Muhammad Shafique was convicted under section 302, P.P.C. By the learned Sessions Judge, Toba Tek Singh, for the murder of Sultan Mahmood, deceased, and sentenced to imprisonment for life and to pay a fine of rupees five thousand (Rs.5,000) or in default thereof to undergo further rigorous imprisonment for two years. Out of the fine, if realized, Rupees four thousand (Rs.4,000) was ordered to be paid to the legal heirs of Sultan Mahmood, deceased. The appeal (Criminal Appeal No. 623 of 1982) preferred by Muhammad Shafiq, convict, against his conviction and sentence and the private revision (Criminal Revision 254 of 1983) filed by Akbar Ali, complainant, for the enhancement of the sentence of the convict to death, are both now before me for disposal.
2. The brief facts of the case are that on 6th February, 1981, a little before sunset, Akbar Ali complainant and his brother Sultan Mahmood deceased, were turning into the main lane of the Chak from their residential house in Chak No. 323/J.B. Known as Trandi, when Muhammad Shafique armed with a knife, suddenly appeared there and shouted a Lalkara saying that he would teach sultan Mahmood a lesson for removing his cattle pegs and also for hurling abuses at him. The accused plunged the knife into the chest of Sultan Mahmood, deceased, who fell down injured on the ground. On the alarm raised by Akbar Ali, complainant, Muhammad Aslam P.W. 2 and Muhammad Ramzan (given UP P.W.) were attracted to the spot and witnessed the incident. The accused decamped from the spot. The motive for the commission of the crime complained was that two or three days before the occurrence, the accused fixed cattle pegs in front of the house of the complainant party, which were removed by Sultan Mahmood, deceased, and there was physical altercation and exchange of abuses between them. Muhammad Rafiq P.W. 3 and Jan Muhammad (given up P.W.) intervened and separated them. At that time, the accused had threatened that he would avenge his disgrace.
3. At the time of the arrest of the accused on 9-2-1981, blood-stained knife P.1 was recovered from his person, in the presence of Muhammad Rafiq P.W.3 Hamid Ullah Qureshi S.I. P.W.8 and Haji Jan Muhammad (given up P.W.).
4. At the trial, the prosecution produced Akbar Ali P.W.1 and Muhammad Rafiq P.W.3 in proof of the motive, Akbar Ali P.W.1 and Muhammad Aslam P.W.2 in proof of the ocular testimony, Muhammad Rafiq P.W.3 and Hamid Ullah Qureshi S.I. P.W.8 in support of the recoveries and Dr. Abdul Khalid P.W.9 in corroboration of the medical testimony.
5. Muhammad Shafique, accused, in his statement under section 342, Cr.P.C. Admitted the occurrence, though in difference circumstances. The version given by him may be reproduced here with advantage:-- "I am innocent. On 6-2-1981, after sunset I came to my house in Chak No. 323/J.B. From my land. I found many carts stood parked in street by the deceased Sultan Mahmood and his brother which blocked the way. I protested to the deceased about it. He grappled with me and caught me from my neck. I pushed him away with the hand wherein I was holding a sickle. Unfortunately the sickle struck Sultan Mahmood's chest, as a result of which he died later on. I appeared before the police voluntarily on the same day produced the sickle also. The police in consultation with the complainant party cooked up a false story against me and my arrest was also wrongly shown on 9-2-1981."
6. The learned trial Judge, placing in juxtaposition the case of the prosecution and that of the defence, found that the evidence supported the case of the prosecution to the hilt against the accused and he convicted and sentenced the accused as stated in para. 1 above.
7. I have heard the arguments of the learned counsel for the appellant, the complainant and the State and have also perused the record. The evidence of Akbar Ali P.W.1 and Muhammad Rafiq P.W.
3 A clearly proves the motive. The site plan Exh. P.D. Give the impression that the cattle pegs were affixed in the main lane but it appears that these two witnesses were never associated with the police when the site plan Exh.P.D. Was prepared. These witnesses were net even confronted with the discrepancy shown by the site plan Exh.P.C. The motive, therefore, stands adequately proved.
8. The occurrence is admitted in this case. The only question that now arises whether, after placing in juxtaposition the case of the prosecution and that of the defence, the evidence on the record and the surrounding circumstances prove the case of the prosecution to the hilt against the appellant or leads to the reasonable inference that the version of the defence is true or reasonably probable. In the first instance, the medical evidence clearly shows that the deceased suffered a stab wound 2 c.m. x 1 c.m. In front of the chest with the internal organs immediately underneath injured. Had a sickle been used, the wound would not have had a clear cut by gagged edges. The wound found on the deceased does lead to the inference that it was caused with a knife.
Muhammad Aslam P.W.2 is an independent witness. Nothing has been brought out in the evidence to show that he was inimical to or had any animosity against the appellant. The evidence of Akbar Ali P.W.
1. Who is a brother of the deceased, and Muhammad Aslam P.W.2 is straightforward, natural and convincing. Their evidence clearly proves the case of the prosecution to the hilt against the appellant. The appellant appears to, have been properly convicted and sentenced.
9. For the foregoing reasons, the appeal (Criminal Appeal 623 of 1982) of Muhammad Shafiq, Appellant is dismissed.
10. There being no merit in the private revision (Criminal Revision 254 of 1983) filed by Akbar Ali, petitioner, the same is dismissed in limine.
11. On behalf of the appellant the benefit of section 382-B, Cr.P.C. Is claimed in the light of the decision of this Court in Nur Elahi v. The State PLD 1983 Lah. 126 and Qadir v. The State PLD 1985, Lah. 454. However, in view of the decision of the full Bench of this Court in Zulfiqar Ali v. The State 1984 MLD 1423 the benefit of the said section cannot be allowed in case of life imprisonment.
However, the appellant may, if so legally advised, move the Supreme Court o Pakistan for the grant of benefit of the said section.