' Arshad alias Ashraf, Mahmood Ahmad alias Moodi and Mukhtar alias Tara were tried by the learned Sessions Judge, Gujranwala, under section 302/34, P.P.C. For the murder of Zulfiqar, deceased. The learned trial Judge, by his judgment, dated 12-3-1983, convicted Arshad accused under section 304-1, P.P.C. And sentenced him to undergo imprisonment for life and to pay a fine of Rupees Ten Thousand (Rs,10,000) or in deafult thereof to undergo further rigorous imprisonment for three years, he convicted Mukhtar Ahmad accused under section 325, P.P.C. And sentenced him to rigorous imprisonment for three years and to pay a fine of Rupees Five Thousand (Rs,5,000) or in default of payment thereof to undergo further rigorous imprisonment for one and a half year and he convicted Mahmood Ahmad, accused, under section 324, P.P.C. And sentenced him to two years rigorous imprisonment and to pay a fine of Rupees Three Thousand (Rs,3,000) or in default thereof to undergo further rigorous imprisonment for nine months. Out of the fine if realized, four/fifths was ordered to be paid to the legal heirs of Zulfiqar, deceased, as compensation. The benefit of section 382-B, Cr.P.C. Was also granted to the three accused. The appeal (Criminal Appeal No, 159 of 1983), preferred by Arshad, convict, against his conviction and sentence alone is now before me for disposal.
2. The prosecution case as disclosed is that the three accused and deceased were co-villagers. A few days prior to the occurrence, the three accused, on one side, and the deceased, on the other, exchanged abuses and due to that episode the former remained in search of an opportunity to settle their account with the latter. On 23-8-1981 at 11-30 a.m., Javaid Mahmood complainant P.W.11, with Tariq Mahmood (won over P.W.) and Muhammad Salim (won over P.W.) was coming from his home after taking his meals and when he was near the shop of Iqbal (won over P.W.), Arshad and Mahmood Ahmad, accused, armed with Chhuris, and Mukhtar, accused, armed with a brick in his hand, encircled Zulfiqar, deceased. The attack was opened by Mukhtar, accused, and he pelted the brick, which hit the face of the deceased, as a result of which his two teeth got dislocated. Arshad, accused, caused injury in the abdomen and the deceased fell down on the ground and thereafter, Mahmood Ahmad, accused, caused two injuries to the deceased with his Chhuri on back and right arm. The deceased showed courage and stood up and ran towards the fields, but fell down. The deceased was employed as a 'Rairah' driver with Javaid Mahmood complainant P.W.11, who alongwith his brother-in-law Tariq Mahmood (won over P.W.) and another relative Mahmood Salim (won over P.W.) also saw the occurrence when they were going towards the main road. The accused chased the deceased when he ran towards the fields after receiving afore-mentioned injuries, but due to the alarm raised by the witnesses, the accused did not cause any more injury, but went away roar the scene of occurrence, with their weapons.
3. The same day at 12-15 noon Dr. Muhammad Zahir P.W.2 medically examined Zulfiqar injured and found his lips swollen, with both upper central incisers missing and sockets bleedings, a stab wound 6 c.m. x 11 c.m. Going deep on the right side of umbilicus with the intestines protruding cut, an incised wound 61 c.m. x 1 c.m. Muscle deep on middle of back of right upper arm and an incised wound 2 c.m. x c.m. x muscle deep on the inner left scapula. The injury on the mouth was grievous, whereas the stab wound in the abdomen was declared to be dangerous to life. The probable duration between injuries and medical examination was half an hour.
4. On receipt of information, Muhammad Yousaf A.S.I. P.W .13 reached the Civil Hospital Gujranwala where he recorded the statement Exh.P.F. Of Javaid Mahmood P.W.11 at 5-00 p.m. On the basis of the said statement, formal F.I.R. Exh.P.F/1 was recorded at Police Station Saddar Gujranwala at 6-05 p.m. By Ghulam Rasool A.S.I. P.W.3. The police officer could not record the statement of Zulfiqar injured as he was unfit to make a statement. The police officer then proceeded to the spot, from where he collected blood-stained earth, which he made into a sealed parcel vide memo. P.L.
5. On 25-8-1981, Muhammad Yousaf A.S.I. P.W.13 recorded the statement Exh.P.O. Of Zulfiqar, deceased, under section 161, Cr.P.C., after Dr. Muhammad Zahir P.W.2 recorded his note Exh.P.C/1 on application Exh.P.C. That the deceased was fit to make a statement.
6. Since the condition of Zulfiqar injured was precarious, Muhammad Yousaf A.S.I. P.W.13 submitted an application Exh.P.D. Before the Additional Deputy Commissioner (G) for having his statement recorded by a Magistrate. Mr. Mohammad Asghar Qureshi M.I.C. P.W.7 was deputed to record the statement, who went to the hospital at 3-3K p.m. And recorded the statement Exh.P.E. Of Zulfiqar, deceased, under section 164, Cr.P.C., after which he secured the thumb-impression Exh.P.E/1 and the signature Exh.P.E/2 of the deceased on the said statement. Before recording the statement, the Magistrate secured the certificate Exh.P.D/1 of Dr. Muhammd Zahir P.W.2 to the effect that the injured .Was fit to make a statement. After recording the statement, the said doctor also certified vide his endorsement. Exh.P.H. That the injured remained conscious during the period that his statement was recorded. The statement of the deceased was recorded in the presence of the said doctor.
7. The same day all the three accused were arrested.
8. On 28-8-1981, Arshad, accused, led to the recovery of a bloodstained Chhuri P.1, which was taken into possession vide memo. P.M., in the presence of Muhammad Nazir P.W.9, Inayat Ullah P.W.10 and Muhammad Yousaf A.S.I. P.W.13.
9. On 30-8-1981, Mahmood, accused led to the recovery of a bloodstained Chhuri P.5, which was taken into possession vide memo. P.Q, in the presence of Muhammad Yousaf A.S.I. P.W.13 and Abdul Majid and Muhammad Yaqoob (given up P.W.).
10. On 13-9-1981 at 2-30 a.m. Zulfiqar Ali died in the hospital. On the same day, Dr. Gulzar Ahmad P.W.14 conducted the post-mortem examination on the dead body and found the same injuries on his person as were found earlier by Dr. Muhammad Zahir P.W.2. Deat was due to toxaemia as a result of septic peritonitis, which had set due to the stab wound in the abdomen. This injury was sufficient cause death in the ordinary course of nature. Probable duration between injuries and death was twenty-one days and that between death and post-mortem examination about ten hours.
11. The learned trial Judge convicted and sentenced the three accused on the ocular testimony furnished by Javaid Mahmood P.W.11 coupled with the dying declarations Exh.P.O. And Exh.P.E. Made by Zulfiqar, deceased, before Muhammad Yousaf A.S.I. P.W.13 and Mr. Muhammad Asghar Qureshi M.I.C. P W .7, respectively.
12. Mahmood Ahmad and Mukhtar, accused, who were convicted on minor offences and sentenced to short terms of imprisonment have not filed any appeals. Arshad, accused, alone has filed an appeal, which is before me.
13. I have heard the arguments of the learned counsel for the appellant and the State and have also perused the record. The whole case hinges on the testimony of Javaid Mahmood P.W.11 and the two dying declarations Exh.P.O. And P.E. Made by Zulfiqar, deceased, before Muhammad Yousaf A.S.I. P.W.13 and Mr. Muhammad Asghar Qureshi, M.I.C. P.W.7. Javaid Mahmood P.W.11 is not well- disposed towards Arshad, appellant, and Mahmood, convicted accused. He admitted in cross- examination that Mst. Shahnaz, sister of Arshad, appellant, used to weave carpets for him, that some time back her father had levelled allegations against him for attempting to commit rape with Mst. Shahnaz, in respect of which he was summoned in the Police Station and Arshad, appellant, and Mahmood, convicted accused, were witnesses against him in that case. According to his testimony, he and Tariq Mahrnood (won over P.W.) resided in the same house and had a joint shop and on the day of occurrence he with Tariq Mahmood P.W. And Muhammd Salim (won over P.W.), after taking their meals in their house, were going towards their shop, when they saw the occurrence in the street of the Bazar. According to his cross-examination, his shop was situated on the Gujranwala Road, which was five-six Killas away from the place of occurrence. Javaid Mahmood P.W.11 took the deceased to the District Headquarters Hospital Gujranwala, with the assistance of his companions. He is, therefore, a natural witness. However, since he bears animosity against Arshad, appellant, his statement would require corroboration.
14. The dying declarations Exh.P.O. And P.E. Recorded at the instance of Zulfiqar, deceased, are proved by Muhammad Yousaf A.S.1. P.W.13 and Mr. Muhammad Asghar Qureshi, M.I.C. P.W.7. It is true that Javaid Mahmood P.W. 11 admitted in cross-examination that he was present on the day when the Magistrate came to record the statement of Zulfiqar, deceased, and that he had informed the deceased that he should make a statement before the Magistrate on lines similar to what he had made before the police, but he was not present when Zulfiqar, deceased, made his statement Exh.P.O. Before Muhammad Yousaf A.S.I. P.W.13 or had at any stage informed the deceased that when he was to make his statement before the said police officer, he was to do so also on lines similar to his statement Exh.P.F. Made before the said police officer. I have perused both the statements Exh.P.O. And P.E. Of Zulfiqar, deceased, and find that they appear to be simple, straightforward statements of a person who is injured and who is giving the bare details of the case. When both the said statements were recorded, the relatives and friends of the deceased were not present there; they having been made to leave the room. The statements appear to be natural and striaghtforward and have the ring of truth. The said statements corroborate the version given by Javaid Mahmood P.W.11.
15. The upshot of the above discussion is that the ocular account furnished by Javaid Mahmood P.W.11, coupled with the dying declarations made by Zulfiqar, deceased, together with the recovery of the bloodstained Chhuri at the instance of this appellant and the medical testimony, prove the case to the hilt against this appellant. Arshad, appellant, therefore, appears to have been properly convicted and sentenced.
16. There being no merit in this appeal, the same is dismissed.