' IFTIKHAR MUHAMMAD CHAUDHRY, J.---Petitioner Dr. Jehandad Shah father of deceased Ameenullah, 10 years old, seeks leave to appeal against the judgment passed by High Court of Balochistan, Quetta, dated 16th October, 2000, whereby Criminal Appeal No,224 of 1999 filed by respondent (convict) Muhammad Ashraf son of Muhammad Rafiq against his conviction of death sentence awarded to him under sections 302/365-A, P.P.C. He was acquitted under section 365-A, P.P.C. And under section 302, P.P.C. His sentence was reduced from death to life imprisonment.
Relevant para. From the judgment is reproduced hereinbelow:-- ' "It was well-settled principle of law now that in absence of motive being proved capital sentence cannot be awarded in the present case, where prosecution case is based on circumstantial evidence, the learned counsel has failed to show us that how the motive stood proved. (1999 M LD 1244). Thus, in our considered opinion the motive has been suppressed by the parties and remained shrouded in mystery leading to unfortunate incident. Thus something must have happened between the parties which led to the said incident, which was not brought on record."
2. Precisely stating facts of the case are that on 18th September, 1998 petitioner (complainant) went to attend the betrothal ceremony in village i.e, Killi Haikalzai alongwith his son Ameenullah alias Khan (deceased). In the ceremony he found his son missing. He made search of his son at his own but when he could not trace him, on 21st September, 1998 he formally informed the Tehsildar Pishin stating that he is sure that his son has been kidnapped. During investigation petitioner received a letter on 28th September, 1998 wherein ransom in the sum of Rs,10,00,000 was demanded for the recovery of his son. It is important to note that in the letter the name of the respondent/convict was also mentioned to be a person who demanded ransom from him. Thus petitioner expressed his suspicion against the respondent to be the accused who had kidnapped his son. Accordingly on 30th September, 1998 respondent was arrested from his house. On the same day respondent led to the recovery of dead body of Ameenullah alias Khan from a deserted well. At the time the dead body was found wrapped in a gunny bag. Likewise other incriminating evidence was collected against the respondent on his pointation in presence of the Naib Tehsildar (Magistrate IIIrd Class).
' On 10th of October, 1998 respondent made confessional statement before Judicial Magistrate, Pishin.
3. Thus on the completion of investigation challan was submitted in the competent Court of law.
4. The learned trial Court read over the charge to the petitioner on 28th April, 1999. It is important to note that the respondent had admitted the charge. Admission of the respondent is reproduced hereinbelow:-- ' "I plead guilty. On above date and time I kidnapped Ameenullah for ransom and then committed his murder."
' Surprisingly on the same day learned Presiding Officer issued a show-cause notice under section 243, Cr.P.C. To the respondent calling upon him to explain as to why he should not be convicted under sections 365-A and 302, P.P.C. Because he has pleaded guilty to the charge. In reply to the show-cause notice, dated 30-4-1999 respondent denied the charge and stated that at the time of framing of charge he was not in his senses. Inasmuch as he also denied that neither he had murdered Ameenullah nor he had demanded Rs,10,00,000 for ransom.
5. Learned Court seized with the matter recorded evidence produced by the prosecution including the statement of P.W.7 Abdul Rahman, NaibTehsildar in whose presence at the pointation of the respondent the dead body of Ameenullah was recovered. The confessional statement of respondent was produced by P.W.2 Munir Ahmed Marri, Judicial Magistrate. The statement of respondent under section 342, Cr.P.C. Was also recorded wherein he denied the allegations levelled against him by the prosecution. However, he did not opt to make statement on oath nor he had chosen to produce any defence evidence in support of his version.
6. On completion of the trial vide judgment, dated 26th August, 1999 respondent was found guilty for the offences under sections 302 and 365-A, P.P.C. And on both the counts he was sentenced to death. As such respondent challenged his conviction in appeal before the learned High Court which has been disposed of vide impugned order.
7. After hearing learned counsel for the petitioner at length and having gone through the impugned judgment and the evidence available on record we are inclined to grant leave to appeal to consider, inter alia, the following questions:--
(a) As to whether after pleading guilty by the respondent on 28th April, 1999 it was obligatory upon the trial Court to have issued a separate show-cause notice to the convict in terms of section 243, Cr.P.C. Calling upon him to explain as to why he should not be convicted for the offences charged against him.
(b) As to whether in view of the judgments reported as Abdul Wahab v. State (1999 SCM R 1668) and Noor Muhammad v. State (1999 SCM R 2722) the learned High Court of Balochistan has not erred in law in awarding lesser punishment to respondent despite concluding that the charge fully stands established against him under section 302, P.P.C.
(c) As to whether there were any mitigating or extenuating circumstances to award lesser punishment to respondent by converting death sentence into the life imprisonment.
(d) As to whether respondent has been rightly acquitted of ,the charge under section 365-A. P.P.C.
' Thus to consider the above questions leave to appeal is granted.