' SYED DEEDAR HUSSAIN SHAH, J.--- This appeal by leave of the Court is directed against the judgment of a Division' Bench of the High Court of Sindh, Karachi, dated 20-4-1998 read with opinion of the third Judge, dated 5-3-1999, in S.A.T.A. No,12 of 1997.
2. Complainant lodged F.I.R. No,509 of 1997 under sections 302/307/324, P.P.C. With Police Station Gulshan-e-lqbal Karachi against the appellant for committing the murder of Aamir Kakar and causing injuries toy Muhammad Farid Iqbal. After investigation the police put up the challan against the accused before the Court of Judge, Anti-Terrorism, Karachi Division (hereinafter referred to as the Special Court). The learned trial Court vide judgment, dated 29-11-1997 convicted the appellant and sentenced him as under:--
(i) Under section 302, P.P.C. Death sentence and fine of Rs,50, 000 or in default to undergo R.I. For two years.
(ii) Under. Section 324, P.P.C. (as amended) 20 years' R.I. And fine of Rs,25,000 or in default to suffer R.I. For 1 year
(iii) Under section 337-F(iii), P.P.C. (as amended) 3 years' R.I. And fine of Rs,5,000 or in default 6 months' R.I.
3. Feeling aggrieved, appellant filed an appeal before the High Court of Sindh, Karachi, which was heard by a Bench comprising Rana Bhagwandas and Amanullah Abbasi, JJ. Both the Judges agreed with the finding of the Special Court with regard to the guilt of the appellant for the commission of the murder of Aamir Kakar, but disagreed on the question of the quantum of sentence. Rana Bhagwandas, J. Was of the opinion that the death sentence awarded by the trial Court should be confirmed, whereas. Amanullah Abbasi, J. Opined that imprisonment for life would be the proper sentence to meet the ends of justice. Therefore, the matter was referred to the third learned Judge, Hamid Ali Mirza, J. Who concurred with Rana Bhagwandas, J., and accordingly death sentence was confirmed. However, the conviction of the appellant under section 337-F(iii), P.P.C. Was set aside by the Bench comprising Rana Bhagwandas and Amanullah Abbasi, JJ.
4. Vide order, dated 7-4-1999 leave to appeal was granted to consider the contentions raised by the learned counsel for the appellant, who appeared at the petition stage.
5. Syed Ali Hassan Gillani, learned Advocate Supreme Court for the appellant, at the very outset submitted that he does not want to contest the appeal on merits as well as on the grounds on which leave to appeal was granted, but he confines his submissions to quantum of sentence i,e, from death to life imprisonment.
6. Mr. Fakhruddin G. Ebrahim, learned counsel for the complainant submitted that the learned High Court has rightly awarded the normal sentence of death to the appellant for committing the brutal murder of the deceased..
7. We have considered the arguments of learned counsel for the parties and very minutely examined the record available. The conviction of the appellant on merits is not disputed by the learned counsel for the appellant, but he submits that death sentence may be modified to life imprisonment. He referred to the dissenting note of Amanullah Abbasi, J., which reads as under:-- "It is because of the event which preceded the incident that I am not ready to maintain the death sentence. The incident of 10-7-1997 was not started by accused and in fact he was victim of that incident and he had to report the matter to police. It was the accused who helped the complainant party because of which the deceased was released on bail. But after being released on bail he threatened the accused to eliminate him within two days. Because of the previous event and this threat the appellant can have genuine apprehension of being killed and, therefore, he started keeping the licensed revolver of his father. He had apprehension that he will be eliminated if he did not act. These are the reasons and possibly he can be entitled to right of private defence because he had not initiated the incident on 10-7-1997. Whether he has exceeded the right of private defence is another question. Because of this reason I will not award him death sentence. Accepting the difference of awarding the death sentence there is no other difference with my brother's judgment."
' However, Rana Bhagwandas, J. First Member of the Bench held as under:-- "21. On the question of sentence of death for the offence of murder no mitigating circumstance seems to exist warranting a lenient view in the matter of capital punishment. This question has received the attention of the Supreme Court of Pakistan from time to time. In Muhammad Sharif v.
Muhammad Javed PLD 1976 SC 452, Supreme Court viewed with concerned inhibition or hesitancy on the part of trial Court in awarding penalty of death and marked tendency of High Court to find a laboured pretext to alter sentence of death to life imprisonment. Supreme Court observed that propensity of Courts to avoid death penalty at the trial or allowing unjustified commutation in appeal followed by frequent remission of sentence by both earned and conferred is bound to take away the sting of deterrence, thus indirectly contributing to the incident of heinous crime of which the Courts cannot fully escape the share of responsibility. Identical view was re-affirmed by another Bench of the Supreme Court in Bakhshis Elahi v. State 1977 SCM R 309 laying down the rule that the Legislature had conferred very wide discretion on the Courts in the matter of sentence under the Penal Code, but as the discretion has to be exercised judicially, the Courts would be entitled to take into account the law and order situation, if the object of punishment or one of the objects of punishment be to deter the commission of further crimes. After referring to Salmond on Jurisprudence (10th Edition) at page 111 Supreme Court expressing its agreement with the author held that the Court would be justified in holding that a severer sentence was necessary on account of the increase of crime, provided of course culpable homicide of the type under consideration have increased."
8. We have also carefully examined the judgment delivered by the learned third Judge of the High Court, who after careful examination of the evidence and the manner in which the deceased was done to death, concurred with the opinion of Rana Bhagwandas, J. On the question of quantum of sentence. It would be pertinent to refer here the opinion of the Referee Judge, which reads as under:-- "On the question of sentence on which there has been difference of opinion of my two learned brother Judges I would state that there was no mitigating circumstance warranting lesser punishment than the capital punishment. The evidence would show that the deceased Aamir Kakar along with injured/ complainant Muhammad Farid Iqbal was standing at the telephone booth whereas the appellant/accused came in a car and on seeing the deceased and injured parked his car got down from it and thereafter he without any provocation from the other side repeatedly fired upon them. Before that he told them to recite Holy Kalma. The appellant had first fired at the face of the deceased and then on the back of skull of deceased. Appellant had re- loaded the revolver and directed the injured Farid to remove the hand from the head as he wanted to fire him on his head which he fired but it missed. The present fatal incident took place after eleven days of the earlier incident where altercation had taken place between Sanaullah the brother-in-law of deceased Aamir Kakar and the appellant which incident could not be said to minimize the gravity of the offence committed by the appellant/accused in committing the death of deceased Aamir Kakar considering that for eleven days nothing ill has happened between the parties which could warrant the appellant to commit the fatal incident. There is nothing to show that the deceased or the injured Farid Iqbal were armed with any weapon from which appellant could have apprehended that he might be killed by them. On examination and scrutiny of the evidence it would be seen that the appellant/accused has even not suggested in the cross about his right of private defence in the commission of offence. In view of the evidence, right of private defence would not extend to the appellant for committing the fatal crime when there was nothing untoward from the side of the deceased and injured who were standing there near the telephone booth and when the deceased was speaking on the telephone.
' In view of all circumstances referred by me above I have come to the conclusion that the prosecution evidence is confidence inspiring and no mitigating circumstance or right of private defence existed warranting a lesser punishment in the case of heinous offence of brutal murder in favor of the appellant/accused. In consequence of my opinion, I concur with the finding of sentence of my learned brother Rana Bhagwandas, J. And dismiss this appeal."
9. The judgment of the learned Judge, who modified the death sentence to life imprisonment, is neither based on sound and cogent reasons, nor any mitigating circumstance was available warranting a lesser punishment in the case of heinous crime of brutal murder of the deceased. In our considered view, the prosecution evidence is confidence inspiring; A cold-blooded murder was committed by the appellant, which was fully supported by the ocular and circumstantial evidence as well as the medical evidence. This Court time and again has held that when a case for Qatl-e- Amd is proved against accused, normal sentence of death should be awarded, and this is the case in which the learned High Court has rightly awarded the death sentence under the law, which does not warrant interference. We do not find any mitigating circumstance for modifying the sentence from death to imprisonment for life.
10. For the facts, circumstances and reasons stated hereinabove, the death sentence awarded by the trial Court and upheld by the learned High Court is maintained, and the appeal in hand is dismissed.