' IMAM BUX BALOCH, J---Appellant Abdul Nabi Kakepoto has assailed the impugned judgment dated 24-4-2002 passed by Judge, Anti Terrorism Court-III, Sukkur and Larkana Division at Sukkur in Special Case No, 74 of 2000 arising out of Crime No,164 of 2000 Police Station, New Fojdari, Shikarpur registered for offence under sections 302. 34, PPC, 10/4 Offence of Zina (Enforcement of Hadood) Ordinance, 1979 and S. 7 of Anti-Terrorism Act, 1997. The learned trial Court convicted and sentenced the appellant under section 302 (a), P.P.C. To death as Qisas. It was also directed that the appellant shall pay Rs.100,000 to the legal heirs of deceased girl. In case of non-payment of compensation the appellant was directed to undergo RI for three years under section 544-A, Cr.P.C.
He was also convicted and sentenced under Article 10/4 of Offence of Zina (Enforcement of Hadood) Ordinance, 1979 to death as Tazir and to pay fine of Rs.100,000 and in case of non- payment of fine he was directed to undergo R.I for three years. The appellant was also convicted and sentenced under section 7 of Anti Terrorism Act, 1997 to death as Tazir and to pay fine of Rs.100,000. In case of non-payment of fine he was directed to undergo R.I. For three years.
2. Mr. Ali Nawaz Ghanghro, at the very outset, argued that he does not touch the merits of the case but he argued that the lesser punishment may be awarded to the appellant from death to imprisonment for life. He further contended that the appellant is a young boy and sole bread- earner of his entire family and prior to this offence he was not involved in any criminal activity. He further contended that case against the appellant is false and looking to the mitigating circumstances of the case the appellant may be acquitted of the charge.
3. On the other hand Mr. Syed Fida Hussain Shah, learned State counsel strongly supported the prosecution case and contended that there are no mitigating circumstances to award lesser punishment to the appellant. He further contended that the appellant has committed a very heinous offence not only killing a little girl of seven years but he has committed Zina-bil-Jabr with her which is a crime against society and in such heinous offences the appellant does not deserve any concession. In these circumstances, learned State counsel contended that the prosecution has established its case beyond any reasonable doubt and no mitigating circumstances are available for lesser punishment. Hence he supported the impugned judgment.
4. We have considered the submissions of learned counsel for the parties and perused the record of the case with their assistance. We have also perused the evidence recorded at the trial. Perusal of the record shows that the appellant has committed a very heinous offence which is against the society. We have also gone through the medical evidence. We would like to reproduce the injuries sustained by the deceased baby girl which are as under:-- .
"(1) Bleeding from the left ear,
(2) Frothing from mouth and nose,
(3) Deep abrasions on the front of the neck.
(4) Blood from vagina covering the private part. Staining of blood on both medial side of thigh and both buttocks.
(5) Mark of burn with palling of skin on Right Middle thigh.
(6) Vagina became adematus and destructive of vaginal area.
(7) Hymen was completely torn."
5. We have also minutely appreciated the evidence available on the record but do not persuade to find out any mitigating circumstances for C awarding lesser punishment to the appellant.
6. In the case of Nasir Shah v. The State, 2006 SCM R 1796, it was held by the honourable Supreme Court as under:-- "11. Coming to the question of sentence, it was alleged that the motive is shrouded in mystery and hence the petitioner was not liable to be imposed the normal sentence. This Court has held in numerous cases that when a case is otherwise proved, the knowledge and proof of motive is not at all necessary. Sometimes, it is known to the assailant and the Almighty alone. The evidence is suggestive of the fact that the petitioner was around and in search of the deceased, already armed with a weapon especially carried for criminal purpose. He knew as to where the deceased was and he sent a messenger after him to call him out. It is a sufficient evidence indicating premeditation of the petitioner using a weapon that does not fail and at the same time can conveniently be concealed. In the circumstances, we hold that it was never a case of mitigation in the sentence.
12. The prosecution having proved its case beyond any shadow of reasonable doubt, the learned trial Court has rightly convicted and the learned High Court has rightly maintained the conviction as well as the sentence. There being no merit in the petition, it is hereby dismissed and leave to ."
' In the case of Qnayat Ali v. Iftikhar Ahmed, PLD 2007 SC 80, the honourable Supreme Court held as under:-- "12. In our considered view, evidence on record clearly proves beyond doubt the act of participation of the respondent in the commission of the crime and strong basis for finding of guilty against him without there being any mitigating circumstances for the alteration of sentence as done by the High Court in the present case. On deeper examination the evidence and analysis of the impugned judgment, we are inclined to observe that the reasons assigned for mitigation of sentence are not supported by the material on record and are based on conjectures and surmises and mere speculations which can hardly be upheld in the facts and circumstances of the case. We are, therefore, legally entitled to interfere with the exercise of discretion by High Court, which is otherwise sparingly disturbed. In the facts and ground realities of the case, we are constrained to upset the view taken by the High Court in the larger interest of justice and supremacy of law and restore the capital punishment as awarded by the trial Court."
7. In the above case, the learned Lahore High Court converted the death sentence of respondent Iftikhar to life imprisonment on the ground that sudden flair up could not he ruled out. After evaluating the evidence the honourable Supreme Court upheld the judgment of the trial Court and set aside the judgment of Lahore High Court.
8. During the course of arguments a question arose about the maintainability of the appeal before this Court as the appellant was also convicted and sentenced under section 10/4 of Offence of Zina (Enforcement of Hadood) Ordinance, 1979 as the appeals pertaining to the Hadood are to be heard and decided by the Federal Shariat Court. Reference was placed on the case of Bashir Ahmed v.
The State, PLD) 2002 SC 775 wherein the honourable Supreme Court held as under:-- "15. The Anti-Terrorism Act, 1997 was assented to by the President and was published in the Gazette on 20-8-1997. It is thus clear that if the offence was committed after the said date, jurisdiction to try the offence exclusively vested in the Court constituted under the Anti-Terrorism Act, 1997 and no other Court can take the cognizance of the offence. In this case, the offence was committed during the night between 21st and 22nd of December, 1999, therefore, the Court constituted under the Anti- Terrorism Act, 1997 had the jurisdiction to try the offence and obviously the appeal was maintainable before the High Court on a Reference to be made under section 374, Criminal Procedure Code which is applicable to the proceedings by virtue of section 30 of the Anti Terrorism Act.
We have gone through the dictum laid by the honourable Supreme Court and considering all the aspects of the case we are of the considered view that the judgment of the trial Court is well reasoned and needed no interference by this Court which is maintained. The reference is answered accordingly.