SHAH ZAMAN BABAR, J.---Iftikhar (19 years? Son of Hukmat Shah (Hikmat Shah), deceased resident of Bari Cham Hoti, Tehsil and District Mardan, was tried under section 302, P. P. C. For the murder of his father. Tile trial was held by the Additional Sessions Judge, Mardan, who by his judgment, dated 5-6-1971, convicted Iftikhar under section 302, P. P. C. And sen--tenced him to suffer death subject to the confirmation by the High Court.
The condemned-prisoner has appealed. Proceedings for the confirmation of the death sentence are also before us. This judgment will dispose of the appeal and the murder reference.
2. This is a case of patricide, which occurred due to the rejection of the demand of money by the appellant from his mother. The prosecution case in brief is that on 23-3-1970, at about 8-40 a.m., Iftikhar demanded an amount of Rs. 150 from his mother and in case the money was trot provided, Iftikhar would sell the gun of his father. Hukmat Shah, father of Iftikhar, snatched the gun from the latter and Hukmat Shah went to the house of his brother-in-law Amir Bakhsh, in the same Muhallah. Iftikhar while armed with the licensed, 32 bore tamancha of his brother Hazrat Gul, pursued the father. Near the house of Sikandar, in the street, Iftikhar fired 4/5 shots at the father.
Hukmat Shah was injured. It is alleged that Hazrat Gul step--son of Hukmat Shah and Amirzada, nephew of Hukmat Shah, witnessed the occurrence. Iftikhar decamped. Hazrat Gul, Amirzada, along with two others, placed the injured on a cot and took him to the Civil Hospital, Mardan for treatment. It appears that Police Station `B' Division, Mardan was informed on tele--phone. The Muharrir of the police station received the informa--tion from the hospital and conveyed it to P. W.
Muhammad Alam Khan, A. S. I. Muhammad Alam Khan reached the hospital at 9-40 a.m. Hukmat Shah was in senses. Muhammad Alam Khan, A. S. L, therefore, recorded the statement Exh. P.A/1 of Hukmat Shah at the hospital as a dying declaration. The English render--ing of this Urdu statement is as under:- "At 8-00 a.m. My son Iftikhar demanded Rs. 150 in the house from his mother and said that if the amount is not given to him, he shall sell the gun. I got the gun from Iftikhar and I proceed--ed to the house of my brother-in-law Amir Bakhsh. My son Iftikhar came after me with a .32 bore pistol licensed in the name of Hazrat Gul and in the street near the house of Sikan--dar he fired 4/5 shots at me. With the shot of my son I was hit on the upper part (Dola) of the left arm and with the second shot under my left rib. With the two shots I was injured near my left wrist, one shot hit me on my left buttock and one shot hit me near my testicles. At the time of the incident my son Hazrat Gul and Amirzada son of Sultan Muhammad, resident of Bari Cham, saw the incident with their own eyes. After injuring me, my son Iftikhar has run away. Then I was carried on a cot to the hospital by Hazrat Gul, Amirzada, Guldad, son of Mueen-ud-Din and Abdur Rashid, son of Gul Hassan, for treatment. I charge my son Iftikhar for causing injuries to me."
This statement Exh. P.A/1 has been signed in English by Hukmat Shah. It is written under the statement that the statement was recorded as a dying declaration, when Hukmat Shah was in perfect senses, and that it was recorded in the presence of Hazrat Gul, son of Hukmat Shah, and Amirzada, son of Sultan Muhammad, residents of Bari Cham. Hazrat Gul and Amirzada both have signed in English as attesting witnesses of the statement. This statement (Exh. P.A/1) was sent to the Police Station for the registration of the case under section 307, P. P. C. P. W. Muhammad Israr, Muharrir A.S.I. Of Police Station `B' Division, Mardan on receipt of the statement (Exh. P.A/1) recorded the formal F. I. R. Exh. P.A., incorporating Exh. P.A/1 in it. Muhammad Alam Khan, A.S.I. Prepared the injury-sheet Exh. P.L. Of Hukmat Shah and left the injured in the hospital for treatment.
On receipt of the information at the Police Station about the incident P.W. Muhammad Rafiq Khan, S.H.O., left for the spot. He prepared the site plan Exh. P.D. On the same day viz. 23-3-70, at the instance of Amirzada and Hazrat Gul. The record shows that the Police Statement of Hazrat Gul and Amirzada were also recorded on the same day.
Hukmat Shah succumbed to the injuries in the hospital on 25-3-70 at 7-40 a.m. This information (Exh. P.A/2) was conveyed to the police station where the offence was changed to section 302, P. P.
C. On 25-3-70. A sealed bottle containing spent bullet Exh. P. 4 recovered from the dead body was received by P. W. Muhammad Israr, Muharrir with a letter from the hospital. Muhammad Israr produced this sealed bottle containing spent bullet Exh. P. 4 before Muhammad Rafiq Khan, S.I., who took it into possession and sealed it into a parcel vide memo. Exh. P.F. On the same day viz. 25-3-70 in the presence of P. Ws. Abdul Hakim, H. C. And Muhammad Alam Khan, A.S.I. The A.S.I. Muhammad Alam Khan after the expiry of Hukmat Shah in the hospital, prepared his injury---sheet Exh. P.M. And inquest report Exh. P.E/1. Iftikhar appellant was arrested by Muhammad Rafiq Khan, S. H. O., on 25-3-
70. The S. I. Searched the person of Iftikhar and recovered .32 bore pistol (Exh. P. 5) without a charger and sealed it into parcel in the presence of P. Ws. Abdul Hakim, H. C. Muhammad Alam Khan, A. S. I. Vide memo. Exh. P. F. The pistol Exh. P. 5 and spent bullet Exh. P. 4 were despatched to the Ballistics Expert for opinion. On 26-3-70 Hazrat Gul produced the licence Exh. P. 6 pertaining to his pistol to the Investigating Officer. The appellant is entered as retainer in the licence. This licence was taken into possession in the presence of P. W. Nazirul Islam, A. S. I. And Hayat Khan, F. C., vide memo. Exh. P. G. Hazrat Gul also produced the shot-gun Exh. P. 7 with the license Exh. P. 8 in the name of Hukmat Shah deceased to the Investigating Officer. The same were taken into possession vide memo. Exh. P H. On 2-4-70, in the presence of P. W. Nazirul Islam, A.S.I. On 31-3-70 statements of Hazrat Gul and Amirzada were got recorded under section, 164 Cr. P. C. On 31-3-70, also, P. W.
Muhammad Alam Khan, A. S. I. Got the follow--ing endorsement from Dr. Attaullah Khan on the dying declara--tion Exh. P.A/1:- "The statement was recorded by Muhammad Alam Khan, A. S. I. In my presence while the patient was talking quite sensibly."
The age of Iftikhar appellant was determined by X-ray examination (Exh. P.K.) on 26-3-70 to be about 18J years.
P. W. Bashir Ahmad, Ballistics Expert, has opined that the crime bullet of 7.65 MM bore marked `B' has been fired from the pistol in question of 7.65 bore.
3. P. W. Dr. Attaullah Khan examined the injuries of Hukmat Shah, aged about 61 years, on 23-3-70, at 9-30 a.m., and found the following t
(1) A contused wound. --" x --", left upper arm laterally (islet firearm wound).
(2) Contused wound, --" x --", left upper arm medially (exit of No. 1)
(3) An abrasion 2" x 1" left side of chest just below the nipple (grazing from the injury No. 2).
(4) A contused wound, --" x --" left side of abdomen, laterally (inlet).
(5) Entrance wound, --" x --" upper left thigh interiorly.
(6) An exit wound (exit of No. 5), --" x --", upper left thigh medially.
(7) Entrance and exit wounds, lowest part of the secretal sack, --" x --" and --" x --" respectively.
(8) The same bullet causing No. 8 entrance wound measur--ing, --" x --" postro-medially upper right thigh.
(9) An exit wound of (exit of wound No. 8) --" x --" postero laterally, right thigh, upper most part.
Nature of the injuries was dangerous to life, kind of weapon used firearm, within a duration of about one hour.
The doctor opined that injuries 1, 2 and 3 were caused by one shot. Injury No. 4 was caused by a separate shot. Injury No. 6 is the exit of injury No. 5. Injuries 7 to 9 were caused by one shot. These in injuries were of serious nature and must have bled profusely. The doctor has deposed that the statement of Hukmat Shah, Exh. P.A./1, was recorded in his presence by the police officer, when Hukmat Shah was in senses and could talk well when he gave the statement. a added that the certificate endors--ed on Exh. P.A/1 on 31-3-70 was in his hand. Explaining the delay in recording the endorsement, the doctor stated, it was possible that he had to leave the patient (Hukmat Shah) to attend to some other emergency cases.
4. Hukmat Shah succumbed to the injuries on the 25-3-70 at about 7-40 a.m. Dr. Saeed Ahmad Khan performed the post---mortem examination on the dead body of Hukmat Shah on 25-3-70, at 9-50 a.m. Dr. Saeed Ahmed Khan had gone to Libya on deputation. His statement before the committing Magistrate dated 4-8-70, duly certified under section 509, Cr. P. C., was, there--fore, transferred to the Sessions file at the trial. Dr. Saeed Ahmad Khan found the following injuries:-
(1) Stitched wound --" long on the left aide of abdomen laterally situated.
(2) Stitched wound on the right illiac fossa from which bullet recovered during operation under the skin.
(3 & 4) Stitched wounds, --" and --" laterally and medially. Direction lateral to medial almost horizontal on left arm in the middle.
(5) Abrasion 2" x, 1" in the middle on left chest below the nipple.
(6 & 7) Two stitched wounds on upper left thigh interiorly and slightly medially, 1" apart, -- "x -- " in length.
(8 & 9) Two stitched wounds on the secretal sack close to each other on the left side and on the right side, --" and --" respectively.
(10) Ballet causing wounds Nos. 8 and 9 also causing wounds stitched wound No. 10, --" postro- medially on the upper right thigh.
(11) Stitched wound --" postro-laterally on right upper thigh.
On Internal examination the abdominal wall, small intestines, large intestines were found injured and stitched. Death was opined to have been caused by firearm, injuring vital organs, resulting into shock, renal-faila, paralytic illiaus in death. Time between injury and death was within five days and between death and post-- mortem examination within six hours'. This doctor opined that the injuries on the person of the deceased must have caused immediate profused bleeding and shock, especially injury on the testies and this bleeding may have caused loss of consciousness within a short time.
5. At the trial the appellant denied the charge of murder. The appellant stated that the dying declaration Exh. P. A./1 has been fabricated by A. S. I. Muhammad Alam because some days prior to the incident, the A. S. I. Was beating a person in the Muhallah of the appellant and the appellant had objected to it. He admitted to have produced the pistol Exh. P. 5 himself at the police station on his arrest on 25-3-1970, and that his name is entered as a retainer of this pistol in the license Exh. P.
6. The appellant proceeded to state that Muhammad Alam, A. S. I. Deposed against him because of the strained relations between him and the A. S. I. He further added:-- "On Sunday was the marriage of my brother. On Monday I, Hazrat Gul and Amirzada at 8-15 a. m.
Left the house to carry the tents to Bashir Tent House. We had tea there when some body came and informed us at about 9 a.m. That some body had fired at Hukmat Shah who had been removed to the hospital. We reached the hospital where my father was lying injured and unconscious. I have nothing to add."
The appellant produced the School Certificate Exh. D.A. From the Government High School No. 1, Mardan. This certificate shows that the date of birth of the appellant, according to the record maintained in the school is 1-3-1954 (First March N. H. & Fifty-four). The appellant also examined Amirzada in defence. Amirzada was abandoned by the Public Prosecutor at the trial.
6. The prosecution relies on the dying declaration Exh. P. A/ 1 of Hukmat Shah. The dying declaration has been signed in English by two attesting witnesses, namely. Hazrat Gul, step-son of the deceased, and Amirzada, nephew of the deceased. Both Hazarat Gul and Amirzada are mentioned in the dying declara--tion as to have witnessed the occurrence. Both of them were abandoned at the trial by the Public Prosecutor for the reason that they are closely related to the accused and were not support--ing the prosecution story. Amirzada, who was given up at the trial by the Public Prosecutor, was examined as defence witness. He deposed that the deceased Hukmat Shah was his uncle and the appellant is his son. A day prior to the day of the incident, the marriage of Qadar Gul, a cousin of the witness and suit of the deceased, took place. Furniture etc. Had been hired from Bashir Tent House. On the day of the incident, the witness, Hazrat Gul and Iftikhar appellant, left the house between 8 and 8-15 a.m. For the delivery of the goods back to Bashir Tent House. They were yet at the shop at 8-45 a.m., when Amirzada and his com--panions received news that the uncle of the witness had been fired at by somebody, The witness along with his two com--panions went to their house, where they were informed that the injured had been taken to the hospital. They went to the hospital, where the witness found his uncle lying unconscious. Many people were present there. The police came, but the uncle of the witness was unconscious and gave no statement to the Police. The Police prepared some paper and asked the witness to sign. The signa--tures of the witness and Hazrat Gul were obtained, but the writing was not read over to them. The statement Exh. P.A/1 was read over to the witness, but the witness deposed that this statement was not given by his uncle to the police in the hospital. The witness denied his presence at the spot or having witnessed the incident. He added that his statement was recorded under section 164, Cr. P. C. The witness is a Matriculate and knows how to read and write Urdu.
7. The learned trial Judge considered the statement of P. W. Amirzada as tainted one which did not inspire confidence. He is of the view that the dying declaration of Hukmat Shah, in view of the facts and circumstances of the case, is genuine and true and supported by various circumstances on record. The learned trial Judge held the view that the prosecution has been successful in bringing home charge to the accused. Finding him guilty of an offence under section 302, P. P. C. For the murder of his father Hukmat Shah, he convicted him accordingly and sentenced him to death.
8. Mian Mahmood Ali Qasuri, counsel for the appellant, strenuously argued that the dying declaration Exh. P.A/1 is not supported by the two ocular witnesses and the attesting witnesses, namely Hazrat Gul and Amirzada, and as such it is not reliable and is insufficient for conviction on a capital charge of murder. In the alternative, he argued that the appellant is aged about 16 years, according to the School Certificate, Exh. D.A. And this age of the appellant is an extenuating circumstance for awarding lesser penalty of transportation for life.
9. Hazrat Gul and Amirzada have been mentioned in the dying declaration Exh. P.A. To have witnessed the killing of Hukmat Shah deceased by the appellant by firing at him with a pistol. From the evidence of D. W. Amirzada, it can be reasonably inferred that he and Hazarat Gul were present at the hospital and the Police officer prepared some paper and obtained the signatures of Amir-- zada and Hazarat Gul on it (Exh. P. A./1). The dying declaration way recorded on 23-3-70 at 9-40 a.m. In the hospital. S. I. Muhammad Rafiq has deposed that the rite plan Exh. P.B. (prepared or. 23- 3-70) was prepared at tire pointation of Amirzada and Hazarat Gul. Since both of them ware tire witnesses of the dying demarcation, the S. I. Also recorded the statements of both of them. The record shows that the police statements of Hazarat Gul and Amir--zada were recorded on 23-3-70.
It is apparent that Hazarat Gul and Amirzada both supported the- dying declaration on 23-3-70.
After the death of Hukmat Shah on 25-3-70 in the hospital it further appears, the loyalty and affections of Hazarat Gul and Amirzada with the deceased changed and they became hostile to the prosecu--tion case. The statements of both were recorded under section 164, Cr. P. C. On 31-3- 70 wherein both of them did not support the prosecution case and for this reason both of them were not cited as prosecution witnesses in the case. At the trial also the public Prosecutor gave up both Amirzada and Hazarat Gul for the reason of their close relationship with the accused and that they were not supporting the prosecution story. The learned counsel A for the appellant has commented upon the non-production of the two witnesses by the prosecution as a very serious omission The Public Prosecutor had a discretion to give up the two witnes--ses. No adverse inference can be drawn against the prosecution for this reason. In Bakhshish Singh v. The State of Punjab (PLD 1958 SC (Ind.) 163) the non-production of a witness who was mentioned in the dying declaration to have witnessed the occurrence, was commented upon by the counsel of the accused as a very serious omission. The Public Prosecutor stated at the trial that he was giving up, the witness as the witness had been won over. It was held: "That the witness, if produced would have been no better than a suborned witness. He was not a witness 'essential to the unfolding of the narrative on which the prosecution was based' and if examined the result would have been confusion, because the prosecution would have automatically proceeded to discredit him by cross-examination. No oblique reason for his non- production was alleged, least of all proved. There was, therefore, no obligation on the part of the prosecution to examine this witness. In such circumstances the Court would not interfere with the discretion of the Prosecutor as to what witness should be called for the prosecution and no adverse inference under section 114 of the Evidence Act could be drawn against the State."
In the present case one of the two eye-witnesses and the attesting witnesses, namely D.W.
Amirzada, has come forward to depose in favour of the appellant and against the prosecution. He is a Matriculate and from his evidence at the trial it can be presumed that he admitted to have signed the dying declaration Exh. P.A/1 as one of the attesting witnesses and that Hazrat Gul also signed it. Both Hazarat Gul and D.W. Amirzada have signed Exh. P.A/1 under the note that the dying declaration was made when the declarant was in perfect senses and that the same was made in their presence. The gratuitous concessions made by Amirzada in favour of the appellant, his cousin, in his statement that the deceased was lying unconscious and he gave no statement before the Police but the Police prepared the same, would, under the circumstances, not detract from the evidentiary value of the dying declaration. There is other evidence on record to show that Hukmat Shah made the dying declaration and signed the same while he was in full senses. It was suggested to P.W. Muhammad Alam A. S. I. In cross-examination that Hukmat Shah could not talk and that he (the A. S. I.) prepared a statement and waited to get his signature on it, when he came to senses. The suggestion is naturally denied by Muhammad Alam Khan. It can be inferred from this piece of evidence that Hukmat Shah signed the dying declaration when he was in senses. P. W, Dr. Saeed Ahmad Khan has opined that the immediate profused bleeding of the deceased may have caused loss of consciousness within a short time. The defence has made no efforts to clarify from the doctor as the duration of "short time" Hukmat Shah was fired at on 73-3-70 at about 8-40 a.m. In village Bari Cham. He was brought to the hospital and was examined by Dr. Attaullah Khan at 9-30 a.m. The same day. The dying declaration was scribed by Muhammad Alam Khan A. S. I. On the same day at 9-40 a.m. At the trial Dr. Attaullah Khan deposed that the Police Officer had recorded Exh. P.A/1 in his presence when Hukmat Shah, the declarant, was in senses and could talk well. The learned counsel criticises the endorsement of certificate by this doctor on 31-3-70. In this endorsement by Dr. Attaullah, it is noted that the statement was recorded by Muhammad Alam Khan A.S.I. In the presence of the doctor, when the patient was talking quite sensibly. The delay in the endorsement by the doctor has been reasonably explained. Dr. Attaullah has testified that it was possible that he left the patient (Hukmat Shah) for attending some other emergency cases and that is why the certificate was not obtained from him on the dying declaration at the time it was recorded. P.W. Muhammad Alam Khan A. S. I. Has also explained this delay. He deposed that on completion of the statement, the doctor was not available as he had left to attend some emergency cases, and that when both Hazrat Gul and Amirzada did not support the prosecution case, he got the endorsement of the doctor on Exh. P.A/1. This evidence also establishes the fact that the statement Exh. P.A/1 was recorded when Hukmat Shah was in perfect senses and was cap- -able to make a statement. Dr. Attaullah has wavered in his evidence. At the trial he stated that the injuries caused to Hukmat Shah were of serious nature and must have bled profusely but it is not necessary that unconsciousness should follow profused bleeding, although the doctor has stated before the committing Magistrate that with the profused loss of blood unconsciousness follows.
The doctor at the trial further stated that it is true that with the greater number of injuries, the loss of blood is greater, but in the instant case he could not say whether the loss of blood was greater.
However, he has stated before the committing Magistrate that in the present case the loss of blood must have been greater. The doctor has also testified that it is possible that in the instant case unconsciousness followed soon after the injuries. But again the duration of time due to which unconscious--ness must have followed, has not been clarified. Such evidence of the doctor, we consider, is not sufficient to shake our view that Hukmat Shah made the dying declaration when he was in full senses and was capable to make a dying declaration.
10. The dying declaration Exh. P.A/1 being the only evidence available, its close scrutiny like the statement of an interested) witness becomes absolutely necessary. In this effort we have to consider all the physical environments and circumstances to find out how far the dying declaration is reliable. Reliance is placed on:
(1) Abdul Razik v. The State PLD 1965 SC 151, and
(2) Tawaib Khan and another v. The State PLD 1970 SC 13. A statement of interested witness requires corroboration, but for corroboration it is not necessary that there should be the word of an independent witness supporting the story put forward by an interested witness. Corroboration may be afforded by anything in the circumstances of the case which tends sufficiently to satisfy the mind of the Court that the witness has spoken the truth. Nazir and others v. The State (PLD 1962 SC 269) relied upon. In the dying declaration Hukmat Shah has deposed that Iftikhar his son, the appellant, fired with '32 bore pistol which is licensed in the name of Hazrat Gul. I he pistol Exh. P. 5 was admittedly recovered from the appellant when he was arrested on 25-3-70 viz. On the third day of the occurrence. For this pistol according to the licence Exh. P. 6, Hazrat Gul holds the licence, and the name of the appellant is entered as retainer in it. Dr. Saeed Ahmad recovered a bullet from under the skin from wound No. 2 during the operation of Hukmat Shah. This bullet Exh. P. 4 was sent to the police station with a letter, on file and received by P. W. Muhammad Israr, Muharrir A. S. I. The same bullet was produced by Muhammad Israr to P. W. Muhammad Rafiq Khan, A. S. I. Who took it into possession vide memo. Exh. P.E. In the presence of P.W. Abdul Hakim, H. C. And A. S. I.
Muhammad Alam Khan A. S. I. Muhammad Alam Khan has deposed that Muhammad Israr produced the bottle containing spent bullet Exh. P. 4 to Muhammad Rafiq Investigating Officer, in his presence vide memo. Exh. P. E., which bears his signature. P. W. Abdul Hakim, H. C. Has stated that Muhammad Alam Khan had brought the small bottle contain--ing a spent bullet from the hospital and handed it over to Mirza Sahib vide memo. E., P. Exh., which bears his signature. This witness adds that the memo. Exh. P. E. Is correct. In the memo. Exh. P. E., it is mentioned that P. W.
Israr Khan, Muharrir produced the bottle containing Exh. P. 4 to the S. I. The inadvertent state--ment of Abdul Hakim that Muhammad Alain Khan produced the small bottle containing spent bullet is, therefore, not sufficient to cast any doubt as to the recovery of the spent bullet Exh. P. 4 from the body of Hukmat Shah. This bullet, according to the testi--mony of P. W. Bashir Ahmad, Firearms Expert, has been fired from the pistol produced by the appellant and sent to the Expert for examination. Thus the statement of Hukmat Shah in the dying declaration that the appellant fired with the pistol of Hazrat Gul stands corroborated. Hukmat Shah has stated that the appellant had fired 4/5 shots with the pistol at him. According to the medical evidence, the injuries on the body of the deceased were the result of four shots. The medical evidence also, therefore, corroborates the dying declaration. There is no previous ill-will or enmity between the appellant and his father the deceased. The four pistol shots, as the location of the inlet wounds shows, were apparently fired from the front of the deceased. The deceased had, therefore, all chances of recognising his assailant. This dying declaration, duly corroborated, in our view, solely can form the basis for conviction of the appellant under section 302, P. P. C.
The date of birth of the appellant, according to the School Certificate Exh. D.A., is 1-3-54. As such according to this certi--ficate, the appellant was aged 16 years and 23 days on 23-3-70, when the occurrence took place. According to the Certificate Exh. P. K. Dated 26-3-70, the X-Ray age of the appellant, as de--posed by Dr. Attaullah, was about 181 years on 26-3-70. For the t proof of age, the best evidence is that of Radiologist and prefer--ence cannot be given to the School Certificate over the evidence of X-Ray age. Moreover youth age of 16 or 18 years by itself, in law, does not afford reason for not inflicting normal penalty of death. Sheikh Hussain v. Bashir Ahmad and another (PLD 1966 Pesh. 97) and Sattar Khan and another v. The State (PLD 1970 Pesh. 185) relied upon. The appellant has been found guilty of a pre-planned and calculated murder of his father, and it is, therefore, a fit case for exacting the normal penalty of death provided by law for the offence of murder. Consequently, the conviction and sentence of the appellant merit no interference. The appeal is, therefore, dismissed, and the death sentence is confirmed.