filed an appeal against the order of acquittal. The appeal proceeded against the present three appellants, but Muhammad Nawaz the other acquitted accused disappeared before his arrest could be secured after the admission of the State appeal.
3. The prosecution case was that the appellants Ejaz Hussain, Sher Muhammad, Muhammad Ashraf and their co-accused Muhammad Nawaz were employed in the Crescent Textile Mills, Lyallpur.
4. Muhammad Asghar, deceased used to run a tea-stall in front of the main gate of the Crescent Textile Mills, on the opposite side of the road. The appellants used to take tea on credit at the tea- stall of the deceased. On that score, Ejaz Hussain, Sher Muhammad and Muhammad Ashraf owed the deceased Rs. 128, Rs. 180 and Rs. 118, respectively. On the 10th of March 1964, at about 10 or 11 a. m., Ejaz Hussain, Sher Muhammad and Muhammad Ashraf came to the deceased's tea-stall. The deceased then demanded his dues from them as also an account book said to have been taken away by Ejaz Hussain on the 5th March 1964 on the pretext of verifying the accounts. The appellants disowned the debt and refused to return the account book whereupon an altercation ensued between the deceased and the appellants, but Abdul Haq (P. W. 15) and Syed Muhammad Asghar (P. W. 18), who were present there, intervened and separated them. The appellants then went away towards the gate of the Crescent Textile Mills saying that they would teach the deceased a leason.
5. On the same day, at about 1-30 p. m., Ejaz Hussain, Sher Muhammad and Muhammad Ashraf, along with Muhammad Nawaz, came to the tea-stall of the deceased, raising lalkara. Of them, Ejaz Hussain pulled down Muhammad Asghar, deceased from his tea-stall. Sher Muhammad then gave him three knife blows on his back and the flank. P. W. 15 Abdul Haq, who was then sitting closeby, picked up a piece of wood and gave a blow with it to Sher Muhammad which hit his left arm.
6. Muhammad Ashraf then caught hold of P. W. 15 Abdul Haq whereupon Muhammad Nawaz gave him two knife blows. This occurrence was said to have been witnessed by Muhammad Zaman (P.
7. W. 14), Abdul Haq (P. W. 15), Syed Muhammad Asghar (P. W. 18) and Siraj Din (P. W. 19). As these witnesses raised alarm, the appellants ran away and entered the Crescent Textile Mills.
8. P. W. Muhammad Zaman placed both the deceased and P. W. Abdul Haq in a tonga and took them to the Lyallpur City Hospital. They reached the hospital at about 2-30 p. m. About half an hour thereafter, Dr. Abdul Hamid Sabir (P. W. 1) examined Muhammad Asghar and found the following injuries on his person "(1) A stab wound, 1" x --" x 2", on the left side of the chest back, 4" from the axillary margin. Air was coming out of the lungs and the wound was profusely bleeding.
(2) A stab wound, 3/4" x --" x 1", on the back side of the chest, 2" from injury No. 1.
(3) An incised wound, 2" x -- " x 1", on the back .Mid line 3 --" below the neck."
9. On the same day, at 3-45 p.m., the same doctor examined P. W. Abdul Haq and found the following injuries on his person; "(1) A stab wound, 1-- " x --" x 3" deep on the back lower part just near the mid line on left side horizontal in position. The wound was profusely bleeding.
(2) A lacerated wound -- " x-- " on the upper part of the right ear."
10. After the examination of the injured, the doctor sent a ruqqa (Exh. P. C.) to the Police Station Civil Lines, Lyallpur informing them about the condition of Muhammad Asgbar deceased. On the receipt of this ruqqa, Head Constable Tajammal Hussain (P. W. 17) went to the hospital and, on the doctor's certificate that Muhammad Asgbar was then in a fit condition to make a state--ment, recorded his statement (Exh. P. L.) at his dictation at 4-50 p. m., the same day and sent it to the Police station for drawing up a formal First Information Report on its basis. After coming to know of this occurrence, Muhammad Azam, the Assistant Sub-Inspector of Police (P. W. 20) took up the investigation. He collected blood-stained earth from the spot and, on the pointing out of Sher Muhammad, secured a knife and his chadar and shirt from an obscure place and also another knife on the pointing out of Muhammad Nawaz. These articles and the earth collected from the spot were sent for examination. The blood on all these articles except the earth disintegrated. The earth; however, was found to be stained with human blood.
11. Sher Muhammad was arrested on the 10th March 1964. He was examined by Dr. Abdul Wahid (P. W.
12. 2). On examination, the doctor found a painful swelling on his left forearm and two abrasions.
13. Muhammad Asghar died on the 10th March 1964 as a result of the stab injuries. On post-mortem examination of his dead body, the same stab injuries had been noticed which had been found on his person while he was alive. After the death of Muhammad Asghar, his statement, which formed the basis of the F. I. R., was treated to be his dying declaration.
14. The prosecution case rested on the direct evidence of P. Ws. Muhammad Zaman, Abdul Haq, Syed Muhammad Asghar and Siraj Din, the dying declaration of the deceased and the recovery of the knife, the shirt and the chadar of Sher Muhammad at his instance. The learned trial Judge, for the reasons stated by him, was of the opinion that the presence of the three eye--witnesses, Muhammad Zaman, Syed Muhammad Asghar and Siraj Din was doubtful. He, however, believed the presence of the injured P. W. Abdul Haq, but could not rely even on his evidence as he thought that his evidence remained uncorroborated. Having discarded the evidence of the eye-witnesses, the learned trial Judge acquitted all the accused persons. The learned Judges of the High Court, however, were of the view that the finding of the trial Judge was not only unreasonable but also perverse. They found all the eye-witnesses to be disinterested and gave full credit to their evidence. They were of the view that the recoveries made in this case, the dying declaration and the medical evidence showing injuries on the person of P. W. Abdul Haq and the appellant Sher Muhammad sufficiently corroborated the evidence of the eye-witnesses. Accordingly, the learned Judges found that the charges against the appellants were fully established. They, therefore, set aside the order of acquittal, convicted them under sections 302/34 and 324/34 of the Code and sentenced them to transportation for life, each under the former section and to one year's rigorous imprisonment, each under the latter section with the direction that the sentences would run concurrently.
15. Mr. M. Rafiq Butt, learned counsel for the appellants placed before us the entire evidence on record.
16. The learned counsel attempted to support the view of the trial Court with regard to the evidence of the eye-witnesses. It appears from the evidence on record that none of the P. Ws. Nos. 14, 15, 18 and 19, who claimed to have seen the occurrence, was interested in the deceased, nor was any one of them inimical towards the appellants or any of them. P. W. Muhammad Zaman was a labourer in the Sadiq Textile Mills, Lyallpur. On the date of the occurrence, he had gone to the Crescent Textile Mills and waited outside the gate of that mill in order to meet his friend Munir Hussain who was a worker in that mill. He fully supported the prosecution case in all material particulars. P. W. Abdul Haq who himself sustained a knife injury on his back, also fully supported the prosecution case attributing to the appellants the different parts played by them. He himself having sustained a stab injury on the back, there could be no reason for doubting his evidence. Syed Muhammad Asghar (P. W. 18) was a labourer in the Crescent Textile Mills. He was washing clothes at a place in the close proximity of the tea-stall of the deceased. His presence at the place was also natural. Siraj Din had a cycle repairing shop near the Crescent Textile Mills and was therefore an equally natural witness to the occurrence. He also fully supported the prosecution case. All these witnesses were cross- examined at length, but nothing could be elicited by cross-examination which could go to affect the basic truth of their evidence. The learned Additional Sessions Judge doubted the evidence of Muhammad Zaman mainly on the ground that his clothes were not stained with blood although he claimed to have taken the deceased and the injured P. W. Abdul Haq to the hospital in a tonga. This was hardly a cogent ground for discarding the evidence of Muhammad Zaman who, according to the doctor himself, was in the hospital in the company of the deceased. Therefore, his presence at the place of occurrence could not be doubted. The evidence of P. W. Syed Muhammad Asghar was discarded by the trial Court on the ground that his evidence was not consistent as regards the washing of clothes by him. He stated in examination-in-chief that at the time of occurrence he was washing his clothes by the side of the khal at a distance of about 3 feet from the tea-stall, but in cross---examination be stated that at that time he was not washing the clothes but was standing there. It appears that there was no real discrepancy in his statement as regards the washing of clothes as he said that he had already completed the washing just before the occurrence, P. W, Siraj Din was not considered by the trial Court to be an eye-witness inasmuch as his position was not shown at a proper place in the site plan. This was hardly a valid ground for rejecting his evidence. The learned trial Judge, of course, could not disbelieve the presence of P. W. Abdul Haq as he himself sustained a stab injury, but his evidence was not accepted by him for want of corroboration. The medical evidence as regards the stab injury sustained by P. W. Abdul Haq is itself a corroborative evidence. Moreover, the medical evidence showing that a painful swelling was there on the left forearm of Sher Muhammad clearly corroborated the evidence of P. W. Abdul Haq who stated that in order to rescue the deceased he had thrown a piece of wood which hit the left arm of Sher Muhammad. Also the dying declaration of the deceased furnished corroboration wherein allegation was made against all the three appellants and Muhammad Nawaz and the names of all the four eye-witnesses were mentioned. It is contended that the dying declaration is of no value as it was not recorded either by a Magistrate or the doctor present in the hospital. It is true that the statement of the deceased was recorded on the 10th March 1964, by the Head Constable, but the reason for this appears to be that in the ruqqa (Exh. P. C.) the doctor did not inform the police that the deceased's death was imminent. Apparently, the statement of the deceased was recorded by the Head Constable to utilise it as a basis for a formal F. I. R. And was not initially intended to be used as a dying declaration. In this circumstance, the value of the dying declaration, though recorded by the Head Constable, did no diminish. The learned trial Judge, however, did not realise that Abdul Haq was entirely an independent witness and, as such, no corroboration of his evidence was really necessary.' However, the materials were there to corroborate his evidence and that of the other eye-witnesses. The learned Judges of the High Court were, therefore, right in disagreeing with the view of the trial Court and rightly accepted the evidence of all the eye-witnesses. They also believed the recovery of blood-stained knife, the chadar and the shirt of Sher Muhammad, although the origin of the blood could not be determined as it had disintegrated. In this case, the direct evidence of the disinterested eye-witnesses was convincing and their evidence hardly required corroboration by the opinion of the Serologist. The evidence on record was sufficient to establish the charges against the appellants and they were rightly convicted and sentenced by the High Court after setting 'aside the order of acquittal.
17. In the result, I would dismiss the appeal.