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Petitioner: LIAQAT ALI and 11 others VS Respondent: THE STATE
Court Name: Supreme Court of Pakistan Judge(s): Raja Afrasiab Khan, Ajmal Mian, Rashid Aziz Khan Title: LIAQAT ALI and 11 others vs THE STATE Case No.: Criminal Appeals Nos.10 and 16 of 1991 Date of Judgment:1991-11-06 Reported As: 1992 SCMR 372 Result: Order accordingly
JUDGMENT
JUDGMENT ' JUSTICE AJMAL MIAN (CHAIRMAN).---By this common judgment, we intend to dispose of the above two appeals. Criminal Appeal No.10 of 1991 has been filed by 12 convicts against the, judgment, dated 3-10-1991 passed by the learned Special Court for Speedy Trials No.II, Lahore, in Case No.190 of 1990, tried for offences under sections 148, 302/149 on two counts, 324/149, 449/149 and 436/149, P.P.C., whereas Criminal Appeal No.16 of 1991 has been filed by the State against the acquittal of eight accused mentioned therein by the above judgment. 2. The facts giving rise to the above appeals have been succinctly stated by the learned Judge, Special Court as follows:-- "Eleven years ago, Sher Muhammad son of Hakam All alongwith others was challaned for the murder of Muhammad Iqbal son of Sardar Muhammad complainant. Sher Muhammad and others were acquitted. On 26-5-1990, said Sher Muhammad was murdered within the jurisdiction of Police Station Wandat Colony, Lahore. Rehmat Ali (brother of abovementioned Muhammad Iqbal deceased and son of Sardar Muhammad complainant) and two others were challaned. On account of fear and enmity, Sardar Muhammad alongwith his family members shifted from Chak No.17, two months before the occurrence. A theft took place in the house of Sardar Muhammad in Chak No.17. Sardar Muhammad learnt about this theft on 29-7-1990. He took alongwith his grandson Nasarullah P.W. And reached his house situated in Chak No.17 on the morning of 31-7- 1990. Two wives of Rehmat Ali namely Rashida Bibi and Safiya Bibi accompanied by Muhammad Iqbal son of Sahib Din deceased (brother of Safiya Bibi), Nasim Bibi came to the house of Sardar Muhammad complainant. All of them were sitting in the courtyard and preparing the list of stolen articles. In the meantime Muhammad Iqbal son of Wali Muhammad deceased and Muhammad
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Mansha P.W. Who were relatives of Sardar Muhammad complainant, came there. They also sat in the courtyard. Shortly thereafter, Liaqat accused armed with rifle, Rehmat armed with gun, Abdul Razaq absconder armed with carbine and Zulfiqar accused armed with gun came on the roof of neighbour. Rehmat accused fired gunshot which hit Sardar Muhammad complainant on the nose. Sardar Muhammad fell down on. The receipt of fire shot. Liaqat accused fired shot but it did not hit Sardar Muhammad and it hit the cot. Sardar Muhammad complainant and his two daughters-in- law Mst. Safiya, Mst. Rashida and grandson Nasarullah entered the kitchen. Sardar Muhammad complainant picked up his licensed gun. The ladies shouted that Sardar Muhammad had been killed. The abovementioned four accused left the spot. After their departure, Sardar Muhammad, Nasarullah, Nasim Bibi, Muhammad Iqbal son of Sahib Din deceased and Muhammad Iqbal son of Wali Muhammad entered the Pucca Kotha while Mst. Safiya Bibi, Mst. Rashida and Muhammad Mansha P.W. Took shelter against the looms. After some time, 22 accused came there armed with rifles, guns, carbines. They fired shots. Sardar Muhammad P.W. Returned the fire in self-defence. The accused went on the roof of Kotha of Sardar Muhammad P.W. Hadis and Ali Muhammad shouted that the house of Sardar Muhammad P.W. Be set on fire. Din Muhammad Bhutto and Fazal Din accused went on to the roof. They had Kassis with them. They started dismantling the roof. Hadis and Wali Muhammad shouted that kerosine oil be brought whereupon Muhammad Sadiq son of Imam Din, Ishaq son of Jamal and Bashir Ahmad brought tins of kerosine oil and they poured on the roof of Kotha of Sardar Muhammad and set the house on fire. Muhammad Iqbal son of Sahib Din and Muhammad Iqbal son of Wali Muhammad came out of the room. Hadis Muhammad fired gunshot which hit Muhammad Iqbal son of Sahib Din on the right eye. Ali Muhammad fired gunshot which hit Muhammad Iqbal son of Sahib Din on the right ear. Muhammad Ramzan alias Kaka fired gun shot which hit on the back side of the head of Muhammad Iqbal son of Sahib Din. Muhammad Sadiq son of Muhammad Din accused fired rifle shot which hit Muhammad Iqbal son of Sahib Din on the abdomen. On receiving the fire shots, Muhammad Iqbal son of Sahib Din fell down and died. Liaqat accused fired rifle shot which hit Muhammad Iqbal son of Wali Muhammad on the right wrist who tried to run towards lane in order to save his life. Arif absconder fired rifle shot which hit Muhammad Iqbal son of Wali Muhammad on the chest who fell down and died at the spot. The accused went away after committing two murders. The occurrence was witnessed by Sardar Muhammad, Safiya, Rashida, Nasim Bibi, Nasarullah and Muhammad Mansha. Police arrived at the spot on coming to know of the occurrence. Sardar Muhammad P.W. Made statement Exh. P.G. On 1-8-1990 at about 6-00 p.m. On the basis of this statement formal F.I.R. Exh. P.G/1 was recorded at 7-00 p.m. At P.S. Chhanga Manga which was at a distance of ten miles." 3. The case was investigated first by P.W.17 Muhammad Rashid up to 26-9-1990. After that, the investigation was handed over to P.W.18 Dr. Muhammad Shafiq, A.S.P. Out of 22 accused, 16 accused were arrested by the former on 16-8-1990, while the remaining accused except two absconders Arif and Abdul Razzaq, were arrested on subsequent dates. A number of recoveries were made from some of the accused. The Investigating Officer also seized thirty .12 bore empties from the place of Wardat besides taking into possession burnt articles like quilt, pillows, cots, three Holy Qur'ans and blood-stained clothes of the deceased. He also collected the blood-stained earth from the place of Wardat. 4. P.W. Dr. Muhammad Arif Mahmood, carried out the post-mortem on the dead bodies of the two deceased on 2-8-1990 at about 9-00 a.m. He found the following injuries on the person of deceased Muhammad Iqbal son of Wall Muhammad:-- (i) one wound of entry in front of the chest; (ii) one wound of entry on the back of right forearm; (iii) an injury on the ulnar side right wrist which was wound of exit.
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' Above injuries Nos. (ii) and (iii) communicated with each other. He opined that the death of the above deceased was due to shock and haemorrhage due to injury No.(i). He further opined that injuries were ante-mortem and were caused by a fire-arm. He also opined that injury No.(i) was sufficient to cause death in the ordinary course of nature. 5. While carrying out autopsy on the dead body of deceased Muhammad Iqbal son of Sahib Din, above P.W. Dr. Muhammad Arif Mahmood noticed the following injuries:- "(1) Lacerated wound circular 3/4 c.m. Diameter margin inverted. Bone deep on the left cheek area lacerated. Wound is directed to backward and upward. (2) Lacerated wound 1-1/2 c.m. x 1 cm x bone deep. Margin everted on the right perietal region of the head. Injuries Nos. 1 and 2 communicate with each other. So injury No.1 entry wound No.2 exit wound. There is laceration of the brain and right occipital bone base of skull fractured into pieces. (3) Lacerated wound 4 c.m. Diameter. Margin inverted on the left side of the abdomen with 5 (five) lacerated wounds 3/4 c.m. Diameter. Margin inverted abdominal cavity deep around the big wound 4 c.m. Of umbilicus. (4) 7 (seven) circular lacerated wounds size 1 c.m. x 3/4 c.m. Each. Margin everted on the back of the left flank abdominal cavity. Injuries Nos.3-4 communicate with each other. So Injury No.3 entry wound and No.4 exit wound perforating the large intestine. Small intestine is directed to backward to the left. (5) Two lacerated wounds. Margin inverted 2 c.m. x 1 c.m. Each abdominal cavity deep on the right side of the abdomen. Wound is directed to backward 10 c.m. Right of misline at the right illiac region. Corresponding holes present on the shirt." ' He opined that death was due to shock and haemorrhage on account of injuries Nos. 1 to 5. He also opined that injuries were ante-mortem and they were sufficient to cause death in the ordinary course of nature. The aforesaid P.W. Dr. Muhammad Arif Mahmood, also examined injured P.W. Sardar Muhammad (the complainant) and found the following injuries on his person:--- (i) A lacerated wound on the left upper part of eye-lid; (ii) A lacerated wound on the upper 1/3rd of nose; (iii) A lacerated wound below the above injury No.(ii); (iv) Burn injury in area 10 c.m. x 6 c.m. On the top of vertex. ' He found above nosal wound fractured. He also discovered metallic foreign body in the above injuries, which were caused by fire-arms. He opined that injuries Nos. (ii) and (iii) were grievous. 6. P.W.18 Dr. Muhammad Shafiq, A.S.P., after completing investigation, submitted challan on 5-6- 1991 in the Court of Additional Sessions Judge, Chunian, against 20 accused persons. Out of the above 20, six accused's names were mentioned in Column 2. Two of the above accused remained absconders. It seems that while the above case was under investigation, P.W.11 Sardar Muhammad (the complainant) also filed a private complaint on or about 5-12-1990 in the Court of Assistant Commissioner, Chunian, against the above accused persons with the addition that he also implicated P.W.17 Muhammad Rashid, S.H.O., as an accused person. According to the learned counsel for the accused, the learned Additional Sessions Judge after recording preliminary evidence, issued process on the above complaint. The above challan case was fixed before the learned Additional Sessions Judge on 8-9-1991, but it seems that the Federal Government through its notification dated 26-8-1991 in exercise of power conferred on it under subsection (2) of section 5 of the Special Courts for Speedy Trials Ordinance, 1991 (XXV of 1991), hereinafter referred to as the Ordinance, ordered the transfer of the cases mentioned in the Table of the above notification for trial to the Special Courts specified in the third column of the said Table, which included the challan case in question. The learned Additional Sessions Judge, while transferring the above challan case to the Special Court in question, also forwarded the private complaint case of P.W.11 Sardar
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Muhammad. However, the learned Special Judge proceeded with the challan case only as he was of the view that the private complaint case was not transferred to him by the notification. 7. The prosecution examined three out of six eye-witnesses named in the F.I.R., namely, P.W.11 Sardar Muhammad, P.W.13 Nasarullah, grandson of Sardar Muhammad P.W.11, and Mst. Nasim Bibi, P.W.14 daughter of P.W.11 Sardar Muhammad, whereas the other three eye-witnesses were given up by the prosecution through a statement dated 29-9-1991 filed by the learned Assistant Advocate General on the ground that they were won over. The above statement reads as follows:-- "As per application of complainant duly endorsed by the learned counsel for the complainant I give up Mst. Rashida Bibi, Mst. Safiya Bibi, Muhammad Mansha and Muhammad Ismail as having been won over. Nemat Ali, Muhammad Rafique Yasin Constable No.125, Sikandar Hayat Constable No.593, and Ilyas Constable No.454 as unnecessary and tender in evidence the reports of Chemical Examiner as Exh. PBB and Exh. PCC and that of Serologist Exh. PDD and Exh. PEE. I close the case of prosecution." 8. It may be observed that above Mst. Rashida Bibi and Mst. Safiya Bibi were the wives of Sardar Muhammad's son, Rehmat Ali, Muhammad Mansha was also closely related to Sardar Muhammad, P.W.11. The prosecution also examined a number of other witnesses including the above two Investigating Officers, P.W.17 Muhammad Rashid and P.W.18 Dr. Muhammad Shafiq, A.S.P. Besides examining P.W.1 Dr. Muhammad Arif Mahmood. A number of documents including site plan, Mashirnamas, post-mortem reports, and medico-legal report of Sardar Muhammad, were also produced. After hearing the learned counsel for the parties, the learned Special Judge concluded that the eye-witnesses were interested and their testimony could not be accepted without independent corroboration. After examining the case of each of the accused, he found that there was no corroborative piece of evidence against the eight accused persons who are respondents in the acquittal appeal, but concluded that there were corroborative pieces of evidence against the remaining 12 accused persons, which included motive and the act of abscondence on the part of the above 16 accused persons for about 16 days. He, therefore, convicted the above 12 accused persons for the various offences and awarded various sentences as follows:- (i) Under section 148 P.P.C., two years' R.I. To each of the accused; (ii) Under section 302 read with section 149, P.P.C. For the murder of Muhammad Iqbal son of Sahib Din, each of the accused to undergo life imprisonment; (iii) Under section 302 read with section 149, P.P.C. For the murder of Muhammad Iqbal son of Wall Muhammad, each of the accused to undergo life imprisonment; (iv) Under section 449 read with section 149, P.P.C., each of the accused to undergo R.I. For ten years and a fine of Rs,20,000 each or in default in payment of fine, to undergo further R.I. For one year; (v) Under section 436, P.P.C. Read with section 149, P.P.C., each of the accused is to undergo R.I. For ten years and a fine of Rs,20,000 each or in default of payment of fine, to undergo further R.I. For one year; and (vi) Under clause (iii) of subsection (3) of section 337 read with clause (iii) of section 337-A, P.P.C. And section 149, P.P.C., each accused was held to be liable to Arsh, which was to be 10 per cent of Diyat and also to undergo for a term of five years' R.I. As Tazir. 9. The twelve convicted accused have filed the above appeal (Criminal Appeal No.10 of 1991) against their convictions and sentences, whereas the State has filed the above acquittal appeal (Criminal Appeal No.16 of 1991) against the eight acquitted accused as stated hereinabove. 10. The acquitted accused have filed written preliminary objection to the maintainability of the above acquittal appeal. Mr. Abdul Aziz Qureshi, learned counsel for the accused, in support of the above preliminary objection to the acquittal appeal as well as in support of the appeal against the convictions and sentences, has urged the following legal points:-
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(i) That the Federal Government, while issuing aforesaid notification dated 26-8-1991, had not applied its mind to the factum, whether the present case was a fit case for transfer; (ii) That even otherwise, the present case did not fall within the category of a case involving an offence of gruesome, brutal and sensational in character or shocking to public morality, which was a condition precedent to pressing into service of subsection (2) of section 5 of the Ordinance; (iii) That subsection (5) of section 13 of the Ordinance providing an appeal, is ultra vires the provision of Sub-Article (5) of Article 212-B of the Constitution of Islamic Republic of Pakistan, hereinafter referred to as the Constitution, incorporated by the Constitution (Twelfth Amendment) Act, 1991; (iv) That, in any case, the provision of subsection (5) of section 13 of the Ordinance could not have been made applicable retrospectively to the cases which were pending in the competent Courts, as the accused had acquired vested right in their remedies available prior to the enforcement of the Ordinance; (v) That the provision of subsection (5) of section 13 of the Ordinance providing thirty days for an acquittal appeal as compared to seven days for an appeal by an accused under subsection (4) of above section 13, is discriminatory and, therefore, for an acquittal appeal, seven days are to be treated as the period of limitation and as the present acquittal appeal was filed after the expiry of seven days, the same was time-barred; and (vi) That even otherwise, the above acquittal appeal has been incompetently filed by the Deputy Attorney-General in place of Attorney-General or Advocate-General or upon the direction of the Government as provided under subsection (5) of section 13 of the Ordinance. ' On the other hand, Miss Yasmin Saigol, learned counsel appearing for the State, has urged as under:--- (i) That the Federal Government has applied its mind to the facts of the present case before ordering of the transfer of the same to the Court of the Special Judge; . (ii) That in the present case, not only two persons were murdered and one injured having two grievous injuries, a part of the house was also burnt and, therefore, it was a fit case for transfer to the Court of Special Judge; (iii) That subsection (5) of section 13 of the Ordinance is not ultra vires the provision of Sub-Article (5) of Article 212-B of the Constitution. In any case, this Court cannot go into the question of vires while acting under the provisions of the Ordinance; (iv) That subsection (5) of section 13 of the Ordinance is very clear on the question that the pending cases could have also been transferred and there is no question of applying the provisions of the Ordinance retrospectively; (v) That the period of thirty days for filing of an acquittal appeal by the State is not discriminatory and this Court cannot read the above period as seven days in place of thirty days; and (vi) That the appeal has been competently filed by the Deputy Attorney-General. 11. The above first and second submissions of Mr. Abdul Aziz Qureshi, learned counsel for the accused persons, are interlinked and, therefore, can be conveniently dealt with together. In support of the above submissions, he has invited our attention to Sub-Article (1) of Article 212-B of the Constitution, Clause (c) of section 2, and subsections (1) and (2) of section 5 of the Ordinance,, besides placing reliance upon a reported judgment of the Supreme Court in the case of Muhammad Yaqub v. Government of Balochistan and another PLD 1989 SC 13 and an unreported judgment of the Supreme Appellate Court dated 21-10-1991 rendered in Criminal Appeals Nos.6 and 7 of 1991 (Ashiq Hussain and another v. The State). ' In order to appreciate the above submissions, it may be pertinent to reproduce hereinbelow the above provisions of the Constitution and of the Ordinance, which read as follows:--- "Article 212-B(1) of the Constitution:--
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Establishment of Special Courts for trial of heinous offences.--(1) In order to ensure speedy trial of cases of persons accused of such of the heinous offences specified by law as are referred to them by the Federal Governnient, or an authority or person authorised by it, in view of their being gruesome, brutal and sensational in character or shocking to public morality, the Federal Government may by law constitute as many Special Courts as it may consider necessary Clause (c) of section 2 of the Ordinance:- "'offence' means an offence specified in the schedule, or an offence punishable under any law for the time being in force, which in the opinion of the Government is gruesome, brutal and sensational in character or shocking to public morality or has led to public outrage or created panic or an atmosphere of fear or anxiety amongst the public or a section thereof or which because of increase in its incidence needs to be tried most speedily;" Subsections (1) and (2) of section 5 of the Ordinance:-- "5. Jurisdiction of Special Courts.- --(1) If the Government is of the opinion that a case relating to any offence which has been registered should be tried and decided speedily, it may order that such case shall be tried by a Special Court. (2) If the Government is of the opinion that a case pending before any Court should in the public interest be tried and decided speedily, it may, by order in writing, transfer the same for trial to a Special Court." ' A perusal of the above Sub-Article (1) of Article 212-B of the Constitution indicates that in order to ensure speedy trial of cases of persons accused of such of the heinous offences specified by law as are referred to Special Court by the Federal Government, or an authority or person authorised by it in view of their being gruesome, brutal or sensational in character or shocking to public morality, the Federal Government may by law constitute as many Special Courts as it may consider necessary. ' It may further be noticed that clause (c) of section 2 of the Ordinance defines "offence as means (i) an offence specified in the Schedule, or (ii) an offence punishable under any law for the time being in force, which in the opinion of the Government, is gruesome, brutal and sensational in character or shocking to public morality, or (iii) has led to public outrage or created panic or an atmosphere of fear or anxiety amongst the public or a section thereof, or (iv) which because of increase in its incidence, needs to be tried most speedily. ' It may also be pointed out that under subsection (1) of section 5 of the Ordinance, if the Government forms the opinion that a case relating to any offence which has been registered should be tried and decided speedily, it may order that such a case shall be tried by a Special Court, whereas under abovequoted subsection (2) of section 5, the Government has been empowered if it is of the opinion that a case pending before any Court should in public interest be tried and decided speedily, it may by order in writing, transfer the same for trial to a Special Court. It may be highlighted that subsection (1) of section 5 of- the Ordinance refers to the stage when a case in respect of an offence has been registered, and its challan has not been submitted to a competent Court whereas subsection (2) thereof deals with the pending cases before any Court. 12. In support of his first submission, Mi. Abdul Aziz Qureshi has pointed out that though a private complaint was also pending before the Additional Sessions Judge, Chunian, but the Federal Government has not taken notice of it and, therefore, it is apparent that it had not applied its mind fully to the facts of the case. The above submission seems to be based on surmises and conjectures. The factum that the Federal Government has not transferred the private complaint alongwith the challan case, would not manifest that it had not applied its mind to the question, whether it would be in public interest or not that the case be tried and decided by a Special Court. As regards the fact of non-transfer of the private complaint, the learned Special Judge has rightly
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pointed out .The provision of section 403, Cr.P.C., which prohibits trial of a person for an offence for which he has been previously acquitted or convicted by a competent Court. ' It was also urged by Mr. Qureshi that factually there was no material before the Federal Government which could furnish foundation for pressing into service of subsection (2) of section 5 of the Ordinance. In this regard, we may observe that subsection (2) of section 5 of the Ordinance does not envisage a trial within a trial for the purpose of determining the question, whether transfer of a case to a Special Court would be in the public interest. The Federal Government is to examine whatever material is placed before it subjectively for forming an opinion on the above question. In the present case, nothing has been brought on record to indicate that the formation of the opinion by the Federal Government was without any material before it. We may further observe that this Court cannot go into the question, whether the material placed before the Federal Government was sufficient or insufficient for the formation of the above opinion. Once a notification is issued by the Federal Government, it is to be presumed that the opinion was formed by the Federal Government on the basis of some material before it, unless otherwise proved by the person making a contrary averment. 13. This leads us to the second question, whether the case in question was covered by the provisions of the Ordinance. In support of the above submission, Mr. Qureshi has referred to the reported judgment of the Supreme Court in the case of Muhammad Yaqub v. Government of Balochistan and another (supra) and the unreported judgment of the Supreme Appellate Court in the case of Ashiq Hussain and another v. The State (supra). In the first case, the facts were that the petitioner was tried by the Additional Sessions Judge, Quetta, for certain offences. The trial had commenced on 24-12-1987 and two witnesses were examined by the prosecution. Upon the miscellaneous application of the mother of the deceased, the learned Chief Justice of the High Court of Balochistan directed the trial Court to hear the case from day to day, pursuant whereof the case proceeded from day to day before the Additional Sessions…
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