1976 P Cr (PLP)

SALEEM MAZHAR, J.‑

Mubarik Ali (40) son of Rulia was prosecuted under section 302, P. P. C., for having caused the death of Sabir Ali aged 16/17 years, at Moghrabwela on 14th of April 1972, in Chak No 195/RB, Police Station Chak Jhumra, District Lyallpur. The learned Sessions Judge, Lyallpur, who tried him sentenced him to death and a fine of Rs. 100 or in default to suffer one month R. I. He has filed this appeal through Jail to this Court and there is a usual reference for the confirmation of sentence of death. We shall dispose of both the matters with this judgment.

2. Briefly summoned the case of the prosecution as stated in the statement (Exh. P.A). by Abdul Ali (P.W.9), maternal-uncle of the deceased which was recorded by S.I. Muhammad Ibrahim (P. W. 12) at 9‑15 p. m. in the Bazar of Chak Jhummra is that on the day of occurrence at Maghrab prayers time Abad Ali complainant was present in his house. He heard an alarm coming from the Ihata of Mubarak Ali appellant and on reaching there he saw that Mubarik Ali appellant and Muhammad Sabir deceased son of Muhammad Iqbal who was his nephew and was studying in 10th Class, were grappling with each other. He separated them. Mubarik Ali went towards his room and brought out a big knife and gave injuries to Muhammad Sabir hitting him on the lower part of his abdomen. In the meantime Buta (P. W. 11), Muhammad Akram (not produced) and, Siraj Din (P. W. 10), who were neighbours also reached there. They rescued Muhammad Sabir from the hands of the appellant. Muhammad Sabir fell on the ground and after some time succumbed to the injuries at the spot: The motive alleged as that Muhammad Iqbal father of Muhammad Sabir deceased, who was serving in the army, had given his ihata for temporary residence to Mubarik Ali appellant 8/9 years ago. The appellant wanted to sell this Mate. The deceased had asked the appellant not to sell the same many a time but of no avail. On the day of occurrence the appellant again tried to sell the that to Abdul Ghani (P. W. 7). On coming to know of it, the deceased contacted the appellant and asked him not to do so. On this the appellant committed the murder of Muhammad Sabir with the knife. Formal F. I. R. (Exh. PA/1) was recorded by M. H. C. Imtiaz Bussain (P. W. 2) at P. S. Chak Jhumra at 9‑45 p.m.. on the same day.

3. The appellant was arrested on 15-4-1972 by S.I. Muhammad Ibrahim (P.W.12). While in custody the appellant got recovered blood-stained kniufe (P.1) which was secured vide memo. Exh. P.C. attested by Danishmand (P. W. 8) and Mushtaq Ahmad (given up) besides the Sub‑Inspector. According to the report of the Serologist, the blood‑stains on the knife had disintegrated, therefore, its origin could not be traced. 4., Dr. A. A. Khan, on 13‑4‑1972, conducted the post‑morn examination on the dead body of Muhammad Sabir and found the following injuries :‑ (1) A stab wound, l '' x 1'' on the right thigh. (2) A stab wound, 1'' x '' x peritoneal cavity deep on the left inguinal region. The death in the opinion of the Doctor was due to excessive shock and internal haemorrhage due to stab wound in the left inguinal region causing rupture of left final vein which bled him to death. Probable time between injuries and death was about one hour and between death and post‑mor tem was about 24 hours. On the same day at about 4 p.m. the same Doctor medically examined Abad Ali and found an incised wound '' x '' oblique in direction on the front of the base of right index finger. This injury was caused by a sharp-edged weapon within 24 hours. It was a simple injury. On the same day at the same time the same Doctor medically examined Muhammad Boota and found at; abrasion, '' x '' on the back of the left ring finger. Ibis injury was also simple caused by a blunt weapon with 24 hours.

5. The appellant denied his guilt and stated that in fact the ihata was purchased by his father. He admitted the fact that he wanted to dispose of the same to Nabi Bakhsh and Abdul Ghani P. Ws. 6 and 7 respectively. It was admitted by the appellant that Abbad Ali, Siraj Din. Muhammad Boota P. Ws. and Akram not produced arrived at the spot and separated them, but he stated that the deceased was going to attack him with knife. He disowned the recovery of the knife (P. 1). In answer to a question as to why he has been charged, he made the following statement :‑ The deceased and Abad P. W. used to impress upon me to vacate the ihata. In order to accomplish their object they had beaten me many times before the occurrence. I did not accede to their propose. I informed them that the ihata belonged to me because it was purchased by my father. On the day of occurrence at about 8‑30 p.m. the deceased and all the eye‑witnesses came to my ihata. They wanted to dispossess me from the same with force. I inform them that I had not other place to live except the ihata. Thereupon all of hem opened attack upon me. Sabir deceased was armed with knife. I after releasing myself from their clutches fled away. He did not produce any defence.

6. We have heard learned counsel for the appellant engaged at State expense and also the State counsel and have gone through the evidence of, record. The ocular evidence has been furnished by Abbad Ali, Siraj Din and Muhammad Boota P. Ws. 9 to 11 respectively. Abbad Ali P. W. and Muhammad Boota P. W. are injured and, therefore, their presence at the spot cannot be doubted. The same is the case with Siraj Din. The presence of these witnesses is even admitted by the appellant himself. As stated by Abbad Ali P. W. the, appellant is the son of paternal uncle of Muhar1mad Iqbal, who is father of the deceased.

7. There is enough evidence on the record to show that it was the appellant who attacked the deceased. The appellant is, therefore, clearly guilty of murder and is liable to be punished under section 3v2, P. P. C. Learned counsel for the appellant urged that there was grappling between the appellant and the deceased and the lesser sentence provided by law would be sufficient to meet the ends of justice in this case. We agree with the learned counsel for the appellant so far as this contention is concerned. The result, therefore, is that we dismiss tae appeal with the modification that instead of the sentence of death eve award life imprisonment to the appellant. The sentence of fine is also maintained. The reference is rejected. Order accordingly.