1969 PLP 395 (SCMR)

Supreme Court in appeal does not interfere with unless sentence is illegal or grossly improper. Ch. Fazal Ilahi, Advocate Federal Court for Appellant. Ch. A. R. Changez, Advocate‑General West Pakistan (M. Z. Kitchlew, Advocate Federal Court with him) instructed by Ijaz Ali, Attorney for Respondent. Date of hearing : 24th January 1956. SHAHABUDDIN, J.‑The appellant Fiaz Muhammad and one Rabnawaz were convicted and sentenced, the appellant to death and Rabnawaz to transportation for life, by the First Additional Sessions Judge, Sukkur, under section 302/34, P. P. C. in respect of the murder of one Ghulam Mustafa, a Taxi Driver of Sukkur. On appeal the Chief Court of Sind acquitted Rabnawaz, but confirmed the conviction and sentence imposed on the appellant and dismissed his appeal. This is an appeal by special leave from the judgment of the Chief Court. The case for the prosecution was that on the 28th June 1954, at about 9‑30 a.m. at a place called Sukho Talao in the town of Sukkur P. W. 2 Mumtaz Ali Police Constable who was on traffic duty at Shikarpur Bus Stand that day, hearing cries ran in the direction of Sukho Talao and saw Rabnawaz holding deceased Ghulam Mustafa from behind and the appellant with an open knife in his hand stabbing Ghulam Mustafa in the chest, Sikandar Ali P. W. 5, Muhammad Ali Shah P. W. 6, Abdul Salleem P. W. 7, who were also at the bus stand came running to the scene about the time witness Mumtaz Ali went there ; while Pir Bakhsh P. W. 4 another Police Constable, Ghulam Qadir P. W. 9, Ashrat Ali P. W: 3 also came to the scene of offence from other directions. The deceased fell down on sustaining the injury while the appellant and Rabnawaz started running but were over powered by the witnesses and taken to the police station where Mumtaz Ali produced the blood‑stained knife which was taken from the appellant and gave the First Information Report, The deceased was removed to the hospital by P. Ws. 5 and 6 but he expired before medical aid could be given to him. The post mortem examination disclosed that the stab in the chest had punctured the pleura and left lung which had collapsed and had also cut a big pulmonary vessel. There was a scratch on the elbow of Rabnawaz and a swelling below the right eye and the right ankle of the appellant. Their version was that they had come from Multan and were about to go to Shikarpur when witnesses Pir Bakhsh, Jial and Ghulam demanded money from them alleging that they were bad characters, that on their refusing to pay, these witnesses threatened to take them to the thana, that this resulted in a fight and that the deceased intervened and was fatally injured accidentally. They could not say at whose hand the deceased received the blow, but they themselves were not armed with the knife which was produced in Court and on which there were Mains of human blood. That knife according to the appellant was in the hand of Ghulam Qadir. The accused admitted that they threw bricks at the witnesses. Witness Muhammad Ali had an abrasion on the root of the thumb and on there were abrasion on the root of the thumb and on Hal there were abrasions on the left index finger and on the bridge of the nose. There was no evidence with regard to the motive in this case. On the other hand it did not appear that the accused knew the victim before the occurrence and the Sessions Judge took the view that it was a sudden fight in which both the accused had acted in concert. He however did not apply Exception 4 as he accepted the evidence that it was the appellant who had the knife with which he stabbed the deceased. The learned Judges of the Chief Court of Sind considered the explanation given by the accused that they being strangers, Pir Bakhsh Constable, Ghulam Qadir arid Jial demanded money from them and there upon there was a fight in which the accused threw bricks at them as probable, but, the evidence regarding the part assigned to Rabnawaz was not believed. The blood stains on the clothes of Rabnawaz the learned Judges thought could have been caused even without his participation in the fight. They, therefore, acquitted Rabnawaz, but in confirming the conviction of the appellant they observed that accepting the defence version about money having been demanded from the accused to be true they had not reason to disbelieve the prosecution evidence that the appellant in the course of the quarrel stabbed the deceased. They came to the conclusion that the theory of accident was false. It was contended before us for the appellant that the learned Judges having accepted the defence version of money having been illegally demanded from the appellant and Rabnawaz, should have also accepted the‑ theory of accident. An alternative contention advanced was that in any case in the absence of evidence as to how the quarrel started either Exception 2 or Exception 4 to section 300, P. P. C. should have been held to apply in view of the injuries on the appellant and the fact that the circumstances clearly show that there was a sudden fight. We are unable to accept either of these contentions. If the witnesses are believed the theory of accident cannot obviously be accepted as the evidence is definite that the appellant alone had a knife and he was seen actually stabbing the deceased. This evidence of the prosecution has been believed by the learned Judges. No reason is given in the judgment as to why they did not believe the witnesses with regard to the part assigned to Rabnawaz. The Sessions Judge had believed the entire evidence. Acceptance of the defence version of illegal demand of money does not by itself render the version that the appellant stabbed the deceased in any way improbable. As regard the Exceptions, neither of them seems to apply to this case. The version of the appellant as well as the suggestion in the cross‑examination of the witnesses was not to the effect that the deceased was one of the persons who attacked him. On the other hand the theory advanced by the defence was that there was a fight between the appellant and Rabnawaz on one side and the witnesses who demanded money from them on the other and that the deceased intervened and was fatally injured. There is nothing in the evidence in the case indicating that the appellant had reasonable apprehension of death or grievous hurt. Nor can it be said that he had any reasonable apprehension that he would be so wrongfully confined that he could not have recourse to the public authorities for his release, as on the defence version itself attempt was made to take him only to the police station. Further according to the appellant himself the deceased was not in the fight but only intervened obviously to separate those who were fighting. The fight was no doubt sudden but one cannot avoid the conclusion that the appellant took undue advantage of the fact that he had a long knife and acted in a cruel manner especially when the deceased was not in the fight and was unarmed. There is, therefore, no ground for our interfering with the conviction. As for the sentence it was argued that in the circumstance of the case the lesser sentence of transportation for life was the appropriate sentence. It is true that there is not in this case such premeditation as usually calls for a sentence of death. But it has been the practice of this Court not to interfere with the, sentence unless it is illegal or grossly improper. The proper course for the appellant is to approach the Government for the, commutation of sentence. The appeal is dismissed. Appeal dismissed.