1. ' WALI MUHAMMAD KHAN, J.---Fateh Shah, Sabir Shah sons of Imam Shah and Shabbir Shah son of Ghulam Shah, appellants herein, have preferred this Criminal Appeal No, 69/L of 1993 challenging their conviction and sentence awarded by the learned Sessions Judge, Sahiwal vide order dated 5- 2-1985 and the judgment of a learned Division Bench of the Lahore High Court, Multan Bench dated 10-1-1993 in Criminal Appeal No,45/85, Criminal Revision No, 177/85 and Criminal Revision No,124/85, whereby the appeal filed by them against their conviction was dismissed and by accepting the revision petitions the sentence of life imprisonment was enhanced to death.
2. ' The facts of the case, briefly stated, are that on 18-12-1983 at 7-00 a.m. Sajid Shah, Ahmed Sher Shah, and Niaz Shah were smoking hubble-bubble at their Dhari while Yousaf Shah was busy in putting fodder to the cattle. The complainant Abid Hussain Shah and Muhammad Hussain were cutting fodder in the Toka machine. Mst. Zainab deceased, Mst. Bakhan, Mst. Rajjan and Mst. Fatima P.Ws., sisters of the complainant were busy in the domestic work when the accused (appellants and the acquitted accused) appeared from the direction of Dhari of Fateh Shah. Sabir Shah and Shabbir Shah appellants were armed with pistol, Fateh Shah appellant armed with .12 bore gun, Bakhawan Shah acquitted accused with Balm, Masroor Shah and Imdad Shah acquitted accused with hatchet. Masroor Shah raised a Lalkara to take revenge of the murder of his father upon which all the three appellants started firing with their respective weapons injuring Ahmed Sher Shah, Niaz Shah P.W.10 and Sajid Shah on different parts of their body. Yousaf, Mst. Fatima, Mst. Rajjan and Mst.
3. Bakhan ran towards the deceased and Bakhawan Shah acquitted accused inflicted Balm blows to Yousaf. Masroor Shah acquitted accused delivered hatchet blow to Mst. Rajjan and Hussain Shah hit Mst. Bakhan while Imdad Shah inflicted hatchet blow on Mst. Fatima. Fateh Shah after firing all the cartridges in his possession dealt butt blows to Mst. Fatima P.W.9 as a result whereof the butt of the gun was broken. The appellant dragged the dead body of Ahmed Sher Shah towards their own Dhari and Mst. Zainab ran towards that side requesting the appellants not to drag the dead body of the deceased when Shabbit Shah appellant fired at her and caused her death. The motive for the occurrence is the murder enmity between the parties. The report of the occurrence was made by Abid Hussain Shah P.W.8 on the same day at 10-30 a.m. Which was recorded by Muhammad Akbar S.I. P.W.2 charging the appellants and their co-accused, who, except Fateh Shah, were arrested on 23-12-1983 while Fateh Shah was apprehended on 22-2-1984. After completion of the usual investigation the accused were put on trial before the learned Sessions Judge, Sahiwal. The appellants and their co-accused were charged, evidence of the prosecution, statements of the accused, under section 342, Cr.P.C. Were recorded and on the appraisal thereof the learned Sessions Judge, vide his judgment. Dated 5-2-1985, found the appellants guilty for the triple murder of the three deceased and also for attempting at the lives of the injured P.Ws. (four counts) and convicted them under section 302/34, P.P.C. And 307/34, P.P.C. And sentenced them to imprisonment for life plus fine of Rs,10,000 each or in default three years' R.I. With a further direction to pay compensation of Rs,10,000 each for each deceased or in. Default six months' R.I. Each under section 302/34, P.P.C. (three counts) and three years' R.I. Each and fine of Rs,5,000 each or in default six months' R.I. Each under section 307/34, P.P.C. The substantive sentences were ordered to run concurrently. Their co-accused were, however, acquitted. The appellants preferred appeal before the High Court against their conviction and sentences while the complainant and the Sate preferred revision petitions for the setting aside of the order of acquittal of the acquitted accused and enhancement of the sentence imposed upon the appellants from life imprisonment to death.
4. The learned High Court vide the impugned judgment dismissed the appeal filed by the appellants and by accepting the revision petitions enhanced the sentence from life imprisonment to death on three counts. Hence the instant direct appeal.
5. ' We have heard Sardar Muhammad Latif Khan Khosa, Advocate, for the appellants; Mr. Muhammad Akram Uns, Advocate, for the respondent/State; and have perused the record of the case.
6. ' The learned counsel for the appellants, faced with the concurrent finding of fact regarding the murder of the three deceased and attempted murders of the injured witnesses based on the appraisal of ocular evidence furnished by the close relations of the appellants and circumstantial evidence, did not seriously contest the conviction of the appellants and restricted his arguments mainly to the impugned judgment of the High Court whereby the lesser penalty imposed by the trial Court was set aside and death against the appellants. In support of his arguments he cited the judgments of this Court in case Ghulam Murtaza v. Muhammad Arif (1993 SCMR 693) and Hazrat Jamal v. Fazal Rabbi (1991 SCMR 1727).
7. ' The occurrence took place on 18-12-1983 and the appellants were convicted and sentenced by the learned Sessions Judge, Sahiwal on 5-2-1985 whereby he convicted the appellants under sections 302/34, P.P.C. And 307/34, P.P.C. And acquitted their co-accused ; namely Bakhawan Shah, Imdad Shah, Hassan Shah and Masroor Shah holding the case against them as doubtful and extending them the benefit of doubt. The appellants were awarded life imprisonment, the lesser penalty provided under the law. It appears that he was influenced in this respect by the arguments of the learned defence counsel incorporated in paragraphs 24 and 25 of his judgment which are reproduced hereunder:-- "24. The learned defence counsel pointed out to the copy of the report Exh.DB recorded on 18-12- 1983 at 10-30 a.m. And thereafter the proper F.I.R. Was recorded. In this report, the name of the three deceased, the names of the injured P.Ws. Have been mentioned but the names of only three accused Sabir Shah, Fateh Shah and Shabbir Shah are incorporated. The names of other accused are not mentioned. Similarly the details of the weapons and the details of the motives for the occurrence are not incorporated. If the name of the deceased, the name of the P.Ws. Were incorporated in this report it was necessary for the police to have mentioned the details, the names of these accused in this report Exh.DB, the weapons should have been mentioned in it. It is mentioned in this report that the accused were armed with fire-arms and hatchets but the name of Balm is specifically omitted. Similarly, the detail of the fire-arms is not mentioned in this report. It would, therefore, cast doubt upon the story of the prosecution, whether the accused, whose names are not mentioned in this report were present at the place of occurrence and they took part in it or not. It appears that the complainant as interested to involve as many persons as he could in this case and he had mentioned the names of all his enemies in this F.I.R. In view of the entries of the names of the accused in the report No,6, Copy Exh.DB the presence of Bhawan Shah, Imdad Shah, Hassan Shah and Masroor Shah appears to be doubtful and their names have been incorporated to involve all the family members of the accused so that nobody should be left to pursue the case on behalf of the accused. The involvement of these accused Bhawan Shah, Imdad Shah, Hassan Shah and Masoor Shah appears to be doubtful and they deserve the benefit of doubt. They are acquitted of the charge under section 302/307/148/149, ' P.P.C. From the evidence of the eye-witnesses, it is established that Fateh Shah, Sabar Shah and Shabbir Shah were present at the place of occurrence and they had fired with their weapons causing the death of Sajad Shah, Ahmed Sher Shah and Mst. Zainab and causing the assault upon Niaz Shah, Yousaf Shah, Mst. Bakhan, Mst. Fatima and Mst. Rajan. The learned defence counsel had relied upon 1971 PCr.LJ page 205 and argued that nothing was clear to show as to whose shot out of several assailants was fatal. Therefore, the sentence of death was substituted for imprisonment for life. Reliance is also placed upon 1979 SCMR page 35 and it was argued that there was flagrant conflict existing between the oral evidence and the medical evidence making it difficult to attribute fatal shots specifically to a particular accused. Again reliance was placed on 1968 PCr.LJ page 791.
8. In that case, the fatal injury was not attributed with certainty to one or two other accused. The liability of the accused was held to be constructive and the death sentence was reduced to imprisonment for life. Relying on these authorities, the learned defence counsel stated that there was no specific attribution of the fatal shots to either of the three accused Fateh Shah, Sabar Shah and Shabbir Shah. Therefore, the capital punishment be not imposed upon them. In the F.I.R. There was general attribution to these accused that they had been firing. It was not mentioned which fire-arm of the accused which hit to a particular deceased. Therefore, there are mitigating circumstances to award lesser punishment to them.
25. From the evidence as discussed above, I hold Fateh Shah, Sabar Shah and Shabbir Shah accused guilty of offence under section 302/34, P.P.C. For causing the death of Sajad Shah, Ahmed Sher Shah and Mst. Zainab in one transaction and I convict them thereunder. They are sentenced to undergo life imprisonment in offence under section 302/34, P.P.C. And a fine of Rs,10,000 each failing which they would further suffer to three years' R.I. They are, therefore, directed to pay compensation of Rs,10,000 each in respect of each deceased or in default to suffer six months' R.I.
9. Each. They are further sentenced to undergo three years' R.I. Each in offence under section 307/34, P.P.C. For causing murderous assault upon four injured P.Ws. They are further directed to pay a fine of Rs,5,000 each or to suffer further R.I. For six months. The compensation, if deposited or recovered, would be paid to the legal heirs of the three deceased. The substantive sentence awarded under section 307/34, P.P.C. Would, however, run concurrently with the sentence awarded in offence under section 302/34, P.P.C. The accused are acquitted of the charge under section 148, P.P.C."
10. ' The learned High Court, on the other hand, held the view of the trial Court as perverse and manifestly wrong and on the acceptance of the revision petitions filed by the complainant enhanced the sentence of the appellants from life imprisonment to death. It is the discretion of the trial Court to award either of the sentences provided under the law albeit, it has to advance cogent reasons while declining to award the maximum penalty provided under the law. The High Court has the power to interfere on the question of sentence but only when it finds that the discretion exercised by the trial Court is perverse B and unreasonable. We do not find any flaw in the discretion exercised by the learned trial Court.
11. ' There was yet another impediment in the way of the High Court to convert the life imprisonment into death sentence, inasmuch as, the life imprisonment was awarded on 5-2-1985 before the order of amnesty on 7-12-1988 by the President whereby all the death sentences already recorded stood commuted. The question whether the High Court could enhance the lesser penalty awarded by the trial Court came up for consideration before this Court in the cited judgment and other cases and it was held that all cases punishable with death in which conviction orders were passed prior to 7-12-1988, the sentence of death if awarded by the trial Court stood commuted and if sentence of life imprisonment was passed, the same could not be enhanced to death by the appellate Court viz., the High Court and the Supreme Court as it would result in discrimination which is to be avoided. In this view of the matter, the High Court was not legally justified to enhance the sentence of life imprisonment imposed upon the appellants on 5-2-1985 to death.
12. ' Resultantly, we partly allow this appeal, set aside the order of the High Court regarding the imposition of death sentence upon the appellant and restore the order of the trial Court with the result that the sentence of the appellants is reduced to life imprisonment. The other sentences imposed by the trial Court shall remain intact.