' ABDUR REHMAN KHAN, ACTG. C.J.--- This judgment will dispose of Criminal Appeal No,21 of 1992 filed by the appellant against his conviction and sentence and Murder Reference No,3 of 1992 submitted before us for confirmation.
2. The appellant was found guilty for the murder of five persons and also for attempting at the lives of two persons, therefore, by the impugned judgment he was convicted under section 302/34, P.P.C.
On five counts and was sentenced to death as "Qisas" on each count and on conviction under section 307/34, P.P.C. On two counts he was awarded five years' R.I. And a fine of Rs,5,000 on each count.
3. Taj Wali (P.W.8) reported the incident to the police. It was stated in this report that sometime back they had altercation with Mandus Khan and Amrdod Khan (appellant) which resulted into strained relations between them. Today after Isha prayer he alongwith his father, two brothers were present in the house of his grandfather when one Taib came there and informed them that they have been sent for by Amrood and Mandus to their Hujra in order to compromise the incident of altercation. Accordingly he alongwith his grandfather Ilyas Khan, his father Said Rehman and brothers Shafiur Rehman, Bashir Ahmad and uncles Samiul Haq and Faqir Shah went there. In the Hujra Said Qayum, Amrood and Mandus were present. Out of them the latter two were armed with klashnikovs. When they sat on the Charpais then there and then Amrood and Mandus fired at them at random and as a result his father, grandfather, two brothers and brother-in-law Samiul Haq were hit who died on the spot while Said Qayum also received injuries. The appellant was arrested and tried by the learned Additional Sessions Judge whereas co-accused Mandus remained absconder during that period.
4. The material evidence examined at the trial against the appellant consists of P.W.1 who executed search warrant and proclamation against the absconding accused. P.W.6 is Dr. Riyaz Muhammad who performed postmortem examination on the dead bodies of the five deceased. The incorporation of the injuries sustained by the deceased and the injured witnesses would unnecessarily burden the judgment and they would be dealt with in the light of the arguments advanced at the Bar. P.W.7 is Muhammad Azim Khan, A.S.I. Who is marginal witness to the recovery memo. Exh.P.C. Through which the Investigating Officer took into possession forty-three empties of Klashnikov and a spent bullet from the spot which were sealed in a parcel. He also witnessed the recovery memo. Exh.P.C./1 of three bulbs of 100 watts each. He also deposed to the recovery of clothes etc. Of the deceased. The complainant eye-witness Taj Wali appeared as P.W.8 and almost reiterated whatever he had stated in the F.LR., therefore, there is no need to repeat. The next eye- witness (P.W.9) deposed that before the present occurrence an altercation between the complainant party and Mandus Khan and Amrood Khan had taken place but was not reported to the police. He, the complainant and the deceased were sitting in the house when one Taib came there and informed that the accused had come to Hujra for patching the matter regarding altercation. We, therefore, went to the Hujra of Basu Khel where the appellant, the absconder and Said Qayum were already present. No sooner they sat on the Charpais then the appellant and Mandus absconder opened fire at them. As a result the five deceased died whereas Said Qayum and Amrood sustained injuries with the fire shot of absconding accused Mandus. Muhammad Anwar, S.H.O. Who was examined as P.W.10 had investigated the case. This witness gave details of the investigation conducted by him. C.W. Sabz Ali, H.C. Muharrir exhibited the report of the Ballistic Expert as Exh.C.W.1/1.
5. The accused when examined under section 342, Cr.P.C. Pleaded innocence and gave his own version of the incident as is clear from the following portion of his statement:-- "I am innocent and falsely charged. I had no motive whatsoever to kill the deceased. In fact on the night of occurrence I was present in the Hujra where it was dark, when in the meantime indiscriminate firing started, done by Sher Haider and Abdul Wakeel my enemies in which I alongwith the deceased received injuries and on that behalf I made report registered at Serial No,372 on the same date charging the said Sher Haider and Abdul Wakeel."
6. The learned counsel representing the appellant argued that the trial and judgment in this case by the learned Sessions Judge are coram non judice as by virtue of Suppression of Terrorist Activities (Special Courts) (Amendment) Act, 1990 the schedule was amended and besides other weapons Klashnikov was also added. He pointed out that the position that emerges now is that if an offence under section 302 or 307, P.P.C. Is committed in course of the same transaction with offence under sections 8, 9, 10, Arms Ordinance then these offences will be exclusively triable by a Special Court constituted under the Suppression of Terrorist Activities Act, 1975 henceforth to be referred as the Act. In this connection he relied on 1992 PCr.LJ 2308, which was approved by the Supreme Court in judgment reported in 1994 SCMR 717. He submitted that the allegations in this case are that murders were committed with Klashnikov, therefore, under the said amendment such an offence is exclusively triable by the Special Court as provided by section 4 of the Act. The learned counsel for the complainant as well as the State while controverting the arguments referred to the following precedent cases: (i) PLD 1969 SC 187, (ii) PLD 1988 Pesh. 40, (iii) 1987 CLC 2107, and on the strength of these judgments submitted that neither the trial nor the judgment are without jurisdiction.
7. It would be pertinent to refer to certain dates so as to understand the arguments in its correct perspective. The above amendment has been given retrospective effect as it has been made applicable from 2-11-1988. The offence in this case was committed on 23-7-1988 i,e, more than three months before the amendment. Cognizance of the case was taken by the learned Sessions Judge, on 7-6-1989 while the judgment was delivered on 1-2-1992. The incident in the precedent case had occurred on 1-12-1988 which is a date after the amendment was enforced. It is true that change of law in procedure normally operates retrospectively and would govern the pending cases. However, this rule has certain well-settled and judicially recognised exceptions under which the amendment would not be applied retrospectively. These are, (i) if it adversely affects a right which has accrued under the law before the amendment; (ii) if it causes inconvenience, obvious injustice, unnecessary expenses, detriment to any of the parties without any fault on his part, (iii) if objection on this count has not been raised before the trial Court. All these exceptions would apply with full force in this case. The first exception mentioned above would apply as under section 5- A(a) of the Act an accused person may be tried in his absence and under section 8 the burden of proof under certain circumstances has been shifted to an accused to prove that he had not in fact committed the offence. These are stringent provisions which are not applicable in offences triable by ordinary criminal Courts under the Criminal Procedure Code. The rights of the accused would have definitely been effected if such a course had been adopted. Moreover, Special Courts are constituted under special circumstances and are governed by more strict procedure etc. Which always works to the detriment of the accused as compared with the ordinary Courts. The second exception indicated above also applies as the remand of the case to a Special Court for retrial would definitely result in financial loss, physical inconvenience and mental torture to the parties.
The last mentioned exception also operates as during the period of more than two years when the trial was pending no objection was raised about the competency of the trial or the jurisdiction of the Court. The objection was also not raised in the grounds of appeal. This objection was for the first time agitated during the hearing of the appeal in this Court after more than 2-1/2 years the judgment in the case was delivered. The Rule laid down in the present cases cited from the side of the appellant would not strictly apply as in that case the offence was committed after the amendment was enforced and the objection was raised by the accused before the trial. It appears that the appellant would ordinarily not have raised this objection as it is preferring Special Court with certain disadvantage to ordinary criminal Courts but the purpose is obvious as "A drowning person catches at a straw" and the appellant is probably of the view to avoid the evil for the time being. We, therefore, overrule the objection in the circumstances of this case and hold that neither the trial nor the impugned judgment was by a Court having no jurisdiction. We B are supported in our view by the rule laid down in the judgment cited from the complainant side.
8. We have also heard the learned counsel for the parties on merits of the case. On this count the learned counsel first referred to the medical evidence and pointed out the difference in the diamension of the wounds meaning thereby that weapons of different calibre have been used in the commission of the offence. Nothing material turns on this point as thesize/ diamension. Of the injuries depends on facts like hard surface, bony area, movement and deflection of human body. It was next argued that the sentence awarded is not proper as the trial Court could not impose the death sentence as Qisas. This argument would also lead the appellant nowhere as in the earlier part of the judgment the appellant has been sentenced to death on live counts but in the latter part of the judgment it was observed "as death sentence as `Qisas' has been awarded to the accused, therefore, imposition of fine in addition to death sentence would, be un-Islamic". The appellant should have no grievance as he has been exempted from payment of fine and compensation he was otherwise liable under sections 302, 307, P.P.C. And 544-A, Cr.P.C.' respectively. Moreover, under the law there is no difference in the execution of death sentence awarded as `Qisas' or awarded as `Tazie. It was next argued that the impugned judgment refers exclusively to the complaint filed by the appellant and which was dismissed in spite of the fact that it has not been brought on record. This argument would not prevail for the reason that the accused had taken a positive plea about the manner the incident has happened as is clear from a portion of his statement reproduced above. This plea was also introduced in the statement of P.W.8 by suggestion through cross-examination as under:-- "It is incorrect to suggest that in fact, the deceased were done to death by Sher Haider and Abdul Wakeel who were the enemies of Amrood Khan and who had come to kill Amrood Khan but in order to involve Amrood Khan and his family in worst situation, we were persuaded by my brother-in-law at the instance of the said Sher Haider and Abdul Wakeel to charge Amrood Khan and Mandous."
' When the defence counsel before the trial Court made submissions in support of this plea then the learned trial Court had to refer and discuss this aspect as it was advanced for acquittal. The trial Court held that the plea is entirely illogical and unnatural and additionally observed that it did not find favour even with the Magistrate who dismissed the complaint. So the discussion about the complaint and defence plea was itself invited by the defence counsel and now when it had been answered against him then he is estopped to make any grievance about it.
9. The learned counsel then referred to para. 11 of the judgment wherein it is written "I have heard the arguments" and submitted that the learned Judge had never heard arguments as the counsel had submitted written arguments before his predecessor. This would not retract from the correctness of the judgment as otherwise the judgment is well-reasoned which is a proof of the fact that the case of the parties was thoroughly appreciated before the judgment was written. The learned counsel also referred to para. 16 wherein it is written "there is no slightest doubt in my mind that the accused is innocent". Nothing can be gained from this inadvertence as the subsequent line and finding of guilt by the trial Court clarifies the matter. The learned counsel was also critical about the discussion by the trial Court regarding the defence plea on the ground that there was nothing on record to this effect. This argument is oblivious of the fact that such plea or counter- version of the incident has been taken by the accused in his statement and argued before the Court. The next point agitated from the appellant side was that the statement under section 342, Cr.P.C. Of the appellant was recorded on 11-2-1990 while C.W. Was examined on 23-11-1991 and, therefore, the appellant should again have been examined regarding the document Exh.C.W.1/1 brought by this witness on record. This C.W.1/1 is the positive opinion of the Arms Expert regarding forty-three empties of 7.62 bore. Nothing turns on this inconsequential omission as the accused in his statement had earlier denied the commission of the offence with the use of Klashnikov.
Moreover, the learned counsel could not take this argument to its logical conclusion to show as to what prejudice has been caused to the appellant through this non-examination.
10. Having answered the points raised from the appellant side we would ourselves determine as to how far the conclusion arrived at by the trial Judge is correct. The ocular account in this case is furnished by the complainant (P.W.8) and Faqir Sher (P.W.9). Their deposition to the extent that the incident occurred in the Hujra as alleged by the prosecution stands admitted even by the appellant himself in his statement under section 342, Cr.P.C. It is to be noted that excepting altercation between the parties sometime before the occurrence no other motive was proved or suggested by the defence. It is thus obvious that for such a trivial motive the complainant party would not go to the extent to substitute the appellant for the real culprit. The defence has also not shown any cogent reason as to why after all the appellant and his co-accused was chosen for such a heinous charge. The learned counsel appearing for the appellant was not able to refer to any material contradiction, improvement or exaggeration in the evidence of the two eye-witnesses so as to enable him to argue that the testimony of these witnesses was doubtful on that count. On the other hand, the evidence of both the eye-witnesses is definite, forth-right and creditworthy and moreover, they have not been discredited in cross-examination in any manner. As against this the counter-version of the incident as disclosed by the appellant in his statement to the effect that the deceased died because of indiscriminate firing by the said two persons is to say the least is ridiculous. It is not understandable as to how the appellant who was present during that firing escaped injuries when the assailants had come to kill him. The medical evidence and the recovery from the spot also support the prosecution case. We are, therefore, of the view that the finding of guilt is based on credible and solid evidence and, therefore, there is no need to interfere. We, therefore, dismiss the appeal and confirm the death sentence.