' JAVID IQBAL, J.-Mohammad Iqbal son of Din Muhammad, aged 16 years, has been convicted under section 3(02, P. P. C. For the murders of Muhammad Shafique and Muhammad Yasin and was sentenced to death on two counts ride judgment dated the 26th of June, 1973, of the Additional Sessions Judge, Multan. His appeal as well as reference for the confirmation of death sentence awarded to him are being taken up and disposed of together by this judgment.
2. The occurrence took place at about 9.30 p.m. On the 8th of June, 1972, in the Municipal Park near Sabzi Mandl. At a distance of 2i furlongs from Police Station, Kbanewal, District Multan. Muhammad Shafique deceased while he was still alive in the hospital made a dying statement (Exh. P. K./1) at 10-55 p.m. On the same day and it was recorded by Ch. Nazir Ahmed, Magistrate 2nd Class (P. W.
3). On the basis of the aforesaid statement formal F. I. R. (Exh. P. K /4) was registered at Police Station, Khanewil on the time day at 11-25 p.m. By Muhammad Asgbar A. S. I. (P. W. 9).
3. The motive for crime as set up by the prosecution is that a few days prior to the occurrence the appellant bad snatched the books of Asbiq (P. W. 14), cousin of Shafique deceased and ran away.
Ashiq P. W. Complained against him to Shafique deceased. On the day of occurrence Shafique deceased had gone to the appellant and demanded that the books should be returned to him.
This led to the occurrence.
4. The prosecution has produced three eye-witnesses of the occurrence, namely, Muhammad Hussain (P. W. 25), Mabmood Ali (P. W. 16) and Muhammad Aslam (P. W. 17). All these witnesses are unconnected and disinterested. They are also natural witnesses of the occurrence.
5. The appellant was arrested at 10-30 a.m. On the 9th of June, 1972 by Aziz-ud-Din S. I. (P. W. 18).
Blood-stained khanjar P. 1 stated to have been used by the appellant as weapon of offence was snatched from the hand of the appellant by Muhammad Hassan P. W. It was produced before the Police and was taken into possession vide memo. Exh. P. A. Dated the 9th of June, 1972, the attesting witnesses being Muhammad Siddique (P. W. 13), Mahmood Ali and Muhammad Aslam P. We.
Beside the Investigating Officer.
Blood-stained clothes got removed from the person of the appellant at the time of his arrest, namely, shirt P. 2 banyan P. 3 and shalwar P. 4 taken into possession vide memo. Exh. P. E., dated the of June, 1972. The attesting witnesses of this recovery are Muhammad Siddique (P. W. 13) and Mansha (given up as unnecessary) beside the Investigating Officer.
According to the report of the Serologist scrapings from khanjar P. 1 and cloth cuttings from shirt P.
2, banyan P. 3, and shalwar P. 4 were found to be stained with human blood. (Report is Exh. P. S.).
6. Dr. Zahoor Ullah (P. W. 2) medically examind Shafique deceased while he was still alive in hospital at Khanewal at 9-40 p.m. On the 8th June, 1972, and found on his person one stab wound 2f x 1' X 3' on the right side of abdomen. Bleeding was very profuse. The injured was in a state of shock. The injury had been caused by a sharp-edged weapon and was declared dangerous. Duration was fresh. The injured died at 11.45 a.m. On the ' of June, 1972, in the hospital.
' On the 9th of June, 1972, at 8.00 e.m. He performed post-mortem examination on the dead body of Yasin and found on his person the following injuriest (1) stab wound 2' x 1' X 3' on the upper part of left side of abdomen; and (2) stab wound fxr Xi' on the upper part of right side of abdomen. In the opinion of the medical officer the cause of death in this case was shock and internal and external haemorrhage which was due to Injuries to the liver and stomach caused by injuries Nos. (1) and (2). Both the injuries were caused by sharp-edged and, pointed weapon and both of them were dangerous as well as sufficient to cause death in the ordinary course of nature. Dr. Ashiq Muhammed (P. W. 1) conducted post-mortem examination on the dead body of Shafique on the 14th of June, 1972, and noted the same injury on his person except that it had a stitched operation wound. In his opinion the cause of death was shock and haemorrhage as a result of injury to the stomach which was sufficient to cause death in the .Ordinary course of nature.
' Dr. M. A. Rauf Bhatti (P. W. 10) medically examined Iqbal appellant at 1-00 p.m. On the 10th of June, 1972, and found on his person the following injuries* (1) superficial incised wound I on the outer and upper part of right upper arm; (2) incised wound j sr on the palmet surface of the right midale finger; and (3) incised wound x f on the medial side of left lower leg. All the injuries were simple caused by shape edged a weapon within 48 hours. On the query made by the police this medical officer reported that the injuries on the person of the appellant could be self-suffered. According to him the age of the appellant was 16 years. He stated in the cross-examination that he could not rule out the possibility that if any enemy hand tried to injure a person with a knife and the victim tried to save himself by ducking or dodging, then injury would be of a slight nature such as injury No, (1). He alio stated that he could not rule out the possibility of an injury like injury No, (2) as having been caused by an enemy hand when the victim was on the run and the assailant's weapon just touched him.
7. The appellant in his statement before the trial Court disowned khanJar P. 1, as well as human blood-stained clothes P. 2, P. 3 and P. 4 and gave his own version of the occurrence. He stated that on the night of occurrence Shafique deceased attacked him with a knife and gave him two blows while he was standing in front of his house. He chased him. The brother and other neighbours of the appellant came up and they bad a fight with the two deceased whereas the appellant ran away.
The ,appellant did not know what happened in his absence. He further stated that the P. Ws. In this cage were partisan and inimical towards him. The dying declaration of Shafique deceased was false. He stated that he had been the victim of aggression of Shafique and Yasin deceased. The three alleged eye-witnesses were not present and that the recoveries of khanJar as well as clothes from his person were altogether false.
8. In the dying declaration of Shafique deceased on the basis of which formal A. I. R. Was registered the occurrence is reported to have taken place in the following manner: "Iqbal son of Mst. Kerry, the name of whose father and caste is not known to me but whose occupation is repairing bicycles has stabbed me with a khanjar. Iqbal bad snatched away the books belonging to my cousin. I had demanded from him that he should return these books and on that account he stabbed me with the khanjar. This incident occurred about one or one and a half hours ago and it took place in the park of Sabzi Mandi, Yasin was present on the spot. When he tried to rescue me, Iqbal also stabbed him with the khanJar. At present do not know if Yasin is still alive or has died. Aslam alias Ash; Hassain and Kala put me in a tonga and brought me to the hospital. They also snatched khanjar from Iqbal's hand."
9. We have heard learned counsel for both the sides, and have carefully perused the record. The comments of learned counsel on the dying declaration of Shafique deceased are that it does not state specifically that Aslam, Hassan and Kale were eye-witnesses of the occurrence. According to learned counsel, it is stated in the dying declaration that these P. Ws. Only put Shafique deceased, while be was in an Injured condition, in a tongs and took him to the hospital. It is submitted that although it is mentioned in the statement that they snatched the khanjar away from the hand of the appellant, it is not stated that they apprehended the appellant on the spot. It is next submitted that in the dying declaration the fact that Shafique deceased had caused injuries to the appellant was completely concealed. According to learned counsel, therefore, the dying declaration should be considered with abundant caution and must not be accepted without corroboration which was not forthcoming in the present case because it was doubtful if the alleged eye witnesses had in fact witnessed the occur-rence, the khanjar P. 1, was not recovered from the appellant but was produced before the police by one of the alleged eye-witnesses, namely, Muhammad Husain P. W.
Who was a partisan and that the clothes got removed from the person of the appellant were stained with his own blood. According to learned counsel, in this case there was no other evidence regarding the occurrence except the dying declaration of Shafique deceased on the one hand and the version given by the appellant in his statement before the trial Court on the other. Learned counsel argues that the two deceased admittedly went to the house of the appellant and that it was not clear as to' what transpired among them which led to the occurrence. Anyway, according to learned counsel, Shafique deceased opened the attack with knife and caused injuries to the appellant and in retaliation the appellant caused injuries to the two deceased which led to their death. In the view of learned counsel in the circumstances the case of the appellant would be at the most covered by Exception IV to section 300, P. P. C. As it was a sudden fight. Therefore, the conviction and sentence of the appellant under section 302, P. P. C. We're not proper and in the circumstances he could have only teen convicted and sentenced under section 304kI), P. P. C.
' We have carefully examined the arguments of learned counsel but in our opinion they are without any substance. The appellant is aged 16 years. He had snatched the books of Ashiq P. W., cousin of Shafique deceased also aged 15/16 years. It is, therefore, understandable that Shafique deceased who was aged 11 years went to the appellant and asked for the return of the books. At that time Yasin deceased also aged 16 years was with him but instead of returning the books the appellant took out a khanjar and stabbed Shafique deceased with it in the stomach. When Yasin deceased attemped to rescue him the appellant did not hesitate at all but gave two fatal blows to Yasin deceased as well. Although the dying declaration does not clearly state that Aslam, Hassan and - Kale were the eye-witnesses of the occurrence, but it does state that these three P. Ws. Snatched the khanjar from the appellant and put Shafique. 'deceased in the tonga in an Injured condition and took him to the hospital. The prosecution has produced these three P. Ws. Who are disinterested persons and could be considered as natural witnesses of the occurrence. They are not connected with either of the parties and we have no reason why their testimony should not be believed. First of all, in our view the dying declaration of Shafique deceased sounds absolutely true and genuine to us and even learned counsel for the appellant agrees with us that in the circumstances relying on Taj Muhammad and others v. The State (I) the dying declaration alone could be made the basis of conviction and senten of the appellant. Anyway, in the present case it is corroborated by the testimony of Muhammad Hassan, Mahmood Ali and Muhammad Asian P.
We. Who in our view had witnessed the occurrence, as well as by the recovery of khanjar P. 1 from the appellant as well as his bloodstained clothes. -It is further supported by the medical evidence.
According to Muhammad Hassan P. W. Who was present in the park along with Mahmood All and Muhammad Aslam P. Ws. They heard noige from the western side and rushed to the spot. They saw the appellant with a khanjar in his hand with which he inflicted a blow in the abdomen of Shaw {{FOOT NOTE}} (1), PL D 1960 Lab. 723 {{FOOT NOTE}} deceased. Thereafter, when Yasin deceased stepped forward to rescue him the appellant gave two blows with the khanjar on his abdomen (on both right and left sides of the abdomen). Toe P.
Ws caught hold of the appellant on the spot and snatched the khanjar from his hand. The khanjar was snatched by Muhammad Hassan P. W. From the appellant. There were lights in the park and, therefore, the question of identification was not involved. They took the appellant and the injured in two tongas to the hospital ; the appellant and Yasin deceased along with Muhammad Hassan P. W.
Were on one tonga and in the other tongs were Muhammad Ali, Muhammad Aslam P. Ws. And Shafique deceased. Yasin died on the way near Chahan Building and at that place the appellant jumped out of the tonga and fled away. Muhammad Hassan P. W. Could not chase him as he was attending to the dead body of Yasin. When Muhammad Hassan P. W. Came to the hospital khanjar P. 1 was produced by him before' the Police. According to him, when the appellant was apprehended by him there were no injuries on his person as he did not receive any injury at that time. The statements of the two other eye-witnesses, namely, Mahmood All and Mohammad Aslam are identical. They also stated that they did not notice any injury on the person of the appellant as he hsc not sustained any injury during the course of the occurrence. We have no doubt in our mind that the three eye-witnesses who are disinterested did in fact witness the occurrence. We, therefore, find no reason why their testimony should be disbelieved when it is also corroborating and supporting the dying declaration of Shafique deceased as well as the medical evidence. In our considered opinion the case of the appellant is not covered by Exception IV to section 300, P. P. C. As the occurrence does not appear to be a sudden fight as contemplated by Exception IV to section 300, P. P. C. In our view, it was doubtful if she injuries found on the person of the appellant were caused by Shafique deceased with a knife. This fact does not find any mention in the dying declaration of Shafique deceased and the eye-witnesses have clearly stated that at the time when they apprehended the appellant, he had no injuries on his person. Consequently, In own considered opinion, the injuries found on the person of the appellant were self-suffered or caused by a friendly hand. In that view of the matter after having murdered two persons by giving them three khanjar blows each of which was fatal the appellant cannot claim the benfit of Exception 1V to section 300, P. P. C. Simply because of three superficial incised injuries found on his person which were either self-suffered or caused by a friendly hand.
' It is next submitted by learned counsel that In any case there was absence of the element of premeditation even though the appellant had killed two persons. It is argued that what actually led to the occurrence was shrouded in mystery. Learned counsel argues that Shafique deceased went to the appellant. The appellant was not carrying a khanjar because he knew that Shafique deceased was coming to meet him. However, according to learned counsel it was probable that an altercation took place between Shafique deceased and the appellant in which abuses might have been exchanged and that since Shafique deceased was accompanied by Yasin deceased, the appellant apprehended that they both would attack him, particularly when Shafique deceased was older than the appellant, and it was in this background that the appellant gave a khanjar blow to Shafique deceased in the stomach and when Yasin deceased advanced to rescue him he gave him two blows in the stomach in a state of excitement and bewilderment. It is then submitted by learned counsel that this Court must not be swayed against the appellant by the fact that he had caused the murders of two young men (aged 18 and 16 years). It is submitted that according to the school Ieaving certificate of the appellant which was placed on the record, his date of birth was the 12th of June, 1958. Consequently at the time of occurrence he was about 14 years cid. According to learned counsel the tender age of the appellant should be taken into consideration as an extenuating circumstance at the time of awarding sentence to him.
We have carefully considered this aspect of the case. The school leaving certificate of the appellant although placed on the record was never got proved. It is, therefore, not part of the printed record nor has it been referred to by the trial Court in the judgment at all. The record indicates that the appellant was never released on bail throughout the proceedings. In other words, the plea of his tender age had never been in fact taken in the course of the commitment proceedings against him for the grant of C bail or subsequently at the trial stage in the arguments for making out a case for awarding lesser penalty to him. Dr. M. A. Rauf Bhatti P. W who medically examined the appellant had stated that he had examined him and noted his age as 16 years. The learned Additional Sessions Judge before whom the appellant had been appearing also mentioned his age as 16 years. We are, therefore, not inclined to accept the age of the appellant as 14 years on the basis of an unproved school leaving certificate.
' Even though the appellant was sixteen years old, we are quite certain in our mind that he carried a khanjar and was capable of forming men., rea or criminal intent instantaneously on the spot.
Learned counsel for the appellant would have us believe that he was of a tender age and his act was without premeditation and that even if he had committed the murders of two young men aged 16 and lb years, in consideration of his tender age and absence of the element of premeditation he shou'd be awarded lesser penalty. In support of his argument he places reliance on Muhammad Sheeraz v. The State (Murder Reference No, 116 of 1973 ; Criminal Appeal No, 2,5 of 1973), decided by Mr. Justice M. S. H. Qureshi and Mr. Justice Guthrie Khan on the 6th of May, 1974 (unreported). In that case the accused person aged 22 years had committed double murder and was awarded lesser penalty. The brief facts of that case were that his wife had given birth to a child who died. However, he suspected that she was responsible for the death of the child and in rage stabbed her. She attempted to escape. In the meantime her sister aged 12/13 years intervened and pleaded him not to harm his wife but he gave her three incised injuries. Similarly the mother-in-law received one incised injury. The wife and her sister succumbed to their injuries. However, lesser penalty was awarded to him in consideration of the following circumstances: That he was not leading a happy life, had strained relations with his wife, his wife had filed a suit for dissolution of marriage and also a complaint for taking against him security proceedings, his wife gave birth to a son in the house of her parents who, he suspected, was poisoned to death by the mother, and being a chronic T. B. Patient he was not keeping good health. All these circumstances were considered as mitigating and his sentence was altered from death to imprisonment for life for each of the two counts.
' In our view, the facts of the cited case are quite distinguishable from the facts of the present case.
Here we have a young lad who carries a khanjar. He snatches books of another young lad. When Shafique deceased aged 18 years and Yasin deceased aged 16 years ask him to return the books, he takes out his khanjar and stabs in the stomach. The injury is fatal. If he had stopped at that, we would have been inclined to agree with learned counsel that the offence committed by appellant was without the element of premeditation and perhaps a case for the awarding of lesser penalty may have been made out. But the appellant did not rest at that. When Yasin deceased stepped forward in order to rescue Shafique deceased, and at that time the appellant had no apprehension that he would attack him, he gave him two fatal blows on the right as well as left sides of the abdomen. Thereafter, he was apprehended by the P. Ws. On the spot. One of the P. Ws. Snatched the khanjar away from him. Then he was made to sit in the tongs along with one of his victims but on finding the first opportunity he managed to escape from the tongs when Muhammad Hassan P.
W. Was attending to Yasin deceased. Thereafter, he managed to get three self-suffered (or caused by a friendly hand) simple and superficial injuries on his person in order to make out a case of sudden fight when the P. W. Had clearly stated that at the time of the occurrence he had sustained no injury at the hands of any of the deceased and nothing to that effect had been stated in the dying declaration. In the light of what has been discussed above we are of the view that the way the appellant had conducted himself in the course of committing the murders of Shafique and Yasin deceased, there was no mitigating or extenuating circumstance on the basis of which he could be held entitled to lesser penalty. In our view, when he had stabbed Shafique deceased In the stomach once there was no cause for the appellant to atab Yasin deceased twice in the stomach who had stepped forward in order to rescue Shafique deceased. The act of the appellant while committing the second murder, namely, of Yasin deceased, was a cold-blooded, cruel and ruthless act. In the background of the above discussion we are of the considered view that the conviction D of the appellant in the circumstances was quite proper and the sentence was well deserved. Consequently his conviction and sentence are maintained. The appeal of the appellant is dismissed.
10. The sentence of death awarded to the appellant on two counts is hereby confirmed.