PLJ 1998 Cr. C. (Queita) 531 (DB)
f'resent : IFTIKHAR MUHAMMAD CHAIIDHARY AND RAJA FAYYAZ AHMED, J J.
•
STATE-Petitioner
versus
ABDUL QADIR-Respondent Oil Appeals No. 15 and 245 of 1997 decided on 30-10-1997.
Suppression of Terrorist Activities (Special Courts) Act, 1975 (Act XV of 1975)--
—-Ss. 2, 3, 5, 6 and 7-Criminal Procedure ('ode, 1898 Ss. 9, 31, 173, 249-A, 265-K and 374—Murder—Offence of—Conviction for—Appeal against--Whether special court functioning under Act-XV of 1975, can competently send reference to High Court, for confirmation an or nlherwise of death sentence, in terms of Section 374 ('r.P.C.-Question <if-Preamble of Act, 1975, manifestly lays emphasis for enacting special provisions to be expedient, for purpose of suppressing acts of sabotage, subversion and terrorism and to provide 'for speedy trial of offences specified in schedule to the Act—Special Court proceeds with trial of case day to day without, adjourning proceedings—Act, 1975 authorises P.O. of Special court to hold trail of accused in absentia as well—No such procedure has been introduced in Cr.P.C. for disposal of criminal cases-Provisions' relating to confirmation of death sentence have been intentionally omitted in the Act, 1975, because if special court is presided over by a -Judge of High Court, he would not make reference for confirmation of death sentence to its own High Court—Moreover special enactment cannot be equated to a General law and special court is not subordinate t.u High Court, just like sessions Court, hence, is not bound to make reference and no order passed by it is revisable under section 439 Or.!'.G.--Held, no reference for purpose of confirmation of deatli sentence shall be competent before High Gourt--However, provisions oi S,s. 249-A 26f>-K 381 and 382-B Gr.P.G. shall remain available to accused Moreover, if convict, submits an appeal against sentence to High Court, that would be disposed of in accordance with law-Appeal filed by convict accepted because permission accorded to parties to compound offence.
[Pp. 533, 535, 536, 537, 538, 539 & 540) A to L
PLI) 1957
SG,
Mr. Muhammad Aslam Chishti, Advocate for Appellant. Mr, Noor Muhammad Arhakzai, Acldl. A.CJ. for State. Dates of hearing : 6-10-1997 and 21-10-1997.
judgment
Iftikhar Muhammad Chaudhaiy, J.--By this judgment we intend to dispose of Murder Reference No. 15/1997 received front Special .Judge Suppression of Terrorist Activities Kalat at Mastuug, whereby Abdul Qadir son of Muhammad Ibrahim has been convicted and sentenced under Section 302 PPG to death as well as Criminal Appeal No. 245/1997, filed by convict challenging his conviction/sentence awarded to him by the Special Court, vide judgment dated 13th September, 1997.
Facts of the prosecution case are that on Kith October, 1994 at the time of 'maghrib' prayer deceases! Gu! Muhammad and acquitted accused Khuda Rakhsh quarrelled with each other. Subsequently convict Abdul Qadir, opened lire upon hirn with kalashinkove at Jewa which resulted in his death. Accordingly PW-Abdul Relunan reported the matter to Naih Trliftildur Sorab who registered a ease vide FIR Ex. P/5-A on 3rd October, 1994 at 10.50 a.m. Investigation of the case was commenced by PW-Syed Jumal Shah, as such he alongwith Doctor proceeded to place of incident, from where he took into possession lour empties of kalashinkove, in presence of witnesses vide Recovery Memo Ex. P/3-A. It may be noted that at the time when Naib Tclisildar alougwith the Doctor readied at the spot, dead body of deceased (Jul Muhammad had already been hurried. Therefore, it was not examined. Reportedly convict Abdui Qadir could not be arrested as he absconded towards Larkana from where, he was arrested through SI K), I'.S. Nasirabad, District Larkana and was brought, to Sorab on 7th February, 1995. On completion of investigations, appellant alongwith co-accused Khuda Hakhsli was sent up to answer the charge before the Special Court, STA, constituted under the Suppression of Terrorist. Activities (Special Courts) Act. 1975 (hereinafter referred to as The Act of 1975').
Convict did not plead guilty and claimed trial. It may be noted that co-accused Khuda Bakhsh, brother of convict, could not be arrested. ihcietiire. trial court decided to proceed against, him in absentia under -cLiion .ri-A(4) of the Act of 1975.
Prosecution to prove the charge, led evidence of PWs Slier Muhammad, Muhammad, Alain, Muhammad Anwar, M.sV. Zainah, Abdul Relnnun and Syed Jamal Shah. The statement of convict under section 342 Cr. P.C. as well as on oath under section 340(2) Cr.P.C. were recorded, in which, he denied the prosecution case. Two witnesses namely Din Muhammad and Kamisa alias Piara were produced by him in defence as DVVs 1 and 2.
Learned Special Court, on completion of trial, found the convict, guilty under section 302 PPC and awarded him death penalty, subject to confirmation by this Court, vide impugned Judgment dated 13th September, 1997. The appellant had also challenged the conviction by filing separate
appeal.
Mr. Aslam Chishti, learned Counsel, appeared on behalf of convict-appellant, whereas Mr. Noor Muhammad Achakzai, learned Additional Advocate General, represented the State.
It is to be noted that learned Special Court, constituted under the Act, of 1975, functioning at different Session divisions, had sent. Reference for confirmation or otherwise, of the death sentences, awarded to the convicts. In most of those matters, major penalty was awarded to the culprits in absentia. During hearing of those cases, question cropped up for consideration; whether the Special Court functioning under the Act,-XV of 1975, can competently send Reference to the High Court for confirmation or otherwise of death sentence, in terms of section 374 Cr.P.C/. 7 when we admitted the instant Reference, it was deemed proper to dilate upon this aspect of the case thoroughly, because Mr. Aslam Chishti, learned Senior Counsel appearing on behalf of the accused was of the view that, it is mandatory for Special Court, where it awards death sentence to accused, to foi-ward reference to the high court for confirmation of such sentence as remiired under section 374 Cr.P.C.
Mr. Aslam Chishti, learned counsel to elaborate his point convussed that the provisions of Code of Criminal Procedure are applicable to the trial of offence by Special Court mutatis mutandis save to the extent of inconsistency and to substantiate his contention, the learned counsel made reference to Section 6 and 9 of Code of Criminal Procedure Code, Section f? thereof defines various classes of criminal courts, including the court of Session, whereas; Section 9 deals in respect of establishment, of Court, of Session for eveiy Session Division by Provincial Government and to appoint a Judge for such court; with powers to try offences and to award sentences to accused for the offence to which he/they are found guilty and cognizable by such Sessions Court. Accordingly the learned counsel submitted that under section (i of Act XV of 1975 a Special Court may pass any sentence against accused and authorised by law and the Special Court shall have all the powers as are conferred and exercisable by a court of Session exercising original Jurisdiction and as such according to Mr. M.A. Chishti for awarding sentence by Special Court in exercise of its powers under section 6 of Act XV of 1975 would be the same as a Sessions Judge could exercise while passing a sentence. Thus attending to the crucial issue, he in order to further supplement his contention, made reference to the provisions of sub-section (2) of Section 31 of the Code of Criminal Procedure whereby a Sessions Judge or Additional Sessions is competent to pass any sentence authorised by law provided that any sentence of death passed by any such Judge, shall he subject to confirmation by the High Court and therefore, the learned counsel emphasised that notwithstanding to the provisions of Sec. 5-A of the Act-XV of 1975 about the competence of Special Court to regulate its own procedure, any sentence of death passed by Special Court shall be equally subject to confirmation by the High Court, as if passed by a Sessions Judge or Additional Session's Judge, as provided U/S. 374 of the Code of Criminal Procedure. For sake of convenience the Code of Criminal Procedure and Suppression of Terrorist Activities (Special Courts) Act, 1975 (Act XV of 1975) hereinafter would be referred as Code and Act, respectively. Lastly, the learned counsel contended that if it is held by the court that death sentence passed by Special Court is not required to be confirmed by the High Court, it. would amount to exclude impliedly the procedural and other remedial provisions of the Code; including the one by which the accused gets benefit of Section 382-B of the Code stands extended.
The learned amicus curiar Raja M. Afsar strively submitted that, penalty of death passed by a Special Court under the Act does not require confirmation by the High Court under Section 374 of Cr.P.C. because Act-XV of 1975 was primarily enacted by the Legislature to curb the acts of sabotage, subversion and terrorism and to provide speedy trial of offences committed in furtherance of or in connection with such acts. According to the learned aniicus curiac., such objective and intent, of the Legislature is manifest and reflects from the preamble and from the peculiar provisions of the Act itself which being a special law in its context, nature of its letter and spirt, entails its own peculiar distinctive procedure for trial of scheduled offences and awarding of sentences. To elaborate and advance his argument, he made reference to Section 5 of the ('ode (Cr.P.C..) which deals with two categories of offences. Its sub-section (1) deals with trial of offences under Pakistan Penal Code, which provides that all offences under Pakistan Penal (/ode shall be investigated, inquired into, tried and otherwise to be dealt with according to the provisions hereinafter contained. Whereas; its sub-section (2) deals with the trial of offences against other laws, according to which, all offences under any other law shall be investigated, inquired into, tried and otherwise to be dealt with according to the provisions of the Code but. subject to any enactment for the time being in force regulating the manner or place of investigation, inquiring into, trying or otherwise dealing with such offences. He further contended that the offences described in the schedule to the Act, inclusive of Section 302 PPC if committed with, prohibited automatic Hi >emi-automatic weapon, such as Klashinkov, G-3 Rifle shall be deemed to ho sdioduled offence and exclusively triable under Act XV of 197.r), and therefore. Special Court constituted under Section 3 U)(b) of Act XV of 197.r> will exercise powers under Section 6 of the Act and as far as the exercise of power of Session Judge are concerned do not withstand to the fact, whether the Special Court is presided over by the sitting Judge of the High Court, retired Judge of High Court or an Advocate who can be appointed as Judge of f ligh Court or headed by the Sessions Judge or Additional Sessions Judge. According to the learned counsel, the powers of Sessions Judge under the Code of Criminal Procedure have been defined by Section 31(2) which provides that a Session Judge or Addl: Session Judge may pass any sentence authorised by law; but sentence of death passed by any such Judge shall be subject to confirmation by High Court and the later part of this sub-section, according to the learned counsel would not be applicable to special court otherwise the Legislature had no prohibition to provide that the sentence of death passed by a Special Court shall be subject to confirmation by High Court. To further emphasize the proposition yet from an other angle; according to learned amicus curiac., the reference for confirmation of death .sentence under section 374 Cr.P.C. is required to be submitted before High Court but if the Presiding Officer of Special Court happens to be Judge of High Court; the question would be to whom such reference to be submitted, so l.o avoid such anomalous situation, the confirmation of death sentence passed by Special Court has not been made subject to confirmation by High Court.
Mr. Noor Muhammad Achakzai, learned Addl: A.(J. contended that no confirmation, of death sentence passed by Special Court, is required to be done by High Court because it would frustrate instead to advance the object, of the Act XV of 1975 for speedy disposal of the cases in respect of the scheduled offences. According to him if the procedure in respect of confirmation of death sentence provided in Section 374 Cr.P.C. to he followed, would render the object of Special Law as redundant and superfluous. He placed reliance on PLD 1957 SC (India) 381, AIR 1962 SC 1239 and AIR 1965 SC 202.
We have heard the learned counsel for the parties and the learned (iniicufi curiac at length and perused the relevant provisions of the Act. (Act XV, 1975) objectively with reference to its context and considered to explore the aim and object of enacting the law, as well as the scope in respect of offences which can be tried by Special Court to meet with the expediency for which Act XV of 1975 has been enacted. Preamble of the Act manifestly lays emphasis for enacting the Special Provisions to be expedient for the purposes of suppressing acts of sabotage, subversion and terrorism and to provide for speedy trial of offences committed in furtherance of or in connection with .such acts. Sub-S. 2(b) of the Acts defines schedule offences i.e. offences specified in the schedule to the Act, which contain and enumerate a number of offences of PPC, Arms Act, Pakistan Arms Ordinance 1965 Explosive Substances Act, Railways Act, Telegraph Act etc. On perusal of the schedule it can he conveniently inferred that Special Court were not. established only to t,ry the offences of PPG hut also the other offences falling under different laws referred to in the schedule to the Act. It is substantially important to note that sub-section (1) of Section 3 of the Act, 1975 empowers Federal Government to establish/constitute special courts by notification, consisting of a person who has been or is qualified for appointment as Judge of High Court or is lor a period of not less than three years exercised, whether continuously or not, the powers under the Code (Cr.P.C) of a Sessions .Judge or an Additional Sessions Judge. The plain and analytical approach to this provision of the Act, makes it abundantly clear that besides Sessions Judge or Additional Sessions Judge, a person who has been or is qualified for appointment as Judge of High Court, can be appointed as Presiding Officer of Special Court. Similarly any judicial officer having experience of not less than three years, either as a Sessions Judge or Additional Sessions Judge can be appointed as Presiding Officer of the Special Court,. Section 5 of the Act XV of 1975 provides the procedure of taking cognizance of offence which varies to the procedure provided in section 190 Cr.P.C. for taking cognizance of offence. Under the Special procedure of the Act in terms of Section 5, the Officer incharge of Police Station after completion of investigation of the case has directly to forward challan to Special Court, in respect, of any schedule offence, under section 173 Cr.P.C. within 14 days in as much as; a Special Court, can directly take cognizance of a scheduled offence and without such case being sent to it under Section 190 Cr.P.C. The Special mode of taking cognizance was deliberately and purposely intrortncted, in order to ensure speedy disposal of cases triable under the Act. Likewise section (5-A) makes it obligatory for the Presiding Officer of Special Court to proceed with the trial of the case day to day and to decide the case speedily, without adjourning the proceedings for any purpose, unless such adjournment is in its opinion necessary in the interest of justice which shall not be for more than two days. Sub-section (4) of Section 5 of the Act authorities the Presiding Officers of such court to hold trial of accused in uhscntui as well, by appointing an Advocate on behalf of the accused and in such case if conviction has been recorded a right has been given to the accused to question before the same court, within sixty days from the date of passing of the order, if the appears himself voluntarily or apprehended and brought before the Special Court, and he satisfies it, that his absence was not intentional, the Special Court, itself shall set aside the conviction and proceed to try him for the offence, for which, he is charged; and such is an additional facility provided to accused who has been convicted by Special Court in absentia, with exceptional powers conferred on the court, to set. aside such findings and conviction recorded by it. It is to be observed that different, provisions embodied in this section are meant to promote and advance the object of the law for which it was enacted. It is pertinent to note that no such procedure has been introduced in the code for the disposal of criminal cases.
As far as section 6(1) of the Act is concerned, it deals with powers of Special Court, in respect of passing of sentences authorised by law; provisions whereof appear to have been borrowed from sub-section (2) Section ,'{1 of the ('ode. Comparison of the words employed in both these provisions clearly suggest that in the former provision, special court is empowered and invested with all the authority and competence to pass any sentence authorised by law and shall have the same powers'conferred by the Code on a Court of Session exercising original jurisdiction whereas; by virtue of later provision, Sessions Judge or Addl: Session Judge, may pass any sentence authorised by law, but any sentence of death passed by any such Judge, shall be subject to confirmation by the High Court. As far as latter provision relating to confirmation of death sentence is concerned, those have been intentionally omitted from the former provision, because for instance, if special court is presided over by a Judge of the High Court; who obviously being not a Session Judge would not. make reference for confirmation of death sentence to its own High Court, and if such reference for confirmal.ion of death sentence is sent to High Court; it would be against the let.ter and spirit of Section .'574 of the Code, as well as amount to defeating the object, of the Act and its provisions relating to the speedy trial of offences. It may be noted that the object of making reference to High Court, for confirmal.ion of dealh sentence under Section 374 Cr.P.C. is not aimless but. mount for reappraisal and re-assessment, of entire facts of the case in the light of t.he law, so as the High Court should satisfy itself about the quilt or innocence of l.he accused persons, as it has been held in Jumari and othe.ru vn. The State of Punjab (PLD 1957 SC. India 381) Similarly in AIR 1965-SC 202, the Hon'ble Supreme Court of India held that in a murder trial, when an accused person stands charged with the commission of offence, punishable under section .'!02, he stands the risk of being subjected to the highest: penalty, prescribed by Indian Penal Code and naturally judicial approach in dealing with such cases is to be cautious, circumvent and careful. In dealing with such offences or Reference proceedings, where the question of Death sentence is involved, l.he High Court, has to deal with the matter carefully and to examine all relevant and material facts and circumstances before upholding l.he conviction and confirming the sentence of death. In view of these two principles, it is to he examined; whether the enactment, (Act XV of 1975) has provided all safeguard to an accused who is charged for any of the offences lalliug within the mischief of schedule, including Section 302 PPC, t.he Special Court, would apply all care and caution to ensure that major penalty d| death awarded to accused is strictly in accordance with t.he settled principles of criminal administration of justice based upon (.lie material available on record and not for any other extraneous or arbitrary consideration or reason. Answer to this question can be conveniently found in t.he enactment itself which has prescribed the qualification for appointment of Presiding Officer of Special Court, under section 3, wherein it. has been provided that he has been or is qualified for appointment, as Judge of High Court or has experience of not less than three years at bis credit of having exercised the powers of Sessions Judge or Addl: Sessions Judge and such provision is meant, to ensure that. Sessions Judge or Additional Sessions .Fudge to be appointed as Presiding Officer of the Special Court, is an experienced person in the field. Therefore, he would he competent enough in disposing the matters not only speedily hut with due care and caution, otherwise the law could have declared that any Sessions Judge or Addl: Sessions Judge to be eligible to such appointment, without the condition of prescribed tenure about exercise of powers.
As far as the procedural and remedial provisions of the Code are concerned, including the acquittal of accused at any stage of the proceedings under Section 249-A, or 265-K or execution of sentence under section 381 Cr.P.C. as well as the extention of benefit to accused of the period for which he remained in custody as under trial prisoner is concerned, those provisions shall remain available to accused under Section 382-B Cr.P.C1.., even if lie is tried by Special Court, because in the interest of justice the principles of Code of Criminal Procedure would remain conveniently operative but as regards sending of reference to High Court by Special Court is concerned where Death Sentence has been awarded to accused by such court; would not be permissable in view of the object and purpose for which Act XV of 1959 was enacted and the scheme of the law itself provides that the Special Court, has to adopt special procedure to ensure that the offences falling within the perview of the schedule to the Act; are required to be disposed of expeditiously.
As above discussed preamble of the statute is its prefatory statement following the title and precedes the enacting clauses; thereby declaring the reasons or motives for and the object sought to be achieved by the enactment of the statute. Patently and by any stretch of judicial interpretation of stiit.utes; Special enactment cannot be equated to a General Law on the subject, which obviously does not, deal with a particular subject, as is embraced in its folds by a special law under its own substantive, regulatory J and procedural provisions. Special statute inherently by its provisions is a departure and contrast to a general law containing provisions relating to such subject; for which a special statute is made operative; the veiy objective of enforcing a Special Law is to by pass the provisions of general law and it, is on account of such express legislative intent that general law always lean favourably to special law except to the unpermissable extent under .the provisions of such statute and save to the extent of applicability of remedial or beneficial provisions of general law and not inconsistent to the provisions of special law.
At this juncture, it may also be noted that, a Criminal Court, constituted under sections 6 and 9 of the Code of Criminal Procedure, if is ceased with a case which entails punishment for Death, makes reference to the High Court, under section 374 Cr.P.C. for purpose of confirmation of Death Sentence, because said Court is subordinate to the High Court, hut a Special Court, under the Act of 1975, being not sub-ordinat.e to High Court, is not, bound to make reference. This aspect, of the case can also he viewed from another angle i.e. if an order has been passed by the Special Court; whether t hat is revisable by High Court under section 439 Cr.P.C. or under Article 20;5 of Constitutional of Islamic Republic of Pakistan ? Answer to this proposition necessarily would be that as Special Court is not subordinate to High Court, therefore, no order passed by it. is revisable under section 439 Cr.P.C. In forming this view we are relying on the Judgement reported in Muhammad Ibrahim vs. The State (PLD 1990 Karachi 250) and Abdul Khaliquf vs. The State (p-448 same volume). The principle discussed in the last mentioned authority has been approved by Hon'ble Supreme Court in the case of Sheikh Rashid Ahmad vs. The State (PLD 199fi SC 168). In this very context reference to the judgment delivered in the case of Ifabib Hunk Limited vs. The State, and 6 others (PLD 1988 Karachi 49) would also not be out of place, because in this report, concerning to the Orders passed by a Special Court, constitiited under the Offences in Respect of Banks (Special Courts) Ordinance (IX of 1984), the Division Bench of Karachi High Court, on the same analogy examined that notwithstanding the fact that a special court was to follow procedure prescribed by Criminal Procedure ('ode for I rial of cases by Magistrate in matters with respect to which, no procedure has been prescribed by Ordinance of 1984, or fact that appeal was provided to High Court in terms of subsection (1) of section 10 of the Ordinance of 19H4. but the subordinate court would not be an inferior court to the High Court for purpose of section 435 or 439 Cr.P.C.
Thus for the foregoing reasons, we are inclined to hold that, on awarding of Death sentence by the Special Court, constituted under the Act. of 197fi, no reference for the purpose of confirmation of the sentence, shall be competent before the High Court, in accordance with the provision of section ,574 Cr.P.C. However, if convict submits an appeal against the sentence to High Court, within the prescribed limitation, that would be disposed of, in accordance with law.
Now turning towards the merits of case. After hearing of appeal as well as the Reference, we reserved the Judgement and before it could be announced on 17th October, 1997, Mr. Aslam Chishti, learned counsel for convict Abdul Qadir, submitted an application alongwith compromise, which has been effected between the parties. Request was made by him to accord permission to compound the offence and thereby acquitting the convict, of I he charge. To ascertain the contents of compromise, legal heirs of deceased Gul Muhammad were directed to be produced in Court. In pursuance of our order, Mst. Zainab widow of deceased and Messrs Yar Muhammad and Faiz Muhammad, brothers of deceased appeared in court and stated that besides them, deceased is not survived by any other legal heirs and they also testified to the contents of compromise. Their statements were duly recorded on Oath. On recording of statements, we are satisfied that the legal heirs of deceased, named herein-above have entered into compromise with the convict, in accordance with law, therefore, permission is accorded to compound the offence. Consequently, conviction/sentence of Death awarded to Abdul Qadir son of Muhammad Ibraheem under Section 302 PPC by Sessions Judge, Kalat at Mastung, vide, judgment dated 13th September, 1997 is set aside. He bet set at. liberty, if not required in any other case.
In view of the reasons and discussion
made hereinabove it is held that reference under Section 374 Cr.P.C. will not be
competent, before High Court if the sentence of death has been awarded by the
Before parting with the judgment, we would like to place our thanks on record for Raja M. Afsar Senior Advocate who has assisted us to the best of his abilities in the instant case.
(MYFK)
Orders accordingly.