MUKHTAAR vs THE STATE
The petitioner sought leave to appeal against the judgment of the High Court of Sind & Baluchistan, which had confirmed his conviction and death sentence for the murder of the deceased. The prosecution alleged that the petitioner, motivated by a prior dispute, stabbed the deceased in the chest with a knife during a marriage ceremony, an act witnessed by several individuals who also observed the recovery of the blood-stained weapon. The petitioner argued that his physical condition as an undersized hunchback rendered him incapable of committing the offence, contended that the acquittal of his co-accused undermined the credibility of the entire prosecution case, and suggested the incident occurred during a sudden fight. The Supreme Court rejected these contentions, holding that the petitioner failed to provide medical evidence to substantiate his physical incapacity claims. The Court further ruled that the acquittal of co-accused does not automatically invalidate the testimony against the petitioner, especially where witnesses are credible and lack enmity. Finally, the Court dismissed the sudden fight argument as it was not raised at the trial stage, thereby affirming the conviction and sentence.
- Does the acquittal of co-accused automatically render the prosecution's evidence against the remaining accused unreliable?
- Can a plea of 'sudden fight' be raised for the first time in an appeal before the Supreme Court if it was not pleaded before the trial court?
- Is the court required to physically observe an accused to determine physical incapacity in the absence of medical evidence?
ORDER
1. ' 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 judgment 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.
2. ' 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.
3. ' According to the prosecution, the motive for the incident was that on the previous day, i,e,, the 15th May, 1971, the deceased had 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. All Bux.
4. ' The prosecution case is supported by P. W. Ahmad Nawaz, Mohammad Amin and Maula Bux.
5. These witnesses have supported the prosecution story and have attiibuted 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 P. W. Ahmed Nawaz.
6. ' The evidence of the prosecution has been accepted by the trial Court and the High Court.
7. ' Mr. Khalid M. Ishaq, learned counsel for the petitioner, has contended that the petitioner is under- sized individual and is an hunchback and therefore, 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 undersized 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-sized individual. So far as the other co-accused arc 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.
8. ' 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.
9. We, therefore, find no force in the petition.
Cited by 1 case
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