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Petitioner: ZIA ULLAH KHAN and others VS Respondent: GOVERNMENT OF PUNJAB and others
Court Name: Lahore High Court Judge(s): Zia Mahmood Mirza, Munir A. Sheikh Title: ZIA ULLAH KHAN and others vs GOVERNMENT OF PUNJAB and others Case No.: Writ Petition No,5094 of 1987 Date of Judgment:1989-09-30 Reported As: PLD 1989 Lahore 554 Result: Order accordingly
JUDGMENT
JUDGMENT ' ZIA MAHMOOD MIRZA, J.- This judgment deals with some common questions of law arising in sixty eight connected matters (sixty--six Constitutional petitions and two criminal revisions) viz: - ' 1. W.P. No,4606 of 1987; 2. W.P. No 4709 of 1987; 3. W.P. No 4915 of 1987; 4. W.P. No,4979 of 1987; 5. W.P. No, 5029 of 1987; 6, W.P. No, 5094 of 1987; 7. W.P. No, 5132 of 1987; 8. W.P. No, 5151 of 1987; 9. W.P. No, 5175 of 1987; 10. W.P. No,5178 of 1987; 11. W.F. No, 5220 of 1987; 12. W.P. No,5656 of 1987; 13. W.P. No,5825 of 1987; 14. W.P. No,6049 of 1987; 15. W.P. No,388 of 1988; 16. W.P. No,686 of 1988; 17. W.P. No,765 of 1988; 18. W.P. No,980 of 1988; 19. W.P. No,1005 of 1988; 20. W.P. No,1166 of 1988; 21. W.P. No, 1508 of 1988; 22. W.P. No,1887 of 1988; 23. W.P. No,2151 of 1988; 24. W.P. No,2454 of 1988; 25. W.P. No,2886 of 1988; 26. W.P. No,3960 of 1988; 27. W.P. No,4237 of 1988; 28. W.P. No,4497 of 1988; 29. W.P. No,4565 of 1988; 30. W.P. No,4723 of 1988; 31. W.P. No,4760 of 1988; 32. W.P. No,5491 of 1988; 33. W.P. No,5534 of 1988; 34. W.P. No,5770 of 1988; 35. W.P. No,5872 of 1988; 36. W.P. No,5883 of 1988; 37. W.P. No,5888 of 1988; 38. W.P. No,6277 of 1988; 39. W.P. No,6361 of 1988; 40. W.P. No,6673 of 1988; 41. W.P. No,17 of 1989; 42. W.P. No,80 of 1989; 43. W.P. No,140 of 1989; 44. W.P. No,197 of 1989; 45. W.P. No,247 of 1989; 46. W.P. No,325 of 1989; 47. W.P. No,332 of 1989; 48. W.P. No,375 of 1989; 49. W.P. No,531 of 1989; 50. W.P. No,572 of 1989; 51. W.P. No,659 of 1989; 52. W.P. No,849 of 1989; 53, W.P. No!890 of 1989; 54. W.P. No,893 of 1989; 55. W.P. No,965 of 1989; 56. W.P. No,1174 of 1989; 57. W.P. No,1181 of 1989; 58. W.P. No,1217 of 1989; 59. W.P. No,1220 of 1989; 60. W.P. No,1239 of 1989; 61. W.P. No 1308 of 1989; 62. W.P. No,1649 of 1989; 63. W.P. No,1700 of 1989; 64. W.P. No,1741 of 1989; 65. W.P. No,1903 of 1989; 66. W.P. No,1924 of 1989; 67. Criminal Revision No,245 of 1988 and 68. Criminal Revision No,246 of 1988. 2. The aforenoted petitions (except W.P. No,5825 of 1987) have been filed against the orders of the Government of Punjab passed under section 5 of the Special Courts for Speedy Trials Ordinance II
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of 1987 and Special Courts for Speedy Trials Act XV of 1987 directing the criminal cases against the petitioners to be tried by the Special Courts for Speedy Trials. In some cases, judgments of the Special Courts convicting and sentencing the petitioners therein to various punishments including the death penalty have also been brought under challenge. Writ Petition No,5825 of 1987, however, seeks a direction to be issued to the Government of Punjab to transfer the complaint case pending in the Court of Additional Sessions Judge, Mianwali to the Special Court for Speedy Trials. 3. Principal question arising in these cases relates to the constitutionality of the aforementioned Ordinance II of 1987 and Act XV of 1987 as also of the Amending Ordinance XIX of 1988 (whereby Act XV of 1987 has been amended) and the validity of the impugned orders/Notifications issued thereunder entrusting the cases against the petitioners to the Special Courts for trial. The main objection raised on behalf of the petitioners qua the Special Courts for Speedy Trials Ordinance II of 1987 and Act XV of 1987 was that they were discriminatory in character and that section 5 thereof conferred arbitrary and naked powers on the Government to refer the cases to the Special Courts for trial. It was, therefore, contended that the impugned legislation being repugnant to the Fundamental Right of equality before law and equal protection of law, was violative of Article 25 of the Constitution of Islamic Republic of Pakistan, 1973 and hence void by reason of the provisions of Art. 8 of the Constitution. 4. Before proceeding further in the matter, it appears necessary to refer to the impugned legislation so as to highlight its main provisions. Special Courts for Speedy Trials Ordinance II of 1987 purporting "to provide for the establishment of Special Courts for speedy trial of certain offences" was made by the President of Pakistan on 23rd July, 1987 and it was promulgated on 26th July, 1987. The object of the Ordinance as stated in the preamble was "it is expedient in the public interest to provide for the establishment of Special Courts for speedy trial of certain offences." "Offence" was defined in clause (c) of section 2 of the Ordinance as "an offence punishable under any law for the time being in force which, in the opinion of the Government is 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". Section 3 gave overriding effect to the Ordinance by providing that its provisions "shall have effect notwithstanding anything contained in the Code or in any other law for the time being in force". Code meant the Code of Criminal Procedure vide section 2(a). The Government which was defined to mean the Provincial Government was empowered under section 4 of the Ordinance to establish for the whole or any part of the Province one or more Special Courts and to appoint a person with prescribed qualification viz. "who is, or has been, or is qualified for appointment as, a Judge of a High Court", as a Judge of the Special Court. Section 5 of the Ordinance which, inter alia, conferred power on the Government to refer the cases to Special Courts for trials and was, therefore, the most crucial provision in the context of arguments advanced by the learned counsel for the petitioners is reproduced hereunder in extenso: - "5. Jurisdiction of Special Court.--(1) If the Government is of the opinion that a case relating to an offence which has been registered should in the, public interest be tried and decided speedily, the Government may order that the case shall be tried by a Special Court. (2) If the Government is of the opinion that a case relating to an offence which is pending before any Court should in the public interest be tried and decided speedily, the Government may, by order in writing, transfer the case for trial to a Special Court. (3) As soon as an order is made under subsection (1) or subsection (2) in respect of any case, no Court other than the Special Court referred to in such order shall have any jurisdiction or entertain any proceedings in respect thereof. (4) The Special Court may convict and sentence an accused for any offence of which he may be found guilty. (5) The Special Court shall have, in respect of a case triable by it, all the powers which a High Court has in relation to a trial before it under the Code, including the powers relating to the grant or cancellation of bail or
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recall or amendment of any orders, and shall subject to this Ordinance, as nearly as may be, follow the procedure provided in the Code for such trial." ' Section 6 provided for the transfer of the cases and it empowered the Government to transfer a case from one Special Court to another. Section 7 of the Ordinance provided for the expeditious completion of the investigation and submission of the challan in the Special Court. The provision made it obligatory for the Officer-inCharge of a police station to complete the investigation and forward the report under section 173, Cr.P. C. To the Special Court within fourteen days which period could only be extended by the Special Court for good reasons shown. Any default by the police officer concerned "or any other person required by law to perform any functions in connection with the investigation", resulting in delaying the investigation or the submission of the report under section 173, Cr.P.C., was deemed to be a wilful disobedience of the Court's orders liable to be dealt with under the law. 5. Section 8 of the Ordinance is another important provision as it laid down the procedure of Special Courts which, it was contended, operated to the prejudice of the accused subjected to trial by the Special Courts and denied him the benefits available to an accused tried under the Code of Criminal Procedure. The relevant provision reads as follows: - "8. Procedure of Special Court.--(1) On taking cognizance of a case, the Special Court shall proceed with the trial from day to day and shall decide the case speedily. (2) A Special Court shall not adjourn any trial for any purpose unless such adjournment is, in its opinion, necessary in the interests of justice and no adjournment shall be granted for more than a day. (3) A Special Court shall not, merely by reason of a change in its composition or transfer of a case under subsection (2) of section 5 or section 6, be bound to recall and rehear any witness who has given evidence, and it may act on the evidence already recorded. (4) An accused person may be tried in his absence, if the Special Court, after such inquiry as it deems fit, is satisfied that:-- (a) such absence is deliberate and brought about with a view to impeding the course of justice; or (b) the behaviour of the accused in Court has been such as to impede the course of justice and the Special Court has on that account ordered his removal from the Court: ' Provided that, in a case referred to in clause (a) the accused person shall not be tried unless a proclamation in accordance with the provisions of section 87 of the Code has been published in respect of him, which proceedings shall be completed by the Special Court within seven days, and until the proclamation has been published in at least three national daily newspapers out of which two shall be in the Urdu language: ' Provided further that the Special Court shall proceed with the trial after taking necessary steps to appoint an advocate to defend the accused person who is not before the Court. (5) The Advocate appointed under the second proviso to subsection (4) shall be a person selected by the Special Court for the purpose and he shall be engaged at the expense of Government and a notice of his appointment shall be published by the Special Court in the newspapers referred to in the first proviso to the said subsection. (6) An accused who is tried in his absence under subsection (4) shall be deemed not to have admitted commission of any offence for which he has been charged." ' Next provision embodied in section 9 of the Ordinance related to the manner and place of execution of sentence. This provision left to the Government to specify the manner and place of execution of any sentence passed under the Ordinance, "having regard to the deterrent effect which such execution is likely to have". Provision for bail was contained in section 10 of the Ordinance which lid down that "An accused shall not be released on bail if there appear reasonable grounds for believing that he has been guilty of the offence for which he has been charged; nor shall an accused person be so released unless the prosecution has been given notice to show cause why he should not be released."
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' Special Court was also empowered under section 11 of the Ordinance to punish any person for its contempt with rigorous imprisonment for a term which may extend to one year and with fine. Section 12 of the Ordinance provided for an appeal to the Supreme Court against the final judgment passed by the Special Court. Limitation period fixed for filing such an appeal was seven days from the date of the final judgment. Appeal against the order of acquittal or for enhancement of the sentence awarded by the Special Court was also provided for in subsection (2) of section 12 but no period of limitation was prescribed therefor. 6. The Ordinance, it appears, was repealed and replaced by an Act of the Legislature called the Special Courts for Speedy Trials Act XV of 1987. The Act received the assent of the President on 8-11- 1987 and was published in the Gazette of Pakistan Extraordinary on 16th November, 1987. The Act, it was said in section 1(2), shall remain in force for a period of one year from the date it was assented to by the President but it was provided that "parliament may, by a resolution of each House, extend the said period for a similar term or terms". The Act re-enacted the provisions of the Ordinance with some modifications/additions which shall be presently noticed. ' The preamble of the Act which incorporates its object is similarly worded as was the preamble of the Ordinance. Similarly, section 3 (Act to override other laws), section 5 (Jurisdiction of Special Court) section 7 (relating to the requirement of completing the investigation and submitting the report under section 173, Cr.P.C. To the Special Courts within fourteen days). Section 9 (manner and place of execution of sentence), section 10 (bail provision) and section 11 (relating to the contempt of Court) are almost verbatim reproduction of the corresponding provisions of the Ordinance noted hereinabove and, therefore, they need not be repeated. Some modifications are, however, made in the definition of 'offence' contained in section 2(c) and in the provisions relating to the constitution of Special Court (section 4), transfer of cases (section 6), Procedure of Special Court (section 8) and the appeal provision (section 12) which shall be referred to hereinbelow. A Schedule has also been added to the Act which specifies with reference to section 2(c) the following offences punishable under Pakistan Penal Code:- ' 302, 303, 396 and 397 and any other offence committed in the course of the same transaction in which any of the said offences is completed, or in addition to, or in combination with, such offence. ' The change brought about by the Act in the definition of the 'offence' is that unlike the Ordinance where it meant an offence punishable under any law for the time being in force, its scope is now restricted to the offences specified in the Schedule and it has also added two more attributes/characteristics of the 'offence' namely 'gruesome' and 'brutal'. The definition of 'offence' as contained in section 2(c) of the Act reads as follows:- 2(c) "Offence" means an offence specified in the Schedule 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; ' Section 4(2) of the Act which deals with appointment and qualification of a Judge of the Special Court is as under:- "A Special Court shall consist of a person, to be appointed by the Governor in consultation with the Chief Justice of the High Court, who is, or has been, a Judge of a High Court, J or is a Sessions Judge who is qualified for appointment as a Judge of a High Court." ' It may be noted that under the Ordinance, apart from a sitting or an ex-Judge of the High Court, any person qualified for appointment as a Judge of the High Court could be appointed by the Government as a Judge of the Special Court whereas under the Act, appointment of a Special Judge is to be made only from amongst the sitting or ex-Judges of the High Court or the Sessions Judges who are qualified for appointment as a Judge of the High Court and further the appointment is to be made by the Governor in consultation with the Chief Justice of the High Court;
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' As regards the transfer of the cases, the Ordinance gave the power to the Government to transfer a case from one Special Court to another but the Act has conferred this power on the High Court under section 6. Section 8 of the Act which relates to the procedure of the Special Court has reproduced the corresponding section of the Ordinance quoted hereinabove with one minor change made in subsection (2) which now permits adjournment of a case for two days instead of one day as provided in the Ordinance and it has added to it subsection (7) which enables the accused tried and convicted in absentia to prove to the Special Court within the specified period that he did not abscond or conceal himself for the purpose of avoiding the proceedings against him whereupon his conviction shall be set aside. Subsection (7) is reproduced hereunder:- "If within sixty days from the date of his conviction, any person tried under subsection (4) appears voluntarily or is apprehended and brought before the Special Court and proves to its satisfaction that he did not abscond or conceal himself for the purpose of avoiding the proceedings against him, the Special Court shall set aside his conviction and proceed to try him for the offence for which he is charged; ' Provided that the Special Court may exercise its powers under this subsection in a case in which a person as aforesaid appears before it after the expiration of the said period and satisfies it that he was prevented from appearing within the said period by circumstances beyond his control." ' Section 12 of the Act like the corresponding provision of the Ordinance has provided appeal against the final judgment of the Special Court as also against the order of acquittal passed by the said Court and for enhancement of sentence but it has changed the forum of appeal from the Supreme Court to the High Court. It has also prescribed the limitation period of seven days for filing appeal against acquittal and for enhancement of sentence which was missing under the Ordinance. 6. To complete the survey of the impugned legislation, reference may pertinently be made to the amendments made in Act XV of 1987 by the Amending Ordinance XIX of 1988 [Special Courts for Speedy Trials (Amendment)] Ordinance promulgated on 13th October, 1988. The most important amendment was made in section 1, subsection (2) substituting the words 'two years' for 'one year'. The provision thus amended reads as follows:- "It extends to the whole of Pakistan and shall remain in force for a period of two years from the date on which it is assented to by the President." ' Section 4(2) of the Act was also amended so as to make eligible for appointment as a Judge of the Special Court even a retired Sessions Judge who at the time of his retirement was qualified for appointment as a Judge of the High Court. ' Subsection (1-A) was added in section 12 saying that an appeal presented to the High Court shall be decided within three months. ' Schedule to the Act was also amended and the existing entries therein were replaced by the following:- "(1) Offences punishable under sections 302, 303, 354, 354-A, 364, 364-A, 365, 365-A, 367, 368, 369, 396 and 397 of the Pakistan Penal Code (Act XLV of 1860) and attempts, abetments and conspiracies in relation thereto or connected therewith. (2) An offence punishable under clause (a) of subsection (1) of section 27 of the Drugs Act, 1976 (XXXI of 1976), insofar as it relates to a spurious drug. (3) Any other offence committed in the course of the same transaction in which any of the said offences is committed, or in addition to, or in combination with, such offence." 7. Having surveyed the provisions of the impugned legislation in some detail, we now advert to the arguments addressed at the Bar. Mian Dilawar Mahmood, Advocate (counsel in W.P. No,5094/87) who led the arguments on behalf of the petitioners assailed the constitutional validity of the
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Special Courts for Special Trials Ordinance II of 1987 and Act XV of 1987 mainly on the following grounds:-- (i) That the impugned Ordinance and the Act are discriminatory in character in that some of the provisions of these enactments place the accused whose cases are referred for trial to the Special Courts for Speedy Trials in a position of disadvantage as compared with the other accused persons who are tried by ordinary Courts in accordance with the normal procedure laid down in the Criminal Procedure Code. The impugned legislation, therefore, offends against the guarantee of equal protection of law enshrined in Article 25 of the Constitution. (ii) That section 5 of the impugned Ordinance/Act has conferred arbitrary and naked power on the Government to refer the cases to the Special Courts inasmuch as no criteria has been laid down to guide/regulate the exercise of this power. This amounts to excessive delegation of power. (iii) That the provision of section 8 which empowers the Special Court to proceed with the trial in the absence of the accused and to appoint an Advocate of its own selection to defend the absent accused is repugnant to the Fundamental Right embodied in Article 10 of the Constitution which guarantees to an accused person the right to consult and be defended by a counsel of his choice. 8. To establish the charge of discrimination and to show that the special procedure laid down in the impugned legislation is less favourable and, therefore, prejudicial to the accused tried by the Special Courts, Mian Dilawar Mahmood referred to the following provisions of the legislation in question and compared them with the relevant provisions of the Criminal Procedure Code:- (a) Section 8(2) has restricted the Special Court's power to grant adjournment by providing that it shall not adjourn the trial for any purpose unless necessary in the interest of justice and no adjournment shall be granted for more than a day/two days. This is very stringent provision as compared with section 344, Cr.P.C. Which leaves the matter of adjournment/ postponement of cases in the Court's discretion. The provision in question in its application, it was contended, can adversely affect the preparation of the defence. (b) Under section 8(3), a Special Court by reason of any change in its composition or transfer of a case to it, is not bound to recall and rehear any witness who has already given evidence and it can act on the evidence already recorded. This provision was compared with sections 191 and 350, Cr.P.C. And it was submitted that section 350 when properly construed was comparatively more beneficial to the accused. (c) Section 8(4) permits the holding of a trial in the absence of the accused for the reasons stated therein whereas under the general law of the land, an accused cannot be tried and convicted in absentia. Reference was particularly made to section 205, Cr.P. C. (Provision for dispensing with personal attendance of the accused and permitting him to appear by his pleader), section 340 (Right of an accused to be defended by a pleader and his competency to be a witness), section 353 (evidence to be taken in the presence of the accused or his pleader when his personal attendance has been dispensed with), section 540-A (Provision for inquiries and trial being held in the absence of the accused who is represented by a pleader and whose attendance has been dispensed with) and finally section 512 which provision permits the Court to examine prosecution witnesses and record their deposition in the absence of the accused who has absconded, with a view to preserve the prosecution evidence so as to use it in certain eventualities against the accused when he is put on trial after arrest. (d) Section 10 restricts the right to bail. It prohibits the grant of bail to an accused even in cases where offence is punishable with less than ten years whereas the prohibitory clause of section 497, Cr.P.C. Is confined to the offences punishable with death or imprisonment for life or imprisonment for ten years. Section 10 has also omitted beneficial provisions of section 497, Cr.P.C. (e) Section 11 gives the power to the Special Court to punish for its contempt with rigorous imprisonment for a term extending to one year and with fine whereas section 4 of the Contempt of
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Court Act, 1976 makes contempt of Court punishable with simple imprisonment which may extend to six months or with fine which may extend to Rs, five thousand or both. (f) Limitation for filing an appeal in the High Court is curtailed to seven days. (g) It was pointed out that the petitioners in W.P. No,5094/1987 were accused of offences under the Arms Ordinance which are ordinarily triable by a Magistrate. If the case had been tried by a Magistrate and the petitioners were sentenced to 4 years or less, their appeal would lie before the Sessions Judge. It was contended that section 12 of the impugned Act/Ordinance by providing an appeal directly to the High Court has deprived the petitioners of one right of appeal available under the ordinary law. (h) Sentence of death passed by a Sessions Court under ordinary law cannot be executed unless it is confirmed by the High Court under section 374, Cr.P.C. Even though no appeal is preferred by the convict. Accused tried under the impugned legislation is deprived of this valuable right.…
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