1988 P Cr (PLP)

MUHAMMAD SHARIF, J.‑ This murder reference and Criminal Appeal, which are being decided by means of this single judgment, have arisen out of the judgment dated 26‑10‑1985 pronounced by Ch. Abdus Saeed Sabir, the then learned Sessions Judge, Bahawalpur, who had convicted the appellant under section 302 of the PPC and awarded him death sentence. He was directed to pay a fine of Rs.10,000 or in default thereof to suffer further R.I. for three years. Rs.10,000 were awarded by way of compensation to the heirs of the deceased and in default of the payment of compensation, he has been directed to suffer further R.I. for six months. The learned Sessions Judge has referred this case to us under section 374, Cr.P.C. for the confirmation of the death sentence.

2. The facts, which led to the detection of this crime, in substance, are that three days prior to this incident, Abdul Hafeez complainant and Muhammad Shafiq deceased were bringing their children from school located in Village Tailwala by their private wagon and were proceeding towards the village. When they reached the Bus‑stand of Chandni Chowk, Jamat Ali, the appellant, asked them for a lift and Muhammad Shafiq refused. Jamat Ali, in the presence of the complainant and one Muhammad Yaqoob son of Kamal Din, hurled an invective on Muhammad Shafiq and threatened that he would teach him a lesson. In order to slake the instinct of revenge, on 5‑5‑1985 at 9‑30 a.m., within the area of Chak No.III/DB, Tehsil Yazman, District Bahawalpur, Jamat Ali stood in the centre of the road when Muhammad Shafiq was driving the wagon and was taking Abdul Hafeez, .his ailing brother, to the Hospital. Muhammad Shafiq alighted from his Toyota wagon and asked Jamat Ali to get aside. Jamat Ali abused Muhammad Shafiq and brought out a knife from his pocket and gave a blow on the neck of Muhammad Shafiq and said that he had taught Muhammad Shafiq a lesson of not giving him a lift. Muhammad Shafiq fell down and when he was being driven towards Hospital Yazman he expired. The incident was seen by Abdul Rashid and Abdullah son of Abdul Karim. The matter was immediately reported to the police. On the dictation of Abdul Hafeez the F.I.R. Ex.P.E, was recorded by Mukhtar Ahmad A.S.I. The police immediately went to the spot and arrested the appellant from his village on the same day. The appellant, while in custody, led to the recovery of knife P.4 from a sugarcane field which was taken into possession and made into a sealed parcel vide memo Ex . P. D.

3. The inquest report and the injury statement were prepared and the dead body of Muhammad Shafiq were sent to the mortuary for autopsy. Dr. Anjum Sohail, Medical Officer, B.V. Hospital Bahawalpur, performed the post‑mortem examination on the dead body of Muhammad Shafiq, aged 28 years, on 5‑5‑1985 at 4‑0 p.m. He had reported the following injury on the dead body: ‑ A perforating injury on the right lower chest above the clavicle near its medial and extending supero inferiorly blood was coming out of the wound. The external wound was measuring 3 x 2 cm very deep extending supero inferiorly into the thorax. The right lung was punctured on the apex. The heart chambers were empty. Right subclavian artery was punctured. It was not completely cut. Internal juglar vein was also cut. The right pleural cavity was full of blood containing about two litres of blood. This Medical Expert has opined that this injury was sufficient to cause death in the ordinary course of nature and the time elapsed between the injury and the death was immediate. He has also added that it, was perforating wound extending from neck into the thorax behind the clavicle injuring vital vessels (right subclavian artery etc.). It had injured the pleura and the right lung.

4. After the completion of the investigation, the challan of the appellant was submitted. As a sequal to the impugned trial, the appellant was awarded the afore‑mentioned punishment.

5. Abdul Hafeez PW‑10 who is the real brother of Muhammad Sharif deceased has narrated the incident as stated in the F.I.R. He has narrated the motive for the, commission of this crime that the deceased refused to give the appellant a lift near Chandni Chowk and the appellant abused Muhammad Shafiq and threatened him to teach a lesson. About the incident, he has stated that he was being driven to the Hospital by Muhammad Shafiq in their private wagon and the appellant stood in front of the wagon and halted the same. The complainant deposed that Muhammad Shafiq alighted from the wagon and asked Jamat Ali to get aside but Jamat Ali appellant abused Muhammad Shafiq and gave him a knife blow on the neck of Muhammad Shafiq who died after a short while when he was being taken to the Yazman Hospital. When subjected to cross‑examination, he has stated that when they boarded the wagon, Jamat Ali was seen standing on the road on the day of occurrence. He denied the suggestion that they had abused the appellant when they asked him to get aside. This suggestion shows the presence of the appellant on the spot. According to the complainant, Abdul Rashid and Abdullah had seen this occurrence before they proceeded towards the Hospital and their wagon was being driven by Abdul Rashid.

6. Abdullah PW‑11 is an independent witness. He has corroborated the fact that Jamat Ali stopped the wagon and when Muhammad Shafiq asked the appellant to clear the way he was injured by the appellant and he died subsequently. He has added that Muhammad Shafiq had caught hold of the arm of the appellant and had pushed him to get aside. He posed ignorance about the fact that the appellant was admitted in the Mental Hospital and was having the fits of insanity or that the knife was planted on the appellant.

7. Apart from the statement of the complainant, about the motive for the commission of this crime, Muhammad Yaqoob PW‑8 has borne testimony to the fact that he was present when the appellant asked Muhammad Shafiq for a lift at Chandni Chowk and on the refusal of Muhammad Shafiq deceased to permit him to sit in his wagon, the appellant had abused Muhammad Shafiq and had threatened to teach him a lesson within a few days. The motive for the commission of this crime stands proved. There was no other enmity between the appellant and the deceased except that the appellant was refused a Ort by the deceased.

8. Muhammad Shafiq PW‑9 has stated that the appellant, while in police custody, led to the recovery of knife P.4 from the sugarcane field belonging to Muhammad Yousaf which is four Acres away from the place of occurrence. The factum of recovery has also been deposed by Mukhtar Ahmad PW‑13 who has testified that the appellant, while in his custody, led to the recovery of blood‑stained knife P.4 from the sugarcane field. The Chemical Examiner and the Serologist have given positive reports which are Ex.P.H. and Ex.P. J. respectively about the human blood collected from the spot and the blood stains on the recovered knife.

9. The F. I. R. was lodged promptly although the Police Station is at a distance of fifteen kilometers from the spot, It was lodged an hour after this incident. The learned counsel for the appellant has referred to the statements of Ghulam Farid PW‑2 and Muhammad Rafiq PW‑

7. Ghulam Farid is a foot constable, who has stated that the Police Officer had recorded the statement of the brother of the deceased after preliminary investigation at the spot whereas Muhammad Rafia has deposed that the statement of Abdul Hafeez complainant was recorded by the police at the place of occurrence. Both these person were not closely connected with the recording of the F.I.R. It looks queer that 'no suggestion was put to Mukhtar Ahmad PW‑13 that the F. I. R. was recorded after preliminary investigation. Even Abdul Hafeez complainant was not pointedly asked this question. In this manner, we little believe this part of the statements of Ghulam Farid PW 2 and Muhammad Rafiq PW‑7.

10. It has been represented on behalf of the appellant that the appellant was given a violent push and there was some grappling and on account of the provocation given to the appellant, the appellant might have given this injury to the deceased. The intention of Muhammad Shafiq in asking the appellant to get aside is evident that he only wanted to get the way cleared so that the appellant was not injured. The first incident of not giving the appellant a lift took place three days earlier and we cannot call the second incident a sudden flare‑up.

11. The incident took place in broad daylight in a village at 9‑30 a. m. The motive for the commission of this crime has been substantiated. It is a case of single accused and the F.I.R. was lodged with due promptitude. The medical evidence and the recovery of the blood‑stained knife, at the instance of the appellant, are sufficient to conclude that none else but the appellant gave the fatal injury to Muhammad Shafiq deceased.

12. About the quantum of sentence, the learned counsel for the appellant has referred to Muhammad Salim v. Muhammad Aslam and others 1983 S C M R 53, Khuda Bakhsh and 2 others v. The State 1983 S C M R 336, Munawar Hussain v. The State 1983 S C M R 1165 and Muhammad Arshad and others v. The State 1979 P. Cr. L J

51. In 1983 S C M R 53, the injury was on the knee resulting in severance of femoral artery and consequent loss of blood leading to death. The incident was not premeditated but a sudden flare‑up. In 1983 S C M R 336 there was a sudden and unexpected quarrel which took place between the accused and the deceased and a single blow was given in a fit of anger and it was held that the offence though amounting to murder did not call for capital punishment. 1983 S .C M R 1165 lays down that the femoral artery of the deceased was cut when the deceased was hit in the thigh and it was held he had only the knowledge that the death could likely be caused. In those circumstances, the conviction was altered to one under section 304 Part II of the P.P.C. 1979 P Cr. L J 51 again reveals a case of sudden flare‑up where a single blow was caused to the deceased and the conviction was altered from section 302, P.P.C. to one under section 304 Part II PPC. The principle enunciated in all these precedents cannot safely be extended to the instant case because it was not a sudden flare‑up and the first incident had taken place three days prior to this incident. The appellant came armed and the element of premeditation did exist. The solitary blow caused by the appellant is such that it had punctured the lung and the subclavian artery and the wound extended from neck into the thorax behind the clavicle injuring vital vessels. It appears that the aim was on the neck and much force was used by the appellant and the wound extended upto the lung and subclavian artery. The appellant intended to cause the death of Muhammad Shafiq over .a trifling matter. The appellant had demanded a lift on the private vehicle of the deceased and in case he was refused a lift, the appellant was not justified to cause the death of a young man like Muhammad' Shafiq. In the circumstances, the appellant has rightly been convicted and sentenced and we confirm his death sentence. The amount of fine and compensation remains unaltered. The appeal fails and the reference is answered accordingly. M. Y. H./J‑26/ L Appeal dismissed.