' ABDUL HAMEED DOGAR, J.---This appeal through leave of the Court arises out of judgment dated 28-5-1992 of the High Court of Sindh, Karachi whereby Criminal Appeal No,57 of 1991 filed by respondent No,1 Matloob Khan son of Muhammad Anwar Khan was accepted and his conviction and sentence under section 302/34, P.P.C. And fine of Rs,20,000 was set aside.
2. This Court granted leave to appeal on 18-10-1992 to analyse the evidence brought on record.
3. Briefly stated the case of prosecution is that on 19-4-1990 at about 3-00 p.m. While deceased Gul Muhammad son of appellant Pir Bakhsh was coming out of the Factory alongwith P.Ws. Rustam Ali, Amir Nawaz, Qadarmand and Muhammad Hussain and when reached the outer gate he was inflicted Danda blows by the respondent Matloob absconding accused Sarwar Khan, Hidayatullah and Ijaz. Injured Gul Muhammad reported the matter to Police Station Quaidabad and his report was registered in the Roznamcha as a non-cognizable offence which was later on incorporated in F.I.R. On 22-4-1990 after his death.
4. The respondent Matloob Khan was arrested on 23-4-1990 while others could not be arrested as such charge-sheet was submitted against the respondent wherein his accomplices were mentioned as absconders.
5. At the trial prosecution examined P.W.-Muhammad Hussain, P.W.- Rustam Ali, P.W.-Amir Nawaz, P.W.-Lal Muhammad, P..W.-Sarfaraz Awan, P.W.-Muhanunad Suleman Mirza, P.W.-Doctor Zulfiqar and P.W. Dr. Anisuddin Bhatti.
6. P.Ws.-Dr. Zulfiqar and Dr. Anisuddin Bhatti testified at the trial that the deceased Gul Muhammad had received injuries on the head with hard and blunt substance which resulted in his death.
7. The respondent Matloob Khan in his statement under section 342, Cr.P.C. Denied the allegations of the prosecution and claimed innocent and falsely involved in the case. He neither examined himself on oath nor led any evidence in his defence.
8. We have heard Mr. N.C. Motiani, Advocate-on-Record on behalf of the appellant, Mr. Umer Farooq, Advocate Supreme Court on behalf of the respondent No,1 and also Mr. M. Suleman Habibullah, Additional Advocate-General, Sindh on behalf of respondent/State at length and have perused the record.
9. The learned counsel for the appellant mainly contended that the reasoning furnished by the High Court while acquitting the respondent are not borne out from the evidence but is based on misreading and non-appraisal of the evidence. According to him the evidence of the prosecution is based on the ocular testimony of P.Ws.-Muhammad Hussain, Rustam Ali and Amir Nawaz the independent witnesses as such there was no justification to reject their evidence on the ground that they were interested witnesses and there were certain minor contradictions in their evidence.
He further argued that the dying declaration in the form of F.I.R. Is fully corroborated by ocular evidence and the medical evidence as such the judgment of the High Court suffers from serious illegalities and is liable to be set aside whereas that of trial Court be restored.
10. Mr. Umar Farooq, learned Advocate Supreme Court for the respondent contended that acquittal of respondent Matloob Khan is based on proper reasonings and does not suffer from any illegality or infirmity. According to him the evidence of eye-witnesses is not only self-contradictory in nature but is belied by the medical evidence as such should not be relied upon.
11. Mr. M. Suleman Habibullah, Additional Advocate-General, Sindh supported the contentions of the appellant's counsel and stated that the High Court was wrong in acquitting the respondent who was rightly convicted by the trial Court.
12. The ocular account rests upon the evidence of P.Ws.-Muhammad Hussain, Rustam Ali and. Amir Nawaz. The F.I.R. In this case was lodged by deceased Gul Muhammad on 19-4-1990 who subsequently expired on 224-1990 as such the same was treated as dying declaration. The version put forth by the deceased in the F.I.R. To the extent that respondent Matloob Khan caused Danda blow on his head is fully supported by the ocular evidence furnished by the abovementioned witnesses. Irrespective of the above, the same is also corroborated by the medical evidence. In our opinion there is hardly any material contradiction in the statements of prosecution witnesses and also in the medical evidence. The learned Judge in the High Court has not appreciated the above evidence properly and his findings are recorded on non-reading and non-appraisal of the evidence and thus suffer from serious irregularity and illegality and is liable to be set aside whereas the findings of the trial Court convicting and sentencing the respondent are not only convincing but are based on proper appreciation of evidence and inspire confidence.
' Accordingly, the instant appeal is allowed and the acquittal of respondent Matloob Khan is set aside. The finding of conviction and sentence recorded by the trial Court is accepted and its judgment is restored. The respondent No,1 Matloob Khan who is reported to be in jail is directed to serve out the remaining sentence. He is, however, allowed the benefit of section 382-B, Cr.P.C.
Towards the computation of his sentence. Copy of this judgment shall be sent to the trial Court for giving effect to the above order.