' RANA BHAGWAN DAS, J.---As both these petitions arise out of a common judgment rendered by a Division Bench of the Lahore High Court, we propose to dispose of the same by a common order.
2. Convicts Gulfraz, Fayyaz Khan, Muhammad Ilyas and Mazhar Hussain, respondents in Crl.P.L.A.
No,159 of 2000 and petitioners in CrI.P.L.A. No,383-L of 2000 were tried, alongwith others, since acquitted, by the Judge, Special Court No,1, Rawalpindi Division, Rawalpindi, constituted under the Suppression of Terrorist Activities Act, 1975, and convicted and sentenced as under:-- ' Gulfraz, Fayyaz Khan, Muhammad Ilyas, Mazhar Hussain, Muhammad Bashir, Muhammad Ismail and Arshad Mehmood: ' Death under section 302/34, P.P.C. With a fine of Rs,50,000 each and in default 2 years R.I.
Compensation of Rs,50,000 each and in default 2 years R.I.
' Barkat Hussain.
' Life imprisonment with a fine of Rs,50,000 and in default 2 years R.I. Under section 302/34, P.P.C.
Compensation of Rs,50,000 and in default six months R.I.
For the murder of Muhammad Nazir.
' Gulfraz, Favyaz Khan, Muhammad Ilyas, Mazhar Hussain, Muhammad Bashir, Muhammad Ismail and Arshad Mehmood: ' Death under section 302/34, P.P.C. With a fine of Rs,50,000 each and in default 2 years R.I.
Compensation of Rs,50,000 each and in default 2 years R.I.
' Barkat Hussain: ' Life imprisonment with a fine of Rs,50,000 and in default 2 years R.I. Under section 302/34, P.P.C.
Compensation of Rs,50,000 and in default 6 months R.I.
For the murder of Ghulam Murtaza.
' Gulfraz, Favyaz Khan, Muhammad Ilyas, Mazhar Hussain, Muhammad Bashir, Muhammad Ismail and Arshad Mehmood: ' Death under section 302/34, P.P.C. With a fine of Rs,50,000 each and in default 2 years R.I.
Compensation of Rs,50,000 each and in default 2 years R.I.
' Barkat Hussain: ' Life imprisonment with a fine of Rs,50,000 and in default 2 years R.I. Under section 302/34, P.P.C.
Compensation of Rs,50,000 and in default 6 months years R.I.
For the murder of Haji-Mehbub Alam.
' All the above accused were also convicted and sentenced as under:--
(1) Under section 324/34, P.P.C. 5 years R.I. With a fine of Rs,5,000 each and in default 3 months R.I.
Compensation of Rs,2,000 each and in default 3 months R.I. For murderous assault on Walayat Hussain;
(2) Under section 324/34, P.P.C. 5 years R.I. With a fine of Rs,5,000 each and in default 3 months R.I.
Compensation of Rs,2,000 each and in default 3 months R.I. For murderous assault on Mst. Razia Begum;
(3) 3 years R.I. With a fine of Rs,1,000 each and in default R.I. For one month for murderous assault on Muhammad Sheeraz.
' Barkat Hussain was also convicted under the Arms Ordinance and sentenced to five years R.I. With a fine of Rs,10,000 and in default R.I. For 6 months vide separate judgment dated 11-3-1991. Mst.
Sheedan Bibi was, however, acquitted.
3. Convicts appealed before a Division Bench of the Lahore High Court. There was also a Murder Reference for confirmation of sentence of death. Complainant Manga Khan also filed Criminal Revision No 40 of 1991 seeking enhancement of sentence awarded to Barkat Hussain, adequate enhancement in the amount of compensation and for setting aside acquittal of co-accused Mst.
Sheedan Bibi.
4. Upon scrutiny of the evidence and relevant material learned High Court altered the sentence of Gulfraz, Fayyaz Khan, Muhammad Ilyas and Mazhar Hussain from section 302(b), P.P.C.To section 302(c), P.P.C. And converted the sentence of death to imprisonment for life on three counts.
Sentence of fine awarded to them was set aside as it could not be sustained after the enforcement of Qisas and Diyat Ordinance with effect from 3-10-1990. Instead of fine, High Court, after notice to the learned counsel for the convicts directed the payment of Rs,1,00,000 each on three counts to the legal heirs of three deceased namely, Muhammad Nazir, Ghulam Murtaza and Haji Mehbub Alam and in default to suffer S.I. For 6 months each in default. Conviction and sentence under section 324/34, P.P.C. With regard to murderous assault on the person of P.W. Razia Begum was annulled for the reason that she was not produced at the trial. Conviction and sentence under section 324/34, P.P.C. For murderous assault upon Walayat Hussain P.W. Was, however, maintained.
All sentences were ordered to run concurrently in addition to the benefit of section 382-B, Cr.PC.
Convicts Arshad Mehmood, Barkat Hussain and Muhammad Bashir were extended the benefit of doubt and acquitted of the charge. Criminal Revision brought by complainant Manga Khan was thus dismissed.
5. While petitioners Gulfraz and three others are aggrieved by the conviction and sentence recorded by the High Court, petitioner Manga Khan has assailed the award of lesser punishment to Gulfraz and others and acquittal of Arshad Mehmood and others. It may be observed that during the pendency of the criminal appeal before the High Court convict Muhammad Ismail died a natural death with the result that his appeal stood disposed of to its abatement.
6. We have heard learned counsel for the parties and with their assistance examined the record. As regards Mst. Sheedan Bibi, there appears to be absolutely no incriminating evidence against her with the result that she was rightly acquitted by the trial Court. No appeal against her acquittal was preferred by the State whereas criminal revision before the High Court appeared to be misconceived and untenable. Sardar Muhammad Ishaq Khan, Advocate Supreme Court when confronted with this situation was unable to press into service the petition as against Mst. Sheedan Bibi. Leave to appeal as against this accused (Mst. Sheedan Bibi, respondent No,8) is, therefore, refused.
7. As the case involves murder of three innocent persons and murderous assault on two witnesses, one of whom was not produced before the trial Court, and the High Court varied the sentence awarded to Gulfraz and three ethers and acquitted four others of the charge, we are inclined to grant leave for reappraisal of the evidence. Re-evaluation of the evidence is necessitated also for the reason to ensure that well-settled principles for safe administration of justice in criminal cases have been followed by the High Court. Leave to appeal is accordingly granted.
8. Bailable warrants of arrest in the sum of Rs,1,00,000 each, with one surety each in the like amount, returnable to Special Court No,1 for Suppression of Terrorist Activities, Rawalpindi Division, Rawalpindi/Sessions Judge, Rawalpindi, shall issue against respondents Nos.5, 6 and 7 namely, Arshad Mehmood, Barkat Hussain and Muhammad Bashir.