' SYED DEEDAR HUSSAIN SHAH, J.---This judgment shall dispose of the above-mentioned three connected matters, which have arisen out of consolidated judgment, dated 20-5-1999, passed by the Lahore High Court, Lahore, in Criminal Appeal No,708 of 1995.
2. On 8-2-1993, Muhammad Ajmal Cheema, Manager, United Bank Limited, Gulshan Colony Branch, Faisalabad lodged the F.I.R. (Exh.P.A.) stating therein that on 8-2-1993 he alongwith Muhammad Tariq, Muhammad Iqbal, Muhammad Ashraf and Muhammad Ashiq, was present in the Bank, while Muhammad Shafi Gunman of the Bank and Zahid Anwar Constable duly armed with fire-arms were present on their duties in front of the Main gate of the Bank. At about noontime they heard noise of fire-arms. He alongwith above named persons saw that four unknown persons out of them three were armed with Klashnikovs, while one was armed with a pistol, were grappling with the Gunman and the constable deputed at the Main Gate of the Bank. In the meantime, complainant informed the police on telephone. Thereafter, all the four accused entered the Bank and resorted to firing in order to create terror. They also broke the cash counter and its glass panels and took away Rs,1,51,491 (Prize bonds amounting to Rs,87, 000 and cash amounting to Rs,64,491). All the accused persons took the said money with force and made their escape good on two motorcycles, which were without registration numbers and 'fled away towards Narowal. The complainant and P.Ws.
Came out of the Bank and found that Constable as well as Gunman were injured. A number of empties of bullets were also found there. Meanwhile, two police mobiles one after the other reached there. Complainant and P.Ws. Pointed out about the unknown culprits and Police Mobiles followed them. When the culprits reached in Mohallah Usman Ghani, they left the motorcycles outside the Mosque near graveyard and entered into it. Police party encircled the Mosque. The accused started firing from inside the Mosque on the police party. After some struggle police arrested the accused persons, whose names later came to know as Shan Alam Badshah armed with Klashnikov, Muhammad Yasin armed with a 30 bore pistol, Saif-ur-Rehman alias Hafiz Muhammad Zahid, armed with Klashnikov. One accused namely Shabbir Hussain armed with 222 rifle succeeded in running away from the spot while firing in the air. According to P.Ws., the accused persons were the same who had committed dacoity in the Bank.
3. Police took into possession the arms, looted money/currency and prize bonds from the accused persons. Thereafter, the Investigating Officer recorded the statement of complainant, which was read over to him, who signed the same and sent for registration of F.I.R. Khalid Hussain Bhatti, Investigating Officer, arrested the accused Saif-ur-Rehman alias Hafiz Muhammad Zahid and recovered Kalshnikov (P.8.23) and live cartridges from him vide memo. (Exh,P.D.). Forty prize bonds of Rs,1,000 denomination (p.13/1-40) were also secured through memo. (Exh.P.G.) attested by the P.Ws. Forty-seven prize bonds of Rs,1,000 denomination (P.12/1-47) were also recovered vide memo.
(Exh.P.E.) from Shan Alam accused. Besides, a 30 bore pistol and 8 live cartridges were also secured from him vide memo. (Exh.P.H.) which was attested by the P.Ws. Rupees.15,893 (P.14) were recovered from Yasin accused and secured vide memo. (Exh.P.I.) attested by the P.Ws. The Investigating Officer also recorded the statements of P.Ws. Zahid Anwar, who was injured during the occurrence, later succumbed to his injuries. Injured P.Ws. Were medically examined and post- mortem of the dead body of Zahid Anwar was also conducted. He also took into possession rifle 303 (P.15) and 12 bore gun (P.16), whereafter broken pieces of 12 bore gun and other material vide memo. (Exh.P.M.) attested by the P.Ws. He also prepared injury statement of P.Ws. And site plan. On 9-2-1993 the Investigating Officer recovered a grenade, 158 bullets of Klashnikov from Yasin accused. He also arrested Shabbir alias Pappu. On 10-2-1993. After completion of the investigation, final charge-sheet was submitted in the Court having jurisdiction.
4. During trial, appellants Muhammad Yasin, Shan Alam Badshah, Saifur Rehman alias Hafiz Muhammad Zahid and Shabbir Hussain alias Pappu were formally charge-sheeted for an offence under sections 302/394, 307 (324), P.P.C., to which they pleaded not guilty and claimed to be tried.
5. Prosecution in support of their case examined 13 P.Ws. Nazir Hussain HC, P.W.1 stated that on 8-2- 1993, he received complaint (Exh.P.A.) and recorded F.I.R. (Exh.P.A/1). Abdul Hafeez P.W.2 and Muhammad Akram P.W.3 were formal witnesses and Aurangzeb P.W.4 prepared the site plan. The main witnesses examined by the prosecution for establishing its case are Muhammad Ajmal Cheema P.W.5, Muhammad Shafi Gunman injured P.W.6, Muhammad Tariq Second Officer of the Bank injured P.W.7 and Muhammad Iqbal P.W.B. All supported the case of prosecution and narrated the facts as mentioned hereinabove. Umer Hayat S.I. P.W.9 and Ali Asghar P.W.10 stated that they alongwith police party encircled the Mosque in Usman Ghani Mohallah, where all the appellants were present and were firing from inside the Mosque, whereas Police also fired in defence.
6. After conclusion of the trial, Judge Special Court, (Suppression of Terrorist Activities), Faisalabad vide judgment dated 8-10-1995 convicted all the accused under section 302/34, P.P.C. And sentenced each of them to death for committing the murder of Zahid Anwar, Constable. He also convicted all of them under section 394, P.P.C. And sentenced each of them to life imprisonment with fine of Rs,2,00,000 each and in case of default in payment of fine to further undergo two years'
R.I. Each: He further convicted them under section 324(307), P.P.C. And sentenced each of them to 10 years' R.I. With fine of Rs,50,000 each, or in default to undergo one year's R.I. Each. In case of recovery, Rs,2,00,000 were ordered to be paid to the legal heirs of Zahid Anwar deceased and Rs,50,.000 were ordered to be paid to Muhammad Shafi P.W.6, Gunman UBL, Gulshan Colony Branch, as compensation under section 544-A, Cr.P.C. And the remaining amount was directed to be confiscated in favour of State.
7. The judgment was assailed by accused Shan Alam Badshah, Muhammad Yasin, Saif-ur-Rehman alias Hafiz Muhammad Zahid and Shabbir Hussain alias Pappu, before Lahore High Court, Lahore.
The learned High Court dismissed the appeal of Shan Alam Badshah, Saifur-Rehman alias Hafiz Muhammad Zahid and confirmed their death sentences awarded by the Trial Court, whereas appeal of Muhammad Yasin was dismissed but his sentence of death was converted into imprisonment of life with the benefit of section 382-B, Cr.P.C. Sentence awarded under section 394, P.P.C. To each of them was, however, maintained. So far Shabbir Hussain alias Pappu accused is concerned, since he was not arrested from the spot and Identification Parade was not held to his extent, therefore, he was acquitted of the charge, giving him benefit of doubt. All the appellants were, however, acquitted for the charge under section 324, P.P.C.
8. Leave to appeal was granted by this Court to consider the following points:-- "(i) Whether the learned trial Judge and the High. Court have correctly assessed/evaluated the evidence on record and have rightly rendered finding of guilt in view of the principle enunciated by this Court from time to time for appraisal of evidence.
(ii) Whether the High Court in the impugned order was legally justified to convert the sentence of death into life imprisonment of Yasin in Cr. Petition No,296-L of 1999.
' Notice be issued to the petitioner Yasin as to why his sentence of life imprisonment should not be substituted into death. Moreover, office is directed to verify whether Saifur Rehman co-convict in the impugned judgment has filed petition either directly or from Jail and if he has done so then it should also be put up alongwith these appeals."
9. We have heard the learned counsel for the parties who inter alia contended that Courts below have 'not considered the evidence available on record in its proper perspective and the case against the accused is not proved.
10. Mr. Muhammad Zarnan Bhatti learned Advocate Supreme Court, for the State supported the judgment of the trial Court, contending that the High Court was not justified in modifying the sentence of Muhammad Yasin from death to life imprisonment,
11. We have considered the arguments of learned counsel for the parties and have also gone through the evidence recorded by the trial Court. The instant occurrence was a broad-daylight one. The appellants had committed robbery in the Bank in which one person Zahid Anwar Constable lost his life and Muhammad Shafi and Muhammad Tariq received injuries. The Police and staff of the bank chased the culprits and apprehended them from the Mosque. Police recovered fire-arms as well as robbed property from the possession of the appellants. The eye- witness account furnished by the P.Ws. Is natural and convincing and the defence was not able to prove enmity, bias or against the P.Ws. Prosecution also produced reports of Chemical Examiner (Exh.P.W.), Serologist (Exh.P.X.) and of Forensic Science Laboratory (Exh.P.Y.) which corroborated ocular version of the P.Ws. Moreover, defence was not able even to challenge the characteristics of above reports. Nowadays crime is on the rise and culprits commit the same without visualizing the consequences of their gruesome acts.
12. It is by now well-settled law that if prosecution is able to prove its case against an accused beyond reasonable doubt, the maximum punishment provided for an offence should be awarded.
Reference may be made in the case of Wallavat v State (2002 SCM R 53), the relevant para reads as under:- ' The Courts are bound to sift the chaff from grain and keeping in view this principle, the Courts below rightly acquitted the co-accused because sufficient material was not available against them, but natural, reliable and trustworthy evidence was furnished by the prosecution against the appellant, which had rightly been believed by the Courts below. The appellant has committed brutal murder with fire-arm. The normal penalty under section 302, P.P.C. Is death, which has been properly awarded by the Courts below. In this respect, reference may be made to Moazam Shah v.
Mohsan Shah (PLD 2001 SC 458 at P. 465) wherein this Court held as under:-- ' Besides such cases must be seen with reference to the interest of society and be condemned as such. To curb crime is the need of hour. One of the object of criminal justice is to award exemplary punishment to offenders in order to dater them from committing crimes and in this way also to serve a stern warning to those members of society, who have behavioural leaning towards criminality.
' Adverting to the facts of this case it is noted that the respondent had killed the deceased under a preconceived strategy, which stunned the deceased and prevented him from taking any steps to save his life. Ex facie, it was premeditated and cold-blooded murder. The deceased was only 24 years old.
' In consequence, the judgment of High Court, to the extent of altering the sentence of death to imprisonment for life, is set aside and that of "trial Court, awarding death penalty to respondent Mohsan Shah, is restored."
13. In the instant case, the occurrence took place in a broad-daylight at about noontime. The appellants caused the death of Zahid Anwar and inflicted injuries to P.Ws. Muhammad Shafi and Muhammad Tariq. They were apprehended with the fire-arms as well as the looted property.
14. We have considered the arguments advanced by the learned counsel for the appellants and are not persuaded to accept the plea that the Courts below have not considered the evidence available on record in its proper perspective.
15. The learned Division Bench of the High Court has given sound and cogent reasons for upholding the convictions of the appellants and rightly dismissed the appeal of Shan Alam Badshah, Saifur Rehman alias Haim Muhammad Zahid confirming their death sentences. The learned High Court was also right in converting the death penalty awarded to Muhammad Yasin appellant, inasmuch as, according to the evidence on record, he neither caused any injury to the deceased or to the injured witnesses.
16. For the foregoing reasons and in view of the case-law mentioned hereinabove, we see no reason to interfere with the well-reasoned impugned judgment of the High Court. The above appeals as well as Jail Petition fail being without merit and are hereby dismissed.
17. Notice issued to Muhammad Yasin for enhancement of sentence is hereby recalled
18. Before parting with the judgment we would like to observe that leniency is being shown in matters of capital punishment by the Courts below even in those cases where act/crime involved was of heinous nature, which terrorized the society as a whole or a part thereof. No doubt, a Judge ought to be lenient and compassionate in awarding punishment in any offence but at the same time he should be more cautious in believing the prosecution story as it is narrated before him and efforts should not be made to look for mitigating circumstances, creating doubt in the prosecution case and extend benefit of doubt to the accused so that the miscreants may not be set at free who are responsible for causing unrest in the society as a whole and this menace should be curbed.
Therefore, when an offence is proved beyond reasonable doubt against an accused person a Judge should never hesitate to award punishment provided for that offence, even if that is a capital punishment, especially in cases of the nature mentioned hereinabove.