RUSTAM S. SIDHWA, J.---This is an appeal by Muhammad Yaqub and Noor Elahi appellants against the judgment of the Special Court for Speedy Trials, Islamabad Capital Territory, dated 29- 9-1991 convicting and sentencing the said appellants under sections 302/34, P.P.C. On two counts and 324/34, P.P.C. On two counts (as amended by Ordinance VII of 1990).
2. Before the appeal could be heard on merits, Mr. Muhammad Munir Khan, Advocate, raised a preliminary objection, namely, that the order of the Federal Government dated 14-9-1991, ordering the instant case to be tried and decided by the Special Court (consisting of Mian Abdul Khaliq), Islamabad, was without jurisdiction, and, therefore, the said Special Court was incompetent to try and decide the case. In this connection it was submitted that under section 5(1) of the Special Courts for Speedy Trials Ordinance (XXV of 1991), if the Government desired that a case relating to any offence which had been registered, should be tried and decided speedily it could order that such a case be tried by the Special Court, and under section 5(2), if the Government was of the opinion, that a case pending before any Court, should, in the public interest, be tried and decided speedily, it could by order in writing, transfer the same for trial to a Special Court. It was submitted that section 5(1) of the Ordinance applied to cases which had been registered and section 5(2) applied to cases which had not only been registered but were also pending before a Court. It was stated that in respect of the first category it was sufficient if the Government formed the opinion that the case should be tried and decided speedily, whereupon it could pass an order that the case be so tried by the Special Court, whereas in respect of the second category, the Government had to form the opinion that the case pending before a Court deserved, in the public interest, to be tried and decided speedily, whereupon it could, by order in writing transfer the same for trial, to such Court. It was submitted that the Federal Government's order dated 14-9-1991 gave no indication that the Government had formed any opinion in the public interest, to transfer the instant case, which was pending, to a Special Court, nor was there any indication to the effect that the instant case was pending before a competent Court and was being transferred to the Special Court. It was, therefore, submitted that the order of transfer dated 14-9-1991 being defective, the Special Court for Speedy Trials, Islamabad, was not competently seized to try the case and its proceedings being corarn non judice, the judgment deserved to be set aside.
In this connection learned counsel also cited a decision of the Supreme Appellate Court, Lahore, in re: Ashiq Hussain v. The State (Crl. Appeals Nos. 6 and 7 of 1991, decided on 21-10-1991).
3. In view of the above preliminary objection, we directed the learned Assistant Advocate-General to summon the file of the instant case from the Law and Justice Division. On 29-10-1991 the files were produced by Messrs Muhammad Zahoor Abbasi, Deputy Secretary, and Muhammad Azam Waraich, Assistant Draftsman, which were inspected.
4. As the preliminary objection of the appellants, if accepted, entailed the judgment impugned in this appeal being liable to be set aside and the four acquitted accused, namely, Muhammad Arshad, Muhammad Khalil, Muhammad Afzal and Rabnawaz, being found liable to face trial before the competent Court, it was found necessary to issue notices to all of them to provide them an opportunity of hearing with regard to the preliminary objection raised on behalf of the appellants.
5. However, at that stage Sardar Muhammad Ishaque Khan, Advocate for the appellants, accepted notice on behalf of Muhammad Arshad, Muhammad Khalil, Muhammad Afzal and Rabnawaz, acquitted accused, who were also present in Court and who submitted that they had no objection to the said learned counsel acting on their behalf. Sardar Muhammad Ishaque Khan, Advocate, was, therefore, directed to lodge their powers of attorney in Court that day and to appear on 30-10- 1991 and present his arguments on behalf of the said acquitted accused regarding the preliminary objection raised.
6. On 29-10-1991, Mr. Muhammad Yusuf Sarraf, Advocate, also joined the proceedings on behalf of the complainant. He wanted a short adjournment to argue the matter. He was also directed to come prepared on 30-10-1991.
7. The Advocate-General, Punjab, was also ordered to appear on 30-10-1991 and to present arguments, so as to assist this Court on the preliminary objection raised.
8. On behalf of the appellants the same arguments regarding the preliminary objection have been advanced today, which were advanced yesterday, as mentioned in para. 2 above. In this connection it is submitted that the order of transfer of the Government of Pakistan, Ministry of Law, dated 14-9-1991, relating to the case in instance reads as follows:-- "WHEREAS the Federal Government is of opinion that the cases specified in column (1) of the table below relating to offences specified therein should be tried and decided speedily; NOW, THEREFORE, in exercise of the powers conferred by section 5 of the Special Courts for Speedy Trials Ordinance, 1991 (XXV of 1991), the Federal Government is pleased to order that the said cases shall be tried and decided by the Special Court specified in column (2) thereof Particulars of cases Special Court (1) (2)
1.F.I.R. No, 213, dated 7-12-1990, Police Station, Industrial Area, Islamabad under sections 302, 324, 148 and 149, P.P.C.Special Court (consisting of Mian Abdul Khaliq)
Rawalpindi.
2.F.I.R. No, 122, dated 10-6-1991, Police Station Margalla, Islamabad, under section 396, P.P.C. And 20 Harabah---do--- It is urged that the said order neither mentions that the instant case is being transferred from the Court of the Additional Sessions Judge, Islamabad to the Special Court for Speedy Trials, Rawalpindi and Islamabad Capital Territory, nor does it mention that the said transfer is being effected in the public interest. It is contended that where an order for the transfer of a pending case from one Court to the Special Court for Speedy Trials is passed, a detailed and more specific order is passed. One of such orders, namely, that of the Government of Pakistan, Ministry of Law, dated 3-9-1991, is referred, which reads as follows:-- "No,2(1)/91-MC--WHEREAS the Federal Government is of opinion that the cases specified in column
(1) of the table below which are pending in the Courts specified in column (2) thereof should, in the public interest, be tried and decided speedily; NOW, THEREFORE, in exercise of the powers conferred by subsection (2) of section 5 of the Special Courts, for Speedy Trials Ordinance, 1991 (XXV of 1991), the Federal Government is pleased to order transfer of such cases to the Special Court specified in column (3) of that table for trial. Particulars of case Court where the case presently pending Special Court (1) (2) (3)
1.FIR No,51/90, dated Special Court-I, Special Court 22-8-1990, Police Station Steel Town, District Karachi (East)(Suppression of Terrorist Activities)
Karachi.consisting of Mr. Justice Abdul Rahman Shah, Karachi 2... To 13.
It is contended that in the instant case, the trial had begun before the Additional Sessions Judge, Islamabad, that five witnesses had been examined on 12-9-1991, that the next date of hearing for the balance evidence was fixed for 19-9-1991 and no question of public interest arose for the transfer of the said case to the Special Court for Speedy Trials. It is emphasised that the order, dated 14-9-1991 relating to the instant case neither referred to the fact that the case was already pending before the Additional Sessions Judge, Islamabad, from where it was to be transferred, nor to the fact that the transfer was being effected in the public interest. Relying upon Muhammad Yaqub v. Government of Balochistan (PLD 1989 SC 13), it is submitted that when transferring a case from a competent Court to a Special Court for Speedy Trials, consideration of the guidelines which render the order valid, must be present and where he guidelines are not observed, the Speedy Court is not competent to exercise jurisdiction, and the question of prejudice, being one of defence, does not arise. Relying upon Ashiq Hussain v. The State (Criminal Appeals Nos. 6 and 7 of 1991 decided by the Supreme Appellate Court, Lahore, on 21-10-1991), it is submitted that where such an order of the nature impugned in this appeal was issued, the Supreme Appellate Court struck it down as not conferring any jurisdiction on the Special Court for Speedy Trials.
9. The learned Advocate-General has not appeared today. Mr. Muhammad Nawaz Abbasi, the learned Assistant Advocate-General, submits that he had communicated the orders of this Court to the learned Advocate-General for his appearance today in the said case, but had been informed that as he was attending the learned Attorney-General of China, who was on a visit to Lahore, he could not be present here to assist this Court. We are, therefore, without his assistance.
10. During the arguments we asked the learned Assistant Advocate-General to direct Sh. Amjad Ali, Additional Law Secretary, to appear in Court in order to explain under what circumstances the order, dated 14-9-1991 had been issued, considering that the Additional Sessions Judge, Islamabad, who was trying the case, had already recorded the evidence of five witnesses on 12-9-1991 and had fixed the case for the evidence of the remaining witnesses to be recorded on 19-9-1991. We also adjourned this case for an hour, to enable the Additional Secretary to attend the Court and assist us in the matter. After we assembled, we were informed by the learned Assistant Advocate- General that the Additional Law Secretary was busy in a meeting in the National Assembly and could not attend. We are, therefore, without his assistance also.
11. Mr. Muhammad Nawaz Abbasi, AA.-G., appears on behalf of the State. On behalf of the State it is submitted that the mere omission to record in the order, dated 14-9-1991 that the instant case was pending before the Additional Sessions Judge, Islamabad, from where it was being transferred to the Special Court for Speedy Trials and the fact that the transfer was in the public interest, did not vitiate the order. Mere omission to record certain details did not invalidate the order and, in any case, this Court could look into the files to determine whether the competent officer authorised to pass the order had taken these matters into consideration and if so found that he had, the validity of the order would not be affected. It is submitted that the office of the Chief Commissioner, Islamabad Capital Territory on 29th August, 1991, submitted particulars of a number of cases requiring trial before the Special Courts to the Secretary, Ministry of Interior, Islamabad, in which list the instant case was included, and the Law Secretary having granted the necessary sanction for the trial of the case by the Special Court, which action was also approved by the Prime Minister, the order, dated 14-9-1991 ordering the said case to be tried and decided by the Special Court was issued. On inquiry, the learned Assistant Advocate-General submitted that when the case was submitted by the Chief Commissioner, Capital Territory, he had mentioned the fact that after the completion of investigation, the case had been submitted in the Court of Sessions Judge for trial, that the said gruesome murder case had received wide publicity in the press and the murder of two persons had affected four families. He, however, admitted that since at that stage evidence had not begun to be recorded, the said fact had not been mentioned by the Chief Commissioner in his letter and that before the transfer order, dated 14-9-1991 was passed, the Law Department had neither received any information nor had cared to find out that evidence had begun to be recorded in the case.
12. Before dealing with the arguments of the learned counsel for the parties, it is necessary to set down certain sections of the Special Courts for Speedy Trials Ordinance, XXV of 1991, which are relevant:-- Section 2(c). "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; Section 3.
"Ordinance to override other laws---The provisions ,of this Ordinance shall have effect notwithstanding anything contained is the Code or in any other law already in force except in the areas which are for the time being terrorist affected areas under the Terrorist Affected Areas (Special Courts) Ordinance, 1991."
Section 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.
(3) the Special Court shall have the exclusive jurisdiction to try a case in respect of which an order has been made under subsection (1) or subsection (2) and no other Court 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 recall or amendment of any order, and shall, subject to this Ordinance, as nearly as may be, follow the procedure provided in the Code for such trial."
Section 8.
"Procedure of Special Court.- -(1) On taking cognizance of a case, the Special Court shall proceed speedily with the trial from day to day and shall decide the case within thirty days and for any delay sufficient reasons shall be recorded.
(2) A Special Court shall not adjourn any trial for any purpose unless such adjournment is, in its opinion, necessary in the interest of justice and no adjournment shall, in any case, be granted for more than two working days.
(3) A Special Court shall not, merely by reason of a change of 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) All proceedings before a Special Court shall be conducted in open Court: Provided that, where the Public Prosecutor so applies or the Special Court considers it necessary so to do for any reason, any proceedings or part thereof may be held in camera."
Article 212-B (1) of the Pakistan Constitution, 1973, which is also relevant, may be reproduced here with advantage-- "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 Government, 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."
13. An examination of Article 212-B (1) of the Constitution would show that in order to ensure speedy trial of cases of persons accused of heinous offences specified by law as may be referred to them by the Federal Government, 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. Heinous offences are those which are highly wicked or attrocious. What stands out prominently is that under Article 212-B(1) of the Constitution, heinous offences can be specified by law, but only such of them as partake of the nature of being gruesome, brutal and sensational in character or shocking to public morality can be referred by the Federal Government to the Special Courts for Speedy Trials. This view finds support from the words "such of the heinous offences", which show that all heinous offences so specified are not intended, and the words "in view of their being gruesome, brutal and sensational in character or shocking to public moraltiy", which point to the peculiar character they must possess, which alone would determine whether they can be sent for trial to the Special Courts. In short, the Constitution has circumscribed the nature of the heinous offences specified by law which can be referred for trial to the Special Courts by stating that they must partake of the character of being gruesome, brutal and sensational in character or shocking to public morality. It is in this context that section 2(c) of Ordinance XXV of 1991 will have to be examined.
14. Section 2(c) of Ordinance XXV of 1991 defines 'offenceto mean 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. Earlier to this Ordinance, there was the Special Courts for Speedy Trial Ordinance, VI of 1990. Section 2(c) of this Ordinance defined the word "offence" to mean "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 among the public or a section thereof'. The Ordinance gave way to the Special Courts for Speedy Trials Ordinance, XXIII of 1991. Section 2(c) of Ordinance XXIII of 1991 added the words "or an offence punishable under any law for the time being in force" between the words "Schedule" and "which" and the words "or which because of increase in its incidence needs to be tried most speedily" at the end of the said definition. In short, therefore, the words "gruesome, brutal and sensational in character..." covered not only the offences specified in the Schedule, but also other offences punishable under any law for the time being in force. The said definition has now been retained by Ordinance XXV of 1991. In short, an offence specified in the Schedule or an offence punishable under any other law, would not be triable, unless it partook of the character of being gruesome, brutal and sensational or being shocking to public morality. This also is required under Article 212-B(1) of the Constitution. The words "or has led to public outrage or created panic or an atmosphere of fear or anxiety amongst the public or a section thereof" are not to be found in Article 212B(1) of the Constitution. They are, however, present in the definition section 2(c) of the Ordinance. For an offence to be subject for disposal by a Special Court for Speedy Trials, it must conform to the requirements laid down in Article 212-B(1). The fact that the offence has led to public outrage or created panic or an atmosphere of fear or anxiety amongst the public or a section thereof would not by itself make the offence heinous, unless it was also gruesome, brutal and sensational in character or shocking to public morality. So long as the offence possessed these characteristics, the same would be heinous, otherwise not.
15. Ordinance XXV of 1991 contemplates the transfer of a case which has been registered and also a case which is pending, provided the offence which is the subject of the case falls within section 2(c). By virtue of section 8(3), a pending case would also include one where some witnesses have already been examined. In order to transfer a case, first the requirement of section 2(e) of the Ordinance would have to be satisfied and then the requirement of section 5. See Muhammad Yaqub v. Government of Balochistan (PLD 1989 SC 13). After the first is satisfied, then section 5 would come into operation. If the case stands merely registered, the Government has only to form an opinion that the same should be tried and decided speedily, upon which it can order that such case be tried by a Special Court. However, if the case is pending before any Court, then the Government has to form an opinion that the case, in the public interest, should be tried and decided speedily, whereupon it can, by order in writing, transfer the same for trial to a Special Court. From the nature of the orders which are passed when ordering the transfer of cases under sections 5(1) and 5(2), as illustrated in para. 8 above, it is clear that when a case which is merely registered is to be transferred, the order of the Government is under section 5 (1) and merely states that the said case be tried and decided speedily by a particular Special Court, whose presiding officer is named, but when a case which is pending before a Court is to be transferred, the order of the Government is under section 5(2) and clearly states that the said case, in the public interest, be tried and decided speedily and the particulars of the case, the Court where the same is pending and the particular Special Court, whose presiding officer is named, where it is transferred, are all clearly stated.
15. The first question that arises in the instant case is whether the order of transfer dated 14-9-1991 fulfils the requirement of section 5(2). The order recites that it is under section 5, which is equivocal, as it can relate both to a case which is merely registered and one which is pending. Had section 5(2) been mentioned, the matter would have been clear. There is no reference in the order that the competent authority has considered, in the public interest, that the pending case should be tried and decided speedily. There is also nothing in the order showing the particulars of the pending case and the Court where the same is pending, though there is reference to the Special Court, Rawalpindi, presided over by Mian Abdul Khaliq, where it is to be transferred. This appellate Court at the apex is nothing but one of the Courts in the hierarchy created by the Special Courts for Speedy Trials Ordinance, XXV of 1991. Even if we treat ourselves as a Court of limited and exclusive jurisdiction created under the said Ordinance, not permitted to challenge or go behind the transfer order passed by the Federal Government, the impugned order itself is ex facie defective, for it is neither passed under section 5(2), nor does it show that there is a pending case before such and such Court, or that the Government has decided, in the public interest, that it should be tried and decided speedily or that the impugned order relates to the transfer of that case to the Special Court for Speedy Trial named in the order. The fact that Government when transferring a number of pending cases to the Special Court on 3-9-1991 could pass a proper order, only shows that in the instant case by error it passed a wrong order under section 5(1) on 14-9-1991. In Ashiq Hussain v.
The State (supra), an order of transfer of a pending case to a Special Court was couched in the same language as the present, though instead of section 5 the words section 5(1) were mentioned.
The Supreme Appellate Court, Lahore struck it down, not only on the ground that section 5(1) was mentioned, but that the format of the order was one which clearly showed that it applied to a case under section 5(1). The wording of the present impugned I D order clearly shows that it relates to a case covered by section 5(1).
17. In these circumstances, the assumption of jurisdiction by the Special Court for Speedy Trials, Rawalpindi, presided over by Mian Abdul Khaliq, appears to be both without lawful authority and without jurisdiction. Where such a wholly defective order is produced, before a court which is to assume jurisdiction thereunder, it can ignore it and call for, proper amendment or clarification before proceeding with the case. It was not competent for the Special Court for Speedy Trials, Rawalpindi and Islamabad, to assume jurisdiction under such an order which was ex facie defective and appeared to relate to the transfer of a case which was merely registered, but not pending.
18. In view of the above, it is not necessary for us to go behind the order so as to see whether the competent authority did possess the necessary material to hold that the case was fit for trial by the Special Court in the public interest. The learned Assistant Advocate-General admitted that uptil the date of the signing of the order, the competent authority was neither aware nor informed that the trial had begun and five witnesses had already been examined by that date. What should constitute public interest for the transfer of a pending case is hard to lay down as any rule of straight application. Obviously the interest of the community or public-at-large is involved. What is that which the public or the community, in the case of a pending case involving a heinous offence, would consider as compelling the Government to have the same tried and decided speedily? I would imagine that the case is still lingering and no evidence has been recorded, or that public outrage, panic or an atmosphere of fear or anxiety amongst the public or a section thereof is still prevalent in the locality where the offence has taken place, or an increase in such incidents in the said locality has taken place demanding stricter maintenance of law and order. These inter alia would be good grounds constituting public interest. The mere fact that certain offences by their very character of being gruesome, brutal and sensational, or being shocking to public morality are treated as heinous, by themselves would not create ground for 'public, interest'. The condition precedent for the exercise of powers under section 5(2) of the Ordinance is that the case is pending which requires to be tried and decided speedily. The question whether it is in the public interest that a pending case should be tried and decided speedily, the Government is the sole and best Judge, the matter being one of subjective satisfaction. This Court does not normally enter into such a contentious inquiry, if from materials disclosed it does not appear that the action taken was merely in colourable exercise of or in abuse of powers. See Lieut.-Col. Farzand Ali v. Province of West Pakistan (PLD 1970 SC 98) at page 130. But in order that the condition precedent be satisfied, it must appear that Government was aware that a case was pending which required to be tried and disposed of speedily. If a case was pending and no evidence had been recorded, the material was sufficient for the Government to take action. However, if a case was pending and notices had issued to the accused to attend Court to face trial, or charge had been framed or evidence had begun to be recorded, this was a material fact which could have prompted the Government not to transfer the case to the Special Court, as trial was to or had already begun. On 3-8-1991 notices had issued to the accused in the instant case to attend Court on 8-8-1991 to face trial. On 8-8-1991 they were issued copies of statements of the witnesses, etc., and the case was adjourned for the framing of the charge and recording of the evidence on 12-9-1991. It was for the first time on 29-8- 1991 that the Chief Commissioner, Islamabad Central Territory, wrote to the Secretary, Ministry of Interior, requesting inter alia that the present case be transferred to the Special Court, in which the reason given for the action desired was that after the completion of the investigation the case had been submitted to the Court of the Sessions Judge for trial, that this gruesome murder case had gained wide publicity in the press and the murder of two persons had affected four lives. It was not stated in that letter that the case stood fixed for the framing of the charge and possible recording of evidence on 12-9-1991. The facts submitted contained a material omission, which rendered the request colourable and tainted and the action of the Government can only be treated as taken on suppressed facts, if not treated as a colourable exercise of or abuse of power. We mention this so that in future when an order of transfer of a pending case is passed, the Law Department will apprise itself as to whether any notice has issued to the accused to attend Court to face trial or the charge has been framed or evidence has begun to be recorded, as these are material facts for determination of the question whether, in the public interest, the case should be tried and disposed of speedily by the Special Court.
19. For the foregoing reasons, we accept this appeal, set aside the judgment of the trial Judge, dated 29-9-1991 and direct that the case be tried by the Court where it was last pending, unless a fresh order is passed by the Government in accordance with law. Both the appellants and the four acquitted accused shall face the trial before the Additional Sessions Judge, Islamabad. The two convicted appellants shall be produced by the Jail Authorities before the learned Sessions Judge, Islamabad on 30-11-1991. Likewise, the four acquitted accused shall appear before him on the said date. The learned Sessions Judge should then direct the accused to the trial Court concerned.
Since the evidence in this case was being recorded, the learned trial Judge shall fix an early date for trial and complete the trial of the case at the earliest.