1975 PLP 113 (SCMR)

WAHEEDUDDIN AHMAD, J.‑The petitioner was tried alongwith four other persons for the murder of Noor Muhammad deceased. The petitioner was convicted and sentenced to death by the learned Additional Sessions Judge, Dadu by judgment dated the 12th October, 1972. His four co‑accused were acquitted. This judgment was challenged in Confirmation Case No. 11 of 1973 and Criminal Appeal No. 8 of 1973, in the High Court of Sind & Baluchistan, Karachi. A Division Bench of the said High Court, by judg ment dated the 3rd April, 1974, confirmed the death sentence and dismissed the appeal filed by the petitioner. The petitioner seeks permission to file an appeal against the said judgment. The prosecution case is that the deceased was attending a marriage ceremony of the son of Noor Din Shaikh held in the Citizen's Club Library and was standing with Ahmad Nawaz, Mohammad Amin and Maula Bux and many other persons. It is alleged that the petitioner and his other co‑accused came there and challenged the deceased and asked him not to go away. After saying this, the petitioner took up his knife and attacked the deceased on the left side of the chest as a result of which he fell down on the ground and after a short time expired. It is alleged that Ahmad Nawaz caught hold of the petitioner and grappled with him due to which he received injury on his arm and stomach and snatched the knife from the petitioner which was blood‑stained. According to the prosecution, the motive for the incident was that on the previous day, i.e., the 15th May, 1971, the deceased bad asked his cousin Ghulam Mustafa not to move about with the petitioner Mukhtiar and described him as a loafer. This warning was conveyed by Ghulam Mustafa to the accused. Thereupon, the petitioner threatened the deceased. The First Information Report was recorded by P. W. Ali Bux. The prosecution case is supported by P. W. Ahmad Nawaz, Mohammad Amin and Maula Bux. These witnesses have supported the prosecution story and have attributed the offence to the petitioner. They have been supported by P. W. Shahabuddin and Muhammad Hashim. These witnesses saw the petitioner running away from the scene of occurrence and snatching away of the knife from him by Ahmad Nawaz. The knife with which the offence was committed was recovered blood‑stained from the petitioner on the spot in the presence of the witness J'. W. Ahmad Nawaz. The evidence of the prosecution has been accepted by the trial Court and the High Court. Mr. Khalid M. Ishaq, learned counsel for the petitioner, has contended that the petitioner is under‑sized individual and is a hunchback and there fore, physically is not capable to commit the offence alleged by the prosecution. He further contended that the prosecution evidence regarding the other accused has been disbelieved and therefore, their evidence with regard to the involvement of the petitioner also should have been disbelieved. He contended that the sentence is not justifiable as the offence was committed in a sudden fight. We have considered all these points and in our opinion, there is no force in them. The question whether the petitioner is under‑sized individual should have been proved by the petitioner by some medical' evidence. Mr. Khalid Ishaq contended that the petitioner may be summoned and the Court may itself observe whether he was capable of committing the offence. We are not inclined to do so. In the absence of any evidence, we are satisfied that there is no proof that the petitioner is an under‑size individual. So far as the other co‑accused are concerned, it is true that the evidence of the prosecution has not been believed but that is no ground to disbelieve their evidence so far as the petitioner is concerned. Some of the prosecution witnesses are friendly with the complainant party and some of them are related but none of them are on inimical terms with the petitioner. Therefore, they have no reason to falsely implicate the petitioner. We have carefully gone through the evidence of the prosecution with the aid of the learned counsel and are satisfied that the High Court has rightly relied on their evidence. The sentence awarded to the petitioner is legal. The contention of the learned counsel for the petitioner that there was a sudden fight and in that fight the deceased might have been murdered was not the plea of the petitioner before the trial Court. No foundation has been laid down for this contention. We, therefore, find no force in the petition. The petition is dismissed. Petition dismissed.