' SARDAR MUHAMMAD ASLAM, J.---Appellant has assailed his conviction and sentence of death awarded by the learned trial Court, which was maintained in appeal by a learned Division Bench of High Court of Sindh, Karachi, in a case registered vide F.I.R. No,246 of 1999 at Police Station Orangi Town, West Karachi.
2. Facts giving rise to this appeal need not be detailed; firstly, as the same find sufficient mention in the judgments of both the learned Courts below and secondly; we intend to remand the case back for decision afresh. Suffice to say that on submission of challan, the appellant was tried. The learned trial Court recorded conviction under section 302(b), P.P.C. Read with section 7(i)(a) of Anti-Terrorism Act, 1997 and awarded death sentence vide its judgment dated 4-1-2000, which on appeal was maintained by a learned Division Bench of High Court of Sindh, Karachi vide its judgment dated 19-3-2004.
3. Learned counsel for the appellant at the very outset argued that judgment of learned Division Bench is sketchy unreasoned, hence cannot be termed as a judgment in law under section 367, Cr.P.C. In support of his argument, he relied on "Sahab Khan and 4 others v. The State and others (1997 SCM R 871) and "Farrukh Sayyar and 2 others v. Chairman, NAB, Islamabad and others (2004 SCM R 1).
4. Learned counsel for the State as well as learned counsel for the complainant, in opposition argued that the learned counsel for the appellant had not pressed the appeal on merits before the appellate Court and only prayed for reduction of sentence, therefore, it was not incumbent upon the Court to give detailed reasons for the judgment.
5. We have heard learned counsel for the parties at length and perused the record. Learned appellate Court in paragraph 3 of its judgment recorded contention of the learned counsel for the appellant to the following effect:-- "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 Dinno. Reiterating his arguments he urged that the appellant Murad Baloch. 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 scene of offence causing death of two persons namely Sher Zaman 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".
6. Learned appellate Court confined its discussion to the above argument and dealt the same in paragraph 6 of the judgment by a passing reference to the statements of Abdul Hameed P.W.9, Mubarak Ali P.W.10 and Ghulam Muhammad P.W.11, in drawing conclusion that the appellant had fired at Khuda Dinno, who died due to such fire shot injuries. Thus, finding no mitigating circumstance confirmed the death sentence of the appellant and answered the reference for confirmation of death sentence, in positive.
7. Notwithstanding the fact that the learned counsel for the appellant has not pressed the appeal on merits by throwing challenge to the conviction and prayed for commutation of sentence on account of the role attributed to the appellant but still appellate Court was bound to satisfy itself by examining the entire evidence available on record qua guilt of the appellant. Learned Court was seized of the murder reference sent for confirmation of death sentence. It had to be disposed of on merits by examining the entire evidence bit-by-bit and by giving reasons to answer the murder reference in positive or otherwise, even if no appeal is preferred by the convict. Judgment recorded is not in consonance with the mandatory provision of section 367, Cr.P.C. Reference has rightly been made by the learned counsel for the appellant to the following observation in the case of "Nusrat Ali v. The State" (1997 SCM R 876):-- "Without going into the merits and demerits of the case of the parties, we hold the view that criminal appeals referred to above were not decided in the light of afore-noted statutory provisions. They shall, therefore, be deemed to be still pending adjudication. Needless to state that at the appellate stage, whole original case stands reopened for its hearing and decision in accordance with law. Such-like appeals cannot be decided summarily without analytically discussing the evidence on record. The appeals of the parties were required to have been decided in accordance with the evidence. This could not be done for no obvious legal reasons. The learned counsel has attempted to argue that both the appeals may be heard and decided on merits by this Court to do substantial justice between the parties. We cannot substitute our opinion/decision with the one which is still to be given by the High Court on the basis of evidence, available on record".
' This view was again reiterated in Farrukh Sayyar and 2 others v. Chairman, NAB, Islamabad and others (2004 SCM R 1).
8. For the discussion made above, we are constrained to allow the appeal, set aside the impugned judgment dated 19-3-2004 passed by the learned High Court. The appeal of the convict and murder reference shall be deemed to be pending and be decided afresh, after hearing the parties, notwithstanding the concession of the learned counsel for the appellant of not pressing the appeal on merits.