GHULAM NABI SOOMRO, J.--- This Special Anti-Terrorism Jail Appeal is preferred by the convict Murad Baloch alias Michael assailing his conviction under section 302(b), P.P.C. Read with section 7(1)(a) of the Anti-Terrorism Act and sentence of death aid other sentences including that of fine and under section 13-D of the Arms Ordinance in the cases bearing No,355 & 356 of 1999, passed against him by the learned Anti Terrorism Court No,1, Karachi by its judgment dated 4-1-2000. The learned trial Court has also submitted a reference for confirmation of death sentence of the convict. We propose to dispose of both, the appeal and the reference by this common judgment.
2. The appellant was charged as follows:- "That you alongwith absconding accused Sikandar and Nisar on 17-10-1999 at 8-30 p.m. In Noorani Tea & General Store near Babu Hotel, Baloch Conlony, Manghopir Road, Orangi Town, Karachi armed with pistols and in furtherance of your common intention committed robbery of Rs,20,000 belonging to the complainant Muhammad Zaman and thereby committed an offence punishable under section 392 read with section 34, P.P.0 and within the cognizance of this Court. I further charge that you alongwith abovenamed absconding accused, on the above mentioned date, time and place armed with pistols and in furtherance of your common intention intentionally caused Qatl-eAmd of -Haji Sher Zaman and thereby committed an offence punishable under section 302 read with section 34 P.P.0 and within the cognizance of this Court. I further charge that you alongwith abovenamed absconding accused on 17-10-1999 just after the commission of robbery and murder of Sher Zaman on the road outside Noorani Tead and General Store, Babu Hotel, Balouch Colony, Manghopir Road, Orangi Town, intentionally caused the Qatl-e- Amd of Khuda Dino and thereby committed an offence punishable under section 302 read with section 34, P.P.0 and within the cognizance of this Court. I further charge that you alongwith abovenamed absconding accused on the above date, time and place armed with pistols and in furtherance of your common intention committed the offences of robbery and murders by firing from your weapons, the effect of which was likely to have strike terror and create sense of fear and insecurity in the people of said locality and thereby committed an offence punishable under section 7(i)(a) A.T. Act read with section 34, P.P.0 and within the cognizance of this Court. I further charge you that on 18-10-1999 at 3-30 a.m. In House No,D-197 near Zubair Medical Store, Balouch Goth, Manghopir Road, Orangi Town, Karachi were found in possession of one unlicenced T.T Pistol and 3 live bullets which were secured by the police from your possession and thereby committed an offence punishable under section 13-D Pak Arms Ordinance and within the cognizance of this Court. And I hereby direct that you be tried by this Court on the above said charge.
(Sd.)
Judge A.T.0 No,1, Karachi."
3. Mr. Abdul Waheed Katper, learned counsel for the appellant after arguing this matter at some length opted to press the appeal only on the ground of severity of sentence and thus prayed for reduction of sentence from death to life imprisonment. He argued that in all three persons are involved in the murder of the two deceased and it would be difficult to find, as to who is responsible for the murder of deceased Khuda Dino. Reiterating his arguments he urged that the appellant Murad Balocuh alias Michael, Sikandar and Nisar had allegedly attempted to commit robbery in the shop/store of complainant Muhammad Zaman and having failed in their attempt, ran from the seen of offence causing death of two persons namely Sher Zamn and Khuda Dinno. Learned counsel for the appellant further submitted that the appellant is not the only culprit who is alleged to have fired from his pistol but all the three are alleged to have fired and secondly that the prosecution evidence only suggests that the appellant had gone to the shop/store in order to commit robbery of the property from the said shop and they had no intention to commit murder of any person. Learned counsel urges that it is not clear in the evidence on record, that the deceased Khuda Dinno died as a result of fire shot made by the appellant. The learned counsel thus, emphasized that such being mitigating circumstances, the appellant would be entitled to reduction in his sentence.
4. On the other hand Mr.Habib Ahmed, learned A.A.-G. Appearing on behalf of the State, while opposing the prayer for reduction of sentence, submitted that there was abundant prosecution evidence to show that the appellant in order to successfully escape from the seen had fired at Khuda Dinno (deceased), who was found standing in the street. It was argued that there is no ambiguity in the evidence that Khuda Dino was killed by any other culprit and not by the appellant.
5. The learned A.A.-G further argued that the death sentence is the only punishment prescribed for the offence of section 7(1)(a) of the Anti Terrorism Act and, therefore, there can be no other sentence less than death.
6. We have gone through the record of evidence and the impugned judgment and have also considered the contentions raised by the respective counsel for the parties. Eyewitnesses namely Abdul Hameed P.W.9 (Exh.48), Mubarak P.W.10 (Exh.50) and Ghulam Muhammad P.W.11 (Exh.51), have very clearly stated in their depositions on oath that the appellant had fired at Khuda Dinno who died due to such firearm injuries. Proposition that the appellant and his companions had come with sole purpose of committing robbery from the complainant's shop would have no much bearing in relation to the prayer of reduction of sentence. The intention to kill may be formed even at the spur of moment. The shot was fired by the appellant at the time when he was running away from the seen and on seeing the deceased in front of him, he fired shots from his pistol at him.
7. Learned counsel for the appellant has further failed to meet the arguments of learned A.A.G that the punishment under section 7 (1) (a) of the Anti Terrorism Act at the relevant time was death only.
8. Keeping in view the above, we feel that there are no mitigating circumstances, appearing in the case of the appellant and in view of legal position also, the appellant's sentence cannot be reduced. We, therefore, dismiss the appeal and maintain the sentence of death awarded to the appellant. The reference for confirmation of death sentence is answered accordinly.
9. Above appeal was dismissed by a short order dated 26-2-2004, for the reasons detailed above.