1. SAMAD AHMAD, J.-This is a jail appeal by Said Kamal, whose sentence of death has been confirmed by the Peshawar High Court for the murder of his co-villager, Ambar Shah, which took place at digarwela on the 29th of March 1969.
2. The learned counsel for the appellant, who has appeared at State expense, wanted to confine his submission in this appeal only to the question of the appellant's sentence, but since we had granted open leave in this case, we have examined the entire evidence with the assistance of the learned counsel.
3. The deceased Ambar Shah used to rear sheep and trade in them. According to the prosecution case, he had sold away some of his sheep before the occurrence, and the appellant, who claimed at the trial that the deceased was in love with him, had demanded a share in the sale proceeds. As the deceased refused to oblige him, he struck him with a dagger repeatedly causing as many as 8 incised wounds on his person. The occurrence took place near Garhi Allah Yar Khan in the limits of village Sher Kera while he was going to the house of his maternal uncle Zarghun Shah. His outcries attracted to the spot P. W. Zarghun Shah aforementioned and his son, P. W. Hawa Khan. These two witnesses stated treat they had seen the appellant actually perpetrating the crime and had also seen him running away thereafter. They had also inquired from the deceased about the incident, who told them that he was injured by tile appellant. Zarghun Shah got a bus from the village belonging to his landlord Jalaluddin wherein Ambar Shah was taken to the Mattani Police Station situated at a distance of 8 miles where he lodged the First Information Report, which, on his death, has been treated as his dying declaration. The deceased died in the hospital at 3-15 p.m. On the 31st of March 1969.
4. The appellant pleaded innocence at the trial and asserted that he was falsely charged. According to him, the deceased had openly professed his love for him, which gave rise to suspicion in the mind of his relations, including Zarghun Shah, that he would waste his property and squander his money on the appellant. This was given as the reason by the appellant for his false implication in the case.
5. The prosecution case against the appellant rested entirely on his dying declaration verbally made in the first instance before P. Ws. Zarghun Shah and Hawa Khan, as alleged by them, the ocular account given by these two witnesses and the dying declaration of the deceased (Exh. P. A.), which was recorded at the police station as the First Information Report.
6. The trial Judge rejected the ocular evidence of Zarghun Shah and Hawa Khan, believing them partially only to the extent that they were attracted to the spot by the outcries of the deceased. The trial Judge did not advert to the verbal dying declaration by them. The learned trial Judge accepted the written dying declaration of the deceased as incorporated in the F. I. R., and found the accused guilty mainly on the basis of that statement.
7. The learned Judges of the High Court, in dealing with the appeal, have accepted the statements of Zarghun Shah and Hawa Khan is regard to the verbal declaration made to them by the deceased before he was taken to the police station. They bore no enmity to the appellant, and while their claim that they had witnessed the actual commission of the crime, may be open to doubt and, as such, not readily acceptable, they had certainly no motive to attribute a false dying declaration to the deceased, charging the appellant for his murder. Being at the time in the vicinity of the scene of occurrence, they must have naturally been attracted to the spot on hearing the cries of the deceased, who, alive and conscious at the time, must have disclosed to them the name of his assailant.
8. However, the primary evidence in the case is the written dying declaration of the deceased, which has been fond to be genuine and true by the Courts below, and we find no reason to differ from their view. As already stated above, the occurrence took place at digarwela on the 29th of March 1969, and the deceased survived till 3-15 p.m. On the 31st of March 1969.
9. There is no indication to suggest that the deceased was rendered unconscious by the injuries suffered by him and lost his power of speech. In fact, the indications are to the contrary. He was removed to the hospital as early as possible and there is no reason for doubting the report that he made in the police station, charging the appellant for his injuries.
10. The plea for reduction of the appellant's sentence to the lesser penalty under section 302,, P. P. C. Is based on the appellant's age, for which reliance was placed on the school leaving certificate produced by the appellant for the first time to the High Court, wherein his date of birth is recorded as the 1st of June 1951, which put his age as 10 years and 9 months on the day of the occurrence.
11. The doctor, who examined the appellant on the 26th of November 1970, gave his age as 20 years.
12. His age was recorded by the committing Magistrate during his examination in the inquiry proceedings as 20 years. The learned trial Judge also put down his age as 20 years while recording his statement at the trial. In the circumstances, the High Court was right in attaching no importance whatsoever to the school leaving certificate.
13. There is no mitigating circumstance in the case whatsoever. Even if it be assumed that the deceased loved the appellant, he did not do anything to provoke the appellant to take away his life. It is a cold-blooded murder caused by the appellant by giving repeated blows to the deceased with his dagger, for which he has been rightly given the extreme penalty by the Courts below.
14. No valid ground has been disclosed for our interference, and, therefore, this appeal is dismissed.