RIAZ KAYANI, J.---Ghulam Murtaza son of Fateh Muhammad has called in question the validity of the judgment of the Additional Sessions Judge, Faisalabad dated 17-6-1996 whereby the appellant was convicted under section 302(b), P.P.C. For Qatl-e-Amd of Y.Asin deceased and sentenced to death. He was also fined in the sum of Rs,50,000 under section 544-A, Cr.P.C. And half of it if recovered was to be paid to the legal heirs of the deceased according to Islamic share and in default of payment to undergo R.I. For 6 months. Death sentence was subject to confirmation by this Court.
2. Gulzar co-accused was acquitted for not having committed any overt act at the time of occurrence and a mere Lalkara was not sufficient to make him vicariously liable for the ads of the appellant. Similarly Ghulam Muhammad and Mahmoodul Hassan who were involved for instigating the murder of the deceased were acquitted as there was insufficient evidence to connect them with the abetment of the murder of the deceased.
3. Complainant Sultan Mahmood has filed an appeal against the acquittal of the accused. We intend to dispose of all these matters through this single judgment.
4. The occurrence which resulted in the unfortunate death of Yasin took place within the vicinity of Chak No,191/R.B. At a distance of 4 miles from the Police Station Chak Jhumra, District Faisalabad on 5-1-1995 at 5-00 p.m. The complaint was made by Sultan Mahmood father of the deceased at Adda Sultan Nagar at 6.00 p.m. On 5-1-1995 which was recorded by Ahmad Khan, S.-I. Who sent the same to the Police Station for registration of the case which was done through F.I.R. Recorded at 6- 20 p.m.
5. Prosecution version described in the First Information, authored by Sultan Mahmood, is that on the fateful day he alongwith his son Yasin were present outside their house at 5.00 p.m. Preparing to go to their Dera when Gulzar alias Fazli son of Gaila armed with Khanjar and Ghulam Murtaza son of Fateh Muhammad armed with a carbine, residents of the village came and encountered them. Gulzar raised a Lalkara exhorting Ghulam Murtaza to fire upon Yasin to which he complied and resultantly the fire hit his son on the right side of his hand and chest who fell to the ground and immediately succumbed t^ his injuries. On his hue and cry Ali Sher his brother, Muhammad Mansha son of Hassan Khan and Sanaullah son of Latif Anwar all residents of the village were attracted to the spot and saw the occurrence. All of them tried to apprehend the accused but they ran away raising Lalkaras.
6. Motive for the occurrence is that after getting free from his school Yasin, his son, was met by Gulzar alias Fazli and Ghulam Murtaza who teased his son and wanted to commit sodomy with him but Yasin refused to submit to their lust and after coming home narrated the incident to him upon which, he alongwith his brother Ali Sher went to Mahmood son of Lakha and Ghulam Muhammad son of Fateh Muhammad and complained about the behaviour of Gulzar and Murtaza. Instead of apologising to them aforementioned persons started fighting with them and instigated Gulzar alias Fazli and Ghulam Murtaza that since Yasin has brought a false charge against them he should not be spared and be killed. Resultantly the perpetrators of the crime killed his son at the instance and behest of Mian Mahmood and Ghulam Muhammad.
7. Ahmad Khan, Investigating Officer after recording the complaint in the company of police employees left for the place of occurrence and after inspecting the dead body prepared the injury statement Exh.P.H. And inquest report Exh.P.I. And sent the dead body of the deceased to the hospital at Chak Jhumra for post-mortem examination. On the next day he procured the blood- stained earth from the place of occurrence vide memo. Exh.P.B. And prepared a site plan Exh.P.J.
Through the draftsman. On 16-1-1995 Ghulam Murtaza was arrested and on 23-1-1995 he led to the recovery of carbine P.3 alongwith 4 live cartridges which were taken in possession vide memo. Exh .
P.0 .
8. Dr. Muhammad Zaman Cheema, Medical Officer, Rural Health Centre, Chak Jhumra, Faisalabad conducted the post-mortem examination on the dead body of Yasin aged 16/17 years on 6-1-1995 and observed the following injuries on his person:--
(1) A fire-arm wound of entrance 3 cm x 3 cm with inverted margins on the outer aspect of right upper arm, the wound was 13 cm below from the top of the right shoulder-joint and 17 cm above from the right elbow-joint. There was slight blackening and burning present around the wound.
Corresponding holes were present on the Qameez. The clothes were stained with blood, the pellets raptured the skin, muscle and fractured the upper part of right humerous bone. A plastic wad was recovered from the wound and the pellet exited out side from the inner aspect of right upper arm forming a hole 3 cm x 1 cm with everted margins. The exit wound was 2 cm below the right armpit, the exited pellet again entered in right side of chest cavity.
(2) A fire-arm wound of entry 1 cm x 1 cm with inverted margins on the outer aspect of right upper arm, corresponding hole was present on the Qameez. Slight blackening and burning was present around the wound. This wound was 1/2 cm from injury No,
1. It was 15 cm below from the right shoulder-joint and 17 cm above from the right elbow-joint. The pellet exited outside from the inner aspect of upper right arm forming a hole of 1 cm x 3/4 cm with everted margins 2 cm from the right armpit and 19 cm from the right elbow-joint. The pellet then entered in the right chest cavity.
Injuries Nos.1 and 2 were through and through wounds.
(3) A fire-arm wound of entrance 3 cm x 1-1/2 cm with everted margins on the right side of chest cavity 2 cm below from the right armpit and 12 cm from the right nipple. The pellets raptured the skins, right intercastal muscles, right pleura, right lung, right side of heart. 5 pellets were recovered from the right chest cavity, sealed in a bottle and handed over to police.
(4) A fire-arm wound of entrance 1-1/2 cm x 3/4 cm with inverted margins on the right side of chest, 1-1/2 cm from the right armpit and 12 c.m. From the right nipple. The pellet raptured the skin, intercestal muscles, right pluera and then impacted in the right lung.
9. In the opinion of the doctor death was caused due to severe haemorrhage as a result of the injuries which were entrance wounds of a single fire-arm and the pellets passed through and through from the right upper arm fracturing right humerous bone which entered the right chest cavity from where five pellets were recovered. All the injuries were ante-mortem and were sufficient to cause death in the ordinary course of nature. Time between death and injuries was immediate while between death and post-mortem was about 14 to 20 houRs,
10. During the trial appellant was indicated, he denied the charge, pleaded not guilty and claimed a trial. Prosecution examined as many as 10 witnesses. Ocular testimony account was furnished by complainant Sultan Mahmood as P.W.7, Ali Sher as P.W.6 and Ahmad Ali as P.W.5.
11. Appellant when examined under section 342, Cr.P.C. Denied his participation in the occurrence and stated that the case was foisted upon him due to enmity with the complainant and the witnesses.
12. Learned counsel for the appellant stated that he has nothing to say about the conviction of the appellant but pleads for lesser penalty of life imprisonment as the appellant was of 16 years when the occurrence took place and his case falls under section 308, P.P.C. On the other hand learned counsel for the complainant submitted that it was a case where capital punishment was called for in all respects firstly because the prosecution has proved its case to the hilt, secondly there was no reliable evidence that the appellant was below 18 years of age and thirdly that a young boy in the prime of youth was murdered in cold-blood.
13. We have considered the arguments of the respective counsel and have also gone through the record.
14. The only indication regarding the age of the appellant is his statement under section 342, Cr.P.C.
Where he before giving his statement submitted that he was 16 years of age. No school leaving certificate, birth certificate or report of the Radiologist having taken ossification test was produced in support of his age. Learned counsel for the appellant contended that if the learned Additional Sessions Judge was in any doubt when the appellant was examined under section 342, Cr.P.C. Or at that time when he disclosed his age, the Court should have asked him to produce the referred to certificates and having not done so, it has to be taken for granted that the appellant was 16 years of age.
15. We are not at all impressed with this argument. The appellant was represented by a counsel who has cross-examined the witnesses, in detail, and is presumed to know the law to the best of his ability. If the appellant was really below 18 years of age every effort should have been made to either produce the birth certificate or school leaving certificate or through the Court appellant could have been examined for determination of his age. No such steps were taken. Mere statement of the appellant that he was 16 years of age, which is not required even under the law to be given, does not put the Court on guard to seek further evidence particularly when no such plea was taken till that time. Acquitted accused Gulzar produced a school leaving certificate Exh.D.E. In which the date of birth was given as 16-8-1980. To take a cue from the steps taken by Gulzar to prove his age appellant, too, could have obtained evidence to prove to the Court that he was below 18 years and his case fell under section 308, P.P.C. But without any activity on his part in this regard it is too late in the day to turn back and urge that since he disclosed his age as 16 years, therefore, benefit of section 308, P.P.C. Should be given to him. Proverb that a dying man clings at a straw is applicable on this case, now that the appellant has realised that the noose is tightening around his neck he has started throwing punches in vacuum thinking that it might stick somewhere.
16. A young boy of 16 years, coming from school, resisted the evil designs of the appellant for being sodomized and straightway went to his father to complain about the behaviour of the appellant.
Instead of feeling ashamed for such a lecherous behaviour appellant like a tough-neck picked up a carbine and fired at the deceased killing him at the spot who died unsung in his adolescence.
Appellant does not deserve any leniency whatsoever and having failed to prove his age to be below 18 years, application of section 308, P.P.C. Is completely out of question and there is no mitigating circumstance to compel us to award him lesser penalty of life imprisonment.
17. The upshot of the discussion is that since conviction has not even been challenged the appeal of the appellant is dismissed, conviction and sentence recorded by the trial Judge vide judgment dated 17-6-1996 is maintained. Death sentence imposed upon Ghulam Murtaza son of Fateh Muhammad is confirmed. Murder Reference is answered in the affirmative.
18. Criminal Appeal No, 626 of 1996 filed by the complainant against acquittal of the co-accused of the appellant is without merit and is accordingly dismissed.