GULBAZ KHAN, J.-Asghar Beg alias Akri, aged 17/18 years and Tahir Aslam alias Tara, aged 18/19 years, residents of Jalalpur Jattan, were con--victed by the learned Sessions Judge, Gujrat, vide his judgment dated 31-8-1972. . The former was sentenced to death under section 302/34, P. P: C. And the latter to imprisonment for life under section 302/34, P. P. C. Asghar Beg alias Akri and Tahir Aslam alias Tara preferred an appeal against their convictions and sentences. The learned Sessions Judge sent the case to this Court under section 374, Cr. P. C. For the confirmation of death sentences passed upon Asghar Beg alias Akri. This judgment would dispose of the appeal and the murder reference.
2. Abdul Aziz deceased was a boy of aged 16 years. His father Muhammad Boota gave his age in the F. I. R. Exh. P. A. As 16 years. The doctor had given his age as about 18 years. Asghar Beg alias Akri and Tahir Aslam alias Tara accused wanted to commit carnal intercourse with Abdul Aziz deceased against the order of nature, but the deceased did not yield to the immoral object of the two accused and the accused bore grudge against the deceased on that account. On 16-3-1971, at about 8 a.m., the deceased left the house for the mosque in order to take bath. His father Muhammad Boota (P. W. 9) also left the house for urinating. When Abdul Aziz deceased reached awa kumharan, Akri and Tara accused came there. Akri accused was armed with a knife. Tara accused, who was empty-handed, caught hold of the deceased. Akri accused inflicted knife blow to the deceased on the left side of the chest and the deceased fell down. Muhammad Boota P. W.
Raised noise, which attracted his wife Mst. Khurshid Begum P. W. (not produced) and other residents of the Mohallah. Besides Muhammad Boota P. W. Muhammad Ikram (P. W. 10) had also seen the occurrence. Abdul Aziz was removed to the hospital in as injured condition. Muhammad Boota lodged F. I. R. The same day, at 9-30 a.m., at Police Station, Jalalpat Jattan, which was at a distance of about three furlongs from the place of occurrence. Medical Officer, Incharge Civil Hospital, Jalalpur Jattan, informed the S. H. O., P. S. Jalalpur Jattan, vide ruqqa Exh. P. O. That a case of chest injury had come to him two minutes ago and he had referred the case for treatment to Mission Hospital. Muhammad Nawaz, Sub-Inspector (P. (P. W. 11), received this ruqqa after recording the F. I. R. Exh. P. A. Ha reached Mission Hospital where the deceased was taken in an injured condition. He inquired from the doctor vide writing Exh. P. H. If Abdul Aziz was fit to make statement, but the doctor replied in the negative. Abdul Aziz expired at 11 a.m. The Sub-Inspector prepared his injury statement Exh. P. K, and inquest report Exh. P. L. And sent the dead body for post-mortem examination. He pre--pared memo. Exh. P. F. Regarding the blood-stained clothes of the deceased. On reaching the spot, he collected blood-stained earth from the place of occurrence and sealed it into a parcel vide memo. Exh. P. B. He arrested both the accused on 17-3- 71 at about a.m., from the graveyard near village Pakhoki. He removed blood-stained shirt P. 1 from the person of Asghar Beg alias Akri accused and sealed into a parcel vide memo. Exh. P. D. He removed blood-stained shirt P. 3 from the person of Tahir Aslam alias Tara accused and sealed it into a parcel vide memo: Exh. P. E. On interrogation, Asghar Beg alias Akri accused disclosed that he had thrown the knife into a wheat field. He led the police and the recovery witnesses to that field and produced blood-stained knife P. 2, which was sealed into a parcel vide memo. Exh. P. D.
According to the report of the Serologist Exh. P. R., the blood-stained shirts P. 1 and. P. 3 removed from the persons of Asghar Beg alias Akri and Tahir Aslam alias Tara accused were found to be stained with human blood. Draftsman prepared site plan Exh. P. G. The Sub-Inspector gave notes in red ink on the site plan. Both the accused were challaned after investigation
3. The prosecution examined 11 witnesses in support of the case. Doctor Mukhtar Ahmad (P. W. 1) conducted post-mortem examination. Doctor Peter Doornenal, Shilokah Hospital, Jatalpur Jattan (P. W. 2) informed the police that Abdul Aziz was admitted in the hospital at about 9-30 a.m. Arid died the sane day at 11 a.m. And was unable to give any statement as he had a stabbed wound on the left chest and was in serious condition. Doctor Mirza Zameer Akhtar (P. W. 3) informed the police that a person with chest injury vas brought to the dispensary and he referred the patients to Mission Hospital because he was in serious condition. Ghulam Ahmad, Draftsman (P. W. 4) prepared the site plan Exh. P. G. Abdul Ghafoor, A. S. I. (P. W. 5) kept the sealed parcels of this case intact. Muhammad Aslam Constable (P. W. 6) escorted the dead body. He also, delivered the sealed parcels intact in the office of Chemical Examine, Lahore. Muhammad Ishaque (P. W. 7) attested recovery memos relating to the blood-stained shirts of the two accused and blood- stained knife. Abdul Hamid (P. W. 9) disclosed about the motive of this case. Muhammad Boota (P.
W. 9) and Muhammad Ikram (P. W. 10) gave the eye account of the occurrence. Muhammad Nawaz, Sub-Inspector (P. W. 11) investigated the case.
4. Asghar Beg alias Akri and Tahir Aslam alias Tara admitted that they were friends of each other.
They denied the prosecution allegations, They further denied the recoveries and attributed the case due to enmity.
5. Abdul Hamid (P. W., 8) stated that 3/4 days before the present occurrence, he saw Asghar Beg and Tahir Aslam accused standing near Abdul Aziz deceased who was found in confused state. He asked the deceased as to what the matter as and the deceased requested that he should be rescued from the accused. He told the accused to go away. After the accused left, he inquired from the deceased as to what bad happened and the deceased told him that the accused wanted to commit sodomy with him and were teasing him for that reason. This witness was neither related to the complainant nor inimical towards the accused. His statement was not seriously challenged in cross-examination. His statement rings true and .We have no material or evidence on record to reject it. From the statement of this witness, it is established that both the accused wanted to commit carnal intercourse with Abdul Aziz deceased against the order of nature and the deceased had not submitted to their immoral design.
6. Muhammad Boota (P. W. 9) and Muhammad Ikram (P. W. 10) deposed that they saw Tahir Aslam accused holding the deceased by the arms and Asghar Beg accused inflicting knife blow in the chest of the deceased. There was no previous enmity between Muhammad Boota (father of the deceased) and the accused. For the simple reason that Muhammad Boota is the father of the deceased, we cannot take him to be an interested witness. Muhammad Ikram (P. W. 10) is absolutely disinterested witness. In no way, he is connected with the deceased. He bad no hostility against the accused. He had given Rs. 150 to the doctor in Mission Hospital as a fee out of which Ra.
100 was returned subsequently after the death of Abdul Aziz. It would not show that he had connection with the deceased. The deceased was a victim of assault and out of sympathy, he might have spent the money, which was returned later on. There is no force in the argument of the learned counsel for the appellants that the occurrence was not witnessed by the said two witnesses. He urged that according to the witnesses, one knife blow was inflicted to the deceased whereas two injuries had been found on his person. Injury No. 2 was an incised wound 1' x -- ' x -- ' on the entro medial aspect of right leg, one inch above the medial mallcolous. It was a minor injury which could result by the fall over some sharp piece of iron or glass. Taking the seat and dimension and nature of injury No. 2, we cannot hold that it was the result of a direct blow. It was further pointed out by the learned counsel for the appellants that Muhammad Boots had raised the noise which attracted his wife Mst. Khurshid Begum and other residents of the Mohallah and thus, other persons could not actually witness the infliction of knife injury by Asghar Beg accused to the deceased. It was not specifically recorded in the F. I. R. That Muhammad lkram P. W. Had also reached the spot on his noise. It was only mentioned therein that Ikram had also witnessed the occurrence. Ikram P. W. Did not state before the trial Court that he had reached the spot on hearing the poise raised by Muhammad Boots. His position was that he was returning to the village after his morning walk and when he reached near karkhana of Rehmat Ullah, he saw the deceased going towards awa kumharan. He further stated that within his view, Tahir Aslam accused held the deceased and Asghar Beg accused thrust the knife into the chest of the deceased and the deceased fell dawn. Thus, it is abundantly clear that Muhammad Ikram had not come to the spot on the noise raised by Muhammad Boota. The argument of the learned counsel for the appellants that Asghar Beg accused could not inflict knife blow on the chest of the deceased when Tahir Aslam accused was holding him by japha. Tahir Aslam had held the deceased by the arms and the chest of the deceased was exposed and Asghar Beg accused inflicted knife injury on his chest.
There was no occasion for the accused to have challenged the deceased before the assault. It had come through the mouth of Abdul Hamid (P. W. 8) that the deceased had good physique and was stronger than Asghar Beg and Tahir Aslam accused. For that reason, the accused caught him unaware. One of them held him while the other inflicted him knife injury. We cannot agree with the defence argument that some talk must have taken place between the accused and the deceased before the actual assault and it might be in the nature of some altercation or exchange of not words. We cannot presume a thing in the presence of positive evidence. Muhammad Boots 1 (P. W.
9) clearly stated that there was no talk between the deceased and the accused persons before the occurrence or before he was caught hold of. Similarly, Muhammad lkram also stated that there was no talk between the accused and the deceased before the occurrence. In the presence of this positive evidence, we cannot presume that there must have been some talk or exchange of hot words between the accused and the deceased before the occurrence:
7. We have carefully considered the statements of Muhammad Boota and Muhammad Ikram P. Ws.
Both the witnesses made consistent state--ments and corroborated each other. We have not come across any inherentdefect or infirmity in the statements of the two eye-witnesses. They made correct statements and implicit reliance can be placed on their statements.
8. Both the accused were arrested on 17.3-71, at about 4 a.m. From the graveyard near village Pakhoki. Both the accused were wearing blood--stained, skirts and the blood-stained shirts were removed from their person and sealed into parcels. Asghar Beg accused produced blood-stained knife P. 2 from the wheat field of Muhammad Sharif. The recoveries memos. Were attested by Muhammad Ishaque (P. W. 7) and Muhammad Ikram (P. W. 10). Like Muhammad Ikram (P. W. 10), Muhammad Ishaque (P. W. 7) is also a disinterested witness. From the statements of Muhammad Ishaque (P. W. 7) Muhammad Ikram (P. W. 10) and Muhammad Nawaz, Sub-Inspector (P. W. 11), it is proved that blood-stained shirt P. I was removed from the person of Asghar Beg accused and blood-stained shirt P. 3 from, the person of Tahir Aslam accused. It was also proved that Asghar Beg accused produced bloodstained knife P.
2. The blood-stained shirts P. I and P. 3 removed from the persons of Asghar Beg and Tahir Aslam accused and blood-stained knife P. 2 recovered at the instance of Asghar Beg accused were found to be stained with human blood. This piece of evidence is an independent corroboration against the two accused
9. Lastly, it was urged that since Asghar Beg accused was aged 16/17 years at the time of occurrence and had inflicted one blow to the deceased, extreme penalty was not called for in his case. It has been repeatedly held that sentence of death cannot be reduced to imprisonment for life merely on the ground of age. All the surrounding circumstances are to be taken into consideration. Asghar Beg was armed with a knife. He inflicted knife blow? To the deceased on the left side of the chest. It was thoracic cavity deep. There was cut fracture of the left 5th rib. Left upper and lower of the lung was punctured. According to the doctor, this injury was sufficient to cause death in the ordinary course of nature. It is immaterial whether the death is caused by a single blow or more blows. The intention of the assailant is to be seen and the intention can be judged from the weapon of offence, seat of injury and the damage done to the internal parts of the body. It is clearly laid down in section 300, P. P. C. That if the act is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the injury is caused or if the act is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, the offender is liable for murder. In the instant case, Asghar Beg armed with a dead weapon like knife inflicted knife injury to the deceased on the left side of the chest and this injury wale sufficient to cause death in the ordinary course of nature. On the receipt of this injury, the deceased fell down. Asghar Beg accused was not required to inflict any other injury to the deceased. As Asghar Beg had committed the murder of Abdul Aziz intentionally for immoral purpose, he does not deserve any leniency in the matter of sentence. Proper sentence was awarded to him.
10. For the reasons stated above, we see no force in this appeal and dismiss it. The death sentence passed upon Asghar Beg alias Akri accused its confirmed.