AFTAB AHMED GORAR, J.---The captioned criminal appeal is direc ted against the judgment dated 11.08.2010 delivered by the learned court of Sessions Judge, Thatta in session case No, 55 of 2007 arising out of Crime No, 17 of 2007, Police Station Ghorabari, registered under Sections 302, 337-1 1(2), 504 and 34 Pakistan Penal Code; whereby appellant was convicted under Section 265-H(2), Cr.P.C. for the offence under Section 302(b), P.P.C. for committing murder of deceased Nawab Ali and sentenced him to life imprisonment (RA). The appellant was also entitled to the benefit of Section 382-B, Cr . P. C . , the period undergone by appellant as Under Trial Prisoner shall be adjusted towards substantive sentence.
2. The sum and substance of the prosecution story as is envisaged in the First Information Report are that complainant Abdullah disclosed that there is dispute between the complainant party with Yousif Badinpoto Dars. On 01.04.2007, complainant together with his nephew Nawabdin Dars [deceased] aged 17 years and relatives Bachayo and Jan Muhammad were harve sting in the fields at the land of complainant; meanwhile one Mehran Car bearing No,AKD-860 arrived over there; Yousuf was armed with gun and Qabool armed with pistol alighted from the car; quarreled why complainant party arrived there; complainant replied the land belongs to them, it was about 0900 hours malefactor Yousif while issuing backless did straight fire upon Nawabdin Dars through his gun, later sustained pellet injury at the rear side of his head and fallen on the ground whereas remaining perpetrators did aerial firing; thereafter assailants made their escape good in the car fled away , complainant with the help of aforementioned persons brought injured Nawabdin Dars at Police Post Pir Patho, obtained letter for treatment of the said injured, then took him at Var Hospital from where the injured was referred to Civil Hospital, Thatta, thereafter injured was shifted to Civil Hospital Karachi where injured succumbed to the injuries and died.
3. Compliance of Section 265-C, Cr.P.C. were carried out thereafter a formal charge was framed, to which appellant denied the gist of allegations vide Ex.8/A to 8/C respectively . Prosec ution examined PW-1 Abdullah [complainant], PW-2 Allah Bachayo at Ex.11, PW-3 Jan Muhammad at Ex.12, PW-4 Muhammad Juman [mashir] at Ex.13, PW-5 Zahid Hussain, ASIP , at PW-6 Dr. Muhammad Hanif at PW-7 Muhammad Hassan [Tapedar] at Ex.l8, PW-8 SIP Abdul Aziz at Ex.18/A and PW-9 ASI/I.O. Shoukat Ali at Ex.20. There after statement of accused was recorded under Section 342, Cr.P.C. at Ex.22 to Ex.24 respectively and had claimed themselves to he innocent but appellant did not choice to examine himself on oath or to led any defence evidenc e in disprove of the charge as is provided under Section 340(2), Cr .P.C.
4. Mr. Memood A. Qureshi, advocate, representing the appellant inter alia contended that enmity between the appellant and complainant is admitted; per learned counsel eye-witnesses of the incident were not only closely related inter se but were inimical terms with the appellant; per learned counsel the place of alleged incident closely situated to the village of complainant although complainant and his associates raised cries being eye-witnesses when Nawabdin Dars [deceased] was allegedly fired upon; per learned counsel empties of crime weapon as was secured on 02-04-2007 were not immedia tely sent to Fire Arm Expert; per learned counsel crime empties and the weapons were sent altogether to the expert after the long recovery , under the circumstances the report of Ballistic Expert was not worthy of reliance and it could not furnish corroboration to ocular testimony; per learned counsel the report of ballistic expert shows that nine crime empties C-3 to C-11 were not fired from two single barrel guns likewise one empty of 30 bore was not fired from pistol; per learned counsel medical evidence did not corroborate ocular evidence qua-accused; per learned counsel First Information Report was highly belated; the delay in lodgment of the FIR is unexplained and could not be relied upon; per learned counsel there is no an independent witness of the alleged recovery; per learned counsel a single shot was attributed to the appellant from a single barrel gun, there was no allegation with regard to unload of gun by appellant to fire another shot; per learned counsel the learned trial Judge did not consider the defence plea taken by the appellant; per learned counsel the conviction is based upon manifestly unsa tisfactory evidence which apart from being false; it has been contradicted by other circumstances of the case; per learned counsel impugned judgment is therefore not sustainable in law as well as on facts and it is fit to be reversed.
Learned counsel relied upon the case law reported as 2004 SCMR 1185, 2008 SCMR 707, 2008 SCMR 6, 2009 SCMR 230, 2018 MLD 1821 , 2011 SCMR 1190, 2010 SCMR 1791 , 1995 SCMR 1793 , 1995 SCMR 599, 2008 SCMR 1064 and 2011 YLR 674 .
SCMR 1064 and 2011 YLR 674 .
5. Mr. Mamoon A.K. Shirwany , Advocate representing the complainant contended that all the prosecution witnesses have fully implicated the present appellant with the commission of offence; per learned counsel the learned trial court has rightly convicted the appellant by appreciating whole episode and the evidence so brought on record; per learned counsel there is no illegality or any irregularity in the judgment impugned before this court; per learned counsel there is motive behind the murder as alleged enmity; per learned counsel appellant arrived at the scenario, step down from the car and fired straight upon Nawabdin Dars one shot which hit him and Nawabdin Dars succumbed to the injuries; per learned counsel the medical evidence is clear that the deceased died due to unnatural death; per learned counsel the appeal of the appellant may be dismissed and the judgment impugned hereinabove may be upheld.
Learned counsel relied upon the case law reported as PLD 1973 Supreme Court 418, 2009 SCMR 493, 2009 SCMR 565, 1994 SCMR 1, 2009 SCMR 825, 2009 SCMR 502, 2007 SCMR 455, 2011 SCMR 1046 , 2017 YLR 428, 2018 PCr .LJ Note 91, 2018 YLR Note 109, 2018 YLR 786 and 2018 PCr .LJ 991.
6. Mr. Talib All Memon, Assistant Prosecutor General opt arguments advanced by the learned counsel for the complainant and contended that there is no material illegality or irregularity in the impugned judgment; per learned APG the learned trial court after appreciating all the evidences so brought on record rightly convicted the appellant; per learned APG there is motive behind the murder; per learned APG the appellant has been assigned specific role with the commission of offence; per learned APG the counsel for the appellant has admitted in ground No, 17 that appellant has been attributed single shot but appellant did not repeated another shot, it prima facie proves that deceased died with one single shot which the appellant had fired; per learned APG only appellant has been convicted remaining assailants were though acquitted because specific role is scribed to the present appellant; per learned APG the instant criminal appeal may be dismissed and the sentence and conviction awarded to the appellant may be maintained in the interest of justice.
7. Heard and perused.
8. Instantaneously , law is by now well established that in a criminal case it is duty of the court to review the entire evidence that has been produced by the prosecution and the defence. I would like to reproduce examination in chief of the complainant Abdullah as PW -1 at Ex.10, as follows:- "On 01.04.2007 at 9.00 'a.m., 1 .was harvesting my wheat crops in my survey land along with PWs Nawabdin Dars, Allah Bachyo and Jan Muhammad. I saw a white colour Suzuki Mehran Car bearing No,AKD-860 came and parked with my land. Accused Yousif armed with Gun, Ladho armed with Gun and Qaboo l armed with pistol alighted from the car. Accused Yousif indimidiated us and said as to why we came in the land 1 replied we came at the land as it belongs to us. Upon which accused Yousif made straight fire with his Gun upon my nephew Nawab All which hit on the back side of the head and he fell down"
PW-2 Allah Bachayo [eye-witness] at Ex.1 1 deposed in the examination in chief as follows:-- "01.04.2007 I along with Abdullah, Nawabdin Dars and Jan Muhammad was harvesting wheat crops at 9.00 a.m. in the land of Abdullah complainant. Sudden ly a white colour Mehran Car bearing No, AKD-860 had stopped near us.
Accused Yousif and Ladho armed with guns and accused Qabool armed with Pistol alighted from the Car. Accused Yousif abused us as to why we are harvesting wheat upon which complainant Abdullah and Nawabdin Dars said as the land owned by them upon which accused Yousif became annoyed and made straight fire which hit on the back side of the head of Nawabdin Dars. Nawabdin Dars fell down and we raised cries."
PW-3 Jan Muhammad [eye-witness] . at Ex.12 deposed in the examination in chief as follows:- "On 01.04.2007 1, Allah Bachayo, Abdullah and Nawabdin Dars since deceased were harvesting the wheat crop in the lands of Abdullah Badinpoto situated in deh Pir Aar. At 9 a.m., I saw one Suzuki Mehran car bearing No,AKD- 860 arrived and parked beside our land. We saw that the accused persons namely Yousif, Ladho both armed with guns and Qabool having pistol in his hand alighted from the car and abused and asked us why we had been harvesting the land when the land belongs to them exclusively . We replied that the land belongs to us whereupon the accused Yousif used filthy language and made direct fire from his gun at Nawabdin Dars which hit on the back side of his head due to which he fell down on the ground".
PW-4 Muhammad Juman [mashir of recovery] examined at Ex.13 who deposed. in the examination in chief as follows:- "On 01.04.2007 I was present in my house. I heard about the present incident and came to know that the deceased Nawabdin Dars had been murdered and there I proceeded to RHC Var where police prepared danishnama and inquest report in my presence. I and Muhammad Amin acted as mashirs of the same. I produce the mashirnamas as Ex.13/A and 13/B and say that Ex.13/A bears my signature and that of the said co-mashir . On 02.04.2007 SIO of the case prepared mashirnama of the same. I produce the same as Ex.I3/C and say that it is same, correct and bears our signature. On the same day at 10:00 a.m. police visited the place of vardat which is situated near the house at deh Pir Aar bearing Survey No,7 62 on the pointation of complainant Abdullah and obtained blood stained earth therefrom and sealed it in "Dhaba". The police also secured 11 empties of 12 bore cartridges, three empties of 30 bore and one live bullet of 30 bore and sealed the same on the spot. Thereafter police prepared such mashirnama"
PW-5 Zahid Hussain ASIP incharge Police Post Pir Patho deposed in the examination in chief as follows:- "On 1-4-07 I was incharge PP Pir Patho one Abdullah brought injured Nawab here I referred to hospital under a certificate carbon copy thereof I produce as Ex.16/4"
PW-6 Dr . Muhammad Hanif examined at Ex.17, in the examination in chief deposed as follows:- "On 01.04.2007 at 9:45 a.m. an injured namely Nawabdin Dars son of Muhammad Aslam aged about 18 years was brought by one Mehboob Dars to me in the hospital. I examined him and found an injury on the back side of skull, at left side, admeasuring 1 cm. scalp deep.
OPINION:- After performing external and internal examination of the dead body , I am of the opinion that cause of death is due to cardio respiratory failure due to head injury caused by firearm. The injury was ante-mortem.
A pellet was recovered from cranial cavity and handed over to the police concerned"
In the cross-examination PW -6 has replied to a question as follows:-- "The same shows that the pellets secured from the body in such examination were handed over to the police"
PW-7 Muhammad Hassan [Tapedar Tapo Guleji] examined at Ex. 18, deposed in the examination-inchief as follows:- "10.04.2007 being deployed in Ghorabri Tapa, I had received direction from Mukhtiarkar to visit the place of the incident and prepared its sketch. On 12.04.2007 I had inspected the subject place with association of complainant Abdullah and prepared its sketch.
PW-8 Abdul Aziz SIP Police Line Thatta examined at Ex.19, deposed in the examination-in-chief as follows:-- "On 01.04.2007 I was Station House Officer at Police Station. Ghorabari, At about 2320 hours, one Abdullah son of Muhammad Hassan arrived at police station. He narrated the facts of cognizab le offence. On his report I had registered Crime No, 17/2007 under sections 302, 337H(2), P.P.C. and other sections. 1 had issued a letter to the Medical Officer Rural Health Center V ar for autopsy of deceased Nawab.
PW-9 Shoukat Ali at Ex.20 being Investigating Of ficer of the case deposed in the examination-in-chief as follows:- "On 01.04.2007 being posted in Investigation Wing of Police Station Ghorabari. I received FIR No, 17/2007 under section 302, P. P. C. for investigation purpose. I had also received inquest report and memo of inspection of dead body from SHO/SIP Abdul Aziz Soomro. On 02.04.2007 1 had inspected the place of incident on pointation of complainant Abdullah. I had secured cartridges 11 in number , three empties of TT pistol and one missed bullet and blood stained earth in presence of mashirs Muhammad Juman and Muhammad Azeem. I had prepared mashirnama of place of incident. I see Ex.13-D and say its same mshirnama, correct and bears my signature. On the same day I had received clothes of deceased Nawab from complainant Abdullah. I had prepared seizure memo of clothes in presence of mashirs Muhammad Juman and Muhammad Azeem. I see Ex.13-C and say its same mashirnama. I had sealed the clothes. ON the same day, I had recorded statem ent of PWs Bachayo and Jan Muhammad. On 04.04.20071 had addressed a letter to Mukhtiarkar for preparation of sketch of place of the incident through Tapedar . On 08.04.2007 at about 1715 hours, I had arrested accused Yousif and Ladho from Sim Nali Branch Mori packa road loading towards Ghorabari from Thatta in presence of above mashirs and prepared mashirnama of arrest. 1 see Ex.13-E and say its same mashirnama, true and bears my signature. On 11.04.2007 during interrogation accused Yousif admitted his guilt and volunteered to produce the crime weapon. He brought me and other police officials at his house and produced one SBBL gun along with five cartridges from outer hedges of his house. I had prepared mashirnama of recovery of gun in presence of above set of mashis. I see Ex.13-F and say its 'same mashirnama, correct and bears my signature. I had brought the said accused at police station and registered an FIR under section 13(c) Arms Ordinance against him. On 15.04.2007 the second accused Ladho also admitted his guilt during interrogation and produced a SBBL gun 12 bore of Al-Abbas Company along with six cartridges from big pot, meant for storing the wheat lying in his house, in presence of aforementioned mashirs and I had prepared the subject mashirnama at spot, I had sealed the said gun at spot. I see Ex.13-G and say its same mashirnama, correct and bears my signat ure. As the said accused could not produce license of the gun therefore I had recorded an FIR under section 13C Arms Ordinance against him. On 16.04.2007, while I was present at police station received information from the complainant in respect of arrival of accused Qabool at fish pond. 1 along with subordinate staff and mashirs went to the subject place. Accused Qabool, who was driving white colour car, while seeing us alighted from it, thrown a pistol at ground and fled away . I had secu red pistol and car prepared its mashirnama in presence of same set of the mashirs. I see Ex.13-H and say its same mashirnama, true and bears my signature. On 20.04.2007 I had obtained permission from SP Sashib to send the property for chemical examiner . On 24.04.2007, I had dispatched the property to chemical examiner in sealed condition. On the later date I had submitted the charge sheet. The chemical report of blood stained earth, clothes of deceased and pellet indicate to stain with human blood. Similarly the crime weapons on certification found to be used in the crime, as per ballistic expert report. I produce the chemical examiner report and ballistic expert report at Ex.20/A and 20/B respectively . Case property produced in sealed condition, it was de-sealed and confronted from the witness. Case property viz. two SBBL guns, one pistol, 11 live cartridges, five live bullets of TT pistol, three empties of TT pistol, blood stained earth, pellet of cartridges, 12 empties of cartridge, one missing bullet and clothes of deceased available in the court are same. The accused present in the court are same".
9. I have minutely examined the evidence with the assistance of the learned coun sel for the parties. According to the prosecution case the incident as alleged A had been taken place in a broad day-light at the lands of complainant where appellant together with other accomplices arrived in a white colour car and shouted at complainant party why they are standing at wheat crop, on replies appellant went annoyed and made straight fire upon deceased Nawabdin Dars which hit him on back side of the head; injured succumbed to the injuries and died.
The dubious because both parties were known' identification of the appellant is not to each one although it was broad daylight scenario. Convict appellant was arrested as alleged on 08-04-20 07, on the pointation of convict one twelve bore single barrel gun without number was taken into police custody , weapon was sent to Director Laboratories and Chemical Examiner on 21-04-2007. It would be appropriate to reproduce some piece of report of expert which is as follows:-- "One 12 bore crime empty now marked as Cl was fired from the 12 bore SBBL shot gun w/o. now butt/body signed marked as "A" .
I am fortified with the case law reported in 2009 SCMR 493 , the Hon'ble Apex Court has held as follows:- "---S. 302(b)/34--- Appraisal of .evidence--- First Information Report was lodged without any delay containing the names of both the accused with their roles in the occurrence---Complainant and the other eye-witnesses despite lengthy cross- examination, had fully supported prosecution version, casting comp lete responsibility of the murder of the deceased on the accused---Parties being previously known to eye-witnesse s possibility of mistaken identity of accused had to be ruled out---Ocular testimony was corroborated by medical evidence---Crime empties collected from the spot had matched with the fire-a rms collected from the spot had matched with fire-arms recovered at the instance of accused---Crime empties having been recovered from the place of occurrence, were not even challenged by the defence---Convictions and sentences of accused were upheld in circumstances".
10. As regards to the medical evidence, PW-Dr. Muhammad Hanif had also confirmed that A lacerated circular wound of entrance 1.0. cm x 1.0 cm x scalp deep at left occipital region. All the three brain membrains (manages) proforated, brain matter lacerated, one pellet recovered from brain matter whole the crainel cavity filled with clotted blood. On opinion doctor disclosed that cause of death is due to head injury caused by fire arm. Although report of doctor could not describes identification of the convict but it derives that deceased Nawabdin Dars died unnatural death due to head injury . Thus it went proved that deceased died unnatural death due to receipt of fire arm injury from back side of head. As to the contention of learned counsel for the appellant that there is inordinate delay in lodgment of the First Information Report. The incident as alleged had been taken place on 01.04.2007 at about 0900 hours on same day First Information Report was lodged it was about 2320 hours, the distance between place of incident and the Police Station is approximately twenty kilometers; complainant first report the matter toget her with injured at police post Pir Patho obtained letter to hospital for treatment of the injured as per evidence of PW-5 ASIP Peer Bux Khoso. Moreso, complainant with the help of aforementioned persons brought injured Nawabdin Dars at Police Post Pir Patho, obtained letter for treatment of the said injured, then took him at Var hospital from where the injured was referred to Civil Hospital, Thatta, thereafter injured was shifted to Civil Hospital Karachi. The consumption of time of travelling with the injured deceased is very much explained because injured was shifted with the help of complainant from one place to another therefore unanimously time is needed. Mere expressing question of delay would not be fatal to the prosecution case therefore I am of the view that there is no delay in lodgment of the FIR.
In this context, I am fortified with the case law reported as 2009 SCMR 565, the Hon'ble Apex Court has held as follows:- "---Ss. 302/149---Anti-T errorism Act (XXV II of 1997), Reappraisal of evidence---Delay in FIR---Concurrent findings of fact--Prosecution case was primarily founded upon eye-witness account of five witnesses---Four prosecution witnesses clearly implicated accused with commission of offence---T rial Court as well as High Court found evidence of prosecution witnesses as confidence inspiring which could not be shattered by defence through cross- examination, which fully supported prosecution version---Plea raised by accused was that there was un-explained delay in registration of FIR-- Validity-- Delay of few hours in lodging FIR had been fully explained as victims of offence were first taken to hospital and FIR, was recorded thereafter -- Entire evidence was carefully analyzed in well-reasoned judgment of High Court ---Another co-accused had earlier been convicted and such conviction was not only maintained by High Court but by Supreme Court as well---Conviction and sentence awarded to accused were unexceptionable and called for no interference by Supreme Court---Leave to appeal was refused"
[The underline is mine]
11. As regards to the contention of learned counsel for the convict appellant at Ground No, 17 of the appeal contended that single shot was attributed to the appellant from a single barrel gun. There was no allegation that appellant unloaded his gun to fire another shot. Thus the death of deceased as has been caused with one fire shot so there was no need to repeat another fire it is also evident from the injuries opined by doctor that one head injury was sufficient to cause death of deceased as had disturbed the whole brain. Convict appellant voluntarily handed over 12 bore gun to the police, same was sent for chemical examiner report, it went proved that deceased received pellet injury by gun shot. Whilst to say that there was motive behind the murder as such there was dispute over the lands with regard to the ownership thereof, perhaps motive also went proved behind the murder .
I am also fortified with the case law reported as 1994 SCMR 1 , the Hon'ble Apex Court has observed as follows:-- "----Ss. 302/34 & 307/34--Appraisal of evidence-- Prosecution evidence in respect of acquitted accused had not been rejected as false but due to certain circumstances benefit of doubt had been given to them--- Ocular testimony furnished by the eye-witnesses including the injured and uninterested witness was corroborated by the medical evidence, motive and the incriminating recoveries and did not suffer from any inconsistency or material contradiction ---Conviction and sentence awarded to accused were upheld in circumstances"
[The underline is mine]
12. Apart from above, learned trial court acquitted co-accused Qabool and Ladho respectively extending them benefit of doubt though were members of unlawful assembly , I am of the view both that acquitted accused were also in league, members and facilitators created harassment at the scenario; with their help and assistance convict appellant took influence of hyper emotion lost his control and had caused murder of deceased Nawabdin Dars. The common intention of the co-accused could not be ruled out. Perhaps it was left to the learned trial court whom concluded the case on merits and pronounced the judgment impugned hereinabove. It was incumbent upon the learned trial court first to see guilt of the accused and after perusing the evidence s so as brought on record draw conclusion although it is prime duty of the court to look all the surrounding circu mstances of the case by every canon. It may be noted here that co-accus ed also made aerial firing at the scenario their identity is also not dubious and have been described with specific role of firing. I am of the view that learned trial court has wrongly acquitted co-accused, once the charge is framed under Sections 302, 337-H(2), 504 and 34 Pakistan Penal Code.
Section 504 Pakistan Penal Code provides as follows:-
504. Intentional insult with intent to provoke breach of the peace. Whoever intentionally insults, and thereby gives provocation to any person, intending or knowing it to be likely that such provoca tion will cause him to break the public peace, or to commit any other offence, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.
The aim and object of Section 34 Pakistan Penal Code provides as follows:- "34. Acts done by several persons in furtherance of common intention. When a criminal act is done by several persons, in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone.
13. The circumstantial account evidence has also been proved by reappraisal of thorough evidences on record; therefore, there is chain and league in the evidence of prosecution witnesses which ultimately connect the convict appellant with alleged offence. There is sufficient direct, cogent and reliable evidence on record against the convict appellant which prima facie shows that on the eventful day convict appellant out of fear made straight fire shot upon deceased Nawabdin Dars, who after receiving gunshot injury became injured and succumbed to the injuries.
The prosecution has fully established its case beyond shadow of any reasonable doubt and has rightly convicted the convict appellant for the offence for which convict appellant had been charged. Similarly co-accused had been extended benefit of doubt and had been acquitted by the learned trial court on wrong assumption and presumption though charge against them is not groundless but is meaningful. The remaining evidence of the prosecution witnesses is corroborated by circumstantial evidence and the motive behind the murder which need no interference after application of judicious mind. May be there would be minor discrepancies which can be over looked when the prosecution has successfully established the guilt of convict appellant. Be that as it may, the defence plea taken by convict appellant is not corroborated by any defence witness as is provided under Section 340(2), Cr.P.C; neither convict appellant choice to step into witness box to examine himself on oath in disprove of the charge; mere taking plea in the statement recorded under Section 342, Cr.P.C. would not render the entire evidence of prosecution questionable because the culmination of truth is attached to the prosecution evidence. As to the contention of learned counsel for convict appellant that eyewitnesses are interested and related inter se, naturally in the villages when landowners intend to harvest their fields normally few people ought to have been gathered for doing harvesting, one person cannot harvest the fields, thus the argument of learned counsel are imaginary . The injury was on backside of head of deceased went deep as deep caused unnatural death of deceased Nawabdin Dars which fact is also not denied by convict appellant in the statement recorded under Section 342, Cr.P.C., simply replied question it is incorrect, murder is there but convict appellant slightly replied it is incorrect. Although convict appellant did not produce any Defence Witnesses in disprove of the charge which may nullifies the prosecution story thus it is also well settled proposition of law that courts have to sift "chaf f from grain".
It has also been held in 2009 SCMR 825 , his Lordships have been held as follows: "----S. 302(b) / 34--- Related witness--- Connotation--- Mere relationship of a witness with the deceased or the very fact that he is interested in prosecution of the accused on account of the occurr ence, would not dub him as an interested witness"
14. The record has also been scanned which reflects that on the eventful day the convict appellant together other accomplices arrived at the scenario' created horror and terror by questioning the complainant party upon resistance convict .appellant went annoyed and took his gun loaded with cartridge and made straight fire shot upon deceased Nawabdin Dars thereafter injured succumbed to the injuries. This act of highhand edness of the convict appellant deserves his conviction well established through the entire evidences available on record. To this aspect of the case, I am fortified with the case law reported-as 2009 SCMR 502 , the Hon'ble Apex Court has held as follows:- "---S.302(b)---Discretion of Court to award sentence of death or punishment of imprisonment for life-- Circumstances in which penalty of death must be imposed, stated---Facts and circumstances of each case, as provided by 5.302(b), P.P. C, itself, are the best determinative factors for award of penalty of death or that of lesser punishment of .imprisonment for life--Law has conferred discretion upon the court to withheld the penalty of death and to award the punishment of imprisonment for life, if the outlook of a particular case requires that course--- However , penalty of death must be imposed if the Court finds the manner and method of incident of be in the nature of a brutality , horrific, heinous, shocking involved terrorist nature, creating panic in the society as a whole or in part, callous and cold blooded---In such cases (list is not exhaustive), the penalty of death must not be withheld; in other words, grave inhuman attitude, acts, manners, methods and the criminality of actions are the constituents, elements, methods and the criminality of actions are the constituents, elements and the instances, where punishment of death must be awarded"
15. As regards to the contention of learned counsel for the convict appellant there are series of contradictions in the cross-examination of the prosecution witnesses which need reappraisal and the case of the appellant requires interference by this Court.
I am fortified with the case law reported in 2007 SCMR 455 , the Honorable Apex Court has held as follows: ----S. 302(b)/34---Anti-T errorism Act (XXVII of 1997), S.7(a)--- Constitution of Pakistan, (1973), Art. 185(3)--- Re- appraisal of evidence---Multiple murder-- Quantum of sentence-7 Concurrent findings of guilt by the courts below--- Accused along with two co-accused was charged with committing murder of four persons---T rial Court after completion of trial, convicted and sentenced the accused for death penalty , while his co-accused were acquitted--- Conviction and sentence awarded by Trial Court was maintained by High Court---Plea raised by accused was that his case was at part with his co-accused and death penalty could not be awarded to him--V alidity---Substitution was a rare phenomenon and except complainant, who allegedly committed murder of brother of accused, remaining prosecution 'witnesses had no previous history of any enmity , grudge or malice against him to suggest that they had a motive for false implication pf accused---Identity of accused in daylight occurrence was free from any doubt---Ocular testimony of independent witnesses duly supported by medical evidence, recovery of empties from the spot, post mortem reports of two deceased and prompt lodging of FIR without any deliberation and exaggeration as well as the attending circumstances was found truthful and confidence in spiring--Minor discrepancies and contradictions pointed out in statements of witnesses being immaterial was of no significance-- Charge against accused stood proved beyond any reasonable doubt through direct evidence furnished by natural and independent witnesses---No legal and factual infirmity in the findings of two courts regarding guilt of accused having been found which called for interference---No mitigating or extenuating circumstances for lesser sentence being present, conviction and sentence of death penalty was maintained by Supreme Court---Leave to appeal was refused.
16. With great respect the case law referred by the learned counsel for appellant could not be helpful to the appellant because facts and circumstances of the case in hand are distinguishable.
17. In the case in hand, there are no discrepancies which require interference by this court creating box for reasonable doubt. I am of the considered view that prosecution has fully established case beyond shadow of any reasonable doubt. The criminal appeal is dismissed and the impugned judgment dated 11.08.2010 stands upheld.
The appellant is present in court is taken into custody remanded to the prison to serve out sentence.
These are the reasons of short order dated 14.1 1.2018.