' SALAHUDDIN MIRZA, J.--- Appellant Uris and three others were sent up for trial before Sessions Court, Thatta in Sessions Case No,15/1989 under sections 302, 307, 114, 34, P.P.C. On the basis of the report recorded by Muhammad alias Mamoon as Crime No,9/89 of P.S. Thatta on 17-1-1989 at 18-30 hours and vide judgment dated 11th February 1992, learned Sessions Judge acquitted three co- accused but found the appellant guilty under section 302, P.P.C. Only and sentenced him to death.
The sentence has come up before us for confirmation and the appellant has also appealed against the impugned judgment. Learned counsel of the appellant and learned State Counsel have been heard and with their help we have gone through the entire record.
2. The prosecution case, as set up in the F.I.R., is that complainant Muhammad alias Mamoon son of Uris, deceased Imam Dino, Uris Mangsi and Hussain had gone to take tea at the hotel of Daim on 17th January 1989 in the evening. Deceased Imam Dino's infant son Maqbool. Was also with him.
When they were returning to their village Fakir Jo Goth at about 18-30 hours and were in front of the latrine of village school, all the four accused emerged from the latrine, where they were presumably, hiding and awaiting the complainant party, appellant Uris being armed with a pistol whereas the other three being unarmed, and co-accused Hasan gave Lalkara to Imam Dino that he would not be spared and at the same time instigated the others to kill Imam Dino whereupon appellant Uris fired at Imam Dino, hitting both Imam Dino as well as his son who was in his lap.
Imam in to was seriously hit and went unconscious on receiving the injuries but the infant was only slightly injured in the legs. An ambulance of Thatta Sugar Mills happened to pass by and the injuried were taken by the complainant to Police Station but Imam Dino expired on the way. As for motive, it was stated that four years before the murder, the deceased had married Mst. Chutti, widow of Yaroo, and relatives of Yaroo, including appellant Uris, were not happy on this and used to issue threats to deceased Imam Dino and they had even instituted a case against deceased Imam Dino and when that case was decided in favour of Imam Dino he was killed.
3. In support of its case the prosecution has brought on record the following evidence.
4. P.W.2 complainant Mamoon, P.W.3 Uris and P.W.5 Hussain are the eye-witnesses of the incident.
Mamoon is the brother-in-law of the deceased. He says that deceased's wife Mst. Chutti was earlier married to one Yaroo and after his death she married the deceased against the wishes of her late husband's relatives. She had two minor sons with the deceased including 1-1/2 years old injured Maqbool. According to Mamoon, the accused used to threaten Imam Dino with dire consequences for having married Mst. Chutti. Mamoon further says that on the day of incident he, Haji, P.W. Uris and deceased Imam Dino had gone to the hotel of Daim to take tea. Infant Maqbool was also with the deceased. When they were returning from the hotel at about 18-30 hours and were near the village school, all the four accused emerged from the side of the school and they challenged Imam Dino, who was a bit ahead along with his infant son in his lap, that he would not be spared and appellant Uris fired with his pistol at the deceased who was hit and fell down. On the cries of the complainant party, Alloo and Mst. Meema were attracted. The accused then ran away.
Imam Dino was found to have received injury on the right side of the abdomen while infant Maqbool, who was in the lap of the deceased, was injured in the upper portion of the legs. The complainant party then removed both the injured to Police Station but Imam Dino died on the way.
Mamoon then lodged the F.I.R. Exh.P.5 and thereafter injured Maqbool was referred to hospital. The complainant showed the Wardat to the Police. In cross-examination he admitted that his family lived at Thatta where he had a house but he himself lived at Pir Jo Goth with his brothers Pennar and Muhammad Rahim. He denied a suggestion put to him in cross-examination that his F.I.R.
Exh.P.5 was actually not the first information report and that the F.I.R. Was earlier lodged by Mst.
Meema. He also revealed that Mst. Husni was the first wife of the deceased who had divorced her upon which her brothers Lakhano and Ibrahim were unhappy. He also said that Mst. Chutti's brother Khamiso had filed a case against the deceased and P.W. Uris (the nature of the case was, however, neither asked nor revealed by him). He also stated that Mst. Phapo was deceased's sister and the deceased had refused to marry her to one Moharram Magsi but after deceased's murder this marriage had taken place. He however denied that the deceased had also refused to marry Mst.
Phapo to one Siddiq although he admitted that Siddiq had filed some sort of a case against the accused. He also stated that the deceased was also carrying with him some items such as eggs and vegetables. The next eye-witness is P.W3 Uris who was also taking tea at the hotel of Daim along with Muhammad Hasan, and the deceased and he repeated the version of the incident as given by the complainant and also stated that Mst. Chutti's brother Khamiso and all the accused had filed case against him and the deceased which was decided against Khamiso and the accused. In cross-examination he stated that deceased Imam Dino used to live with him. The next eye-witness is P.W3 Hussain son of Alloo. He is cousin of the complainant. He gives the background of the enmity between the accused and the deceased. He stated that deceased Imam Dino and his son were taking tea at the hotel of Daim when he, Uris and. Muhammad alias Mamoon also came to the same hotel, that the deceased left the hotel after taking tea and after about two minutes he (Hussain) and others also left the hotel and they all proceeded towards their village Faqir Jo Go.Th when the accused persons were seen near the latrine of the school and accused Uris (the appellant) fired with his pistol at deceased Imam Dino who, as well as his minor son, were hit. Apart from the above-noted three eye-witnesses, the prosecution has examined two Mashirs P.W.1 Bhiroo and P.W.4 Hussain son of Mamoon, P.W.6 Dr. In Muhammad who had conducted the post-mortem examination on the body ( deceased Imam Dino and who had also examined injured Maqbool and P.W. Ahmed Khan Tapedar who had prepared the sketch of the Wardat. The prosecution witness is P.W.8 S.H.O. Nazir Ahmed, the investigating office. P.W.1 Bhiroo had acted as mashir on the Mashirnama of the dead bloc Exh.P.1, on inquest report Exh.P.2, on the Mashirnama of the injuries of min( Maqbool Exh.P3 and Mashirnama of Wardat Exh.P.4 and he supported to prosecution case to that extent. He had, however, also acted as Mashir of the arrest of the appellant and recovery of pistol from him but in this regard he not support the prosecution case and stated that accused/appellant Uris was neither arrested in his presence nor a pistol and two cartridges were recovered from his person at the time of his arrest and stated that the appellant was arrested from the jungle. He also denied that blood-stained clothes of deceased were recovered in his presence. He was therefore declared hostile The prosecution thereupon examined the other co-Mashir P.W.4 Hussain so of Mamoon who testified to the truth of the Mashirnama and inquest repo, Exhs.P.1 to P.4 and further stated that he was also made Mashir of the arrest of accused Achar, Hasan and Haji vide Mashirnama Exh.P.6 and of the arrest of appellant Uris and of the recovery of pistol, two cartridges and one empty from the possession of the appellant, as well as of the securing of the stained earth from the Wardat vide Mashirnama Exh.P.7. P.W.6 Dr. I': Muhammad produced post-mortem examination report in respect of decease Imam Din as Exh.P.8 and provisional medico-legal report in respect of injuries on the person of infant Maqbool as Exh.P.9 and fall medico-legal repo Exh.P.10, two X-ray films Exhs.P.11 and P.12 and report of radiology Exh.P.13. P.W.7 Ahmed Khan Tapedar had prepared the sketch of Wardat are produced the same as Exh.P.14. The last prosecution witness is P.W.8 Nat Ahmed, the then S.H.O Thatta, who had investigated the case.
5. In his 342, Cr.P.C. Statement appellant Uris either denied the who prosecution story or showed his ignorance about the facts brought on record the prosecution. He stated he was a Chowkidar of Thatta Sugar Mills and the day of incident he had gone to Bello town to attend the circumcise ceremony of Baradio whose father Juman was brother of his brother-in-L Rahim and that ceremony had taken place at precisely 18-00 hours. He allegal that Uris Managsi (P.W3) was step- father of deceased Imam Dino and claimed that there was enmity between him and the prosecution witnesses. I also claimed to have helped Khamiso in a case which Khamiso had 8 against P.W.4 Hussain (Mashir) and P.W3 Uris who had therefore fals implicated him in this case.
Deposing on oath under section 340(2), Cr.P.C. D.W.3 he claimed he had no enmity with the deceased. He repeated his case that on the day of incident he was attending the circumcision ceremony Bello town at 18-00 hours (the time of murder being 18-30 hours), that stayed in the town during the following night and when he returned to Tin the next morning at 07-45 hours (18th) he was arrested. He also examined two witnesses in his defence. D.W.7 Allah Bachayo is paternal- cousin of the father of the appellant and D.W.8 Muhammad Rahim is brother-in-law of the appellant and they have deposed in support cf the plea of alibi taken by the appellant.
6. Learned Sessions Judge disbelieved the plea of alibi set up by all the four accused and found the appellant guilty of murder of Imam Dino but acquitted him of the charge under section 307, P.P.C.
For making an attempt on the life of infant Maqbool on the ground that no witness had alleged that appellant Uris also intended to murder Maqbool. However, in respect of the three co-accused, learned Sessions Judge came to the conclusion that the prosecution evidence only indicated that they were accompanying the main accused (the appellant) but had taken no overt part in the murder of Imam Dino and their mere presence with the main accused was not sufficient to establish the existence of common intention on their part and therefore learned Sessions Judge gave them benefit of doubt and acquitted them.
7. The king-pin of the arguments of learned counsel for the appellant is that the three co-accused have been acquitted on the basis of the same evidence and since the evidences was not found reliable in respect of the three co-accused it could not be reliable in the case of the appellant and therefore the appellant could not be convicted on its basis. We are of the view that nothing could be farther from the reality than this argument. The nature of the evidence in respect of the appellant is quite different than the nature of evidence against the acquitted co-accused.
Evidence against the co-accused is only that they were with the appellant but had themselves not done anything contributing to the commission ion of the offence (except that P.W.3 Uris said that co-accused Uris had given 'Hake and P.W.5 Hussain said that all the four accused had said that Imam Dino had annoyed enough and would be done to death). On the contrary the evidence against the appellant is that he had fired with his pistol upon the deceased. There is thus no question of prosecution evidence having not been believed in the case of co-accused and yet believed in the case of the appellant. As such the judgments in the case of Muqeem and others v.
State 1993 PCr.LJ 1367, Munawwar Ali v. State PLD 1993 SC 251 and Ghulam Sikandar v. Mamaraz Khan PLD 1985 SC 11 are not relevant in the present context.
8. The second argument of learned counsel of the appellant is that all the three eye-witnesses are related to the deceased and are therefore interested witnesses and cannot be believed. It is now a well-established principle of law that mere relationship of a witness with the deceased is no criterion for making a witness with an "interested witness" and that a witness is an 'interested witness' when it can be shown that he had a motive for falsely implicating an accused. We would therefore judge the 'interestedness' of the prosecution witnesses on this principle
9. To show the interestedness of the prosecution witnesses, it was pointed out by learned counsel of the appellant that complainant P.W.2 Mamoon admitted that Khamiso was the brother of Mst.
Chutti (wife of the deceased) and he was unhappy when Mst. Chutti, after the death of her husband Yaroo had re-married the deceased and that this Khamiso had filed a case against the deceased and P.W. Uris which he (Khamiso) had eventually lost. Learned counsel also pointed out to the evidence of P.W.3 Uris who had stated that Khamiso and all the accused had filed a case against him (P.W.3 Uris) and the deceased. On the basis of this evidence learned counsel argued that the P.Ws. Had a motive of falsely implicating the four accused, including the appellant. The defence, however, did not bring on record any document pertaining to this case which would have shown by whom that case was filed and learned counsel also ignored the fact that, according to the defence, only. Khamiso had filed the case and not the four accused as would appear from the following extract from the cross-examination of P.W3 Uris. "It is incorrect to suggest that only Khamiso and not all the accused had filed the case against me TM. Thus, according to the defence itself it was Khamiso who disliked remarriage of Mst. Chutti with the deceased and filed a case against the deceased and P.W.3 Uris. Thus the three eye-witnesses, if at all they had any motive to falsely implicate anyone in this case, had the motive to implicate Khamiso. However, it is an admitted position that Khamiso was not implicated in this case. It therefore does not appeal to reason that the four accused, including the appellant, should have been falsely implicated by the complainant party. Moreover, it is also highly unnatural that. The three eye-witnesses, related as they are to the deceased, would let go the real culprits and implicate innocent persons. Love of the deceased and the desire to take revenge a very natural human sentiment---would surely prevent the prosecution witnesses from adopting a course of action which would ensure that the real culprits are not brought to book. --
10. Learned counsel of the appellant has relied on two reported judgments PLD 1991 SC 1090, Muhammad Sharif v. Zulfiqar and PLD 1973 SC 321, Bagh All and others v. The State in support of his plea that the three eye-witnesses, being related to the deceased and inimically inclined towards the appellant, may not be believed. The first judgment is in an acquitted appeal impugning a judgment of acquittal by the High Court in which it is held that the Supreme Court is ordinarily not inclined to intervene in appeal against acquittal unless all the grounds on which the High Court proceeds to acquit an accused are not at all supportable from evidence on record. As for the second case PLD 1973 SC 321, it shall be useful if summary of its facts is given. The F.I.R. Was lodged after a delay of six hours even though the Police Station was only three miles away. The prosecution case rested on the testimony of three eye-witnesses who were closely connected inter se as well as with the deceased. One of the eye-witnesses, Hadi Bux, who had claimed that he was sloughing his land near the land on which the victims (there were two) were murdered, could not give even the name of the person from whom he had purchased his land nor could he give its survey number and the land was not even mutated in his name the Revenue Record nor he had ever paid its land revenue. Presence of this witness (Hadi Bux) on the nearby land was therefore suspect. Besides Head Constable Abdul Haq, who was the first Police Officer to arrive at the spot after the recording of F.I.R., stated in his evidence that he could not record the 161, Cr.P.C. Statement of the three eye-witnesses at the Wardat because "the witnesses were not available". It was at 17- 00 hours (the incident is of Fajar prayer time) that the eye-witnesses were examined by the Police at the Wardat. This made the presence of the eye-witnesses at or near the Wardat suspect. The medical evidence had also not supported the prosecution story because there were only eleven gunshot injuries upon the persons of the two deceased (nine on one and two on the other) and in the opinion of the medical officer the 9 injuries on one were caused by 3 gunshot and the two injuries on the other were caused by 2 gunshots and thus there were only 5 (five) gunshots as against the recovery of 12 empties from the Wardat. Moreover, whereas, according to the eye- witnesses, the two deceased persons had fallen down after receiving gunshot injuries and thereafter they were given Burchi blows causing incised wounds but the Court believed the contention of the counsel of the appellant that these wounds could not have been caused "after the deceased had fallen down". In view of these infirmities and contradiction in the evidence of the three eye-witnesses, their testimony was not believed. This, however, cannot be said in the present case wherein learned counsel of the appellant could not point out any such infirmity or contradiction. As such, both these judgments can be distinguished from the present case and are of no benefit to the appellant.
11. Much dust was raised over the place of residence of complainant P.W.2 Mamoon. He claimed to be residing at the village Faqir Jo Goth which is about one furlong from the place of Wardat but according to the defence, he was residing at Thatta. Now the complainant admits that he has a house at Thatta where his family lived at that time and where he worked at a wood-stall and on the basis of this admission it was claimed that the complainant also lived at Thatta and therefore he could not have been an eye-witness of the crime. This conclusion is fallacious. The complainant belonged to Faqir Jo Goth. He is brother-in-law of the deceased and, therefore, even if he were not living in the village, he had strong reasons to frequently visit the village which was only five miles from Thatta. It was thus physically practicable for the complainant to visit the village in the afternoon even if he were living at Thatta. It is established beyond any shadow of doubt that the complainant was with the deceased at the time of the incident. According to the prosecution, the offence was committed at 18-30 hours and the F.I.R had been lodged within half an hour at 19-00 hours. The complainant could not have lodged the F.I.R within such a short time if he had not been with the deceased when he was murdered. Time of occurrence can also not be doubtcd because it is supported by medical evidence. P.W.6 Dr. Taj Muhammad had carried out the post-mortem examination at 21-00 hours and according to him death had occurred 2-1/2 hours earlier which would give the same time (18-30 hours) as given in the F.I.R. There is thus no room to subscribe to the defence theory that the complainant reached the Police Station later on and lodged the FIR with the connivance of the Police. Besides, what was the necessity to lodge the F.I.R. Through Mamoon alias Muhammad? The deceased lived with his step-fathe P.W3 Uris who could have lodged the F.I.R. So could P.W.5 Hussain. We find no merit in this objection.
12. According-to learned counsel of the appellant, the F.I.R. Exh.P/5 is not the real F.I.R. It was prepared afterwards. The real F.I.R. Was the one lodged by Mst. Meema, mother of the deceased. As we have seen, the medical evidence, which gives the time of murder as 18-30 hours, leave no room for such manipulation as F.I.R. Exh.P.5 was lodged within half an hour. Besides, where is the real F.I.R.
Allegedly lodged by Mst. Meema? Had the appellant seen this F.I.R? If nor, what was the basis of the suggestion put to the complainant P.W.2? Mamoon in his cross-examination to which he had replied "It is incorrect to suggest that immediately after the incident the F.I.R. Was lodged by Mst.
Meema and not by me"? There is no basis for the claim made by the defence that the real F.I.R. Was the one lodged by Mst. Meema and which had been suppressed by the prosecution.
13. It was then argued by learned counsel of the appellant that Lakhano, Ibrahim and Saddiq Sodhar were inimical towards the deceased and might very well have committed the murder of Imam Dino. Such an argument could be raised only if it were an unwitnessed crime but here we have three eyewitnesses. Moreover, the evidence on record does not suggest that these three persons were inimically inclined towards the deceased. So far as Lakhano and Ibrahim are concerned, P.W.2 Mamoon had conceded in his cross-exmination that "Imam Dino had divorced his first wife Mst. Husni. Lakhano and Ibrahim, the brothers of Mat. Husni, were unhappy with Imam Dino". However, it is prepostrous to conclude that when 'A' is unhappy with `B', `A' is inimical towards `B'. Divorces do take place in our society and they cause bitterness and unhappiness between the two spouses and their relatives but it does not mean that both the parties should become enemies of each other. Same can be said about Siddiq Sodhar who, according to P.W.2 ManLoon, had filed a case against the deceased. We just do not know what was that case and what was its result as copies of the relevant documents have not been placed on record by the defence. Even so, there is no reason to suspect that Siddiq Sodhar, apart from filing a case against Imam Dino, should have also taken it into his head to murder him:Besides, in the face of eye-witness account of three reliable persons, such a possibility cannot be contemplated for a moment.
14. It was also argued by the learned counsel of the appellant that the motive was five or six years old inasmuch as the deceased had married Mst. Chutti five or six years ago and if the appellant could have nursed his grievance for so many years without becoming violent, there is no reason why he should have killed Imam Dino now. It was brought on record by the defence through the cross-examination of the prosecution witnesses that the deceased had abducted Mst. Chutti or else she had eloped with the deceased whereafter Mst. Chutti and the deceased were married. It is also in evidence that Chutti's brother Khamiso, had set in motion criminal proceedings against the deceased which had culminated in the acquittal of the deceased and it was then that the deceased was murdered Now, Mst. Chutti is Mumani of the appellant (D.W.8 Muhammad Rahini) says "Yaroo was maternal-uncle of accused Uris (appellant) and he appears to have decided that it was time to do away with Imam Dino. So lapse of five or six years is no ground to rule out the commission of the offence at the hands of the appellants.
15. It was next contended by learned counsel of the appellant that the incident had occurred in the village and therefore independent witnesses could have been available but none has been examined by the prosecution and this circumstance suggested that it was an unwitnessed crime.
However, sketch of the place of Wardat Exh P 14, which was prepared by P.W.7 Ahmed Khan Tapedar, shows that the place of Wardat (shown by 'A' in the sketch) was on the road leading from the village to the primary school and was thus outside the village. It was thus natural that no one was available in the vicinity when the crime was committed. Absence of any independent witness is therefore understandable. We are also of the view that it is time we should face the E realities of the present day life. Gone are the days when a person, if he saw an offence being committed, used to willingly come forward as witness without any reservation and without any fear but now in view of the worsening law and order situation, and with the general decadence of morals, a person who is unrelated to a victim prefers to avoid becoming a witness lest he should incur the wrath of the offending party. The State is not in a position to provide adequate protection to witnesses and people, in general, are not inclined to risk their lives by becoming witnesses unless they are motivated in one way or the other and have, by way of relationship or friendship, a stake in bringing the culprit to book. If we disbelieve such a witness due to his relationship or friendship with the victim, we would have, in quite a number of cases, no evidence to convict the culprits and the crimes would go unpunished on a scale which would totally erode the faith of the general public in the administration of justice.
16. Learned counsel of the appellant also claims that there is contradiction in the prosecution evidence in respect of the things in the possession of the deceased at the time when he was murdered. He pointed out that P.W.2 Mamoon had said that the deceased "was carrying some items such as eggs and vegetables" whereas P.W3 Uris stated that the deceased "was not taking any item in his hand except ,minor Maqbool" and P.W.5 Hussain had also stated that the "deceased was carrying only the minor son, nothing else". This is, in our view a very minor contradiction. The deceased was holding his infant son in his lap and if he was also carrying a bag containing eggs and vegetables it may very well have escaped attention on the part of the two witnesses. There was nothing unnatural about it.
17. There is also the recovery of unlicensed pistol from the possession of the appellant and in this regard we have the evidence of Inspector Nazir Ahmed P.W.8 who stated that on 23-1-1989 he arrested accused/appellant Uris from his Goth and secured one country-made pistol with two live cartridges from the fold of his Shalwar and shirt-pocket respectively and prepared Mashirnama Exh.P.7 on which Abhro and Hussain acted as mashirs While Abhro and Bhuroo (P.W.1) did not support the recovery, P.W.4 Hussain has supported the prosecution case on this point. Creditability of both these witnesses could not be shaken although they were subjected to exhaustive cross- examination. No enmity or motive could be alleged against Inspector Nazir Ahmed P.W.8 for falsely implicating the appellant. We do not agree with the learned Sessions Judge that the recovery of pistol and the cartridges cannot be treated as an incrimination piece of evidence because the pistol had not been sent to the ballistic expert. It is true that an empty S.G. Cartridge was secured from the Wardat (vide Mashirnama Exh.P.4) and if this empty cartridge and the pistol had been sent to the ballistic expert, it could have been determined as to whether the empty cartridge had been fired from the pistol recovered from the person of appellant Uris but since this has not been done, it cannot be said for sure that the empty cartridge had been fired from the pistol of the appellant and to this effect the recovery is of no value but the recovery nevertheless proves that the appellant is in the habit of keeping a F pistol with him and to that extent the recovery is of value and corroborates ocular evidence on the point.
18. The defence of alibi, as set up by the appellant, is not convincing. It may be noted that all the four accused had set up the plea of alibi. In his 342, G Cr.P.C. Statement the appellant stated that he was cane-Chowkidar in Thatta Sugar Mill and at that time was posted at Sector of Thatta Sugar Mill near bus-stop Thatta", that on the day of incident he was in Bello Town where he had attended the circumcision ceremony of Baradio who was son of Juman who was brother of his brother-in- law Muhammad Rahim, that the ceremony had taken place at 18-00 hours and the date was 17th he did not remember the month although he remembered the year which was 1989, that he had stayed for the night at the house of Muhammad Rahim (not at the house of Jumman whose son's circumcision ceremony he had gone to attend) and the next day he was returning to Thatta Sugar Mills to attend to his duty when he was arrested at bus-stop Thatta at. 07-45 hours. In support of this plea of alibi, he has examined two witnesses D.W.7 Allah Bachayo and D.W.8 Muhammad Rahim. Allah Bachayo is uncle of the appellant. He says that on 17th January 2-1/2 years ago (he does not remember the year) there was circumcision ceremony of Baradio son of Jumman who is related to appellant Uris, that the appellant came at 18-00 hours, spent the night there and left the place at 18-00 hours the next day. It is significant to note that Allah Bachayo does not say he had himself attended the ceremony. In the absence of a positive assertion to that effect, we must draw the conclusion that he did not attend it in which case his evidence becomes hearsay. Besides, according to him the appellant left Bello Goth at 8-00 hours. This is indirect contradiction to the assertion of appellant himself who said that he was arrested from Thatta bus-stop at 7-45 hours.
This Allah Bachayo appears to be a totally unreliable person. He is uncle of the appellant and he also knows Yaroo, first husband of Mst. Chutti, and yet he says that he does not know whether Yaroo was the previous husband of Mst. Chutti. And he also claims not to know if Mst. Chutti was married to deceased Imam Dino, a fact which is admitted by both the sides. We are of the view that he was clearly perjuring himself when he made these assertions. The next witness D.W.8 Muhammad Rahim is brother-in-law of the appellant and brother of Jumman whose son's circumcision ceremony the appellant claims he had gone to attend. He also does not claim to have attended the ceremony. Resides, the proper person to prove the alibi was Jumman himself it whose liome the aremony had been held and not the Torus, Dias and Harries, itlecially when they do not even claim to lisdt ailetitled the said ceremony tlibiniehtbs, Appellant says he is a nit wkidar in Thatta Sitgar Mills but lie has not examined anyone from there to show whether he had taken leave for going to attend the said ceremony or whether he was off duty at that time or whether he had informed his employers about his arrest on the morning of 18th January. Thatta Bus-stop is a busy place and surely witnesses could have been procured to prove the arrest of the appellant on the morning of 18th January. This is notwithstanding the fact that the prosecution case must be judged on its own merit and on the strength of the evidence adduced by it and not on the basis of weaknesses of the defence plea.
19. We are, therefore, of the considered view that the prosecution has successfully brought home the guilt of the appellant and it has been proved beyond reasonable doubt that the appellant fired at and killed Imam Dino and was therefore, guilty of murder and was rightly convicted under section 302, P.P.C. By learned Sessions Judge.
20. For the above-noted reasons we fmd no merit in the appeal and the same is accordingly dismissed.
21. We do not fmd any mitigating circumstances warranting the conversion of the death sentence to imprisonment for life. It was a cold-blooded murder and the appellant did not spare his victim even when he saw that the latter had his infant son in his lap who stood a good chance of being killed. We would therefore, confirm the death sentence.