' IMAM BUX BALOCH, J.---By this common judgment we intend to dispose of Criminal Appeal No,D- 52 of 2003 filed by appellant through his counsel Mr. Athar Abbas Solangi and Criminal Jail Appeal No,D-65 of 2003 filed by appellant himself through jail as well as Criminal Reference No,D-3 of 2003 as they are outcome of one and same judgment.
2. Appellant Muhammad Haneef has assailed the impugned judgment passed by learned 7th Additional Sessions Judge, on 19-4-2003 whereby the appellant was convicted and sentenced to death and fine of Rs.100,000 and in default of payment of fine he shall suffer R.I. For two years. He was further directed under section 544-A, Cr.P.C. To pay compensation of Rs.100,000 to the legal heirs of deceased Fayaz Ali.
3. The prosecution story is that on 3-2-2000 at 8-00 a.m. Complainant along with his sons Fayaz Ali and Qurban Ali and his maternal nephew Manzoor Ali were sitting in front of their house and their cattle pond, when accused Haneef armed with gun, (2) Muzaffar alias Mujjan armed with gun, both sons of Muhammad Rafique (3) Muhammad Rafique son of Muhammad Usman, (4) Gul Muhammad son of Muhammad Khan, (5) Abdul Sattar son of Muhammad Amin all armed with guns, 6.Aijaz son of Sher Muhammad empty-handed, all by caste Butt residents of village Ghulam Hussain Butt, Taluka Dokri, 7.Ali Bakhsh son of Muhammad Hassan resident of village Fateh Muhammad Butt also armed with gun, came at the cattle pond of the complainant. Out of them, Haneef abused and challenged them that why they have made him and his friends as thieves in theft of their cattle and they will not be spared. Accused Aijaz instigated Haneef not to spare them on which accused Haneef fired from his gun straightaway at Fayaz All son of the complainant which hit him on his head. After that all the accused fired in the air and caused harassment. On the firearm reports village people also came running hence the accused persons went away.
Complainant noticed that his son has received injuries and he shifted his son to Taluka Hospital, Dokri and then went to Police Station and lodged the F.I.R. Initially F. I. R. Was lodged under sections 324, 147, 148, 149, 337-H(ii), 114 and 504, P.P.C. But on 4-2-2000 the injured succumbed to the injuries hence the F.I.R was converted from sections 324 to 302, P.P.C. Such information was given to the concerned police station and A.S.-I. Ghulam Yaseen Jhatial proceeded to Taluka Hospital, Dokri and on the pointation of complainant prepared inquest report of the dead body and after completing all the formalities dead body was given to the complainant. After completing the investigation challan was submitted in the competent court of law. On 28-3-2001 the learned trial Court framed charge against accused Muzaffar alias Mujjan, Haneef and Muhammad Rafique.
4. During trial complainant Ali Bux was examined as P.W.1 at Exh.6. He produced F.I.R at Exh.6-A, P.W Manzoor Ali was examined as P.W.2 at Exh.7-A. Dr. Irshad Hussain as P.W-3 at Exh.8. He has produced postmortem report of deceased Fayaz Ali at Exh.8-A. Qurban Ali was examined as P.W.4 at Exh.9, he has produced his 164, Cr.P.C. Statement at Exh.9-A, Allauddin was examined as P.W.5 at Exh.11. He has produced mashirnama of injuries at Exh.11-A, mashirnama of place of incident, securing of empty cartridges and blood-stained earth as Exh.11-B, mashirnama of recovery of gun and cartridges from accused Exh.11-C, mashirnama of dead body at Exh.11-D, inquest report at Exh.11-E, mashirnama of arrest and personal search of accused Muzaffar, Gul Muhammad, Abdul Sattar, Aijaz and Ali Bux Butt; A.S.-I. Ghulam Yaseen Jhatiai as P.W.6 at Exh.12, PC Nawaz Ali as P.W.7 at Exh.13. He has produced receipt at Exh.13-A. Dost Muhammad Chandio as P.W.8 at Exh.14. He has produced ballistic Expert report as Exh.14-A. Talib Hussain Tapedar as P.W.9 at Exh.15. He has produced report and sketch of place of incident in triplicate. After concluding the evidence the learned trial Court recorded statements of accused under section 342, Cr.P.C. After examining the accused learned Public Prosecutor produced Chemical Examiners report with his statement at Exh.23. After hearing the learned counsel for the parties the impugned judgment was passed.
5. At the very outset Mr. Athar Abbas Solangi, learned counsel argued that he is not pressing this appeal on merits but he contended that there are mitigating circumstances for altering the death sentence to life imprisonment. We have asked the learned counsel for appellant to pinpoint from the evidence of the prosecution witnesses for impressing us for altering the death sentence to life imprisonment but he was unable to point out any single circumstance to impress us for altering the death sentence to imprisonment for life.
6. On the other hand, Mr. Naimatullah Bhurgri, learned State counsel strongly supported the prosecution case and contended that there are not mitigating circumstances to award lesser punishment to the appellant. He further contended that the appellant came at the cattle pond of the complainant along with his co-accused duly armed and it was the motive of the appellant to commit murder of deceased Fayaz Ali that why he along with his friends were involved in a .Theft case. 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.
7. With the assistance of learned counsel we have scanned the evidence. The ocular evidence is consisting upon P.W. Ali Bux, complainant, P.Ws. Manzoor Ali and Qurban Ali who are unanimous on the point that at the time of incident they were available at the cattle pond of the complainant in front of house of the complainant where at about 8-00 a.m. Appellant along with his co-accused duly armed with deadly weapons came and asked the complainant that why they have involved him and his friends in a theft case and appellant straightaway fired upon deceased Fayaz Ali on his head. The ocular evidence is corroborated by medical evidence. Dr. Irshad Hussain, who conducted autopsy on the dead body of Fayaz Hussain. On external examination, he found two injuries as under:-
(1) Lacerated punctured wound on the posterior aspect of right parietal region of skull, measuring 1 c.m x 1 c.m X scalp deep. Entry
(2) Lacerated wound on the right parietal region of skull measuring 4 c.m. x 1.5 c.m. X bone visible Gutter shaped, fibres directed from back to front.
Furthermore circumstantial evidence is available on record as from the place of wardat on the same day eight empty cartridges of .12 bore were recovered. When the appellant was arrested he was armed with SBBL gun with a bandolier retaining ten live cartridges of .12 bore. B We have minutely appreciated the evidence available on the record but do not persuade to find out any mitigating circumstances for awarding lesser punishment to the appellant.
8. 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 herby dismissed and leave to appeal refused. "
' In the case of Inayat 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."
9. 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 be 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.
10. 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 and the appeal is therefore dismissed.
11. In view of the above, Criminal Reference No,3 of 2003 submitted by the trial Court for confirmation of death sentence is answered accordingly.