1. ' MUNAWAR AHMAD MIRZA (MEMBER)--- This appeal under section 13 of Special Courts for Speedy Trial, Ordinance H of 1992 is directed against portion of judgment dated 1-6-1992, passed by learned Special Court for Speedy Trial in Special Case No,5 of 1992 State v. Muhammad Karim under section 13-E, Arms Ordinance 1965, wherein while directing acquittal of accused by means of judgment dated 1-6-1992, following observations were made in paras. 10 and 12 of said judgment, which have been impugned in this appeal:- "(10)...................................................................................................................................
2. Thus Assistant Commissioner was directed to offer explanation that under what circumstances he has failed to produce the attendance of real culprits who are involved for keeping in possession unlicensed arms and ammunition, though he has submitted explanation but the same does not appear to be satisfactory. In these circumstances, this is a fit case for taking action against all concerned officials, who managed to procure the arms and ammunition for purpose of foisting upon the accused illegally.
(12) The Assistant Commissioner, Pishin Mr. Jalal Khan Mandokhail is present in Court. Copy of this judgment be also given to him so that he may prefer an appeal, if so advised, before Supreme Appellate Court within 7 days from the date of this judgment against the observations made hereinabove.
3. ' Office is also directed to put up this case after the appeal period for initiating action against all concerned persons/officials in accordance to law."
2. This case has brief background which is material for appreciating real controversy. On the night between 11th and 12th April, 1991 accused Muhammad Karim armed with deadly weapons trespassed in the house of Maulvi Abdul Khaliq situated in Killi Tiliry Shibzai and forcibly abducted his daughter Mst. Gul Dasta. It is matter of record that Mst. Hawa mother of abductee who was pregnant at that time resisted, whereupon accused Muhammad Karim and his companions caused injuries on her abdomen and other parts of body which eventually, resulted in her death at Civil Hospital, Quetta on 14-4-1991. According to prosecution Mst. Gul Dasta was recovered after considerable time, through intervention of notables from Achakzai Tribe. During this period accused Muhammad Karim had repeatedly committed Zina with Mst. Gul Dasta. After completion of investigation this matter was challaned (Special Case No,3/1992) before Special Court for Speedy Trial who convicted the accused vide judgment dated 1-6-1992 and awarded him death penalty. However, on appeal before Supreme Appellate Court vide judgment, dated 5-7-1992 converted death penalty into imprisonment for life; whereas sentences of imprisonment and fine of various description awarded by trial Court were maintained.
4. ' On or about 30-4-1992 Naib-Tehsildar Barshore under the directions of Deputy Commissioner Pishin, went towards village Khadar for apprehending accused Muhammad Karim and raided house of accused Khan Muhammad.
5. ' There was cross-firing, when a bullet hit Bor Muhammad, levies Constable who died on the spot.
6. Another person, namely Ahmad, a levies Jamadar was also injured. However, accused persons fled away to Afghanistan. Levies party returned and on 2-5-1992 lodged complaint.
7. ' Subsequently on 17th November 1991 accused Muhammad Karim again abducted Mst. Gul Paro and her suckling child belonging to Kakar tribe and took them towards Toba-Achakzai. It is alleged that members of Kakar tribe followed accused Muhammad Karim for rescuing Mst. Gul Paro and her child, however fire-shots were exchanged near Toba-Achakzai when, said accused received bullet injury, but he managed to escape. Record indicates that accused Muhammad Karim stayed in the house of Nazar Muhammad. Through intervention of notables Mst. Gul Paro and her child were returned, besides accused Muhammad Karim and his elder son were handed over to levies for carrying them at Pishin whereas two minor sons of accused Muhammad Karim were returned by the villagers belonging to Achakzai tribe. It may be seen that accused Muhammad Karim and his elder son were given in custody of levies at village Khadar. Next morning son of accused Muhammad Karim slipped away, however, he alone was brought to Pishin. Separate criminal proceedings were launched against levies officials from whose custody son of accused Muhammad Karim had absconded through levies officials who also fled away to Afghanistan.
8. Anyhow in connection with abduction of Mst. Gul Paro and her child after completion of investigation Special Case No,6/92 was challaned before Special Court for Speedy Trial where eventually Muhammad Karim was found guilty under section 365, P.P.C., 354, P.P.C., 337-A, P.P.C.
9. And 335, P.P.C., vide judgment dated 1-6-1992 and imprisonment upto 7 years and various amounts of fine for said offences were awarded. No appeal was preferred by accused Muhammad Karim in said cases which attained finality.
10. ' Now as regards present proceedings culminating in appeal against impugned judgment, it may be seen that on or about 18-11-1991 appellant Muhammad Jalal son of Khuda Nazar who at the relevant time posted assistant Commissioner Pishin received information that accused Muhammad Karim had left ammunition in the shape of Klashnikov, dagger, bayonet, cartridges and bullets in village Khadar. Ultimately it is allegedly that arms and ammunitions belonging to accused Muhammad Karim were recovered from the house of Muhammad Amin situated in Killi Khadar. Aforementioned ammunition having been procured was placed before appellant Muhammad Jalal who directed Naib-Tehsildar Barshore to lodge complaint under section 13-E, Arms Ordinance, 1965. After completion of investigation, challan under section 13-E, Arms Ordinance, 1965 against accused Muhammad Karim was submitted on 15-1-1992 which was transferred for disposal to the Court of Special Judge for Speedy Trial. Learned trial Court during said proceedings noticed that facts were twisted and true position of recovery was not disclosed, therefore, notice was issued to appellant Muhammad Jalal for explaining nature and manner of recovering ammunition in the instant case. Appellant submitted detailed reply on 25-5-1992 which appears at page 87 of the 'Paper Book Part I'. He also furnished explanation pointing out that witnesses Khuda Nazar and Faiz Muhammad were not traceable and could not be produced before the Court. Explanation was not found satisfactory while directing acquittal of accused Muhammad Karim in connection with offence under section 13-E, Arms Ordinance. Learned trial Court by means of judgment, dated 1-6-1992 observed that above ammunition etc. Was foisted at the instance of appellant. The proceedings were directed to be drawn against appellant Muhammad Jalal and all officials found responsible for serious violation. Appellant was permitted to file an appeal within seven days.
11. ' Mr. SA.M. Quadri, Advocate streneously contended that appellant had made bona fide attempt of securing arms and ammunition used by accused Muhammad Karim in the commission of above- narrated offences. It was argued that in view of past events wherein one levies official was killed while raiding Killi Khadar, precautionary steps were required to be taken. Therefore, in the absence of mensrea or positive misconduct observation of trial Court holding appellant responsible for foisting weapons against Muhammad Karim are not well-justified. Additionally finding of fact in this behalf according to learned counsel was final, therefore, no forum other than Supreme Appellate Court had jurisdiction to examine its propriety. He, therefore, sought expunction of said observations and withdrawal of intended action specified in the impugned judgment, whereas on the other hand Mr. Muhammad Shafi Rakhsani vigorously supporting the impugned observations, firstly; objected to maintainability of appeal, by referring to section 9 or 13 of Special Courts for Speedy Trials Ordinance, 1991. He further submitted that impugned observations were based on substantial factors appearing on record, therefore, no justification existed for their expunction.
12. According to him the responsibility of appellant and other officials was yet to be fixed after drawing necessary proceedings, therefore, stand taken by appellant was premature and without substance.
13. ' Firstly we would deal with objection regarding maintainability of appeal. It may be seen that under section 9(4) read with section 13(1) of 'The Special Courts for Speedy Trials Ordinance, 1992'
14. (hereinafter referred as `Special Courts' Ordinance') the appeal can be filed to this Court, against order of conviction or acquittal passed under section 9(1) or against final judgment of Special Court for Speedy Trial. In the instant case, appellant Muhammad Jalal was Assistant Commissioner, Pishin, who through levies has secured arms and ammunition from village Khadar and directed initiation of proceedings under section 13-E, Arms Ordinance against accused Muhammad Karim. He was however, examined as Court witness. His explanation about arranging recovery of arms and ammunition allegedly belonging to accused Muhammad Karim from possession of Muhammad Amin from village Khadar was not found satisfactory. Trial Court explicitly observed that arms and ammunition procured by levies officials was foisted against accused Muhammad Karim at the instance of appellant. Additionally direction for recording further proceedings to ascertain criminal liability were also ordered. Evidently observations made by learned trial Court against appellant Muhammad Jalal constitutes finding of fact, which if not challenged, would attain finality. It is a cardinal principle of law and justice that a party against whom adverse decision is made, would not A be left without any remedy. Minute analysis of sections 9(4) and 13(1) of Speedy Courts Ordinance, clearly suggests that decision of Special Courts which is aimed at finally deciding any point of fact during the course of criminal trial would be subject to appeal before this Court. Even otherwise it is a matter of prudence that appeal from judgment shall also include appeal from any portion of said judgment. Therefore, it needs to be examined whether C determination of facts by Speedy Court, as regards observations against appellant Muhammad Jalal are of final nature as such appealable or not. In a decided case Malik Feroz Khan Noon v. The State PLD 1958 SC 333 on the basis of complaint lodged by Mr. Gormani on account of certain publication made in 'Times Karachi' 3rd September, 1957, High Court finding Solheri and Umar Qureshi guilty under section 500, P.P.C. Had awarded them sentence of imprisonment. In the judgment of Single Bench of erstwhile High Court of West Pakistan certain observations were made against Feroz Khan Noon who was neither a party nor witness in said matter. An appeal was filed by Mr. Feroz Khan Noon seeking expunction of remarks made against him. Maintainability of appeal was similarly challenged by the State. However, rnajority view of Honourable Judges by dilating upon all aspects found the appeal to be maintainable and directed expunction of remarks. Respectfully following the dictum laid down in said judgment we are pursuaded to entertain the appeal and overrule objection raised, by Mr. Muhammad Shafi Rakshani, Advocate.
15. ' Now reverting to merits, it may be seen that accused Muhammad Karim was found responsible for committing serious violations. On earlier occasion when towards 30th April, 1991 house of co- accused Khan Muhammad at village Khadar was raided serious retaliation had been displayed by co-villagers and one levies constable was killed. Seriousness of other subsequent events glaringly discloses considerable difficulties confronted by concerned authorities in securing arrest of accused Muhammad Karim and his companions as well as procurement of arms and ammunition said to have been used by him in the commission of various offences. It may be noticed that throughout, assistance from notables of area was sought for making progress in the investigation.
16. No doubt, procedure of effecting recovery adopted by appellant Muhammad Jalal was grossly irregular, but when looked in the background of circumstances, it appears that precautionary measures for safeguarding levies officials were adopted. There could be some risk in carrying accused Muhammad Karim to village Khadar for securing alleged arms and ammunition.
17. Therefore, deviation from normal procedure though disapproved, yet appears to be condonable.
18. For the facts discussed above we do not find mala fides or dishonest intention on the part of appellant Muhammad Jalal in procuring said ammunition in non-recognized manner.
19. ' Accordingly we are satisfied that appellant Muhammad Jalal had neither any motive nor intention of foisting ammuntion against Muhammad Karim specially when he was already required to face trial for committing ore heinous offence. Therefore, keeping in view all aspects, we are inclined accept the appeal, direct expunction of observations made by learned trial Court against appellant Muhammad Jalal and direct that no criminal action in that behalf is warranted against appellant or any other official.