' SALEEM AKHTAR, J.--The appellant with the leave of the Court challenges the judgment passed by the learned Judges of the Division Bench of the High Court, whereby the death sentence awarded to him was confirmed and the appeal was dismissed.
2. The appellant was charged of committing murder of Mst. Fatima aged 16/17 years daughter of Mirza. The incident occurred on 1-11-1987 at 3-00 p.m. And the F.I.R. Was lodged by the father of the deceased at 5-00 p.m. The complainant stated that on 1-11-1987, Mirza, Shera and Mohara were present in his Haveli negotiating purchase of a mule from him. Mst. Fatima was sitting in a nearby cot and was doing embroidery work. A marriage procession of the son of Ditta Cobbler passed through in front of the house of the complainant at about 3 p.m. The door of the Haveli was open.
The appellant armed with rifle entered the house of the complainant and fired at Mst. Fatima which hit her on her neck the bullet passed piercing through her right cheek. She died on the spot. In spite of the attempt to apprehend the appellant he escaped. The motive alleged was that the appellant wanted to develop illicit relations with Mst. Fatima but as she did not respond favourably he was annoyed. The case was tried by the Sessions Judge and the appellant was charge-sheeted on 2- 5-1988. The evidence was also recorded by the same Judge and he fixed the case for argument on 19-7-1988. Before that the case was transferred to the Punjab Special Court for Speedy Trial No,VIII, Sargodha presided over by Mr. Ch. Ehsanul Haq. The learned Special Judge, by judgment, dated 20th July, 1988 convicted and sentenced the appellant to death and fine of Rs,30,000 or in default thereof further R.I. For 5 years. Out of the amount of fine realised, Rs,20,000 was ordered to be paid to the legal heirs of the deceased. The appeal filed by the appellant was dismissed by the impugned judgment.
3. Leave was granted to consider the effect of the following facts on the case:
(1) The transfer of the case to the Special Court for Speedy Trials when the case was already fixed for arguments before the trial Court;
(2) The Court recording the conviction had examined none of the witnesses, had no occasion to see their demeanour and could not have avaluated their credibility properly;
(3) After admitting in statement of accused MLRs Exh.DB, Exh. DC and Exh.DD the Court rejected them as inadmissible without itself calling the doctor to prove it; and
(4) the defence version required better consideration in juxtaposition.
4. Mr. Muhammad Munir Peracha, the learned A.S.C. For the appellant contended that the trial of case by Mr. Ch. Ehsanul Haq was coram non judice he being not qualified for the appointment as Judge under the Special Courts for Speedy Trials Act, 1987 (hereinafter referred to as the Act).
Before the promulgation of this Act, the Special Courts for Speedy Trials Ordinance, 1987 (Ordinance II of 1987) was promulgated on 26th July, 1987 under which Mr. Ch. Ehsanul Haq was appointed as a Special Judge. Section 4(2) of the Ordinance provided as follows:-- "A Special Court shall consist of a person, to be appointed by the Government, who is, or has been, or is qualified for appointment as, a Judge of a High Court."
' There is no dispute that at the time when the appointment was made, the learned Judge was qualified to be appointed as a Special Judge under the Ordinance. It seems that on 16th November, 1987, the Act was promulgated and the Ordinance was repealed. Section 4, subsection (2) of the Act provides as follows:-- "A Special Court shall consist of a person, to be appointed by the Governor in consultation with the Chief Justice of the High Court, who is, or has been, a Judge of High Court, or is a Sessions Judge who is qualified for appointment as a Judge of a High Court."
' Thereafter, by Special Courts for Speedy Trials (Amendment) Ordinance (XIX of 1988), it was amended as follows:-- "3. Amendment of section 4. Act XV of 1987).--In the said Act, in section 4, in subsection (2), for the words 'a Sessions Judge who is' the commas and words `, or has been, a Sessions Judge who is, or at the time of his appointment as such was,' shall be substituted."
' This amendment is not relevant for the present controversy.
5. The learned counsel contended that the appointment of Mr. Ch. Ehsan-ul-Haq was proper under the Ordinance but under the Act before the amendment a person who "is a Sessions Judge" "qualified for appointment as a Judge of the High Court" could be appointed as a Special Judge.
According to the learned counsel, this qualification was not fulfilled by the learned Judge as he was not a Sessions Judge qualified for appointment as a Judge of the High Court. Section 15 of the Act provided a complete answer to this contention. It reads as follows:-- "15. Reneal.--(1) The Special Courts for Speedy Trials Ordinance, 1987 (II of 1987), is hereby repealed.
(2) The repeal of the aforesaid Ordinance shall not--
(a) affect the previous operation of the aforesaid Ordinance or anything duly or suffered thereunder; or
(b) affect any right, privilege, obligation or liability acquired, accrued or incurred under the aforesaid Ordinance; or
(c) affect any penalty, forfeiture of punishment incurred in respect of any offence; or
(d) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability penalty, forfeiture or punishment as aforesaid, and any such investigation, legal proceeding or remedy may be instituted, continued or enforced and any such penalty, forfeiture or punishment may be imposed as if this Act had not been passed.
(3) Notwithstanding the aforesaid repeal, any appointment, notification, order, rule, made or issued under the aforesaid Ordinance shall be deemed to have been made or issued under this Act."
6. Subsection (3) of section 15 saves the appointment made under the Ordinance and by fiction of law such appointment shall be deemed to be an appointment under this Act. The learned counsel for the appellant has fairly brought to our notice a judgment of this Court namely; Ahmed Nawaz v.
The State PLD 1994 SC 358 in which similar question was raised in respect of Mr. Ch. Ehsan-ul-Haq and after examining section 4 of the Ordinance and sections 4 and 15 of the Act, it was repelled with the following observation:-- "A comparison of the above two quoted provisions of the Act and the Ordinance indicate that under the former provision, a Special Court is to be consisted of a person who is or has been a Judge of the High Court or is a Sessions Judge, who is qualified for appointment as a Judge of the High Court. Whereas under the later provision, a Special Court is to be consisted of a person who is or has been or is qualified for appointment, as a Judge of the High Court. In other words, under the former provision, a sitting High Court Judge or a retired High Court Judge or a Sessions Judge who is qualified for appointment as a Judge of the High Court, can be appointed as the Special Court; whereas under the later provision, even an Advocate who has put in required number of years practice, can be appointed as the Special Court.
' The above contention might have some force if the appointment of Ch. Ehsan-ul-Haq would not have been made under the Ordinance and the Act would not have contained section 15(3), which inter alia saves the appointments made under the Ordinance. It was candidly conceded by Mr. Muhammad Munir Piracha that factually the appointment of Ch. Ehsan-ul-Haq as the Special Court was made while the Ordinance was in the field. In this view of the matter, the above contention is devoid of any force."
' We respectfully agree with these observations and the contention of the learned counsel is without any merit.
7. The learned counsel for the appellant contended that the transfer of the case from the Court of Sessions Judge to the Court of Special Judge was legal as the case was already fixed before the Sessions Judge for arguments and the purpose of the Act to have a speedy trial could not have been achieved.
' The main ground for this contention was that the object of the Act is to provide a speedy trial and as trial was at the final stage, such object would not have been achieved. From the preamble of the Act, it seems that Special Court for Speedy Trials is to be established in the public interest in respect of offences specified in the Schedule. The offence has been defined as those specified in Schedule which in the opinion of the Government is gruesome, brutal and sensational in character, 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. Therefore, it is the nature of the offence within the parameters provided by the Act which determines that it is to be tried by the Special Judge.
Under section 5(2) of the Act relating to an offence the Government is empowered to transfer a pending case before any Court, in public interest, to the Special Court. In Muhammad Yaqub v.
Government of Balochistan PLD 1989 SC 13 referred by the learned counsel for the appellant, while referring to section 2(c) of the Act in which word "offence' has been defined, it was observed as follows:-- "In the context of this definition, an offence cannot be an offence specified in the Schedule unless it conforms to the guidelines mentioned above. It is the commission of this offence which the Special Court can take cognizance of under section 7 of the Act in pursuance of a report under section 173 of the Code of Criminal Procedure. There is, therefore, a duty cast on the Special Court before it takes cognizance to satisfy itself that the guidelines exist to give to it the jurisdiction to try the case.
Reading, therefore, the definition of the word 'offence' in section 2(c) and section 5 of the Act together a conclusion is obvious that unless the 'offence' satisfies the guidelines enumerated in the definition, the power to transfer the case cannot arise in the public interest which is an expression of wide import and means 'general social welfare or regard for social good and predicating interest of the general public in matters where a regard for the social good is of the first moment'.
The opinion, therefore, should be relatable to the guidelines which are elemental in the concept of 'public interest' and this should appear from the order itself.
' We find from the order that while transferring the case from the Court of a competent jurisdiction, there is no consideration of the guidelines which renders the order, on the face of it, illegal, needless to say that as there is deprivation of jurisdiction of the competent Court, the power is to be exercised with care and caution within the parameters laid down in the Act."
9. From the facts of the case it seems that the murder committed by the appellant was gruesome, shocking in nature and was' covered by the guidelines provided by the Act. On merits also we do not find anything significant for interfering with the impugned judgment.
10. The learned counsel has taken us through the evidence of the prosecution witnesses and also defence plea. It was contended that the girl was hit by a stray bullet which the people were firing in the marriage procession and Mst. Fatima had come on the wall of her house to witness it. It was further contended that the defence plea and the prosecution case if examined in juxtaposition did not prove the prosecution case and there is every probability that defence version may be correct.
The defence version according to the D.W. Seems to be that while some persons were firing gunshots in the marriage procession, it hit deceased Mst. Fatima and Mst. Rani daughters of Salehoon Mathela. It was further stated by D.W. That about 10 minutes after the death of Mst.
Fatima, Mirza her father, Riaz and Nazira Komhars came to the Haveli of Ditta Cobbler and injured him, his brother Muhammad Khan and his son Riaz. Mirza gave a Lathi blow on his head and shoulder while Riaz gave a knife blow on the back of his brother Muhammad Khan. Nazira Komhar also gave a knife blow on the back of his nephew Riaz. They were medically examined and remained admitted in hospital. However, at the instance of Riaz no report was made to the police station but a false report was lodged against the appellant and that on account of this occurrence.
Nikah of his son with the daughter of Ditta which was to be performed on that day was postponed.
It was performed 20 days later. The learned Judges of the High Court have termed this plea as an afterthought. The incident occurred at 3 p.m. While the F.I.R. Was lodged at 5-00 p.m. The police station from the place of incident as stated in the F.I.R. Is 14 k.m. If any credence is to be given to the defence plea then with the incident and fighting which had taken place after the death of Mst.
Fatima, it was not possible to lodge the report within a short time of 2 hours. Nor there is anything to suggest that the incident which had at all occurred as alleged by the D.W. Was on the issue that Ditta Cobbler or anyone from the marriage party had fired the fatal shot. The fact that the accused party did notiodge any F.I.R. Against the complainant and his associates casts doubt on the defence plea. Furthermore, according to the defence plea Mst. Fatima was hit by a gunshot while she was on the outer wall of her house. However, according to the site plan the blood was recovered from inside the house near the stove (Choolah) away from the boundary wall. This by itself falsifies the defence plea in toto. We have examined the testimony of the witnesses and find that the eye-witnesses of the incident are trustworthy who have no enmity with the appellant. They are consistent and learned trial Court as well as the learned Judges of the High Court have properly appreciated and accepted their testimony. The appeal is dismissed. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.