Seeta Ram (Appellant) VS The State (Respondent)

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ORDER SI{EE'I'

IN THE HIGH COURT OF SINDH.

CIRCUIT COIJRT, HYDI]ITAI]N t).

Criminal Appeal No.D- 124 of 2019 [Confirmation case No.26 of 20.19]

DATIT OI{I)EIT WIT}I SIGNATUITE O!.- .I TIIX;E

For hearing of main case.

Mr. Farhan Ali Bozdar, Advocate for appellant. Mr. Shahzado Saleem Nahiyoon, Additional p.G for State. M/s Aijaz Ahmed Shaikh and Kamran Baig, Advocates for complainant.

We have heard learned counsel for the appellant, learnecJ A.p.G and learned counsel for the complainant. Reserved for judgnrent.

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q JUD ,y"

A.\Zq L, Q-rS ^.,-t- a*-+..-"^.hd.\ tgU<.-r{-<-

IN THE HIGH COURT OF SINDH, CIRCUIT

COURT

HYDERABAD

IJefore:

it4r, ]ustice i\4oh;rrtruracl Karim l(tan Agha Justice 1\4r.s. Kausar.Sultana I{ ussa irr Cr. Appeal No.D- 124 of 207() [Confirnratiorr Case No.26 of 2019] Seeta R;rm

Velsus

The State

Appellant Seeta Ram S/o through Mr. Farhan Ahmecl Bozclar Chetan Das Advoca te

Responderrt the State thlough Mr. Shahzaclo Saleem Nahiyoon, I Additional Prosecutor General, Sinclh Complainant Dr. Anil through Mr. Aijaz Shaikh along with Mr. Kumar Karrrran Baig, Aclvocate

Date of hearing 02.03.?022

Date of judgment 15.03.2023

IUD GMENT

MOH AMMAD I(ARIM I(HAN AGHA,

I.-This criminal appeal is directed against the judgment dated OS.OT.2,lg, passed by the learned Additional sessions .Judge-r Model criminal / rriar court, Tharparl<ar at Mithi, in sessions case No.3g of 2o rg (re: The State v seetaram), emanating from crime No.37 0f 201g, registered at porice Station Mithi, under section 302 ppC, whereby the accused / appellant Seeta Ram S/o chetan Das has been convicted u/s 302(b) ppc and sentenced to death as ta'zir; however, subject to confirmation by this Court. The appellant was also directed to pay compensation of Rs.300,000/- to the

2 v legal heirs of the deceased Chander Kumar as provided under section 544-4 Cr.P.C, in case of default, he would further suffer S.I for seven months. The appellant was also convicted u/s 506(2) ppC and sentenced to suffer R.l for three (03) years. However, benefit of section 382-8 Cr.P.C was extended to him.

2.The facts of the prosecution case as per FIR lodged by complainant Dr. Anil Kumar son of Amrat Brahman on 20.0g.2018 at 21 15 hour at police station Mithi are as under:_ 'TLut he is hauing posting as Medical Officer at BHU pani Lal colony JLnngt Nangar uitnt; bnanaer Kumar tuho utas his erder \r.otner and utas formgr Dtstrict Information Secretary .f ipi, district T?tarparkar so c/so social u.toiker and generattg te ised. ti r_ematn on front on soctal issues. He and. iis arotier chander Kumlr.used to go togetlrcr in Totun. On lg.Og.2olg at about S.OO p.m. his brother Chander Kumar asked him for going to the shop if Ali-Kunbhar for some necessary work.-At i\out S.lS p.i. l:*"?

theg left house and proceed.ed towards the shop o1 Wauai afi Kunbhar, when reached. on the eastern side of eli I Kunbha\ where he told his brother Charud.er Ku*-o, "lip o1ioNauta-2, go at the stap of Nautaz Ali Kunbhar and he would. come afiJr uisiting nearby shop. Chander Kumar wtthin his sight sat at thL chatr lyini on platform (ttnlla) in front the shop of Nautaz Alt Kunbhar, *lu; Nau.taz Ali Kunbhar was alreadg ieated on chair, meanwhile Sanlnn Kumar Malli atso arriued and started. chit chatting and. he (complainant) utas stand.ing outsid.e the nearby shop. It ias I73S hours Seetaram son of Chetan Kolhi presenily risiding in Mithi Toutn, utn is alreadg known bg him, from iniide path-of market came and reached at the place where Chand er Kumar aid. otfers were sttting, and within his sight took out pistot from fold. of his wearing pants and made straight fire upoi hts brother Chind.er Kumar uith intentton to cquse his murd.ei. Nawaz Ali Kunbhar and Sarutan Kumar Mathi tried to appreh.end. the accused., but accused pointed pistol upon them and th.eg trted. to run awaA. He by raising hue and cry rushed towards Chand.er Kumar, but accttied alsZ pointed pistol towards him and warned. if he came closer, he taould. kill him; due to fear he remained. silent and accused tlen mad.e second straight fire of pistol upon his brother chander Kumar with intention to cause his murder. His brother fell down on platform

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from chair uthile crying and accused Jled. away by same ioute tnside market. He (comptainant) went ntnning lneie, Nawaz Ali Kunbhar and Sarutan Kumar Malhi and. other people came running there _afier hearing commotion of fire shots,-ani utith their heli complainant put his tnjured brother Chander Kumar in a uehicle taktng him to Ciuit Lnspttal, Mithi but his brother Chander Kumar for s,,ccumbed to injuries on th.e way to lnspitat. After postmortem of deceased Chander Kumar got conducted., hii d.ead bodg utas brought at fnme and on 19.08.2018 in morning time dead iody of deceased was bumt according to Hindu custom, h-ence, thts ,*;

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3' After usual investigation, police submitted formal challan of the case before the concerned court. After compreting necessary formarities, learned trial court framed charge against the accused, to which he pleaded not guilty and claimecl trial.

4.At trial, in order to prove its case, the prosecution examined

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witnesses and exhibited numerous documents and other items and thereafter prosecution side. The statement of the accused / appellant was recorded under Section 342 Cr.p.C. in which he denied the prosecution allegations leveled against him and craimed his false implication in the commission of alleged crime. However, neither he examined himself on oath in disproof of the prosecution case nor led any evidence in his defence.

5' on conclusion of the trial, rearned tria-r court after hearing rearned counsel for the parties and appraisal of prosecution evidence brought on record, convicted and sentenced the accused appellant vide { impugned judgment, as set out in the earlier para of this judgment, hence the appellant has preferred this appeal against his conviction.

6.The evidence produced before the tria-l court finds an elaborate mention in the impugned judgment, therefore, the same may not be reproduced here so as to avoid duprication and unnecessary repetition.

7.Learned counsel for the appeflant has contended that he is innocent of any wrong doing and that he has been farsery impricated in this case by the police at the instance of some office bearers of ruling party and hence the two day delay in lodging the FIR whilst consultation took place; that none of the eye witnesses was present at the scene of the incident; that there are material contradictions in the PW's evidence which renders their evidence unreliable; that all material PW's are interested hence their evidence cannot be safely relied upon; that the appellant had no motive to murder the deceased; that an important eye witness Sarwan Kumar was given up by the prosecution and thus an adverse inference can be drawn under Article 129 (gl Qanun-e-shahadat ordinance 1984 that he would not have supported the prosecution case; that the appellanrs retracted judicial confession was made under coercion as the police had arrested his family members t

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in order to pressLlre him to confess ancl as such his confession could not be relied upon as it uzas not made voluntarily; that the alreged crime weapon being the pistol was loisted upon the appellant by the police and that for any or all of the above reasons the appellant should be acquitted of the charge by extending him the benefit of the doubt. In support of his contentions learned counsel for the appeilant has placed reliance on the cases of Noor Muhammad v rhe state and another (2020 SCMR 1049), Muhammad Mansha V The State (2O18

SCMR

772), Tafiq Pervez V The State (1995 SCMR 1345), Sardar Bibi and another V Munir Ahmed and others (20 17 SCMR 344), Muhammad Adnan V The State and others (202 1 SCMR 16), Muhammad Ashraf V The State (2012 SCMR 419) and Khalil V The State (2017 SCMR 960).

B on the other hand, rearned Additional prosecutor General Sindh as well as the learned counsel for the complainant have fully supported the impugned judgment, In particular, they contencled that any delay in lodging the FIR had been fulry explained; that the eye witnesses to the

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murder could be safely relied upon; that the retracted judicial confession of the appellant was made voluntarily with the object of telling the truth and as such it could be salely relied upon; that the eye witnesses evidence was supported/ corroboratecl b), th. medical evide.ce; that the appellant himself volunteered to produce the crime weapon / pistol before the police which was recovered by the police on his pointation which when matched with tl-re empties recovered at the crime scene lead to a positive FSL report and as such the prosecution had proved its case beyond a reasonable cloubt ancl the appeal sl-ronld be dismissed and the death penalty maintainecl as it was a brutal crime the motive for which had been admitted by the appellant in his Section 342 Cr.PC statement. In support of their contentions they placed reliance on the cases of Muhammad Iqbal V Muhammad rahir and others (PLD 1985 Supreme Court 36 1), Allah Dad and 2 others V The State (PLD 1978 Sr-rpreme Court 1), Muhammad Mansha V The State (2016 SCMR 958), Ashfaq Ahmed V The State (2007 SCMR 641) and Muhammad Ismail V The State (2017 yLR 39).

9.We have heard the arguments of the learned counsel for tl-ie parties, gone through the entire evidence which has been reacl out by t

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the appellant's counsel, the impugnecl judgment with their able assistance and have considered the relevant law incruding that cited at the bar.

10' Based on our reassessment of the evidence of the pw's, especially the medical evidence, the blood stained earth and empties recovered at the scene of the crime we find that the prosecution has proved beyond areasonable doubt that on 18.08.2018 at about 5.35pm at the shop of advocate Nawaz Ali Kumbhar situated in Sadiq Faqeer chowk Mithi Chandar Kumar (the deceased) was murdered by firearm.

II' The only question left before us therefore is whether it was the appellant who murdered the deceased by firearm at the said time, date and location?

12.After our reassessment of the evidence we find that the prosecution has proved beyond a reasonable doubt the charge against the appellant for which he was convictecl and sentencecl keeping in view that each criminal case must be decided on its own particular facts and circumstances for the following reasons;

That admittedly the FIR was lodged after a delay of two days l"t however we find that this delay in loJging the FIR hls been fuily expiained as the complainant first hal to take his deceasei brother to the hospital where a post mortem was performecl then make the funeral arrangements in accordance with Hindu rituals vvhilst being in a sate of shock and once the funeral had been carried out the FIR was immediately lodged. Even other,*,ise the police had been informed about the incident on the same clay who reached the hospital and as such based on the particulai facts and circumstances of this case we do not find that the delay ir-r lodging the FIR is fatal to the prosecution case. In this respect reliance is placed on the case of Muhammad Nadeem alias Deemi v. The State (2Ott SCMR 872).

(b)That the appellant is namecl in the FIR with a specilic role.

(c)We find that the prosecution,s case primarily rests on the evidence of the eye witnesses to the murder of the deceased and whether we believe their evidence especia[y in connection with the correct identification of the appellant whose evidence we shall consider in detail below;

(i)Eye witness PW I Dr. Aneel Kumar. He is a medical doctor, the comptainant and brother of the deceased. According to l'ris eviclence on 18.08.2018 1-re and the deceased were present in their llouse when the cleceasecl

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asked to go to the shop of pW Nawaz as he had some -him work there. At 5. 1Spm they left for Nawaz,s shop. At 5.25pm they reached Nawaz,s shop where the deceased sat down on a chair outside Nawaz,s shop whilst he went to a nearby shop from where he could see his brother sitting outsid"e Nawaz's shop. Nawaz was already seated and one Sarwar I(umar also came. He vvas standin; out side the nearby shop when at 5.35pm he sarv the accused who was aiready known to hlm go towards the deceased and saw the appellant shoot the deceased with a pistol- The accused pointed his pistol at Navvaz and Sarwai when they tried to intervene who then backed off. He also came forwarcl but the accused pointed his pistol at him and told him to stay pLlt or else he would also shoot him. He then saw the accused make a second fire shot on the deceased which hit him and he fell down. The accused escaped and he found his brother in an injured condition who died on the way to the hospital. This eye witness is related to the deceased however no enmlty or dlspute has been proven between this eye witness and-the appellant and thus the mere relationship to the deceased is no reason to discard his evidence which has to be judged on its own worth. In this respect reliance is placed on the cases of Amal Sherln v The Siate (pLD 2004 x SC 371), Dlldar Hussaln v Muhammad Afzaal allas Chala (PLD 2004 sc 663).

This eye witness also knew the appellant before the incident which occurred at about 5.35pm in the month of August in broad day light. The incident went on for about 5 minutes and the eye witness was close to the inciclent and would have got a good look at the appellant who he already knew. Thus, there is no case of mistaken identity and nL need to hold an identification parade in order to determine the identity of the appellant. His presence at the scene of the incident is corroborated by pW 2 N awaz Ali who is also an eye witness who was present at the scene of the crime.

This eye witness was not a chance witness as he lived in the house from where he along with the deceased came to see PW Nawaz whose shop was only 500/600 meters away. He gave his Sectionl54 Cr.PC statement two days after the incident and no material improvements have been made in the same during the course of his evidence. He named the appellant in his FIR with a specific role along with the other eye witnesses. He gave his evidence in a natural manner and was not dented at all during a lengthy cross examination and as such we find his evidence to be reliable, trust worthy and confidence inspiring and believe the same especially in respect of the identity of the appellant who murdered the deceased.

We can convict on the evidence ol this eye witness alone though it would be of assistance by way of caution if there is some corroborative/ supportive evidence. In this respect

7 \go reliance is placed on the case of Muhammad Ehsan state (2006 scMR 1857). As also found in the casesv. The Farooq Khan v. The State (2OOg SCMR OtZ1, of ttaz_ud_Oln and another v. The State and another f SCffAn ZXl and Muhammad Ismail vs.. The State lZOiZ SCMR IZOf That what is of significance is the quality Ji 713): if,. and -{ not its quantity and in this case *. n"d the evidence"viO"rrce of this eye witness to be of good quality and believe the same. In rnrs case however there is more than one eye wltness.

(ii)Eye witness PW 2 Nawaz Ali. He ls a lawyer and shop keeper and ls not related to the deceased,-.o-pfafa"ni or. _the appellant. He is an independent witn;ss. evidence corroborates that of p\. His Aneel Kumar in all material respects. He knew the appellant from before incident which was in day light and'he saw the appellart the fire on the deceased twice from a short distance so would have been easily able to recognize him. He is named as an eye witness in the FIR. He has no relationship or enmit5r with tire appellant, complainant or deceased urd t .d no ieason to implicatg the appellant in a false case. He gave his Section 161 Cr.PC statement within two days of thi lodging of the FIR. He was also not a chance witness as the incident happened at his shop. His S.161 Cr.pC statement was not I materially improved upon during the course of his evidence. His evidence was not dented despite a lengthy cross examination. We believe his evidence in .especi of the incident and in particular the correct identificition of the appellant as the person who shot the deceased twice. The same considerations apply to his evidence as the evidence of PW l Aneel Kumar.

The appellants counsel has argued that since eye witness Sarwar Kumar was dropped from the prosecution witness list an adverse inference must automatlcally be drawn against him under Article l2g (g) eanun-e_Shahadat Ordinance 1984 that he was dropped because he would not have supported the prosecution case. We find ourselves not in agreement with this proposition. yes, based on the particular facts and circumstances of the case if for example there were no eye witnesses or only one eye witness and an eye witness in the calendar of witnesses of the prosecution was dropped without explanation then it might be reasonable for us to draw such inference. However, we have to keep in mind that it is for the prosecution to conduct its case in a lean ald efhcient manner and once it is of the view that the eye witnesses it has already called have proved its case then if say it has 6 other similar eye witnesses what is the need to call such witnesses who would only consume the valuable time of the court. If the defense -ounsel firmly believed that these dropped eye witnesses of the prosecution would not have supported the prosecution case then the defence can move an application to the court to call them. No such application was made in this case. We Iind that the application of Article 129(g) eanun-e-Shahadat should be t

\gt governed by the court,s discretion based on facts and circumstances of each case.

the particular

Thus, based on o!" believlng the evidence of eyewltnesses what the 2 olner supportlve/corrobora*ve or other wrse rs evidence/materlal appellant? It belng noted that corroborationtt e"e agaii;;; cautlon and not a rule of law. In thls respectts onli ; ;;1.;; placed on the case of Muhammad Warls v rellance ls scMR The State (200g

(d)The appellant yas brought before a magisrrate after his l.I"-"t ."9 made a judicial coniession which is i.p.oau".a U.to* Ior ease of reference;

Sectlon 164 Cr.PC Statement (Confesslon) of the appellant before PW 5 Gur Muk Das Gehani juatcUt materlal part; ti -agt"i"ate " Questlon; What do you have to say

Ans:..I do hereby state on oath that on O4-02-2014 mA marriage was contrq.cted uith the consent of my parents witi. Sht: Reena D/o punam Chand by caste Xoni n7O Kohli Daro, I Ma wtf. uas LHV and she utas job lyarfo.t.Mithi. doing in Ciuit Hospital Thereafter Chandar Sharma hals'transferrect my uife -R".no .at mtd wtfe school Mithi as Teacher. Ma wtfe u-as .liuing tn a flat of Gouernment Hospital nbar Ciuit Hospital. I utas also liuing with her theieafier Chanclar Sharma got job for me at Thar Book House tWitni. Otgerent peoples were used. to sag me that Chand.ar Shanna has llllclt terrns wlth mg ulfe Reena Kohll, therefore I llyaln ln suspiclous. In August 2017 I got admission tn Hyderabad in Journal nursing college and. slarted liuing here and used to come in house at Mitht afier a uteek. My irother Pardeep aged about B years and Nirmat aged aboit 1O/ lZ Aears uere liuing ulith mA wtfe in the Jtat. Seoeral peoples used, to sag me that Chandar Sharrrr.a has flttctt tinns wlth mg w{e Reena. I borne all these utord.s slnce 2/z geq.rs and remalned. ln susplclous. On dated OS_OB-2OIB mg brother Nirmal tnformed me on phone call that on dated 3O-07-2OLB, one person rtas present in home and he went Tytag_after giutng Rs.LO)OO/- to mg wtfe and mother in law Umedi. He told that Chandar Sharma uas present long tlme ln the house. MS wW Reenq. got pardon fiom for mg brother and sald that not dlsclosed. thls faLt to Seeta Ram, Mg susplclous was changed. ln to belleue and I declded that I uill klll Chandir Shanna. Then I 1"Id_!y mobile phone at Rs. IB5OO/- and motor cgcle at Rs.2.9,00O/-. Then purchased. a 9MM un-licensed pislot and 10 bullets at Rs.2BOOO/- from the shap of Arms ihop Nazir Kalhoi in Noukot. On 16-08-2018 I took pistot came it Uitnt and li.ued as guest at the house of Raimal Bheel. On 17-OB_ 2OiB ltued withfiend Ali Hingorjo as guest. On 18-08-2018 ln the morttlng, I went to the shop of Nawaz Alt Baght,

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Kumbhar for tnqurry and rn rntendon to kilr Chqnd.ar Sho,nna, ptstol wors ln mg possess tonabout Chand.qr Sho,nna wa.s not present there then but on scrme d.ate 18-08-2O18 tn__the .r"ilng qt O4:IOO pm, got cgcle from Ktshor Rohtt utho ti worktng ti ^oio, tlnJ n""ltii of Doctor Ameer Shah then of Nautaz Alt Kumbhar -and and agaln-went to the shop imatned. tn utatt -iy Chandar Sharrna. I par.ked motor cgcle ln street shop. It u.t.,s eaenlng tlme @t aboui OS:OO of d;Z hours I s,,w that Chand.qr Sharma wols standlng ln the street yft{.e the shop oJ Nawaz Alt Baght. I'toent qnd sald. to unqndar Sho,rrna that gou are found. to mq.ke ilHctt !"*"_ wlth stranger two_fires,from u)omen. Afiir sagtng thts t ma.di mg plstol on Chind.a, {hrr o u:htch htt to Chandqr Shanna q.nd. he fell d.own on ground, and dled, awag. Then I returned. back and. hldd; tne pktii 22ar lhe Hospltal of Doctor Ameer Sho,h, neir the ltegtrlc pole. This was handed ouer to police on dated 29_ OB-2018. After committing murder of Chand.ar Sharma I went to Karachi and liued taith friend. Titereafter I came at Khipro and I that mg o.,!f? it in Mithi Ciiy then 1 was coing _t-hought from Khipro to Mitht, I atighted. from BtLs it lWitnt Chalhar roa"d. near Badhrio Tarai due to fear of police, where Ali Rajar SHO Mithi anested. me aid produced me eurban bepre tne \ Court. I haue killed the Chand.a, bhor*a in the io^. i1 Honour for hauing itlicit terms with my wtfe Reena. Hence this statement.'(bold added)

Although thi s confession was retracted at trial it is well settled by now that we can relay on this retracted judicial confession as against its maker if we find that (a) it was made voluntarily and (b) it was made with the'object of telling the truth based on the prosecution case and that even minor irregularities in recording the confession before th.e judicial magistrate can be ignored. In this respect reliance is placed on the cases of Ch. Muhammad V yaqoob Y^Il" State (1992 SCMR 1983), Bahadur V state (el-o 1996 SC 336) Muhammad Amin V The State (pLD 2006 SC 219), ManJeet Slngh V State (pLD 2006 Si 30) and Azeem Khan V MuJahtd Khan (2016 SCMR 274).

In this case the confession fully ties in with and corroborates the eye witness evidence. The appellant in his cross examination of the final witness pW lO eurban Ali who was the IO of the case suggested to him that his confession was coerced from him or made under inflr-rence as such it was not voluntarily made and repeated the same in his Section 342 Cr.PC statement as the police were holding his family members in custody and would not release them. We notl however that until the final pW gave evidence this aspect of the case was not put to a single witness in cross examination. The appellant did not give evidence on oath about this issue and most importantly the appellant did not call a single lamily member as a DW to support his claim that they were held by the police until he made his

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confession and thus we discard the appellant,s claim confession not being made voluntarily as an after of his thought and believe and rely on his confession which we find to hlve been made voluntarily and rvith the object of telhntth;tru;; bas.ed_on the particuiar facts and circumstances of the case and the evidence which the prosecution h." bro;;;i;; record. Thus, we belleve and place rellance o"rr appellants retracted Judictal co-nfession ."pu.f.Uy th.

there were no materlal procedural irregularlile" i" manner in which the appellants confesslor, *.. ,u.o"dud ti" i1 tn.at was produced before a magistrate *"" u*.r" -ne ""a of this fact, his hand cuffs ,,,r"r. .".noi"d, no police in_ the room, he was given adeqtrate reflection -.., *." time, he was told that his confession could be used against him in evidence in a court of law, he was checked ior evidence of mal treatment and none was found, he vvas not handed back io lhe police after he confessed and was handed over to judicial custody after making his confession.

(e)That a CCTV recording of the incident which was exhibited at tria-l clearly shows the appellant shooting the deceased which also corroborates the eye witrress evidence. In cross examination the appellant did not deny the video or the incident Uut "i-pfy suggested that it was not him who was firing on the deceased bui A some one else.

(f)That it does not appeal to logic, commonsense or reason that a real brother would let the real murderer of his real brother get away scott free and falsely implicate an innocent person by way-of substitution. In this respect reliance is placed on the - case of Muhammad Ashraf V State (2021 SCMR 7S8)

(g)That the medical evidence and medical reports fully support the eye-witness/ prosecution evidence in that the deceased received two fire arm injuries which 1ead to his death.

(h)That the murder weapon namely the pistol was recovered on the pointation of the appellant from a hiddin place which only he would have known about.

(i)That the empties recovered initially rvere sent for FSL and were agala sent for FSL with the pistol once it was recovered by the appellant on his pointation which produced a positive FSL report in that the recovered empties at the crime scene matched -t with the pistol recovered on the pointation of the appellant.

U) That it has no! been proven through evidence that any particular police witness had any enmity or ill will towards thl appellant and had any reason to falsely implicate him in this case for instance by foisting the pistol o., him and in such circumstances it has been held that the evidence of the police witnesses,can be lully relied upon and as such we rely on the police evidence. In this respect reliance is placed on the case of Mushtaq Ahmed V The State (2020 SCMR 424l.

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(k)That alt the PW's are consistent in their evidence and even if there are some contradictions in their evidence we consider these contradictions as minor in nature and not material and certainly not of such materiality so as to effect the prosec,tion case and th-e conviction of the apperrants. In this resplct reriance is praced on the cases of Zaktu Khan V State (1995 SCffAn 1793) and Khadim { Hussaln v. The State (pLD 2010 Supreme Court 669).The evidence of the PW's provides a believable corroborated unbroken chain of events from the time the comprainant and his brother reft their house lor PW Nawaz,s shop to the complainant seeing the appellant shoot the deceased twice at Nawaz,s shop to the irest of the deceased to the judiciar confession of the dlceased to the recovery of the pistol on his pointation which matched with the empties recovered at the crime scene through a positive FSL report.

0)That the mashirs were independent and had no blood re.lations with the complainant or the appellant and had no enmity with them and were from the local community and as such had nL reason to make false mashirnama's in order to implicate the appellant in this case.

(m)That the motive has been proven through the confession of the appellant whereby he admitted that he murdered the deceased A because he believed he was having illicit relations with his wife which he also repeats in his Section 342 Cr.pC statement.

(n)Undoubtedly it is for the prosecution to prove its case against the accused beyond a reasonable doubt but we have also considered the defence case to see if it at all can cast doubt on or dent the prosecution case. The defence case is that the appellants confession was not made voluntarily which we have already disbelieved earlier in this judgment and that some one else was arrested by the police and committed the crime. This however was denied by the IO during cross examination although the appellant contended that there was a news flash to this effect and that it also appeared in the newspapers he did not exhibit any newspaper to this effect or any TV footage or even call as a DW a person u,ho read or saw the news flash as a DW. He produced no alibi witness and did not give anv evidence on oath. Thus, for the reasons mentioned above we disbelieve the defence case of false implication as an after thought in the face of reliable, trust worthy and confidence inspiring eye witnesses and other corroborative / supportive evidence against the appellant which has not at all I dented the prosecution case.

13.Thus, based on the above discussion we have no doubt that the prosecution has proved its case against the appellant beyond a reasonable doubt for the offence for which he l-ras been convicted and hereby maintain his conviction.

14.With regard to sentencing we note that the motive for the crime

has been proven as being on account of the appe,ant's belief/suspicion over ma,,y years that the deceased was rraving an illicit relationship with his wife and should therefore be murdered out of revenge; that the crime was premeditated ancr a particularly brutal one carried out in broad day light whereby the appelrant firstry shot the deceased and then after warning PW Nawaz and the complainant off at gun point shot the deceased for a second time in order to finish him off without mercy in front of his helpless brother. There are absorutery no mitigating factors rather only aggravating ones and thus based on the reasons mentioned above and the particurlar facts and circumstances of this case we find this a fit case to hand down the death sentence by way of deterrence and as such uphold the death penalty handed own to the appelrant in the impugned judgment.

15.As such the appeal is dismissed and the confirmation reference is answered in the affirmative.

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JUD

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