1. ABDt1. RASHID, C~ J.--This is an appeal, by special leave, from a decision of & High Court of Judicature at Lahore affirming the conviction of the appellant under section 304, Part 11 of the Pakistan Penal Code, and sentence of seven years' rigorous imprisonment awarded to him by the Sessions Judge of Mianwali.
2. The material facts of the case may be shortly stated. On the afternoon of the 25th July, Jana (P. W.
3. 8) was given a beating by Muhammad Afzal appellant. He went to the police station, and made a.
4. Report. On his return from the police station, he went to the shop of Abdul Majid and his partner Ata Ullah. Ata Muhammad deceased as present at this shop. Jana told these three persons that Afzal appellant had given him a beating. They all sympathized with him. Ata Muhammad deceased sent for Yaqub, brother of Afzal appellant and told him of the occurrence. An altercation took place between Ata Muhammad and Yaquh Khan. Ata Muhammad took hold of Yaqub Khan from hip hair, and the latter retaliated by catching hold of Ata Muhammad's hair. The other persons present caught hold of Yaqub Khatt and gave him one or two Jap, He raised an alarm and asked his brother Af!A for help. Al'/,al came to the scene of occurrence and stabbed the deceased in the right flank. The matter wits not reported to the police on that day because there was some talk of a compromise, but as the condition of the injured person deteriorated he was taken to the police station at 10 a.m., on the following day and made a report to Raja Abdul Majid, Assistant Sub- inspector of Police. Shortly afterwards, Ata Muhammad died.
5. The case for the Crown depends principally op the testimony of three eye witnesses namely, Ata Ullah (P. W. 6), Abdul Majid (P. W. 7) and Jana (P. W. 8). In the Court of the Committing Magistrate these witnesses fully supported the prosecution version and implicated the appellant in the assault made on Ata Muhammad deceased. At the trial before the Sessions Judge the witnesses resiled from their previous statements and tried to make out that Ata Muhammad deceased had been attacked by .An unknown person whom they were not able to identify with any degree of certainty.
6. The Public Prosecutor, after the statement of Ata Ullah (P. W. 6) had been recorded by the learned Session. Judge, asked permission to cross-examine the witness on the ground that he had been won over. He was allowed to do so. Ata Ullah then deposed that both his state--ments, that is, the one at the trial and the other in the Court of the Committing Magistrate:, were correct. After Ata Ullah had been cross-examines at length by the Public Prosecutor, and he stuck to his statement that the assailant of the deceased was a person who had muffled his face and that he was not able to identify him, the Public Prosecutor made a request that the statement made by the witness in the Court of the Committing Magistrate `be transferred to the record of the Sessions Judge under section 288 of the Code of Criminal Procedure. The learned Sessions Judge passed an order in respect of this matter in the following terms: - "The previous statement of Ata Ullah P. W. Made in the Court of the Committing Magistrate is transferred to the Sessions file subject to decision of objection raised by counsel for the accused."
7. Thereafter the statement made by Ata Ullah in the Court of the Committing Magistrate was read out and admitted in evidence, and was transferred to the Sessions file. A note to this effect was made below the statement made by the witness in the Court of the Committing Magistrate. The same procedure was followed in respect of the statements of Abdul Majid (P. W. 7) and Jana (P. W.
8. 8).
9. The principal point urged by the counsel for the appellant was that it cannot be held that the statements made by the three eye-witnesses to the Court of the Committing Magistrate had become a part and 'parcel of the evidence before the Sessions Judge. It was urged by counsel that as the statements had been transferred to the Sessions file subject to the decision of the objection raised by counsel for the accused, and as this objection had never been decided, the transfer of the statements to the record of the Sessions Court was of no legal effect, and the statements made by these witnesses before the Committing Magistrate could not be treated as evidence in the case. In our opinion, this contention is wholly devoid of force. The learned Sessions Judge actually had the statements made by the witnesses in the Committing Court read out. He made a note on each of those statements that they had been transferred to the Sessions file after being read out. The words "subject to decision of objection raised by the counsel of the accused" are difficult to follow, but it appears to us that the learned Sessions Judge was of the opinion that if at the time of the arguments the counsel for the accused raises any objection to the transfer of these statements, that objection will be taken into consideration and a finding given thereon. The record of the learned Sessions Judge does not indicate that he was of the view that these statements would be taken to have been transferred only after the objection raised by the defence counsel had been decided. In fact, even in his judgment the learned Sessions Judge states that the state-- ments of the eye-witnesses were transferred to the Sessions file subject to the objection of the counsel for the defence. This appears to show that the meaning of the learned Sessions Judge was that it was open to the defence counsel to raise any objection at the time of arguments. As no precise objection seems to have been raised or pressed, the learned Sessions Judge relied on these statements in convicting the accused. In our opinion, the statements of the three eye- witnesses made before the Committing Magistrate and transferred to the Sessions file must be regarded as evidence in the case together with the statements made by these witnesses before the Sessions Judge.
10. Witnesses who make one statement before the Committing Magistrate and alter that in material particulars when appearing before the Sessions Judge must in the very nature of things be regarded as unreliable witnesses. It is incumbent on the Court, therefore, to exercise great caution in examining the various statements of such witnesses. If, after careful scrutiny, the, Sessions Judge and the learned Judges of the High Court reach the conclusion that the statements made by the witnesses before the Committing Magistrate were true, and that these statements had deliberately been altered in favour of the accused at the, trial, there is nothing in law to prevent the trial Court and the High Court from relying on the statements made by the witnesses ' in the Court of the Committing Magistrate.
11. In the present case, the Sessions Judge and the learned Judges of the High Court have given adequate reasons for relying on the statements of the witnesses made in the Court of the Committing Magistrate in preference to those made by them in the Sessions Court. In doing so, the learned Judges of the High Court have not committed any violation of any principle of natural justice.
12. It was urged on behalf of the defence that there was no material on the record to come to the conclusion on that there had been a compromise between the parties or that the witnesses had been bribed. The remarks made by the learned Judges in this respect have not influenced them in preferring the statements made by the witnesses before the Committing Magistrate to those I made by them before the Sessions Court.
13. The First Information Report, according to the prosecution, contains a dying declaration of the deceased. Immediately after the deceased bad dictated the F. I. R. a formal dying declaration was also recorded These dying declarations were not relied upon by the learned Sessions Judge as the evidence of It. Ghulam Hussain showed that possibly Ata Muhammad deceased was not fully conscious when these dying declarations were recorded. The learned Judges of the High Court, however, relied on the evidence of Raja Abdul Majid, Assistant Sub Inspector 21` Police in this respect. As the evidence regarding the dying declarations is not free from doubt, we have not taken them into consideration. If the dying declaration, however, be excluded, there is no reason why the evidence of the three eye-witness" which has been relied upon both by the Sessions Judge and by the learned Judges of the High Court should not be regarded as sufficient for the conviction of the appellant.
14. This case does not fall within the restricted jurisdiction that we exercise in criminal matters. We, therefore dismiss this appeal.