Ch. Ijaz Ahmed, J.--We intend to decide above 'captioned Criminal Appeals and civil petition by one consolidated judgment having similar facts arising out of the same impugned judgments passed by the Lahore High Court, Lahore.
2. Appellant Muhammad Rafique (Criminal Appeal No,' 380/2001) alongwith 10 other co- accused/convicts namely, Muhammad Akram, Muhammad Tariq, Muhammad Rafiq, Muhammad Javed, Muhammad Iqbal, Ikram Hussain, Muhammad Altaf alias Tedi, Muhammad Munir, Muhammad Azmat and Khalid Mehmood were involved in case FIR No, 190 dated 19.5.1990 which was registered on the complaint of Haji Muhammad Elahi, under Sections 302/307/148/ 149 and 109 PPC at Police Station Choha Saidan Shah, District Chakwal. Appellant Muhammad Rafiq and others were convicted and sentenced by Judge, Special Court No, 1 (Punjab) Suppression of Terrorist Activities, Rawalpindi Division, Rawalpindi, vide its judgment dated 27-5-1991, as under:-- {{TABLE}} Name of accused Offence u/s Sentence Muhammad Akram Muhammad Tariq Muhammad Rafiq Muhammad Javed Muhammad lqbal Ikram Hussain302/34 PPC.For the murder of Sajjad Hussain Shah, Manzoor Hussain, Haji Mirza Khan Sub. Major Fazal Ellahl Liaqat Ali, Fazal Dad; death sentence Muhammad Altaf Alias Tedi Muhammad Munir Muhammad Azmat Khalid Mehmoodand a fine of Rs, 50,000/- each or in default two years RI each. They are further ordered to pay Rs, 60,000/- each as compensation to the heirs of the deceased or in default six months'
R.I. -do- 307/34 PPC For injuring Sabir Hussain Muhammad Illahi, Khidmat Ali and Fazal Dad; RI for ten years each and a fine of Rs, 10,000/-each or in default three months R.I. each.
Further ordered to pay Rs, 5000/- each as compensation to the injured or in default three months RI each as compensation to the injured. It is pertinent to mention here that Painda Khan their co-accused was acquitted by the trial Court who was charged under Section 109 PPC. {{TABLE}} Muhammad Rafiq, appellant and seven others being aggrieved filed Criminal Appeal No, 86/1991 in the Lahore High Court, Rawalpindi Bench, Rawalpindi. Muhammad Akram and Muhammad Tariq filed Criminal Appeal No, 15/1991 in the Lahore High Court, Rawalpindi, Bench, whereas Haji Muhammad Elahi, complainant filed Criminal Revision No, 161/1991 against the acquittal of Painday Khan in the Lahore High Court. The learned High Court dismissed the appeal of Javed Sultan, Khalid Mahmood, Muhammad Rafique and Akrain Hussain and their sentence of death was maintained.
However the learned High Court partly modified/reduced the sentence of Azmat, Munir, Iqbal and Altaf alias Taidi from death to life imprisonment, However, sentence of the above mentioned convicts were maintained under Section 307/34 PPC with benefit of Section 382-B . Cr.P.C.
Punishment of compensation was also maintained. Sentences were ordered to run concurrently: However, the appeal of the convict, Muhammad Akram was accepted and his conviction and sentence were set aside and his case was remanded for retrial to the Court of competent jurisdiction. Criminal Revision filed by the complainant against the acquittal of their co-accused was dismissed. Muhammad Rafiq and six others filed Criminal Petition No, 406/2001 before this Court whereas 114 Muhammad Elahi and others filed Criminal Petition No, 152/2001 with the prayer that death penalty on each count to the six murderers awarded by the trial Court be restored. The aforesaid petitions were fixed before this Court on 19-9-2001 and leave was granted in the fallowing terms:-- "After hearing Ch. Afrasiyab Khan, ASC, learned counsel for the petitioners complainant injured and legal heirs of five deceased persons, we are inclined to grant leave to appeal against Muhammad Altaf alias Tedi, Munir Ahmad, Muhammad Azmat and Iqbal alias Bala to consider, inter alia, whether the learned High Court was legally justified in substituting the sentence of death by life imprisonment in view of broad day light gruesome murder of six persons and attempt to murder of as many as seven persons at the hands of the respondents; who were armed with deadly and lethal weapons. Petition to the extent of respondent Muhammad Akram is dismissed as not pressed. Since the entire case shall be open for re-appraisal of evidence, we also grant leave to convicts Muhammad Rafiq, Javed Sultan Ikram Hussain, Muhammad Altaf alias Tedi, Munir Ahmad, lqbal alias Bala and Muhammad Azmat in the connected Criminal Petition No, 406/2001 to ascertain whether the principles of law settled by this Court for appreciation of evidence and safe dispensation of justice in criminal cases were rightly followed by the Courts below."
Malik Muhammad Afzal filed Const. Petition No, 18675/2005 in the Lahore High Court against the Superintendent of Police Faisalabad with the prayer that the detention of Azmat, Muhammad Munir and Iqbal ho declared to be illegal and without lawful authority and be ordered to set at liberty which was accepted by the learned High Court vide judgment dated 30-1-2006. The complainant Haji Muhammad Elahi being aggrieved field Civil Petition No, 201 of 2006. Consequently, during the pendency of the aforesaid appeals convicts namely Muhammad Altaf alias Taidi, Munir Hussain, Iqbal @ Bala, Muhammad Azmat have been released from custody after serving life imprisonment.
3. Detailed acts have already been mentioned in the impugned judgment dated 30-5-2001 and in Para 2 of the memo. of Criminal Appeal No, 380/2001 and Para 2 of the impugned judgment of the trial Court. The contents of the FIR clearly reveal that the case under Section, 307 PPC against Muhammad Akram, Muhammad Afzal and Painda K hun was fixed for hearing on 19-5-1990 before the Senior Civil Judge/Magistrate Section 30, Chakwal. The complainant alongwith Haji Mirzu Khan and others set out for Chakwal Courts from village Arrar to attend the hearing on Suzuki No, LHM- 1038, driven by Sajjad Hussain. Manzoor Hussain Shah and Sabir Hussain Shah were sitting at front while others boarded the rear of the vehicle. At about 6.00 A.M. when they reached Mettled link road Dhatha Kot chowk, aforesaid convicts sitting in ambush, intercepted them alongwith respective weapons and inflicted substantive injuries to the deceased and PWs alongwith other persons. The whole incident has been mentioned in detail in the FIR No, .190.
4. Learned counsel for the appellants/convicts submits that complainant had stated specific role to each of the convicts with specific injuries with respective weapons to the deceased and injured persons. In such a scenario where 10' people are firing simultaneously, it is not possible for any-one to recall the exact happenings of the incident. The Statement of the complainant was recorded at the spot and FIR reveal that the case was registered after deliberation and consultation and the recorded statement depicts the picture of the whole occurrence with minute details through his eyes. The injured witnesses had stated in their statements that they had left the vehicle when it had plunged into the mud, therefore, it was not possible for them to witness the whole incident with close proximity. There is long standing enmity between the parties, therefore, complainant had involved all the family members and relative in the incident in question which had taken place on 19-5-90 and statement of PW-21 Haji Muhammad Elahi under Section 161 was recorded by the police on 17-6-90 after considerable delay while the statements of other injured witnesses were also recorded by the police after significant delay, therefore Courts below had erred in law to believe the statements of such witnesses. In support of his contention he has relied upon Syed Saeed Muhammad Shah's case (1993 SCMR 5501. Muhammad Tariq, Muhammad Arif and another had inflicted injuries to the deceased and witnesses whereas the remaining convicts were involved by the complainant in the incident without any justification.
5. The learned counsel of the complainant/appellants submits that, the learned High Court erred in law to modify/reduce the sentence of the aforesaid convicts without adverting to the mandate of provisions of law as envisaged under Section 149 PPC. The complainant and witnesses had gone to District Courts Chakwal because criminal case was fixed on 19-5-1990 before the Senior Civil Judge. They were unarmed whereas the convicts/accused already had ambushed themselves and they had pre-meditatively committed an office and in consequence took life of 6 persons and injured 13 persons. Number of empties of different weapons consisting of 131 were recovered at the spot. The statements of eye-witnesses are consistent with the medical evidence. The motive was also believed and recoveries were also believed by the Courts below with cogent reasons. The' report of Chemical Examiner and Serologist were also positive, therefore, there was no justification to modify the sentence of the convict by the learned High Court. This Court has ample power to enhance the sentence of the convicts from life imprisonment to death inspite of the fact that the convicts have been released from the custody after serving life imprisonment. In support of his contention he relied upon the following judgments:-- (i)Muhammad Altaf s case (2002 SCMR 189)
(ii)Iftikhar Ahmad's case (2005 SCMR 272)
(iii)Kashmir Edible Oils Limited's case (2006 SCMR 109)
6. The learned Prosecutor General has supported the impugned judgments.
7. We have given our anxious consideration to the 'contentions of the learned that of the appellants and perused the record. It is quite clear that statement of Khidmat Ali-PW 22 was recorded on 17.6.1990 by the police under Section 161 whereas the incident occurred on 19-5-1990. The aforesaid proposition of law was considered by this Court in Syed Saeed Muhammad Shah's case (1993 SCMR 550). The relevant observation is as under: "In the absence of satisfactory nature of explanation normally rule is that statements recorded by police after delay and without explanation are to be ruled out of consideration."
Such evidence cannot be relied upon. PW-22, as mentioned above, had furnished explanation that he has become unconscious after receiving the injuries and he was admitted in the hospital. Even if his statement is .ignored even then there are three injured witnesses PW-21, PW-23 and Pfd-24 whose statements were recorded without delay. Therefore, contentions of the learned counsel of the appellants/convicts have no force. This Court has laid down . following principles with regard to acceptance or rejection of eye-witnesses who are inimical and interested in Niaz's case (PLD 1960 SC 387):-- - "(i) whether the witness saw the occurrence and could identify the culprits.
(ii)Whether they can be relied upon with out corroboration.
(iii)Whether the persons charged are not excessive in the circumstances.
(iv)Need of corroboration in each case depends on particular circumstances of each case."
The statements of all the five eye-witnesses are consistent even though subject to the cross- examination at length and their veracity was not shaken during cross-examination. Admittedly all the witnesses are interested and inimical witnesses. It is a settled law that the evidence of such witnesses has to be taken with caution and unless it is corroborated by an independent circumstances, it cannot be credited with truth as law laid down by this Court in Misry Khan's case (PLD 1977 SC 462). In the case in hand, their statement are duly corroborated with following pieces of evidence as held by both the Courts below: (i)Recovery (ii)Medical evidence (iii)Motive.
The learned High Court after appreciation of evidence on record came to the conclusion that the convicts were found guilty. Subsequently learned High Court had re-examined the evidence on record and confirmed or upheld the finding of guilt of the convicts. See Doso alias Dost Muhammad's case (1974 SCMR 430). The learned trial Court considered all the contentions in the impugned judgment. The said pleas were roagitated by the convicts council before the learned High Court which were also rejected after judicial application of mind as evident from the impugned judgment. Both the Courts below have recorded concurrent findings as to the guilt of the appellants and this Court does not normally interfere in such a situation. However, when the findings of the Courts below, have been arrived at by disregarding any provision of low or accepted principles of appreciation of evidence or are based on inadmissible evidence or misreading of evidence, then concurrent conclusions loose their sanctity. We have re-examined the record ourselves, we find that the conclusions of the two Courts below are based on settled principles of appreciation of evidence and learned counsel of the convicts/appellants has failed to point any such principle which was violated by the Courts below while reaching this conclusion. It is an admitted fact that incident took place on 19-5-1990 at 10.00 a.m. and the FIR was lodged promptly on the same day. It is a settled proposition of law that this Court normally does not interfere in the concurrent findings by the Courts below qua the guilt of the convict while exercising power under Article 185(3) of the Constitution unless and until the findings are perverse and the conclusion is a consequence of misreading or non-consideration of importance piece of evidence by the Courts below. The learned counsel for the appellants has failed to point out any piece of evidence which was misread by the Courts below. Therefore we are not inclined to interfere in the concurrent conclusions arrived at by the Courts below with regard to the guilt of the convicts as law laid down by this Court in Abdul Khaliq's case (1996 SCMR 1553): After re-appraising the evidence on record, we have concluded that the prosecution has proved the case against the convicts- beyond any shadow of doubt coupled with the fact that the statements of the witnesses are lair and trust worthy. In the light of our conclusion, we do not find any infirmity or illegality in the impugned judgment by awarding death sentence to the convicts in Criminal Appeal No, 380/2001, therefore the same is dismissed.
8. It is a settled law in the case of enhancement or reversal of sentence where it depends upon finding of fact, such fact would not be reversed. As in the case for enhancement to death' unless amongst others there is either misreading or non-reading of evidence or any substantial poet and/or has been a miscarriage of justice ordinarily there is no interference. One test to determine, whether, there has been miscarriage of justice would be to answer a further question whether, the view taken by the lower Court on question of reduction of sentences is impossible? The reason given by the learned High Court in extending the benefit for modifying sentence are not irrelevant and extraneous to the record. We are of the opinion that the power to enhance sentences should be sparingly exercised by this Court and sentences should be enhanced only in cases' where the failure to enhance the sentence would lead to a serious miscarriage of justice. The mere fact that had this Court been trying the case, might have imposed the culprit sentence is not sufficient mason for enhancement or conviction. It is a settled law that this Court run look into the subsequent events. During the pendency of the appeals, the jail authorities have failed to give benefit of remission to the convicts who were awarded sentence of life imprisonment by the learned High Court. Having been aggrieved they filed Constitutional Petition in the Lahore High Court which was accepted vide impugned judgment dated 30-1-2006. Consequently the aforesaid convicts were released after serving the sentence, therefore, we do not find any infirmity in the impugned judgments as law laid down by this Curt in Abdul Malik's case (PLD 2006 SC 365). Even otherwise the learned High Court had modified sentence with cogent reasons as we found after re- examining the record. It is pertinent to mention here that the question of sentence must depend on the circumstances of each case. Section 149 PPC was interpreted in Gheba's case (PLD 1949 Lahore 453) and laid down the following principles:-- "Where, however, the unlawful assembly in a particular case consists of desperados armed with rifles and pistols whose activities would show that they would stop at nothing, the knowledge of murder might very well be attributed to them. But no hard and fast rule can be laid down which would easily cover every case. Each case shall have to be decided on its peculiar facts and circumstances. As I pointed out before in 1947 Lahore 189 "where from a particular conduct two inferences are possible, I would presume the one which is less harmful to the accused" I might have gladly done so but there is no question of law involved in it, it is all a question of fact which must be determined in relation to the facts of each case as it conies up before the Court."
9. The impugned judgment is in consonance with the law laid down by this Court in the following judgments:--
(i) Chikkarange Gowda's case [PLD 1957 S.C. (Ind.) 133] (ii)Pandurang's case [PLD 1956 S.0 (Ind.) 176] (iii)Pervez Akhtar's case (1985 SCMR 1422)
(iv)Nur Muhammad's case (1969 SCMR 724)
10. It is appropriate to mention here that two convicts, during the pendency of the appeal, had since been died and the complainant party had also involved 11 persons hi the incident in question.
In case the whole evidence is put in juxta position, then the learned High Court was justified to reduce the sentence of the respondents in the case in hand.
11. It is settled law that constitutional jurisdiction under Article 185(3) is discretionary in character/nature, keeping in view various aspects and circumstances of the case in hand, we are not inclined to exercise our discretion in favour of the complainant as law laid down by Ibis Court in Noor's case (PLD 1973 SC 469). Therefore, we cannot interfere in the concurrent conclusions arrived at by the both the Courts while exercising power under Article 185(3) of the Constitution as the law laid down by this Court in the following judgments:-- (i)Hamayun's case (1986 SCMR 1987)
(ii)Ibrahim's case (1989 SCMR 1521)
(iii)Muhammad Khalid's case (1986 SCMR 1956)
(iv)Ghulam Hussain's case (1984 SCMR 1540)
12. For the foregoing reasons Criminal Appeal No, 379/2001 and Civil Petition No, 201 of 2006, having no merits, are dismissed.
13. The net-shell of the whole discussion is that both the Criminal Appeals No, 379/2001 and 380/2001 alongwith Civil Petition No, 201/2006 are dismissed. Leave to appeal in C.P. No, 201/2006 is, therefore, also declined.