' JUSTICE SHAFIUR RAHMAN (CHAIRMAN).---The three convicts have appealed against their conviction and- sentence recorded by Special Court for Speedy Trials No,II, Lahore and the sentence involved concerns the confirmation of death sentence also.
2. The prosecution case in brief was that a year before the occurrence for which the appellants were tried, Liaquat -- a brother of Farman Ali appellant and a cousin of other appellants, was murdered for which the deceased of this case Rashid alias Sheeda alongwith his two brothers, father and two uncles were charged and the case was pending. About eight months before this occurrence, Rashid alias Sheeda deceased had been released on bail while his two brothers, father and two uncles were still in confinement.
3. On the 8th of June, 1989 at about 6-00 p.m., the deceased Rashid alias Sheeda armed with a licensed fire-arm obtained from his brother Murad went to his fields to irrigate it. This field happens to be in the locality where the fields of appellants were also located. It was in Sidhupura within the limits of Police Station Sadar, Raiwind. Farman Ali and Safdar Ali armed with guns, Ahmed Ali with a rifle; Riasat Ali armed with a hatchet appeared on the scene. Farman Ali raised a Lalkara that Rashid should not be allowed to go away as he was their sole enemy. Safdar Ali fired at him but missed Rashid and the shot hit instead Latif (P.W.10) on the thigh. Rashid managed to run away. He was chased by these four accused. He ultimately succeeded in taking protection in Dhari of Hakeem Hassan in. Kotli Rai Abu Bakr within the limits of Police Station Sadar, Raiwind.
' Finding no access to the Dhari, Farman Ali and Ahmed Ali guarded the doors of it while Safdar Ali and Riasat climbed on its roof and started pulling it down. They also set the Dhari on fire. Shafa-ur- Rahman (P.W.17) and Shoeb, the sons of Hakeem. Hassan the owner of the Dhari were present there. Adjacent to the Dhari were the cattle tethered. Due to fire and smoke Rashid came out of the Kotha and he was fired at by Ahmed Ali hitting him on the arm. Rashid tried to escape and entered a sugarcane and maize field wherein the crop was knee-high. He was chased. Farman Ali put the barrel of his gun on the right cheek of Rashid and fired a shot killing him instantly. Sher Muhammad (P.W.9) the grandfather of Rashid went forward to protect him but he was caused injuries by the butts of the gun and rifles by Farman Ali, Safdar Ali and Ahmed Ali. He was also given hatchet blow by Riasat Ali. The appellants also removed the licensed gun of Murad -- brother of Rashid, which was with Rashid at that time. It was after the occurrence that Mst. Khurshid Bibi (P.W.15) and Muhammad Bashir (P.W.16) informed Sher Muhammad (P.W.9) of the conspiracy that was hatched in order to kill Rashid.
4. The First Information Report of the occurrence was lodged by Sher Muhammad (P.W.9) at Police Station Sadar, Kasur at 8-00 p.m. Which was recorded by Ghulam Sabir S.I. (P.W.21). Another First Information Report was registered at 10-45 p.m. At Police Station Sadar Raiwind, on the statement of Latif (P.W.10).
5. After recording the report of Sher Muhammad (P.W.9), Ghulam Sabir (P.W.21) prepared his injury statement. He went to the spot and prepared the inquest report of Rashid. He recovered 16 empties of .12 bore and two empties of 7mm bore. He also recovered ashes and burnt wood from the Dhari of Haji Muhammad Hassan. He got the dog, buffalo and donkey examined by the Veterinary Dr. Khalid Salim Akhtar (P.W.4) for their burns and injuries. He arrested Farman Ali, Ahmed Ali and Riasat Ali on 21-6-1989 and also recovered .12 bore gun from Farman Ali, 7mm rifle from Ahmed Ali.
Ahmed Ali also led to the recovery of .12 bore gun of Murad from near the Dhari of Hakeem Hassan.
6. Dr. Rashid Ahmad (P.W.I.) examined Sher Muhammad (P.W.9) and found six contused wounds, all caused by blunt object on his person. He also examined Latif and found on his person fire-arm wound 3/4 cm x 3/4 cm with burnt edges, tattooing present at upper outer side of right thigh with corresponding hole in the clothing. Dr. Salimur Rahman (P.W.3) performed the autopsy of Rashid and found the following injuries on his person:- "(1) A fire-arm wound entrance 3 x 2 cm on the right cheek with blackening all around.
(2) Two exit wounds each measuring 1/2 x 1/2 cm on the outer side of canthus of left eye.
(3) An exit wound 3/4 x 3/4 cm on the upper part of the left side of neck.
(4) An entrance wound 1 x 1 cm on the lateral aspect of left arm with blackening and tattooing all around.
(5) An exit wound 1 x 1 cm on the left occipital region of head.
(6) An exit wound .1 x 1 cm on the left ear.
(7) Two exit wounds on the left parietal region of the head.
(8) An incised wound 4 cm x 1/2 cm on the left half of the nose, bone deep.
(9) An incised wound 3 x 1/2 cm on the left half of the face 1/2 cm lateral to left mouth angle."
' Dr. Khalid Salim Akhtar (P.W.4) examined the dog which died due to burns. The buffalo had also burns marks which were "charred". According to the doctor burns were by active fire falling on the body of buffalo. The injured donkey had also burns and charred marks on its body.
7. At the trial, Mst. Khurshid Bibi (P.W.15) and Muhammad Bashir (P.W.16) appeared to state about the conspiracy while Sher Muhammad (P.W.9), Shabbir (P.W.11) and Shafi-ur-Rahman (P.W.17) appeared as eyewitnesses. Muhammad Latif (P.W.10) who was injured in the crime, Master Abdul Rashid (P.W.12) and Shaukat All (P.W.13) stated about the recoveries from the accused.
8. The appellants and their associates denied their participation or presence in the occurrence.
They admitted that Liaquat had been murdered for which the deceased was charged and also that Farman All and Safdar All were prosecution witnesses in that case. The appellants and their associates denied the recoveries, and the arrest, in the manner shown to have taken place from them. They alleged false implication on account of that criminal case. They produced the copies of the statements made by them in the case of Liaquat and also a copy of statement orSafdar Ali to be taken note of in defence.
9. On a consideration of the entire evidence which had come on the record, the trial Court took Muhammad Latif (P.W.10) and Shafa-ur-Rahman (P.W.17) to be natural witnesses and also disinterested. The trial Court found the case against Farman Ali, Ahmed All and Safdar All proved beyond reasonable doubt. Farman Ali was convicted under section 302/34, P.P.C. And sentenced to death and a fine of Rs,50,000 or in default to undergo R.I. For two years. Ahmed All and Safdar Ali were also convicted under section 302/34, P.P.C. And sentenced to life imprisonment and fine of Rs,50,000 or in default two years' R.I. All the three appellants were also found guilty--
(i) under section 304/34, P.P.C. And sentenced to life imprisonment;
(ii) under section 436/34, P.P.C. And sentenced to life imprisonment;
(iii) under section 429/34, P.P.C. And sentenced to R.I. For two years;
(iv) under section 14 of Ordinance VI of .1979 read with section 379/34, P.P.C. And sentenced to R.I.
For two years.
' The sentences were ordered to run concurrently. The other co-accused of the appellants were acquitted.
10. The learned counsel for the appellants has challenged the trial of the appellants before the Special Court for Speedy Trials on a number of legal grounds. In the first place it is contended that the Special Court for Speedy Trials itself was a creation of an Ordinance which was repeated time and again and such repetition of the Ordinance was not permissible under the Constitution. It was also contended that there was no contemporaneous notification of the appointment of the Judge for the Special Court for Speedy Trials before whom the trial took place. The transfer of the case to the Special Court for Speedy Trials was defective because no speaking order was passed. The case was pending before the Additional Sessions Judge and part of the evidence had been recorded and the other connected case which had taken place two years before resulting in the murder of Liaquat was not simultaneously transferred thereby prejudicing a fair trial of the appellants. He has relied on Ashiq Hussain and another v. The State 1992 Pakistan Supreme Court Cases (Criminal)
292.
11. As regards the factual side of the case, the learned counsel stated that two Advocates had intervened at the very initial stages of the case for the complainant's side and the case against the appellants had been given finishes and touches by those Advocates starting from the F.I.Rs, lodged in two police stations which appear to be identical in substance though two different persons lodged it. The investigation itself, according to the learned counsel for the appellants, was not fair and proper and this has been noted by the trial Court itself and appears to be so from the statement of two investigating officers Naimat Ali (P.W.20) and Ghulam Sabir (P.W.21). As regards the motive, the learned counsel contended that there was hadly occasion for the appellants to murder Rashid because the trial was already taking place, the other accused were inside the jail and the deceased had come out on bail eight months before the occurrence. The land of the parties being contiguous, it was possible for the appellants to have taken revenge, if they so intended, long before the due date when the occurrence took place but having exercised that restraint they could not take the law in their own hands so late. The learned counsel heavily relied on the affidavit submitted by Latif (P.W.10) repudiating the incident as contained in the F.I.R. He also relied on the opinion of Sabir (P.W.21) the Investigating Officer who stated that except for Farman Ali, he did not find any one else responsible for the occurrence. The learned counsel considers that the .Recoveries from the spot i.e,, 16 empties of .12 bore and 2 empties of 7mm bore were not commensurate with the shots allegedly fired by the appellants. The arrest and the recoveries are, according to the learned counsel, uninspiring. The medical evidence also does not support the prosecution case.
12. As regards the purely legal objection to the jurisdiction of the trial Court, the law on the subject has been laid down by a Full Bench of the Lahore High Court in Akhtar Ali Parvez v. Altafur Rehman PLD 1963 Lah. 390 in the following words:- "An objection to the jurisdiction of a Tribunal may take one of the following general forms--
(i) that the law under which that Tribunal is created is defective or' invalid;
(ii) that the Tribunal is not constituted or appointed validly under the law;
(iii) that a party or the parties is or are not amenable to the jurisdiction of the Tribunal; and
(iv) that the subject-matter is outside the field in which the particular Court is competent to act.
' If a plea falling in the first or the second category is raised before a Special Tribunal, the answer of the Special Tribunal, which is a creature of the special law and is constituted or appointed under that law, must be simply and shortly that these matters are not for the Special Tribunal to decide. If a party needs a decision on those points, it will have to apply to the Courts of general jurisdiction in appropriate proceedings for that purpose On the other hand, if objections are raised which fall under the third or the fourth general categories, the Rent Controller should immediately ascertain the grounds on which those objections are based, and if those grounds can be settled one way or the other, either on the admission of the parties or on the materials before the Court or with reference to matters that are verifiable from official records, he should proceed to settle those grounds and give his decisions there and then."
The objection with regard to the validity of the Ordinance creating the Special Courts for Speedy Trials and the appointment of the Judge himself would fall within the first two categories enumerated in the aforesaid judgment and would not be open to examination before the Special Court for Speedy Trials.
13. As regards the jurisdictional fact whether the requirements for a transfer were satisfied under the law would be one open to examination before us. The first order of transfer, from the Court of Magistrate, of F.I.R. Case No,207 of Police Station Raiwind to that of Additional' Sessions Judge was made by the High Court. While the case was pending before the Additional Sessions Judge, by an order, dated 13th of January, 1992 both the cases were transferred to the Special Court for Speedy Trials comprising Mr. Justice Muhammad Amir Malik, under Ordinance No,XXXVIII of 1991. The jurisdictional requirement for such an order of transfer was mentioned in the order that the Federal Government was of the opinion that the cases relate "to an offence which is gruesome, brutal and sensational in character" and should be tried and decided speedily. This opinion satisfied the requirements of law. The subsequent transfer from one Special Court for Speedy Trials to the other Court of Mr. Justice Muhammad Amir Malik to the Court of Mr. Justice (Retd.) Gulbaz Khan had taken place under section 6 of Ordinance XXXVIII of 1991. There was no such defect in the transfer order as could vitiate the trial or result in any illegality or infirmity.
14. The material on the record establishes a strong motive for the appellants to avenge the murder of Liaquat. It is in evidence that the deceased had come out on bail and had been roaming about armed with a licensed gun of his brother. The delay of about eight months in causing the death of Rashid could as well be on account of seeking of an opportune moment which was not available to them on account of the cautious attitude of the deceased himself who was afraid of his life at the hands of the appellants.
The other factor which lends strong support to the prosecution case is the ocular evidence. Two of the witnesses who have appeared to state about the occurrence had themselves received injuries in the occurrence. The injury of Latif was the subject-matter of much argument, which have been rightly rejected by the trial Court and found not to be self-inflicted injury or one not inconsistent with the other prosecution evidence.
The third strong factor is the corroborative evidence of the burns marks on dog, the buffalo and the donkey and the dismantled roof of the Dhari of Hakeem Hassan. His son would appear to be a disinterested and a reliable witness. This evidence considered in all its details was sufficient to establish the participation of the appellants in causing the death of Rashid and injuries of Sher Muhammad and Latif. The removal of the gun of Murad has also been established.
The learned counsel has heavily relied upon the opinion of the Investigating Officer about the culpability of Farman Ali alone in the case and about the innocence of the others implicated. Such an opinion of the Investigating Officer is not only irrelevant but inadmissible in view of the decision of the Supreme Court in Moonda and others v. The State PLD 1958 SC 275.
15. As the occurrence had taken place on 8-6-1989 before the amendments in the Pakistan Penal Code and the Criminal Procedure Code giving effect to the Islamic Penal Law were introduced, the conviction and sentence had necessarily to be under the unamended/original sections of the Penal Code. The trial Couft, however, omitted to give effect to the mandatory provisions of section 544-A of the Criminal Procedure Code; but in view of the order of fine passed in case of sentences under section 302/34, P.P.C., it is possible to award compensation to the heirs of the deceased from the amount of fine imposed. It is hereby ordered that the entire fine, on recovery, shall be paid as compensation to the heirs of the deceased who was a young boy of 17 years of age. For the convictions under section 307/34, 436/34, 429/34, P.P.C. And 14 of Ordinance VI of 1979 read with section 379/34, P.P.C. No fine or compensation has been ordered by the trial Court. Without there being a State appeal against that, we would abstain from passing any such order.
16. The result of the above discussion is that the appeal of the convicts against their conviction and sentence fails and is dismissed. The death sentence of Farman Ali is confirmed.