HIGH COURT OF SINDH AT KARACHI

Criminal Appeal No. 144 of 2007

Confirmation Case No 02 of 2008

Present:

Naimatullah Phulpoto, J.

Aftab Ahmed Gorar, J.

J U D G M E N T

Appellant: Muhammad Mithal through Mr. Mohammad Farooq Advocate.

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Respondent: The State through Mr. Abrar Ali Khichi, Assistant Prosecutor General Sindh.

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Date of hearing: 22/01/2016

Date of announcement: 11/02/2016

NAIMATULLAH PHULPOTO, J:- The aforesaid Appeal under Section 7 of Suppression of Terrorist Activities (Special Courts) Act, 1975 at the instance of the Appellants/Accused is directed against the judgment dated 26.02.2007 passed by learned Judge, Special Court (S.T.A) Khairpur, whereby the Appellants/Accused Mulazim Hussain and Muhammad Mithal both sons of Muhammad Bakhsh Siyal were convicted u/s 302(b) PPC read with Section 34 PPC for commission of the murders of Abdul Lateef and Zaffar Raza and sentenced to death on each count. Both the Appellants/Accused were also found liable to pay Daman and sentenced to undergo R.I for six months as Tazir. Appellants/Accused were directed to pay Daman of Rs.500/-to Nisha Kumari. Appellants/Accused were ordered to pay compensation of Rs.100,000/- each to the legal heirs of each deceased under section 544-A Cr.P.C. Death sentences awarded to the Appellants/Accused were subject to the confirmation by this Court as required u/s 374 Cr.P.C. Such reference was made by trial Court.

2. By this judgment, we would decide the aforesaid Appeal as well as Reference for confirmation of death sentences awarded to the Appellants/Accused.

3. Brief facts of the prosecution case as disclosed in the F.I.R. lodged on 22.01.1999 by Kazim Raza are that complainant and his younger brother Zaffar Raza were residing in their house situated in Luqman Mohalla Khairpur and Abdul Lateef (now deceased) was serving in the Police Department and was residing with the complainant. It is stated in the F.I.R. that about 4/5 years back Abdul Lateef had married Mst. Pervaizan daughter of accused Muhammad Mithal and such case of abduction of Mst. Pervaizan was registered against Abdul Lateef. It is alleged that Appellant Muhammad Mithal father of Mst. Pervaizan and his brother Mulazim Hussain were annoyed with Abdul Lateef on account of such abduction of Mst. Pervaizan. The dispute was resolved in the private Faisala and the case of abduction was disposed of. However, it is stated that Appellants Muhammad Mithal and Abdul Lateef (deceased) could not restore their visiting terms. On the day of incident, complainant along with his cousin Fazal Hussain and a friend Muhammad Rafique were going to purchase medicines from Shahi Bazar Luqman and when they reached at Ahsan Halwai Chowk, they saw Abdul Lateef and Zaffar Raza coming from the street on motorcycle. It is alleged that motorcycle was being driven by Abdul Lateef. It was 8:45 PM, when Appellants Muhammad Mithal and his brother Mulazim Hussain both serving in the Police Department appeared there. Appellant Muhammad Mithal was wearing Police uniform and was carrying Rifle. Appellant Mulazim Hussain was in private clothes and he was armed with Kalashnikov. Appellant Muhammad Mithal challenged Abdul Lateef and Zaffar while saying that Abdul Lateef was his Karo and Zaffar was supporting him. Thereafter, it is stated that Muhammad Mithal fired with Rifle at Abdul Lateef and Zaffar, as a result of which Abdul Lateef and Zaffar sustained firearm injuries and fell down. Appellant Mulazim Hussain also fired with Kalashnikov on Abdul Lateef which hit Abdul Lateef, one passerby and a baby Nisha Kumari, who were present there. Both the Appellants while raising slogans ran away. On fire reports, the persons of the locality were attracted. Abdul Lateef and Zaffar Raza had received firearm injuries. It is alleged that Abdul Lateef died at spot. Zaffar also could not survive. The names of other injured persons were disclosed in the F.I.R. as Ghulam Muhammad and baby Nisha Kumari. Complainant then went to Police Station B-Section Khairpur and lodged report against Appellants/accused. F.I.R. was recorded vide Crime No.04/1999 u/s 302/324/34 PPC.

4. During investigation, I.O recorded statements of P.Ws Muhammad Rafique, Fazal Hussain, injured Ghulam Muhammad u/s 161 Cr.P.C and inspected place of wardat in presence of the mashirs and prepared inquest report in presence of mashirs Gul Muhammad and Ahmed Ali. Inquest report of Zaffar Raza was also prepared in presence of mashirs Ashique Hussain and Fida Hussain. Mashirnama of injuries of injured persons was also prepared in presence of the same mashirs. I.O prepared mashirnama of the clothes of the deceased and arrested accused Mulazim Hussain and prepared Mashirnama of the recovery of Rifle from his possession in presence of the same Mashirs. Autopsy of deceased Abdul Lateef and Zaffar Raza was conducted by Dr. Saleem Ahmed Bhutto of Civil Hospital Khairpur. The same Doctor examined injured persons and issued postmortem reports and certificates, respectively. Accused Mithal was arrested on 10.03.1999 in presence of Mashirs namely Muhammad Yousuf and Mushtaque. After usual investigation challan was submitted against accused before Anti-Terrorism Court and learned Judge Anti-Terrorism Court Sukkur by judgment dated 08.07.1999 convicted and sentenced the Appellants/accused. The Judgment of the Anti-Terrorism Court Sukkur was challenged before this Court and this Court in Appeal No. 91 of 1999 set aside the conviction and sentence recorded by the Trial Court vide judgment dated 25.06.2001, mainly on the ground that Anti-Terrorism Court had no jurisdiction to try the case. Thereafter, case was sent to Special Court (S.T.A) Khairpur, for re-trial according to law.

5. Charge was framed by learned Judge Special Court (S.T.A) Khairpur on 29.03.2002 at Ex. 29 against the Appellants/accused. They did not plead guilty and claimed to be tried.

6. At the trial, prosecution examined complainant Kazim Raza at Ex. 30, P.W Muhammad Rafique at Ex.31, P.W Fazal Hussain at Ex. 32, P.W Ghulam Muhammad at Ex. 33, P.W Gul Muhammad at Ex. 34, Baby Nisha Kumari at Ex.35, P.W Ashique Hussain at Ex. 36, P.W Dr. Saleem Ahmed at Ex. 37, Tapedar Ameer Azam at Ex. 38, P.W/I.O Muhammad Yaseen at Ex. 39, P.W Mushtaque Ali at Ex. 42 and P.W Kausar Ali at Ex. 43. Thereafter, learned D.D.A closed the prosecution side vide statement at Ex.44.

7. Statements of the Appellants/accused were recorded u/s 342 Cr.P.C at Ex. 45 and 46, in which Appellants/accused have claimed their false implication in this case and denied the prosecution allegations. It is stated that P.Ws have deposed against them due to enmity. Recoveries have been denied. No defence was led by the Appellants/accused. Both accused declined to give statement on oath in disproof of prosecution allegations.

8. The Appellant Mulazim Hussain expired during the pendency of the Appeal in jail and proceedings were abetted against him vide orders dated 29.11.2013.

9. Learned trial Court after hearing the learned counsel for the parties and on the assessment of evidence convicted both accused and sentenced them as stated above.

10. Mr. Muhammad Farooq, learned counsel for the appellant argued that P.Ws were chance witnesses and that presence of eye witnesses at the spot was highly doubtful. There are material contradictions in the prosecution evidence. PWs are interested. Incident had occurred in Luqman Town, Khairpur, yet no independent person of Luqman Town was examined by the prosecution at trial. Learned counsel for the appellant argued that before this incident daughter of Muhammad Mithal was abducted by deceased Abdul Lateef and contracted un-ceremonial marriage. Mr. Muhammad Farooq submits that appellant is in continuous detention/under arrest since 10.03.1999. Learned counsel for the appellant lastly submitted that sentence of death may be reduced to imprisonment for life keeping in view the provocative conduct and attitude of deceased Abdul Lateef. In support of his contentions he has relied upon the case of MUHAMMAD SHARIF versus THE STATE (PLD 2009 SC 709).

11. Mr. Abrar Ali Khichi, learned Assistant Prosecutor General Sindh, argued that appellants have committed double murder and two passerby also sustained firearm injuries in the incident by indiscriminate firing made by appellants Mulazim Hussain (now deceased) and appellant Muhammad Mithal. It is argued that presence of the eye witnesses at the spot has been explained. Eye witnesses have made constant statements regarding the incident and motive for commission of offence. It is argued that appellant Muhammad Mithal has not denied that deceased had contracted marriage with his daughter. Private settlement was also made. Lastly, it is argued that it was not the case of grave and sudden provocation but it was an afterthought incident. Learned A.P.G. argued that plea of grave provocation as argued by the learned counsel for the appellant is not borne out from the record. In support of his contentions he has relied upon the cases reported as GHULAM ABBAS versus THE STATE (2012 SCMR 1195) and MUHAMMAD NAWAZ and another versus THE STATE and others (PLD 2005 Supreme Court 40).

12. After hearing the learned counsel for the parties, we have minutely perused the evidence.

13. In order to ascertain the unnatural death of deceased Abdul Lateef and Zafar Raza and regarding the injuries sustained by PWs Ghulam Muhammad and Baby Nisha Kumari, the prosecution examined P.W-8/Medical Officer Dr. Saleem Ahmed Bhutto at Exhibit 37. He has stated on 22.01.1999 PC Kousahr Ali of police station “B” Section Khairpur brought dead body of one Abdul Lateef injured persons namely Ghulam Muhammad, Zafar Raza and baby Nisha Kumari. Zafar Raza expired within 10 minutes. Medical Officer started postmortem examination of deceased Abdul Lateef at 10:15 p.m. and completed it within one hour. From external examination of deceased Abdul Lateef, Medical Officer found the following injuries:

1. One crash injury of 12x5cm x skull deep on left side of neck and occipital region exposing brain matter, thus the fracture of skull was caused.

2. A crash injury of 4cm x 3cm x bone deep with inverted margins on the right upper lip crashing the teeth and mouth (wound of entry).

3. One lacerated wound of about 2cm in diameter x cavity deep with everted margins on the right front side of the chest (anteriorly).

4. One lacerated wound of about 6cm x 5cm x cavity deep with everted margins on the left side of the chest below the left clavicular area (anteriorly).

5. One lacerated wound of about 2cm in diameter with everted margins x cavity deep in front of the chest on the left side.

6. One lacerated wound of about 1.5cm in diameter x cavity deep with everted margins on the right lateral side of the abdomen.

7. Four lacerated wounds each of about 1cm in diameter x cavity deep, all of them with inverted margins, two on the right side of the back of chest while remaining two on the left side of the back of the chest, one of which was on the left scapular region.

14. On internal examination of the dead body of Abdu Lateef medical Officer found the scalp lacerated, skull fractured, membrance were torn and congested while the brain was congested and was coming out of the skull. In the thorax M.O. found the walls and ribs fractured at the site of injuries, the plourae were ruptured and inflamed, both lungs i.e. right and left, were punctured, the blood vessels were ruptured. In abdomen of the deceased, M.O. found the wall of right lateral side punctured, the peritoneum was also punctured, mouth pharynx and esophagus was lacerated. The large intestine was also ruptured and the liver was also ruptured. The stomach was containing semi digested food particles and gastric juices. The small intestine was containing digested food material and intestinal juices. From the external as well as internal examination of the dead body of Abdul Lateef, M.O. was of the opinion that the death had occurred due to hemorrhage and shock as a of injuries No.1 and 2. The injuries were caused by firearm. All the injuries individually as well as collectively were anti-mortem in nature and sufficient to cause death in the ordinary course of life. Duration between the injuries and the death was instantaneously while time between the death and the post mortem examination was about one hour. He issued post mortem report and produced it as Exhibit 37-A. Medical Officer conducted postmortem examination of deceased Zafar Raza. On the external examination, M.O. found following injuries on the dead body:

1. A lacerated wound of 1cm in diameter x cavity deep with inverted margins on the left side of the chest, in front, through and through.

2. One lacerated would of 6cm x 4 cm x cavity deep on the right posterior and lateral side of the chest posteriorly.

15. On internal examination of the dead body of Zafar Raza, M.O. found the thorax walls were punctured at the site of injuries and ribs were fractured, plourae were also ruptured and inflamed, both lungs were punctured and the blood vessels were also ruptured. The stomach was containing gastric juices while the small intestine contained semi digested food particles and juices whereas the large intestine contained fecal matter. The remaining organs were normal and healthy. From external as well as internal examination of the deceased Zafar Raza, M.O. was of the opinion that his death had occurred due to hemorrhage, shock, specially due to cardio respiratory failure as both the lungs along with Pleurae were ruptured. The injuries were caused by fire arms and the same were anti mortem in nature. The probable time elapsed between the injury and the death was about half an hour while between death and post mortem was about 10 minutes. He issued post mortem report at Exhibit 37/B. M.O. examined the injured Ghulam Muhammad on the same day and found one lacerated wound of about 1cm in diameter x tissue deep, circular in shape, on the back of right lower leg above the calf muscles (posteriorly). He referred the injured for X-Ray examination. After receipt of report of Radiologist no bone fracture was shown. Injury was simple in nature and it was caused by fire arm. He issued such certificate and produced at Exhibit 37/C. M.O. examined the injured Baby Nisha Kumari aged about 7 years on the same day and found a crushing injury 6cm x 4cm x skull cavity deep on the parieto recipital region, causing brain matter to come out. (Posterior above part of the head). Injury was dangerous to life and was caused by discharge from the fire arm. M.O. issued provisional certificate on 25.1.1999 and produced at 37/D. After receipt of the certificate from Jinnah Hospital Karachi he issued final medical certificate and declared the injury as Shuja-e-Dameeha and produced such certificate at Exhibit 37/E. Medical officer was cross-examined by learned defence counsel. M.O denied the suggestion that he had not conducted the post mortem examination of Abdul Lateef and Zafar Raza. From the cross-examination it appears that unnatural death of the deceased persons and injuries sustained by the injured have not been denied. Weapons used have also not been denied. We, therefore, hold that both the deceased died their unnatural death by means of the fire arms and both injured sustained fire arm injuries as described by the medical officer.

16. P.W-1/Complainant Kazim Raza had deposed that on 22.01.1999 at 08:45 p.m. he along with his cousin Faisal Hussain and his friend Muhammad Rafiq were going to the medical store Luqman to purchase some medicine, when they reached at Ihsan Hawlai Chowk they saw Abdul Lateef and Zafar Raza who were coming on the motorcycle. It was being driven by Abdul Lateef. Accused Muhammad Mithal who was wearing police dress having a rifle in his hand and accused Mulazim Hussain who armed with rifle arrived there. Complainant has stated that Mithal asked Abdul Lateef that he was Karo. Accused Mithal said that Zafar Raza was supporting Abdul Lateef. It is stated that accused Mithal fired with his rifle at Abdul Lateef and Zafar Raza they fell down from the motorcycle. Thereafter, accused Mulazim Hussain fired with his Kalashnikov at Abdul Lateef which also hit him and other persons named Ghulam Muhammad and baby Nisha Kumari. Thereafter, it is stated by the complainant that Abdul Lateef died at the spot and injured Zafar Raza, Ghulam Muhammad and baby Nisha Kumari were taken to the Civil Hospital Khairpur. The complainant went to the “B” Section Police Station Khairpur where he lodged F.I.R. Complainant has disclosed that there was family dispute between Abdul Lateef and Mithal, therefore, both accused committed the offence. In the cross-examination of learned defence counsel, complainant has replied that deceased Abdul Lateef had contacted Court marriage with the daughter of accused Mithal three years prior to this incident. Complainant had denied the suggestion that he had not witnessed the incident and was deposing falsely against the accused in this case. The complainant has denied the suggestion that there was settlement of the dispute between accused Mithal and deceased Abdul Lateef.

17. PW-2 Muhammad Rafiq had deposed that present incident had taken place on 22.01.1999 at about 08:30 to 08:45 p.m. On that date he along with complainant Kazim Raza and PW Fazal Hussain had gone to purchase medicines from Shahi Bazar, situated at Ehsan Sweet Chowk at Luqman. When they reached there, they saw Abdul Lateef and Zaffar Raza coming there on motorcycle. Accused Muhammad Mithal and his brother Mulazim Hussain also came there. Accused Muhammad Mithal was armed with rifle and Mulazim Hussain was armed with K.K. Accused Muhammad Mithal challenged Abdul Lateef and Zaffar Raza while saying that Abdul Lateef was Karo and Zaffar was supporting him. Thereafter, accused Muhammad Mithal fired with Rifle at Abdul Lateef and Zaffar, as a result of which Abdul Lateef and Zaffar sustained injuries and fell on the ground. Thereafter, he deposed that accused Mulazim Hussain also fired with Kalashnikov on Abdul Lateef. On account of such firing two passerby, namely Ghulam Muhammad and baby Nisha Kumari received injuries. Accused made escape good from the place of wardat. Injured Abdul Lateef expired at the spot while Zafar Raza was lying seriously injured. Thereafter, he along with PW Fazal Hussain took injured Zafar Raza to Civil Hospital, Khairpur so also injured baby Nisha Kumari and Ghulam Muhammad Jat. He had deposed that Zafar Raza expired in the hospital within 15 minutes and complainant Kazim Raza went to police station “B” Section Khairpur where he lodged F.I.R. against the accused. He was cross-examined by learned defence counsel. In the cross-examination he denied the suggestion that he was deposing falsely against the accused.

18. PW-3 Fazal Hussain is also eye witness of the incident. He deposed that on 22.01.1999 at 08:45 p.m. he along with complainant Kazim Raza and PW Muhammad Rafiq had gone to Ehsan Sweet Chowk to purchase medicine. When they reached there they saw deceased Abdul Lateef and Zafar Raza were coming on motorcycle. Abdul Latif was driving the motorcycle while Zafar Raza was sitting behind him. He further deposed that both accused Mulazim Hussain and Muhammad Mithal also came there from the southern side. He deposed that Mithal was wearing police uniform and was armed with rifle and Mulazim Hussain was in civil dress, he was armed with Kalashnikov. He has stated that Mithal challenged Abdul Latif that he was his karo and he would not be spared. He also challenged Zafar Raza that he was supporter of Abdu Lateef and he would also not be spared. Thereafter, accused Muhammad Mithal fired from his rifle, which hit Abdul Latif. He also fired upon Zafar Raza. Both fell down from the motorcycle. Accused Mulazim Hussain also fired upon Abdul Lateef. He has further deposed that a small baby, namely, Nisha Kumari and one Ghulam Muhammad Jat had also received firearm injuries and accused made escape good from the place of incident. Complainant party saw that Abdul Latif expired at the spot and Zafar Raza was lying seriously injured. Injured baby Nisha Kumari and Ghulam Muhammad Jat were taken to Civil Hospital by the complainant party. Injured Zafar Raza expired in the hospital and injured baby Nisha Kumari and Ghulam Muhammad were admitted in the hospital for medical treatment. Complainant went to the police station where he lodged the report. In the cross-examination to learned advocate for accused, he has denied the suggestion for deposing falsely.

19. P.W-6 Baby Nisha Kumari has deposed that about five years back, present incident took place at that time she was going to purchase sweets from a shop but on the way she sustained firearm injuries at her head and went unconscious. She regained senses in the hospital at Karachi. She has stated that accused present in Court were not seen by her at spot.

20. P.W-4 Ghulam Muhammad has stated that about four years back at 8:30 pm, present incident took place at Hassan Chowk of Luqman. All of sudden, he received firearm injury and went unconscious. He regained senses in the hospital and he came to know that accused Mithal had fired upon him, two persons died in the incident and a baby sustained firearm injuries.

21. P.W-10 SIP Muhammad Yaseen, I.O of the case has deposed that on 22.01.1999, complainant Kazim Raza appeared at police station and he lodged report against accused Mulazim Hussain and Muhammad Mithal. He recorded F.I.R. Thereafter, he proceeded to place of incident situated at Shahzi Bazar near Ahsan chowk, where he saw dead body of Abdul Lateef lying there, Ghulam Muhammad, Nisha Kumari and Ali Raza had also sustained injuries in the incident. He referred injured persons to the hospital for postmortem and started efforts for arrest of accused. On 23.01.1999, I.O recorded statements of P.Ws Fazul Hussain and Muhammad Rafiq. He arrested accused Mulazim Hussain from the railway crossing and prepared such mashirnama in presence of mashirs Fida Hussain and Muhammad Ashique. On 27.02.1999, he recovered rifle from possession of accused Muhammad Mithal in presence of mashirs. I.O had also collected 10 live bullets of rifle from the possession of accused. On 10.03.1999, I.O arrested accused Muhammad Mithal in presence of same mashirs. I.O had sent blood stained earth, clothes of deceased, weapons and empties to the expert and received such reports and produced at Ex-39/B and 39/C and thereafter, he handed over investigation papers to SHO Javed Ahmed Farooqi, who submitted challan against accused.

22. PW-7 Mian Ashiq acted as mashir of inquest report of deceased and mashir of the injuries of the injured persons and arrest of accused Mulazim Hussain on 25.02.1999. He has deposed that accused Mohammad Mithal ran away while seeing police mobile at Magsi village and he had thrown his china rifle, it was secured by investigation officer in presence of mashirs.

23. PW-5/Mashir Gul Muhammad has deposed that on 22.01.1999 he was made mashir of place of wardat, it was shown to the police by complainant. Such mashirnama was prepared by the investigation officer. He has also stated that police secured 17 empties from the place of wardat and collected blood stained earth. Such mashirnama was prepared.

24. After hearing the learned counsel for the parties, we have perused the entire evidence. It appears that eye witnesses namely Kazim Raza, Fazal Hussain and Muhammad Rafiq have fully implicated the appellant that he had fired upon both the deceased. Eye witnesses have given probable cause of their presence at the place of incident that they had gone to Ehsan Chowk for purchasing medicines. Eye witnesses were consistent in their statements. Incident had occurred on 22.01.1999 and F.I.R. was lodged promptly. Ocular evidence is corroborated by the medical evidence so also recovery of the crime weapon from accused Mithal. Motive has also been established by the prosecution. It has come on record that before this incident, deceased Abdul Lateef had abducted daughter of accused Muhammad Mithal and contracted un-ceremonial marriage with her, which caused much annoyance to appellant Muhammad Mithal and his brother Mulazim Hussain (now dead). It is also the matter of record that there was private settlement of such matrimonial dispute. Inspite of that, appellants with sophisticated weapons fired upon Abdul Lateef declaring him as Karo and caused murder of Zafar Raza declaring him as facilitator. Indiscriminate firing was made by the appellants, which resulted in injuries to passerby namely Ghulam Muhammad and Baby Nisha Kumari. Eye witnesses Kazim Raza, Fazal Hussain and Muhammad Rafiq have deposed that appellant Muhammad Mithal fired upon both the deceased. Crime weapon/rifle was recovered from accused Muhammad Mithal. Empties were collected from place of wardat. Ballistic expert in his report at Ex-20/B has mentioned that Three 7.62mm bore crime empties now marked as C1, C16 and C13 were filed from above mentioned 7.62mm bore china rifle No.1510102 now butt signed and fourteen 7.62mm crime empties now marked as C2, C3 to C12, C14, C15 and C17 were not fired from above mentioned 7.62mm bore rifle (China No.1510102 now butt signed. Prosecution witnesses had no enmity with the appellant Muhammad Mithal to implicate him in this case. Empties were sent to the Ballistic Expert so also the rifle, report is positive. There is huge evidence on the record to connect the accused in the commission of the offence and the trial Court has rightly appreciated the evidence according to settled principles of law.

25. As regards to contention of the learned counsel for the appellant that sentence of death may be reduced to life imprisonment as accused Muhammad Mithal had acted in grave and sudden provocation. We have carefully perused the evidence. Plea of grave and sudden provocation has not been raised by the appellant. Even in the statement of accused nothing has been mentioned regarding grave and sudden provocation. Plea of grave and sudden provocation is not borne out from the record. It is settled law that burden of proving the existence of the circumstances bringing the case within the ambit of grave and sudden provocation lies upon the accused but the same plea has not been substantiated by the accused at the trial. Mere word of the accused that deceased had abducted daughter of accused would not be sufficient to prove the plea of grave and sudden provocation as held by Honourable Supreme Court in the case of GHULAM ABBAS versus THE STATE (2012 SCMR 1195).

26. In the present case simplicitor plea of grave and sudden provocation cannot brush aside the huge prosecution evidence which has been found by trial Court trustworthy as well as by us. As discussed above, we are satisfied that said plea is not sufficient for reduction of sentence.

27. As regards to the other contention of learned Advocate for appellant, he is in custody since the date of his arrest i.e. 10.03.1999. Appellant Muhammad Mithal cannot be extended concession of lesser sentence from death to imprisonment for life on the ground that he has been incarcerated for long period for the reasons that he had committed cold blooded premeditated murders of two persons. There is no mitigating circumstance or factor to persuade us to convert the sentence of death to imprisonment for life. Honourable Supreme Court in the case of ZAFAR IQBAL versus THE STATE (PLD 2015 SC 307) held as under:

11. We now attend to whether the appellant had made out a case for commuting his sentence of death to one for life imprisonment. In the cited case of Hassan v. State this court had reduced the sentence of death to one of imprisonment for life, "on account of the mitigating circumstances oozing out of the facts and circumstances of the case and also on account of the principle of expectancy of life" (from para-graph 24 at page 827, emphasis added). The mitigating circumstances in the said case were that the complainant party had itself gone to the place of occurrence where the accused party was present, there was no premeditation on the part of the accused party and both sides resorted to firing, consequently, it was held that:--

 "...it would be unsafe for conclusively holding that the appellants had committed the murders in issue with a predetermined mind and design. This aspect of the case, in its peculiar background, may call for withholding the extreme sentence of death. The learned counsel for the appellants is quite right in pointing out that Hassan and Sikandar appellants had not caused any injury to one of the murdered persons namely Ghulam Haider and, thus, awarding them a sentence of death even on that count of the charge of murder appears to be rather excessive. It is also true that despite having an ample opportunity to cause more injuries to the complainant party by keeping on firing at it both the appellants namely Hassan and Sikandar had fired from their firearms only once causing one injury each to their victims. When incessant firing was taking place from both the sides, as is evident from the very large number of crime-empties secured from the place of occurrence, the said appellants could have fired more shots causing injuries to more persons of the opposite party but no such allegation had been levelled against them by the prosecution. This aspect of the case may also furnish some justification for reducing their sentences of death to those of imprisonment for life." (page 813)

In a subsequent case decided by a five Member Bench of this Court Khalid Iqbal v. Mirza Khan (PLD 2015 SC 50), it was held, as under:--

"A convict/condemned prisoner can be extended concession of lesser sentence from death to life imprisonment, if he has been incarcerated for a period equal to or more than a life imprisonment on account of principles of expectancy of life, treating it as one of the factors towards mitigating circumstances. However, it is completely misconceived that every convict or condemn prisoner, who was sentenced to death or life imprisonment and had served full term of imprisonment for life during the pendency of his legal remedies against his conviction, cannot be awarded death penalty, if other factors so warrant." [emphasis added]

12. The appellant committed the coldblooded premeditated murder of five persons and unfortunately there is no mitigating circumstance or factor that could persuade us to convert the sentence of death to one of imprisonment for life.

28. The Honourable Supreme Court of Pakistan in the case of Miss Najiba and another versus Ahmed Sultan alias Sattar and 2 others (2001 SCMR 988) has observed that when in the case, involving capital punishment prosecution proves its case, Court is duty bound to impose deterrent punishment to make evil doers an example and warning to the likeminded people.

29. For the aforesaid facts and reasons, there is no merit in this appeal, which is hereby dismissed. Consequently, Reference made by the trial Court for confirmation of death sentences is answered in affirmative.

J U D G E

J U D G E

Gulsher/PS