1. AMIRUDDIN AHMAD, J.-This is an appeal by special leave of this Court by one Phulpir Shah who was convicted under section 304-1I of the Pakistan Penal Code by the Sessions Judge of Campbellpur and sentenced to four years' rigorous imprison--ment for causing the death of one Yaqub. Two others were tried along with Phulpir Shah but they were acquitted by the Sessions Judge. Phulpir Shah appealed against his conviction to the High Court of West Pakistan, Peshawar Bench, and a petition for enhancement of the sentence on him as well as one for setting aside the acquittal of the two other accused persons was also mace before the High court by a relation of the deceased, and these were heard together by the High Court. The High Court upheld the conviction and enhanced the sentence of the appellant to ten years' rigorous imprisonment.
2. Against his conviction and enhanced sentence the appellant has now appealed before us by special leave.
3. According to the prosecution case for about a year before the occurrence the appellant Phulpir Shah had been suspecting that the deceased Yaqub had a liaison with his were. He had, therefore, been on the look out for an opportunity to take revenge on the deceased who was employed in the Ordnance Factory at Wah and used to go on his duty every morning and return in the evening. It was on a Sunday on the 4th November 1956 when Yaqub had not to attend his duty that the appellant found such an opportunity when in the morning at about 7 a.m. The deceased came from the village abadi to the behk of his brother Ayub to get some milk. As he was going back with the milk and had advanced about 57 karams from his behk, which is at a distance of about 62 karams from the behk of the accused, the appellant and his companions, who were lying in wait for him, waylaid him. The appellant Phulpir shouted a challenge that he would not be allowed to escape. As he said so, his two companions caught hold of the deceased from behind and the appellant ran in front and gave a stab blow in the abdomen of the deceased with a clasp knife which he was carrying. The incident was witnessed by Ayub, the brother of the deceased, and by Hasan Din and Dost Muhammad. The former was in his field close-by gathering his maize crop and the latter was also in the field. Ayub was carrying a stick at the time and although he failed to save his brother, he put up a fight and injured the appellant Phulpir with the stick and also one of his companions. The injured Yaqub was then put in a truck and conveyed to the Police Station at Eassanabdal which he reached at 9 a.m. And the Sub-Inspector finding the man in a fit state to make a report himself, recorded his first information report, and then sent him to the hospital where the Doctor finding it necessary to perform an operation to save his life suggested that his dying declaration should be recorded, which was done by the Sub-Inspector himself in the presence of the Doctor. After this he was sent to the Campbellpur Hospital, as his condition was deteriorating, the same day. By noon the following day Yaqub, the injured man, died.
4. The defence case was that Yaqub received his injuries during a scuffle which took place between the occupants of some trucks which were racing with each other raising dust and inconvenienc-- ing the passers-by. It was stated that one of the companions of the appellant tried to protest one of the drivers and got injured in the attempt, while the injury on the appellant Phulpir was received by him while he was engaged in the work of agriculture. It was also stated that the prosecution witnesses were inimical towards the accused and had tutored the deceased to name them as culprits.
5. The Sessions Judge after discussing the evidence and finding some discrepancies discarded the evidence of P. W. Dost Muhammad altogether, who was not mentioned in the dying declaration as a witness. He also disbelieved most of the evidence of the two other eye-witnesses. As the eye- witnesses mentioned a fight between the occupants of some trucks, which the witnesses said had taken place some time before the occur--occurrence, he took it as supporting part of the defence case, over--looking the fact that according to them the scuffle had taken place some time before.
6. He also found support in the truck story from the fact that the injured man was taken in a truck to the Police Station.
7. He also disbelieved the evidence of motive for the crime. Nevertheless he held that part of the prosecution case which said that the accused attacked and stabbed the deceased was established and that the accused not having claimed any right of private defence was responsible for his act in attacking and stabbing the deceased ; but as he held that it was the result of a sudden and unpremeditated quarrel, he took the lenient view that the appellant was guilty under section 304, Part 11 of the Pakistan Penal Code and accordingly he sentenced him to four years' rigorous imprisonment, The High Court after considering the appeal of the appellant and the petition for enhancement of the sentence and the evidence in the case including the eye-witnesses and the dying declaration, rejected the finding of the Sessions Judge that the occurrence arose on account of a free fight which had taken place between certain labourers over racing of their trucks, and held that the learned Sessions Judge had failed to appreciate the difference between Part I and Part II of section 304, of the Pakistan Penal Code ; that it was a clear case in which the appellant would be held to have intended to cause the death of Yaqub, and that even on the finding of the Sessions Judge the appellant should at least have been convicted under section 304, Part I of the Pakistan Penal Code.
8. But as the implication of the Sessions Judge's finding was that the appellant had been acquitted by him under section 302, or 304, Part I of the Pakistan Penal Code and in view of the fact that the Provincial Government had not filed an appeal against the acquittal, the High Court held that there was no other alternative but to enhance the sentence of the accused under section 304, Part II of the Pakistan Penal Code and impose a sentence of ten years' rigorous imprisonment.
9. It was urged in support of this appeal that the High Court had not properly applied its mind to the evidence in the case and certain discrepancies in the evidence and the dying declaration were pointed out. Both the trial Court and the High Court have relied on the two dying declarations of the deceased, where the appellant Phulpir was named as the person who inflicted injuries on the deceased with his clasp knife. The medical evidence as to the instrument with which the injuries might have been caused. Corroborates the dying declarations. The trial Court rejected the evidence of the three eye-witnesses but the High Court did not expressly deal with their evidence and contended itself with simply mentioning it. The Sessions Judge bad discarded the evidence of the two witnesses other than the brother of the deceased, namely, Hasan Din and Dost Muhammad on the main ground that Hasan Din had cut all his maize crop several days before the occurrence and he admitted that during the days of occurrence the next crop had not been sown and the land was lying vacant, and so had no business to go to his land on the date of occurrence.
10. He was the owner of the land and he stated that he had left certain stalks of maize crop after he had removed the crops and there is nothing strange in an owner going to his land at 'any time he likes. We see no reason why the evidence of this witness should be discarded on this ground or on the minor discrepancies in details pointed out by the Sessions Judge. Similarly the evidence of Dost Muhammad was discarded by the Sessions Judge on the ground that he was not mentioned in the dying declarations as one of the eye-witnesses of the occurrence and also the reason for his presence in the field which he stated was that he had gone there to ease himself. Again we see no ground to discard the evidence of this witness considering that both these eye-witnesses corroborated the state--ments in the dying declarations implicating the appellant as the assailant of the deceased, particularly when the incident took place in broad daylight in an open place near the village. Both the Courts, in spite of the scathing criticism of the prosecution evidence by the trial Court, held that the death of the deceased was caused by the appellant, and this matter is concluded by those findings of fact.