SHAFIUR RAHMAN, J.---Leave to appeal was granted to the appellant, a convict under section 302, P.P.C., to examine the legality of the Q conviction and the sentence awarded for the offence committed.
2. The facts of the case in brief are that in the early hours of the morning (1-30 a.m.). On 1-10-1987 one Attal was murdered. After investigation of the case the appellant alongwith five others was put up for trial under the Criminal Law (Special Provisions) Ordinance, 1968 (Ordinance II of 1968). A reference was made to the Tribunal which on 12-2-1987 returned a verdict by a majority of four out of five Members, finding the appellant guilty of abetment of the offence under section 302, P.P.C. His other four companions were held guilty of the substantive offence under section 302, P.P.C. The fifth accused (Allah Warayo) was found not guilty. The verdict of the Tribunal was accepted by the Deputy Commissioner/District Magistrate on 23-2-1987 and he ordered as hereunder:---- "I have found the accused Allah Warayo son of Mera not guilty and therefore, acquit him from the charge levelled against him. The other accused persons namely Jumma Khan, Muhammad Ramzan, Muhammad Ishaq, Muhammad Yaqoob alias Luddan and Raza Muhammad were found guilty of offence committed under section 302, P.P.C. And therefore all are sentenced to 4 years' R.I.
Each under the section 11 of Criminal Law (Special Provisions) Ordinance, II of 1968."
3. Before the Commissioner the appeal of the convicts as well as an application of one Raban for compromise and of the mother of the deceased seeking enhancement of the sentence of the convicts,, came up for consideration. The Commissioner as the appellate authority under section 23 of Ordinance II of 1968 rejected the compromise of Raban, upheld the conviction recorded by the Tribunal and also convicted the acquitted accused Allah Warayo, and enhanced the sentence to 14 years' R.I. In case of each and a fine of Rs.10,000. A revision was preferred under section 24 which lay to the Government and on its behalf before the Member, Board of Revenue which power by Criminal Law (Special Provisions) (Amendment) Ordinance, 1988 (Ordinance VIII of 1988) promulgated on 22-9-1988 came to be invested in the High Court. The convicts filed two revisions; one against the rejection of their own appeal against the Order of Deputy Commissioner and the other against conviction and enhancement of the sentence. Rabban filed a revision against the rejection of the compromise.
4. When the matter came up before the High Court, the convicts under the order of the Deputy Commissioner dated 23-2-1987 withdrew their revision which was directed against their conviction and sentence and challenged only the enhancement in sentence ordered in other revision and the setting aside of the acquittal of Allah Warayo. The High Court while disposing of these Revision Petitions set aside the conviction and sentence of Allah Warayo, restored the original sentence awarded by the Deputy Commissioner to other companions of Rates Jumma/appellant but maintained the sentence of the appellant. The revision of Rabban claiming compromise was dismissed.
5. When this appeal came up for hearing today before us, we found an application on record dated 17-2-1991 filed by the mother of the deceased Attal seeking the restoration of the enhanced sentence and the conviction and sentence of Allah Warayo.
6. Mr. M. Aslam Chishti, Advocate, the learned counsel for the appellant has advanced mainly two grounds in support of the Appeal. The legal ground-is that, according to him, reading sections 23 and 24 of Ordinance II of 1968, the Commissioner could not while in appeal differ with the Tribunal's recommendations where it was unanimous or by a majority of four out of five with regard to the acquittal or nature of offence. His option like that of the Deputy Commissioner was confined to acquit the accused or remand the proceedings to the Tribunal but not to go beyond what the Deputy Commissioner had ordered in the matter of sentence.
7. The other and a factual contention is that the judgment of the High Court and that of the Commissioner enhancing the sentence of the appellant suffers from two defects. In the first place the High Court has misread on a material point the statement of the so-called sole eye-witness Popat. The Commissioner as well as the High Court also omitted to note that the principal offenders were being dealt with more leniently than the abettor. This was not proper or consistent with the recognized principles of administration of criminal justice.
8. After hearing the learned counsel for the appellant and the State, we find that it would not be necessary in this case to go into the legal question raised with regard to Commissioner's power of appeal because that does not directly arise in the case. What all the authorities have failed to notice is that the Tribunal had held the appellant guilty of abetment and the others as principal accused. This has materially affected the awarding of sentence. The High Court has misread the statement of Popat by observing as hereunder:- "P.W. Popat unambiguously stated that foreshot of petitioner Raees Jumma caused fatal injury resulting in death of deceased Attal. Nothing substantial could be bought in cross-examination to impeach credit of this witness."
9. What Popat has stated in examination-in-chief was that he was returning with the deceased in the darkness of night a shot was fired which hit the deceased who fell on the ground and thereafter somebody called out and he identified the voice to be that of Raees Jumma. In cross-examination he had made a statement that it was the appellant who fired the first shot killing the deceased.
Keeping the two statements together, it cannot be said that the statement was unambiguous.
What can be said is that the first statement is descriptive of the facts and the second is inferential from the first. In such a situation, the benefit had to go to the appellant and on no safe principle of administration of justice could the inferential opinion be given preference over the direct statement of fact. Except this no other factor justified departure from the Tribunal's finding in the matter.
10. In the circumstances, we accept the appeal set aside the judgment of the High Court and restore the sentence awarded by the Deputy Commissioner with the modification that the conviction and sentence of the appellant shall be under section 302/109, P.P.C. As an abettor, his sentence could not in propriety be greater than that of the principal accused. In consequence, the application filed by the mother of the deceased fails and is dismissed.