' JAVED IQBAL, J.---This petition for leave to appeal is directed against judgment dated 20-12-2001 passed by learned Divisional Bench of High Court of Balochistan, Quetta whereby the appeal preferred on behalf of petitioner has been dismissed and judgment dated 23rd July, 2001 passed by the learned Special Judge (STA), Nasirabad at Dera Murad Jamali has been kept intact whereby accused was convicted and sentenced to death under section 302(b), P.P.C.
2. Briefly stated the facts of the case as transpired from F.I.R. No,93 of 1999 dated 18-4-1999 got registered at Police Station Dera Murad Jamali on the basis of Fard-e-Bayan of Saleem Khan are to the effect that "he was resident of Goth Saleem Khan, Temple Shakh and had come to Dera Murad Jamali, in connection with his personal work. Stating further, that when he reached near levies chowk, national highway road, he heard gun-shot reports, rushed towards the site and saw Fareed son of Jan Muhammad and Abdul Razzaq son of Noor Muhammad, by caste Ramdani, Jamali, who fired six/seven shots with T.T. Pistols at his brother. Also that bullets hit on the chest and back of his brother. Complainant also stated that he had himself seen both the culprits and incident was also seen by Eidan Khan son of Muhammad Amin. And, that his brother fell down due to firing.
Complainant also stated that as he was empty-handed, therefore, helpless and could not chase the culprits. Regarding motive, complainant disclosed that his brother was unjustifiably injured by the accused, in spite of the fact that they did not have any enmity with them". The petitioner was arrested and after completion of usual investigation sent up for trial and on conclusion whereof convicted under section 302(b), P.P.C. And sentenced to death by the learned Special Judge (STA), Nasirabad at Dera Murad Jamali by means of judgment, dated 23rd July, 2001 which was upheld by the learned Division Bench of High Court, hence this petition.
3. It is mainly contended by Mr. Ehsan-ul-Haq Khan, learned Advocate Supreme Court on behalf of petitioner that the legal and factual aspects of the case have not been examined in its true perspective which resulted in serious miscarriage of justice and as such the same deserve to be set aside. It is also contended that since the alleged murder was not premeditated one as such the sentence of death could not have been awarded. It is urged emphatically that grave contradictions fatal to the case of prosecution were ignored which is the result of non-reading and misreading of evidence. It is further argued that the dying declaration was never recorded in accordance with law but the same has been relied upon without any reason. After having heard the learned defence counsel at some length he was confronted with the observations made by the learned Division Bench of the High Court that the appeal was never argued on merits but only reduction in sentence was prayed with the submission that the sentence of death be modified with that of life imprisonment on the basis of mitigating circumstances i.e, motive remained shrouded in mystery, non-existence of enmity between the parties and actual happening before the occurrence, Mr. Ehsan-ul-Haq Khan learned Advocate Supreme Court conceded reluctantly that on seeing the bent of mind of the learned Division Bench leaning towards reduction of sentence the appeal could not be argued on merits but simultaneously urged with vehemence that in spite of all this it was bounden duty of the Court to have examined the entire evidence with diligent application of mind and the death sentence could have been modified after an in-depth scrutiny of record and evaluating the eye account, medical evidence, dying declaration, grave contradictions in the statements of P.Ws., flaws and loophole in the prosecution story which was not done and thus impugned judgment is in violation of the provisions as contained in section 423, Cr.P.C. At this juncture Mr. Ehsan-ul-Haq Khan learned Advocate Supreme Court was also confronted with the grounds mentioned in memo. Of petition for leave to appeal which also revolve around the "mitigating circumstances" but no plausible justification for non-mentioning of various grounds in the memo. Of petition which were agitated while arguing the case could be given except that ground (a) i.e, "that the judgment of the learned Division Bench in the High Court of Balochistan is contrary to law facts and justice and as such the same deserves to be set aside" covers all the abovementioned agitated points.
4. We have heard Mr. Ehsan-ul-Haq Khan learned Advocate Supreme Court and perused the entire record and scanned the evidence minutely. We have gone through the impugned judgment. It is an admitted feature of the case and there is no doubt in it that the learned Division Bench while exercising its power under section 423, Cr.P.C. Can reduce the sentence but it should be done after dilating upon the merits of the case. A general agreement with the plea of reduction in our considered view is neither desirable nor enough and Appellate Court should examine each and every aspect of the case having substantial bearing on the fate of appeal vigilantly and diligently as it would be in the interest of justice. The plea of reduction in sentence does not constitute a bar for the Appellate Court from interfering where the findings rendered by the trial Court are based on erroneous or speculative presumptions or non-reading or misreading of evidence, violation of settled judicial principles concerning administration of justice and reviewing the entire case to draw its own conclusion. Here at this juncture the question arises as to whether the appeal was decided on merits after having gone through record of the case and critical evaluation of the entire evidence? The answer would be in negative. It is well-settled by now that "even in a case where a criminal appeal is not pressed on merits and it is pressed only on the question of sentence, it is the duty of the Court itself to examine the evidence on the record in order to find out whether the conviction of the appellant is proper or not. Merely because the counsel for the appellant has not pressed the appeal on merits, the High Court is not relieved of its duty to peruse the record in order to find out whether there is ample evidence against the appellant to convict him for the offence for which he has been charged. This is necessary to secure due and efficient administration of justice and also to show that the Court has applied its mind to the facts of the case and has reached its own conclusion on the dispute between the parties". (Abdul Siddique v.
The State 1971 SCM R 628, Ramzan v. The State PLD 1967 SC 545, The Queen v. Roop Gowalla 15 WR 42, Parmeshur Lal v. Mst. Rukmin and another AIR 1925 Oudh 305, Emperor v. Sursing Mathuradas 1 Cr. LI 939, King-Emperor v. Dadu Raut AIR 1935 PC 89, Khalil and others v. The Crown PLD 1953 SC 133, Muhammad Ashiq Faqir v. The State PLD 1970 SC 177, Rabari Ghela Jadav v. State of Bombay AIR 1960 SC 748 ref.). A similar proposition was examined in case titled Muhammad Siddique v. The State (NLR 1995 Criminal 559) and it was observed as follows:-- ' "It is true that the learned counsel appearing for the convicts before the Appellate Court quite often prays for the leniency in the sentence without challenging conviction on merits and consequently, the Courts straightaway reduce the sentences and dispose of the matter without examining the conviction on legal and factual plane. We have noted it with concern that despite obtaining relief in the shape of reduction, in sentence, the convicts invariably approach this Court questioning their conviction on merits. It is well-settled that once appeal is filed or is admitted to regular hearing, it can neither be withdrawn nor dismissed for non-prosecution and it becomes obligatory on the Appellate Court to decide the same on merits. We are of the view that despite the concession made by the counsel appearing on behalf of the convicts the Appellate Court is always obliged to examine the merits of the case and in case the Court finds that a case for acquittal is made out, the Court must acquit the accused despite the prayer made by the counsel for the reduction of sentence only. Furthermore, to avoid the possibility of remand it would be in the fitness of things that an appeal is decided on merits even in cases where the counsel appearing for the appellant/convict do not challenge the conviction and pray for reduction in sentence only."
5. In the light of what has been stated above we are inclined to grant leave for reappraisal of evidence so that case could be decided on merits. Leave to appeal is accordingly granted.