' SAJJAD ALI SHAH, C J.---This Constitution petition is filed on the original side of this Court as contemplated under Article 184(3) of the Constitution of the Islamic Republic of Pakistan, 1973, calling in question the judgment and order dated 22-2-1994 of the Supreme Appellate Court, Peshawar, whereby appeal of the petitioner against his conviction and sentence for offence under section 302/34, P.P.C. Was dismissed and sentence of life imprisonment enhanced to death on a petition filed by Shala Khan, father of deceased Javed Khan.
2. Very briefly stated the case of prosecution is that on 29-6-1992 S.H.O. Samar All Khan of Police Station Kalu Khan, District Swabi, found on the thoroughfare of village Managi Motor Car No,4590, PRG, the front wind screen of which had been smashed with bullets, dead body of one person was lying on the front seat and dead body of another person was lying nearby on the thoroughfare.
Both the persons were found to have been done to death by use of fire-arm. A case was registered at Police Station Kalu Khan vide F.I.R. No,356 for offence under section 302/109/34, P.P.C. After completion of investigation, five persons were put on trial in the Special Court for Speedy Trials, Peshawar, which convicted the petitioner and Sameen Gul for offence under section 302/34, P.P.C.
On two counts for double murder and sentenced them to life imprisonment and also to other lesser periods and fine and compensation, which need not be specified for the present purpose. It may be mentioned that the trial Court acquitted the remaining three co-accused.
3. Convicts carried their appeals to the Supreme Appellate Court, set up under Article 212-B of the Constitution, presided over by a Judge of the Supreme Court as Chairman with two other members who are Judges of the High Court of the Province in which offence took place. Samin Gul filed Criminal Appeal No, 39 of 1993 while Mamraiz Khan filed Criminal Jail Appeal No, 40 of 1993 against their conviction and sentence. During the pendency of these appeals, Shala Khan, father of deceased Javed Khan, filed a petition with prayer for enhancement of sentence from life imprisonment to death of both the convicts and for enhancement of amounts of fine and compensation.
4. It so appears from the record that both the convicts were arrested in other cases and made judicial confessions in the case under consideration and against their conviction and sentence contentions were raised beftre the Supreme Appellate Court that retracted judicial confessions were not corroborated in material particulars, Magistrate did not take precautions for recording judicial confessions and both the convicts remained in custody of police for more than four days before their judicial confessions were recorded. Supreme Appellate Court formed the view that corroboration was available in the shape of recovery of pistol P.23 from Salim (P.W.14) belonging to Javed Khan, deceased, and recovery. Of Klashnikov P. 24 as the weapon of offence from Mustafa Gul (P.W.13) at the instance of both the accused. In the result, appeal of Samin Gul, who did not fire shots at the deceased, was allowed and his conviction and sentence under section 302/34, P.P.0 was set aside but he was convicted under section 201, P.P.C. And sentenced to R.I. For seven years and fine and under section 202, P.P.C. For not informing the police sentenced to R.I. For six months and fine. Appeal of Mamraiz Khan was dismissed as having no merits and his sentence was enhanced by the Supreme Appellate Court from life imprisonment to death on the ground that he had motive to kill Tajai, who had abducted Mst. Basran, claimed by Mamraiz Khan to be his cousin.
It appeared from both the confessions that Hikmat Khan deceased denied to be Tajai but Mamraiz Khan killed him and his companion Javed Khan in a brutal manner. In consequence, Supreme Appellate Court allowed petition of Shala Khan, father of deceased Javed Khan, for enhancement of sentence of Mamraiz Khan from life imprisonment to death.
4-A. We are not concerned with the appraisement of evidence as mentioned above as we have no jurisdiction in that respect because the Supreme Appellate Court is the final forum for that purpose as contemplated under Article 212-B of the Constitution. This Court has only to see whether it can exercise jurisdiction under Article 184(3) of the Constitution for enforcement of fundamental rights.
Supreme Court has interfered under Article 184(3) of the Constitution in human rights cases and in that respect reference can be made to the case of M. Ismail Qureshi v. M. Awais Qasim (1993 SCM R 1781) and the case reported in 1993 SCM R 2001.
5. Moot point in this case is whether the Supreme Appellate Court within framework of the Special Courts for Speedy Trials Act, 1992 had power or authority to enhance the sentence of the petitioner from life imprisonment to death on the request of father of the deceased. This question is to be answered in the light of the fact that the Supreme Appellate Court is the final forum and its judgment, order or decision cannot be challenged in any other forum provided under ordinary law including the Supreme Court of Pakistan. Similar question to the effect whether the Special Courts for Speedy Trials and the Supreme Appellate Court can impose death sentence to the accused, who under the law could not be awarded death sentence for offence allegedly committed by him, came up for consideration in the case of Khalil-uz-Zaman v. Supreme Appellate Court (PLD 1994 SC 885) and it is held by this Court that since relevant law had not provided any remedy by way of appeal/petition against the order of the Supreme Appellate Court, this Court has jurisdiction for interference under Article 184(3) of the Constitution for the reason that question involved is of public importance with reference to the enforcement of fundamental rights as conferred by the Constitution. Additionally, the Supreme Court also has jurisdiction under Article 187(1) of the Constitution to issue such directions, order, decrees as may be necessary for doing complete justice in any case or matter pending before it.
6. Section 13 of the Special Courts for Speedy Trials Act, 1992 provides for appeal against final judgment of Special Court to be heard and disposed of by the Supreme Appellate Court.
Subsection (4) of section 13 of the said Act provides that appeal shall .Be preferred by a person sentenced by a Special Court to the Supreme Appellate Court -within seven days of passing of the sentence. Subsection (5) of section 13 provides that the Attorney-General, Advocate-General, Deputy Attorney-General, Assistant-Advocate General, Standing Counsel or an Advocate appointed in this behalf shall, on being directed by the Government, present to the Supreme Appellate Court appeal against the order of acquittal or, sentence passed by a Special Court within fifteen days of such order. Contention is raised that said law provides for appeal to be filed by convict against his sentence but against the acquittal or a sentence by a Special Court, only one of the law officers specifically named above can file such appeal if so directed by the Government, hence father of the deceased, who is not one of the law officers specified and was not directed by the Government to do so, was not competent to file petition before the Supreme Appellate Court for enhancement of sentence.
7. Subsection (5) is to be read in conjunction with subsection (8) of section 13 of Special Courts for Speedy Trials Act, 1992 and subsection (8) is reproduced as under- "In exercise of the appellate jurisdiction, a Supreme Appellate Court shall, subject to the provisions of this Act, have all the powers conferred on an Appellate Court under Chapter XXXI of the Code."
' Perusal of Criminal Procedure Code shows that Part VII relates to appeal, reference and revision and Chapter XXXI therein provides for appeals and starts from section 404 and ends with section
431. Now Supreme Appellate Court has been given complete appellate jurisdiction as provided in Chapter XXXI of the Criminal Procedure Code. It can exercise powers under section 417 which lays down procedure and scope for final appeal against acquittal authorising a person aggrieved by the order of acquittal as contemplated under section 417(2-A) to file appeal against such order.
Supreme Appellate Court can also exercise powers of the Appellate Court as contemplated under section 423, Cr.P.C. In appeal from a conviction to alter the finding maintaining the sentence or with or without altering the finding reduce the sentence or with or without such reduction and with or without altering the finding alter the nature of the sentence and make any amendment or any consequential or incidental order that may be just and proper. This clearly shows that the Supreme Appellate Court is empowered to enhance the sentence regardless of the fact whether petition for such enhancement was filed competently or not.
8. Having clarified the legal position as stated above, we dismiss this petition on the ground that no further interference is warranted.