MUHAMMAD RAFIQ Alias PHEEKA vs The STATE
This petition arises from the conviction and sentencing of the petitioner to life imprisonment under Section 304(I) of the Pakistan Penal Code 1860 by the Sessions Judge, which was maintained by the High Court. The core legal question involved the assessment of ocular testimony, medical evidence, and the propriety of the conviction and sentence for culpable homicide not amounting to murder following an incident involving a fatal knife blow. The Supreme Court considered the medical evidence showing a fatal stab wound, the absence of injuries on the accused, and the concurrent findings of the lower courts. The Supreme Court held that the petition lacked merit and dismissed it, affirming the conviction and sentence. The key principle laid down is that where ocular testimony is supported by consistent medical evidence establishing a fatal injury sufficient in the ordinary course of nature to cause death, and the accused fails to establish a right of private defence or mitigating circumstances, the conviction and sentence concurrently maintained will not be interfered with.
- Whether concurrent findings of fact by the trial court and the High Court regarding a conviction under Section 304(I) of the Pakistan Penal Code 1860 can be interfered with when supported by ocular and medical evidence?
- Can an accused claim the right of private defence when no injuries were sustained during the occurrence?
- Whether the Supreme Court will condone a delay in filing a petition where the sentence involves life imprisonment?
- Section 304(I), Pakistan Penal Code 1860
- Section 87, Code of Criminal Procedure 1898
- Section 88, Code of Criminal Procedure 1898
OPINION MIAN BURHANUDDIN KHAN, J.--This petition is barred by time by ten days but as it involves consideration of sentence for Life imprisonment, we condone the delay.
2. Muhammad Rafiq alias Pheeka was convicted and sentenced to life imprisonment and a fine of Rs.5,000 by the learned Sessions Judge, Gujranwela under section 304 (I), P.P.C. Vide his judgment, dated 12-1-1983. On appeal to the High Court, sentence and conviction of the petitioner was maintained by a learned Single Judge vide judgment, dated 29-7-1984.
3. The prosecution case is supported by three eye-witnesses namely Muhammad P.W. 9, Ali Muhammad P.W. 10 and Maula Dad P.W.
11. The accused/ petitioner absconded after the occurrence. Warrants of arrest were issued against him which were handed over to Muhammad Afzal F.C. P.W. 12, who searched for the accused petitioner but without any result. Thereafter, proclamation was issued under sections 87 arid 88, Cr.P.C. The two Courts below passed the conviction and sentence on the ocular testimony of three eye-witnesses and the statement of Dr. Ch. Muhammad Sadiq P.W. 1.
4. Dr. Ch. Muhammad Sadiq P.W. 1 had conducted the post-mortem examination on the dead body of Ahmad and had found (i) oblique stab wound 2 c.m. x 1/2 c.m. On right side and, at level of the umblicus passing through right rectus muscle of abdomen and (ii) an incised wound 2 c.m. x 1/2 c.m. Cutting through cartilage of left nostril. On dissection of the dead body, the doctor noticed cut in the centum alongwith cut through and through pedicle of right kidney, near its minor border abdomen was full with semi fluid blood. In the opinion of the doctor death of the deceased occurred due to shock and extensive haemorrhage as a result of injury (i) which was sufficient to cause death in the ordinary course of nature.
5. Muhammad P.W. 9 gave motive for the crime which was not believed by the Courts below but the accused /petitioner was held guilty under section 304 (I), P.P.C. On appeal, the learned High Court Judge observed as follows in the impugned judgment: "As such, extending the benefit of these factors to the appellant, the learned trial Judge held that the appellant was guilty under section 304 (I), P.P.C. I am not certain whether this finding is correct, as the appellant ruthlessly used a knife against a defence-less person. There is no appeal against this finding preferred by the State. I would, therefore, leave it at that, I cannot draw any further beneficial inference, as desired by the learned counsel for the appellant. The appellant did not suffer any injury at the hands of the appellant. I cannot, therefore, draw any inference that the deceased made an attempt to assault the appellant which necessitated the appellant to strike back with his Chhuri in such a violent form, as he did. In these circumstances, this contention of the learned counsel for the appellant is rejected.
As observed above, the learned trial Court has not made fair assessment of the prosecution case.
However, the life imprisonment awarded under section 304 (I), P.P.C. And fine of Rs.5,000, or in default, further R.I. For one year would meet the ends of justice. I find no merit in this petition which is, accordingly, dismissed.
ASLAM RIAZ HUSSAIN, J.--I agree.
ORDER OF THE COURT