Akhtar Zaman Malghani, J.--The judgment dated 25.9.2003, rendered by Sessions Judge Mekran at Turbat in Sessions Case No, 14 of 2003 has been assailed in the instant appeal, whereby; the appellant was found guilty under Section 302 (b) P.P.C. and sentenced to death. The learned Sessions Judge has also forwarded the judicial proceedings for confirmation of death sentence.
We propose to dispose of both the matters through this common judgment.
2. Briefly stated, facts of the case are that on 10.4.2002, at about 12 midnight P.W. Qaisar Khan lodged a report with Panjgoor Police Station to the effect that on the said day he and his brother Muhammad Yousaf were driving their Truck on their way to Quetta from Iran Border via Panjgoor. At about 10:15 p.m. they reached Garmakan Panjgoor where they stopped in order to buy bread from ,nearby "Dash" (Local Bread Bakery). He further stated that he went for purchasing bread where two boys were already standing, out of whom one was loudly speaking that he is Badmash' of the area and disclosed his name as Asim. He asked the complainant as to why they aimed at the complainant. It was further stated that in the meantime his brother Muhammad Yousaf also came there, whereupon the said boy 'fired upon him which hit Muhammad Yousaf on the right side of chest who was taken to Hospital, where he succumbed to injuries. On his report FIR. No, 50/2001 was registered in Police Station Panjgoor and investigation was carried out by P.W.7 Abdul Aziz. He prepared inquest report Ex. P/7-C, took into possession blood-stained shirt of deceased vide recovery memo Ex. P/2-C, recorded the statements of the witnesses under Section 161 Cr.P.C. and thereafter proceeded to the place of occurrence where he prepared the site plan Ex. P/7-B on the pointation of complainant Qaisar Khan. During inspection of site he took into possession one empty vide seizure memo Ex. P/2-E. He also recorded the statement of P.W Wahid Bukhsh at the place of incident where he was present. On 11.4.2002 he arrested the appellant and on 20.4.2002 got identified him by P.W. Qaisar Khan in identification parade, held in presence of Tehsildar. He also obtained medical certificate from the Hospital and thereafter handed over investigation to P.W.8 Manzoor Ahmed S.I. who got recovered Pistol at the pointation of the appellant and after obtaining chemical expert's report prepared the challan Ex. P/8-E.
3. Initially, the challan was submitted in the Court of Anti Terrorism, Mekran at Turbat. At the commencement of trial charge was read over to the appellant to which he pleaded not guilty.
Thereafter prosecution produced eight witnesses in support of accusation. At the end of prosecution evidence the appellant was examined under Section 342 Cr.P.0 in respect of incriminating pieces of evidence appearing against him in prosecution evidence which were denied by him. He did not opt to give statement on oath, however, produced two witnesses in his defence. The learned Judge Anti Terrorism Court found the appellant guilty and sentenced him to death vide judgment dated 3.7.2002. The appellant preferred appeal against the said judgment before this Court which was eventually accepted on 10.3.2003 and after setting aside the judgment case was transferred to learned Sessions Judge Mekran at Turbat after holding that the provisions of Anti Terrorism Act, 1997 were not attracted in the facts and circumstances of the case and the case should have been tried by the regular Court.
4. The learned Sessions Judge on receiving the case file and after hearing the parties found the appellant guilty under Section 302 (b) and sentenced him to death vide impugned judgment.
5. We have heard the learned counsel for the appellant as well as learned State counsel and also gone through the impugned judgment. The learned counsel for the appellant raised following contentions:--
(i) Investigation of the case was not honest as the Panjgoor Police was inimical to the appellant which is evident from the, FIRs produced by D.W. 2 in his statement which show that the appellant was earlier involved in number of cases by Panjgoor Police and it cannot be ruled out in the circumstances of the case that the appellant was implicated in the case by the complainant Qaisar Khan at the instance of Panjgoor Police.
(ii) There is only one eye witness whose testimony is not exceptional to form basis for conviction.
(iii) Three pieces of circumstantial evidence individually or collectively does not qualify the test which is "circumstantial evidence must be inconsistent with the innocence of the accused".
(iv) Recovery of the Pistol has not been proved.
(v) Medical evidence contradicts the ocular account. Further elaborating his contention the learned counsel referred to the statement of P.W.1. Doctor Ayub Murad who found one gun shot wound on back with entrance and exit on the chest whereas according to P.W Qaisar Khan deceased was fired on chest by the appellant.
(vi) There was not sufficient light at the place of incident to enable P.W. Qaisar Khan to have seen the appellant making firing and identifying him.
(vii) P.W. Qaisar Khan in his report mentioned presence of two boys at 'Dash' not known to him previously but claimed 'can identify the accused', however; he did not give any description of the accused/culprit in FIR. In such circumstances identification parade was of little value which even otherwise was liable to be discarded having been held with a considerable delay.
In alternate the learned Counsel submitted that according to the prosecution own version the appellant attempted to commit murder of the complainant Qaisar Khan but the bullet hit Muhammad Yousaf decease who came in-between them, although liability is not diminished but so far sentence is concerned, the Court can take into consideration the fact that he had no intention to kill the deceased, as such; if Court comes to the conclusion that the appellant was guilty of the offence, then lift imprisonment would be proper and appropriate sentence in the facts and circumstances of the case.
7. Conversely, the learned State Counsel supported the judgment the learned trial Court and urged that the appellant was nominated is promptly lodged report and statement of P.W. Qaisar Khan, who has no previous enmity with the appellant, was sufficient to base conviction. He further contended that the statement of P.W.5. Qaisar Khan which was straight forward and confidence inspiring, could not be discarded merely on the ground that the same was contradicted by the medical evidence. According to him in medical certificate the doctor has not given proper description of the wounds which could help the Court in arriving at the conclusion that in fact entrance and exit wound given by the doctor were correct, He further contended that after nomination of the appellant in the report there was no need for giving description of the appellant nod giving of description in FIR could not be held fatal to the prosecution case. Even otherwise P.W.
Wahid Bakhsh who was resident of the area and well acquainted with the appellant has stated in his statement that the appellant was the person who was holding pistol and accumulative effect of both the statements would be that the appellant was the person who has made firing. Lastly he requested for confirmation of death sentence.
8. Before dilating upon the respective contentions put forth by the parties' learned counsel we find it expedient to give brief resume of the evidence produced during trial.
P.W.I. Doctor Muhammad Ayub who examined the dead body of the appellant, found following injuries on his person.
"Once gun shot wound on back with entrance and exit on the chest (beneath of right clavicle).
Duration: Fresh Cause of death: Excessive bleeding.
P.W.2 Abdul Ghafoor deposed that on 9.4.2002, he alongwith SHO and Abdul Aziz Investigating Officer went to Civil Hospital where dead body of Muhammad Yousaf was lying which was taken into possession through seizure memo Ex: P/2-A. The blood stained shirt of the deceased was also taken into possession vide seizure memo Ex. P/2-C in his presence. He further deposed that thereafter he alongwith Investigating Officer went to place of occurrence where an empty of .30 bore was taken into possession vide recovery memo Ex. P/2-F, signed by him. According to him thereafter police raided the house of the appellant in order to arrest him but he was not resent there.
P.W.3 Abdul Aziz Head Constable deposed that on 26.4.2002 he was resent in Police Station Panjgoor where during investigation the appellant disclosed about T.T. Pistol by means whereof he murdered the deceased Muhammad Yousaf and thereafter led the police towards bridge where he of recovered T.T. Pistol and one live cartridge which was taken into obsession vide recovery memo Ex. P/3-A and sealed into parcel. In cross-eexamination he stated that the bridge was situated towards east of the Tandoor' (place of incident), P.W.4 Wahid Bakhsh deposed that on 10.4.2002 at about 12 midnight he went to bread shop for purchasing bread where two boys were already present, out of whom one was Asim (appellant). In the meanwhile a person came to the shop and demanded bread in Pashto language whereupon the appellant asked him as to why he is speaking in Pashto and took out pistol. On seeing this he went.away and was on his way when he heard fire shot and came back to the shop and saw that person lying on the, ground having a bullet injury on his chest. In cross-examination he admitted that it was a dark night. He also stated that he was at a distance of 20 paces when he heard fire report. He denied the suggestion that he has falsely implicated the appellant in the case at the instance of police. He also denied the suggestion that he deals in narcotic (Opium) and has links with the police.
P.W.5 Qaisar Khan deposed that on 6.4.2002, he alongwith his brother Muhammad Yousaf went to Iran Border in their truck and on 9.4.2002 they were coming back. When they reached at Garamkan 'Dash', they stopped their truck in order to purchase bread. He further deposed that he asked for bread in Pashto language whereupon the appellant who was standing their, took it offensive and asked him as to why he was speaking in Pashto with the owner of the shop. According to the witness the appellant also told him that he is `Badmash' of the area. The witness beseeched him to let them go as they are passer-by whereupon the appellant took out Pistol. In the meanwhile Muhammad Yousaf deceased also came in front whereupon the appellant fired at him which hit him on the right side of the chest and he fell on the ground. He with the help of other people took Muhammad Yousaf to Hospital where he succumbed to his injuries. He further deposed that thereafter at about 12 midnight he lodged report Ex. P/5-A with Police Station Panjgoor. He further stated that on 20.4.2002 SHO called him from Mastung and identification parade of the accused was held in which he identified the appellant thrice as the person who had murdered his brother.
In cross-examination he stated that his brother was fired from a distance of 5-6 paces. He also stated that during occurrence lights of their truck were of and there was also light in the bread shop. He denied the suggestion that h has involved the appellant at the instance of police. He also denied the suggestion that prior to identification parade the appellant was shown to him.
P.W.6 Muhammad Khan deposed that on 20.4.2002 he was posted a Tehsildar Panjgoor and was directed by Judicial Magistrate Panjgoor for holding identification parade at Police Station whereupon at about12.30 p.m. he went to Police Station where identification parade was held and P.W. Qaisar Khan identified the appellant thrice. He prepare identification parade memo which he produced in the Court as Ex. P/6-A: I cross-examination he denied the suggestion that the lock-up was visible from the place where the complainant was standing. P.W.7 Abdul Aziz deposed that on 9.4.2002 he was posted as SHO Police Station Panjgoor. At about 12 noon he received a written report from the complainant whereupon FIR No, 50/02 was registered.
Investigation was entrusted to him. He went to Hospital and took into possession dead body of deceased vide seizure memo Ex. P/2-A. He also took into possession blood stained shirt of the deceased through recovery memo Ex. P/2-C and blood stained cotton and Bandages through seizure memo Ex. P/2-D. He further deposed that he recorded the statements of the witnesses under Section 161 Cr.P.C. and thereafter went to place of incident and on the pointation of complainant prepared site-plan Ex. P/7-B. He also took into possession one empty of T.T. Pistol vide seizure memo Ex. P/2-E. According to him he recorded the statement of Wahid Bakhsh at the place of incident and thereafter came back to Hospital where he prepared inquest report Ex.P/7-C. He further stated that he raided the house of the appellant but he was not available there, however; his cousin promised for bringing him to Police Station. On 11.4.2002 the appellant was brought to Police Station by his cousin Jahanzaib who was arrested. He further stated that on 17.4.2002 the appellant pointed out place of incident and on 20.4.2002 identification parade of the appellant was held in presence of Tehsildar wherein the complainant identified the appellant. In cross- examination he denied the suggestion that the written report Ex. P/7-A and Ex. P/5-A are in same hand writing. P.W.
8. Manzoor Ahmed S.I. deposed that on 24.4.2002 he was entrusted with the investigation of the case. During interrogation the appellant disclosed about the crime weapon whereupon he was taken to Garmakan bridge from where he got recovered a T.T. Pistol and a live cartridge which were taken into possession. He further deposed that Pistol, empty and live cartridge were sent to fire arm expert; but the same were returned without examination with the remarks that bullet comparison micro Scope is out of order, D.W.I. Jahanzaib deposed that on 10.5.2002 at about 1:00 a.m. Police came at the house of the appellant where he was present. He was informed by the police that appellant has murdered one person whereupon he undertook to produce him before the Police. He further deposed that he inquired from the appellant about the murder which he denied and stated that at that time he was present in his house. According to the witness the police is inimical towards the appellant and he had been falsely implicated in he case. He further deposed that next day he produced appellant in Police tation where he was arrested.
D.W.2 Nizam-Ud-Din deposed that on 31.12.2000 he went to Polling station set up in Khudai Abadan High School for casting his vote where a quarrel took place between the police and the appellant whereupon two apses were registered against the appellant. He further deposed that there exist enmity between the police and the appellant. He also produced two IRs as Marks D/1 and D/2 which were registered against the appellant.
We have carefully considered the contentions put forth by the arties' learned counsel in the light of above discussed evidence. So far as the un-natural death of the deceased Muhammad Yousaf is concerned, the same is not denied by the defence which is even otherwise proved through the evidence of P.W. Wahid Bakhsh and P.W.5 Qaisar .Khan coupled with Medical Certificate issued by P.W.1 Doctor Ayub Murad. However, the question arises as to who has caused the death of deceased. In this regard according to the prosecution version the appellant was the person who had fired upon the deceased due to which he was seriously injured and succumbed to his injuries when was being taken to Hospital. The prosecution in order to substantiate the accusation mainly relies upon the ocular account of P.W. 4 Wahid Bakhsh and P.W. 5 Qaisar Khan coupled with medical report, recovery of Pistol and empty, identification parade and chemical examiner's report who has opined that the articles sent to him were stained with human blood. As discussed above, P.W. 5 Qaisar Khan is brother of deceased and was accompanying him on their way from Iran Border to Quetta when at Garmakan they stooped near a bread shop in order to purchase bread where fateful incident took place. According t. P.W.5 Qaisar Khan he talked with the shop owner in Pashto language which the appellant took offensive and asked him as to why he is speaking in Pashto. Despite his beseech he took out a Pistol and fired upon his brother Muhammad Yousaf who in the meanwhile had come in front of them. It may be noted that P.W.5, though related to the deceased is an independent witness having no previous enmity to falsely implicate the appellant in the crime, as such he cannot be termed as an interested witness merely due to his relationship with the deceased as contended by the learned defence counsel. In a number of judgments the Hon'ble Apex Court as well as High Courts have held that mere relationship with the deceased is not sufficient to discard the testimony of an eye witness who is otherwise found truthful one confidence inspiring by the Court. In the judgment reported in 2000 S.C.M.R. 727 the Hon'ble Apex Court held as under:-- "Moreover, we find that none of the two eye-witnesses could be termed as interested witness because none had any previous ill-will or grudge against the petitioner. Merely, because P.W.4 is father of the deceased and P.W.5 belongs to the Baradari' of the deceased would not make them interested as they had no reason to substitute the petitioner for the real killer".
10. So far as presence of this witness at the place of occurrence is concerned, same is not denied by the defence which is even otherwise prove by the fact that the FIR was promptly lodged by him within two hours of the occurrence and his presence in Panjgoor has also been confirmed by P.W.
Ayub Murad in cross-examination who stated that the deceased was brought to the Hospital by his brother Qaisar Khan. Admittedly the complainant is resident of Mastung, a place far away from the place of incident and if he has not been present at the time of incident, it was not possible for him to have lodged report on the same day within two hours. His statement is further corroborated by P.W.4 Wahid Bakhsh who is an independent witness having no relation with the deceased or the accused and according to him he had gone to 'Dash' in order to buy bread where he saw the appellant quarreling with the complainant and taking out Pistol. According to him thereafter he left, however; on hearing fire shot he came back and saw one person lying on the ground in injured condition. The learned defence counsel tried to persuade us to discard the statement of this witness on the ground that according to him the person who was lying injured was the same person earlier quarreling with the appellant, however; we find no substance in the contention of the learned counsel in the peculiar facts and circumstances of the case as deceased and complainant who were brother interse were not known to this witness previously, and any contradiction in this regard was not of such a nature which could be termed as sufficient to discard his evidence in totality. It is an admitted fact that P.W.4 Wahid Bakhsh .was resident of the area and the appellant was well known to him, as such; at least his statement to the extent of presence of appellant at the place of incident, quarreling with the complainant and taking out a Pistol, is worth reliance and such deposition corroborates the testimony of P.W.5 Qaisar Khan. It is well settled principle of criminal jurisprudence that the various pieces of evidence produced by the prosecution could not be considered in isolation but accumulative effect of whole prosecution evidence is to, be considered. The conjunctive/combined effect of both the statements would be that the appellant was the person who was present at the place of incident at the time when complainant and his brother stopped the truck near to the `Dash' in order to buy bread and he was the person who quarreled with the complainant and took out Pistol.
11. Thereafter P.W.4 left the scene, however; after hearing firing report he came back and saw one person lying in injured condition. The irresistible conclusion would not be other than that he was injured by the person who was holding pistol and was quarreling with the complainant. It further proves that the person who was quarreling with the complainant and had taken out the pistol was the appellant and his identification could not be doubted as P.W.4 Wahid Bakhsh knew the accused very well being resident of the same area.
12. The contention of the learned counsel that there is a conflict in Medical and ocular evidence, as such; medical evidence has to be preferred veer ocular account. We may observe that each case has to be decided in the that of its peculiar facts and circumstances. When ocular evidence is confidence inspiring and the Courts consider the witness to be truthful, then merely on the ground that medical evidence contradicts the ocular account is of sufficient to discard the testimony of such reliable witness. In the judgment reported in 2000 S.C.M.R. 1885 the Hon'ble Apex Court observed under:-- 13."It has time and again been held by the superior Court that if a bald statement of a medical expert is opposed to the proved and admitted confidence inspiring and reliable account of the eye-witnesses or other material and trustworthy evidence on record, then the latter are to be preferred against the former'.
Likewise in the judgment reported in 2000 S.C.M.R. 1758 it was held as under:-- "Appraisal of evidence--Ocular and medical evidence--Conflict between--Where there is any variation between ocular and medical evidence, the latter does not overweigh the former type of evidence if otherwise the ocular evidence is coherent and trustworthy".
14. Furthermore; opinion of a doctor is not binding upon the Courts ipso facto but Court has to see the opinion expressed by a doctor if to be acceptable in the light of well recognized principles of medical jurisprudence. In the instant case though the doctor has described the injury on the back side as 'entrance wound' and that on chest as 'exit wound' but careful perusal of medical certificate and statement of doctor shows that he failed to give any reasoning for reaching to this conclusion.
Moreover; in the medical certificate size (measurements) of these wounds have not been given and it lacks necessary particulars as regards the entrance and exit of the bullet are concerned i,e, whether the edges of the injuries were in inverted or overted in shape, so as to furnish basis with regard to the location of the seat of entrance and exit wounds, in absence whereof implicit reliance on the point cannot be placed on the testimony of the doctor. In the judgment reported in PLD 1994 Peshawar page 176 their lordships have held that it is now well settled that the medical opinion is not conclusive and inviolable and must be invariably tested on the touch stone of the well known treatise of the medical jurisprudence and form. As noted above due to deficient descriptions of the wounds given by P.W.1. it cannot be said with certainty that the opinion of the doctor was correct in the light of well-known principles of medical jurisprudence.
15.It may also be observed that the deceased was fired at in the heat of moment when he came in between the appellant and P.W.5 Qaisar Khan at the time the appellant had aimed Pistol at him. In such circumstances P.W. 5 could be naturally expected to be perplexed and the description of the manner in which the injury was sustained by the deceased might be the result of confusion and excitement generated by the dramatic situation. The deceased suffered fatal shot in presence of his brother P.W. 5 who obviously was looked at the awful scene with great amount of tension about fate of the victim, as such; it could not be expected from P.W.5 to have given the exact location of the shot i,e, entrance and exit of wounds, therefore, on the basis of such contradiction bearing no material significance in the circumstances of the case, his statement could not be discarded when his presence at the place of occurrence has been established beyond an doubt. The Hon'ble Supreme Court of Pakistan in the judgment report is 1986 S.C.M.R. page 1027 in similar circumstance observed as under:-- "Medical evidence indicating that shot hit deceased on back and had come out from front, whereas ocular testimony described shot to have been received by deceased from front of chest-- Eye-witnesses categorically stating in cross-examination that deceased was hit from front and bullet passed through her body emerged from her back--Trial Court adverted to such inconsistency but 'gave no importance to contradiction and this aspect was not highlighted or pressed before High Court--Occurrence was result of confusion and excitement generated by dramatic circumstances in which offence was committed--No doubt existing about presence of eye-witnesses and their testimony fully implicating accused--Conviction and sentence maintained".
16. As regards contention of the learned counsel that no description of the appellant was given in the FIR, it is suffice to observe that the appellant was nominated in FIR, therefore, in our considered view there was no need to give description of the appellant. It was also not un-natural for a person of a desperate nature to have introduced himself first before starting quarrel with a stranger; therefore, we find no substance in the contention of the learned counsel that it was highly improbable for the appellant to have disclosed his name before the complainant. Moreover, as discussed above if we read the statements of P.W.4 and P.W.5 together, then the presence of the appellant at the place of occurrence and taking out pistol as well as quarreling with the complainant is established beyond any reasonable doubt, as such; the statement of P.W.5 could not be discarded merely on the ground that he failed to give description of the appellant in FIR or that identification was held on the 9th day of the arrest of the appellant which was otherwise plausible in the circumstances of the instant case because the complainant admittedly was the resident of a far away place and had taken the dead body to his home town and thereafter for having been required to attend by the SHO, he returned to Panjgoor on 20.4.2002 on which date identification parade was held. It is pertinent to mention that prior to the incident there was conversation between the complainant and the deceased which naturally could have involved a couple of minutes, reasonably providing chance/basis for the complainant to identify the appellant, as such; it could not be termed as a momentary glimpse of the accused, as contended by the learned defence counsel. Also as held in the judgment reported in PLD 1988 Karachi 539 there is no legal requirement that there should be an identify test of an accused person if the eye- witnesses can identify the accused before the trial Court that is enough. In the judgment reported in 1982 S.C.M.R. 129 the Honourable Apex Court held that when there is other evidence on record from which the identify of an accused person can be established, non-holding identity test would not be fatal. It would be advantageous to reproduce the relevant observation:-- "Identification of accused--Value--No provision of law provides for holding of identification proceedings where crime committed by person unknown to witness or for that matter in any type of cases-- Identification, held, has by itself no independent value".
It was further held:-- "In practice however, it is not safe to accept the statement of a witness about complicity of an accused in a crime if he did not describe him by name or other particulars during the investigation and still was not made to identify him out of a group. If, however, the identity of the accused is proved by other convincing evidence direct or circumstantial, the absence of identification test proceedings will be immaterial."
16. Adverting to the contention of the learned counsel that due to darkness it was difficult for the eye-witnesses to have identified the appellant, we may observe that according to site plan electricity was available in the area as an electric pole has been shown right in front 'of the bread shop and it would be un-natural on the part of shop owner to have been selling bread without switching on electricity which fact has also been confirmed by P.W.5 in his deposition before the Court.
17.We also find no substance in the submission of the learned counsel that the appellant was falsely implicated in the case due to his enmity with the police for the simple reason that the FIRs produced and relied by the appellant were lodged by Bashir Ahmed Assistant Sub Inspector who was neither the Investigating Officer in the case in hand nor the Station House Officer of the Police Station at the time of incident. The appellant has failed to prove any malice or motive against Manzoor Ahmed SHO or Abdul Aziz S.I. who investigated the case, as such; merely because one or two cases were registered against the appellant on the report of one ASI is not sufficient to stamp the investigation to be dishonest or that the accused was implicated in the case out of malice by the police officer.
18. Though the Pistol allegedly recovered on the pointation of the appellant and empty taken into possession from the place of occurrence were sent for comparison to Fire Arms Expert but same were returned with the remarks that the Micro Scope Machine is out of order, as such; no report of I Fire Arm Expert is available on record and the said piece of evidence cannot be used against the appellant, yet the fact remains that there is ample evidence on record as discussed above to connect the appellant with the crime.
19.Reverting to the contention of the learned counsel regarding quantum of sentence, it may be observed that a person, who causes death of any other person whose death he neither intends nor known himself to be likely to cause, such an act committed by the offender shall be liable to Qatli-Amd. In the instant case appellant has been sentenced under Section 302(b) P.P.C. to death.
From the facts and circumstances of the case it could be safely concluded that the appellant deliberately and wantonly caused death of Muhammad Yousaf and there are no extenuating circumstances to award lesser punishment nor it could be a valid ground for awarding lesser sentence that the appellant had no intention to cause death of the deceased in view of the fact that the deceased and the complainant were un-armed and had not made even a threatening gesture, as such; his murder was of a most cowardly nature, no matter there was no premediation on the part of appellant to murder him. In this regard, we are fortified by the majority view in the judgment reported in 1963 S.C. page 285. Relevant observations are reproduced therein below:- Now on the question of sentence I feel that lesser sentence is not called for because the appellant had no justification for killing an innocent person who merely asked him not to fight. This killing of an unarmed person who had not made even a threatening gesture was a murder of most cowardly nature. It is true that there was no premeditation to kill. I am also aware that in some cases where there is no premeditation or prior enmity the Courts have awarded lesser sentence.
But in those cases at least the assault followed some quarrel or exchange of abuses. In the instant case there are no extenuating circumstances whatsoever and the mere fact that the appellant may be a man of violent temper is wholly insufficient for not imposing the extreme penalty.
For the fore going reasons, we find no merits in the instant appeal, which is dismissed accordingly.
The death sentence awarded to the appellant is confirmed and reference is answered in affirmative.