' ABDUL JABBAR KHAN, J.-Azhar Hussain son of Ghulam Haidar Shah aged 15 years, caste Syed resident of Jalalpur Nagina, Police Station Saddar Shahpur, district Sargodha, has been condemned to death by Khawaja lhsanul Haq, Sessions Judge, Sargodha, vide his Judgment dated 18-6-1974 under section 302, P. P. C. For the murder of Muhammad Sharif aged 16/17 years. He has also been sentenced to a fine of Rs, 5000 or in default to undergo rigorous imprisonment for four years.
' The convict has appealed against his conviction and sentences and there is also a murder reference before us, under section 374, Cr. P. C. For the confirmation of his death sentence. We will dispose of both, the appeal as well as the murder reference, by a single judgment.
2. Muhammad Hanif P. W. 7, the brother of the deceased lodged a report Exh. P. F. On 16-11-1972 at 4-30 .p.m. Which was recorded by Altaf Hussain A. S. I. (P. W. 13). This report was lodged an hour later than the occurrence which took place at 3-30 p.m. The same day. The place of occurrence was situated three miles from the Police Station where the F. I. R. Was lodged.
4. The case of the prosecution as emerges from the F. I. R. Exh. P. F. Recorded at the dictation of Muhammad Hanif P. W. 7, is as follows:- ' He told the police that his brother Muhammad Sharif deceased aged 16/17 years was studying in the Middle School Shahpur in 4tn standard. At the same time Azhar Hussain appellant was also studying in the same institution in 8th standard but had given up his education. Prior to the previous summar vacation, an altercation took place between the appellant and Muhammad Riaz P. W. 5, a cousin of the complainant aged 10/11 years, in which the appellant had belaboured the above-mentioned Muhammad Riaz P. W. Upon this Muhammad Sharif deceased had abused the appellant. Aggrieved by the abuses Azhar Hussain appellant came armed with a chhurl and attempted to inflict a chhuri blow on him which resulted in minor injury on the person of the deceased. During the scuffle Muhammad Sharif deceased had also given a rakhti blow on the head of Azhar Hussain appellant. When this matter came to the notice of the Head Master be called upon the elders of the appellant and admonished them. On 14-11-1972, two days prior to the occurrence Muhammad Snuff deceased alongwith his another brother Abdul Gbafdor P. W. 6, who also a student of 3rd standard in the same school, were proceeding towards their house after attending their classes and were confronted by Azhar Hussain appellant who abused Muhammad Sharif deceased as well as tried to run after him to beat him. This matter was also reported to the complainant by his younger brother Muhammad Sharif deceased. On the fateful day Muhammad Sharif deceased was going towards his house after the school was closed in the company of Maqbul Hussain P. W.
11. It was 3-30 p.m. When the deceased alongwith Maqbul Hussain P. W. Reached near the building of Primary School Shahpur. The appellant who was lying in ambush suddenly emerged and started inflicting knife blows on the person of the deceased. The deceased fell down at the spot and died The complainant was informed by Maqbul Hussain P. W. About the incident and thus he reached the spot where the dead body of his brother was lying where number of persons had collected around that place. He further told police that this occurrence was witnessed by Ramzan son of Imam Din Machi P. W.
10. Muhammad Wazir son of Kaley Khan P. W. 12 besides Maqbul Hussain P. W. 11 who was accompanying the deceased at the time of occurrence.
5. Altaf Hussain A. S. I. (P. W. 13) after recording the statement of Muhammad Hanif P. W., proceeded to the spot and prepared injury statement and inquest report Exh. P. L. And P. M., respectively in respect of the dead body of the deceased. He entrusted the same to Muhammad Naseeb F. C. For post-mortem examination. He collected some blood-stained earth from the spot and made it into a sealed parcel vide memo. Exh. P. D. He also took into possession a pair of gurgabi P. 4/1-2, takhti P.
5, satchal P. 6 with its contents P. 7/1-15, vide memo Exh. P. E. He recorded the statements of the eye-witnesses and on 21-11-1972 he arrested the appellant as the appellant had made himself scarse. Azhar Hussuin appellant while in police custody, got recovered knife P. 3 from underneath stones along the railway track. It was taken into possession vide memo Exh. P. B. And made into a sealed parcel. The Investigating Officer also prepared sketch of the place of recovery of knife P. 3 vide Exh. P. BJ1. The sketch of knife was prepared as Exh. P. B./2. The recovery memo was attested by Amir son of Ghulam Muhammad (not produced) and Muhammad Hanif P. W. 7 besides the Investigating Officer himself. He also got prepared site-plans Exh. P. C. And P. C./1 of the place of occurrence from Noor Muhammad Draftsman P. W.
2.
' The scrapings of blood from the earth and knife P. 3 were sent to the Chemical Examiner and the Serologist for their opinion and report. The Chemical Examiner vide his report Exh. P. H. Reported that both, the earth and knife were stained with blood. Similarly, the Serologist vide his report Exh. P.
J. Stated that both these articles were stained with human blood.
6. Dr. Shah Qutab Hamadani, P. W. 1, conducted the post-mortem examination on the dead body of Muhammad Sharif deceased on 17th November 1972 and found the following injuries on his person:-
(1) An incised wound r x 3/8" x r deep on the back of left shoulder.
(2) An incised wound r x r on the lateral side of left elbow joint.
(3) An incised wound r x r on the medial side of left elbow-joint. Injury Nos. 2 and 3 communicate with each other.
(4) An incised wound r x r chest cavity deep on the side of the thorax, below the left nipple.
' In his opinion death occurred due to injury No, 4 which was sufficient to cause death in the ordinary course of nature. All the injuries were caused with a sharp-edged weapon.
7. The case of the defence is that of bare denial. However the appellant while explaining his position before the learned trial Court has stated that he had been involved in the case due to enmity; that Syed Mahboob Hussain Shah of Shahpur was married to a sister of Phaji Shah. Said Mahboob Hussain Shah was assaulted by Muhammad Shah and his brother Ashiq Hussain Shah. Both of them alongwith others were tried for that offence. Earlier to that Ashiq Hussain had beaten Ghulam Ahmad Shah father of Mahboob Shah; that my phuphi was married to Riaz Hussain Shah, a cousin of said Muhammad Hussain Shah; that they were on inimical terms with the Syeds of Shahpur City; that a son of said Muhammad Hussain Shah namely Mukhtar Hussain Shah was tried for the murder of Hamid Ali son of Muhammad Shah and that said Hamid Ali was closely related to Mahboob Hussain Shah.
' The appellant also produced in evidence his school leaving certificates Exh. D. F. Regarding the proof of his age. Anyhow no defence was led by the appellant to substantiate his explanation.
8. The prosecution case rests on the following categories of evidence:- the evidence of motive;
(ii) the ocular evidence;
(iii) the evidence of recovery of blood-stained knife P. 3 at the instance of the appellant; and
(iv) the medical evidence.
9. We have heard the learned counsel for the appellant as well as the learned counsel for the State and have perused the entire record with their assistance. The prosecution has produced Muhammad Khan Headmaster P. W. 4, Muhammad Riaz P. W. 5, Abdul Ghafoor P. W. 6 and Muhammad Hanif P. W. 7, in support of the motive set up by it. Muhammad Khan P. W. 4 has stated that he remained Headmaster of Middle School Shahpur from 1962 to 1973. The appellant left the School one or 1 years before the occurrence as he ceased to have any interest in his studies. He has testified that before summer vacation preceding the occurrence, Muhammad aharif deceased alongwith some other students came to his office and complained about the appellant that he had come near the compound of tie school and had picked up a quarrel with them. He found the students and the deceased in state of provocation and promised them that he would talk to the father of the appellant. In pursuance of his promise he asked the relatives of the appellant who were working as teachers in his school that they should reprimand the appellant not to tease the students of his school. Muhammad Riaz P. W. Has narrated that about 4/5 days before the summer vacation 1972, he caught a lost kite in the ground in front of of Shahpur City. Azhar Hussain appellant demanded that kite from him and on his refusal to give him that kite he belaboured him.
He complained about this incident to Muhammad Sharif deceased who abused the appellant.
Abdul Ghafoor P. W. 6 who is the younger brother of the deceased stated before the trial Court that two days before the occurrence when he was going alongwith his brother after the close of the school, the appellant confronted them; abused them and tried to beat them but they ran away.
This event was reported by them to their elder brother Muhammad Hanif P. W. Muhammad Hanif P.
W. Has fully corroborated these witnesses on all the material points regarding the earlier incidents which were brought to his knowledge by these P. Ws. In view of these consistent statements which have stood the test of cross-examination we are convinced that the appellant had a cause of annoyance against the deceased and his family members with whom he had a few altercations and scuffles previous to the fateful day.
10. The ocular evidence has been provided through the testimony of, Ramzan P. W. 10, a Machhi by caste and an independent witness, Maqbul Hussain P. W.
11. a distant relation of the deceased and Muhammad Wazir P. W. 12 caste Gujjar, a disinterested and unconnected witnesses. All of them have unanimously stated that the appellant inflicted four incised injuries on the person of the deceased, out of which injury No, 4 proved fatal as the same was inflicted on the chest below the left nipple. Despite the lengthy cross-examination the defence has failed to make out anything to show that these witnesses had any motive to falsely implicate the appellant or had any previous enmity with him which might have motivated them to implicate him falsely in this case. They have corroborated each other on all material points and we have no reason to disbelieve their testimony, and narration of the event which they have narrated in most straightforward manner.
11. The recovery evidence against the appellant is testified by Muhammad Hanif P. W. 7, a real brother of the deceased which is fully corroborated by Altaf Hussain A. S. I. P. W. 13, the Investigating Officer, who prepared the recovery memo Exh. P. B. The appellant led to the recovery of knife P. 3 while in police custody and got recovered blood-stained knife P. 3 from underneath the stones along the railway track. This clearly shows that he had exclusive knowledge of this weapon of offence which later on was' roved by the report of the serologist Exh. P. J. To be stained with human blood. Thus no room is left for any doubt that knife P. 3 was the weapon which was used during the commission of the offence by the appellant. In view of all these pieces of evidence which have fully connected the appellant with the commission of the crime, the learned defence counsel has not been able to controvert the prosecution varsion as given by the P. Ws. In this case but has only pleaded for the life of the appellant on the ground that there was no background of previous long- standing enmity between the appellant and the deceased and the murder committed by him was nothing but an outcome of scuffle between the teenagers over petty quarrels which had developed between them some time prior to the occurrence. The appellant has produced Exh. D. F. a duplicate copy of the Transfer Certificate issued by Government Technical High Schobl, Jauharabad which shows that the appellant was about 13 years of age at the time of this occurrence. Reliance has been also placed on the observations of the learned trial Court in the title of the case wherein the age of the appellant has been given as 15 years on the date of judgment dated 18th June 1974. It has been urged that Azhar Hussain appellant who was before the learned Sessions Judge, would be 13 years of age on the date of occurrence which took place in the month of November 1972. It has been submitted that in case we are to rely on Exh. P. K. a copy of the birth register of Police Station Saddar Shahpur, district Sargodha, even then the maximum age at the time of occurrence of the appellant would be 16 years and 4 months. The learned counsel has pleaded that the extreme youth of the appellant may be taken into consideration which would not justify the award of death sentence to him in this case particularly taking into consideration all the circumstances and background of the unfortunate incident.
12. We have given our anxious thoughts to all these submissions made by the learned counsel for the defence and we are of the considered opinion that the purpose of justice would met if the appellant is awarded lesser penalty of life imprisonment as against the penalty of death imposed upon him by the learned trial Court.
13. In the light of the above discussion we maintain the conviction of the appellant under section 302, P. P. C. But the sentence of death awarded to him is modified to that of life imprisonment. With this modification the appeal is dismissed. The sentence of fine is also maintained.
14. The reference regarding the confirmation of his death sentence is rejected. ,,