1. ' IFTIKHAR MUHAMMAD CHAUDHRY, J.--- By this judgment we intend to dispose of Murder Reference No,15 of 1997 received from Special Judge, Suppression of Terrorist Activities, Kalat at Mastung, whereby Abdul Qadir son of Muhammad Ibrahim has been convicted and sentenced under section 302, P.P.C. To death as well as Criminal Appeal No,245 of 1997, filed by coovict challenging his conviction/sentence awarded to him by the Special Court vide judgment, dated 13th September, 1997.
2. ' Facts of the prosecution case are that on 10th October, 1994 at the time. Of Maghrib prayer deceased Gul Muhammad and acquitted accused Khuda Baldish quarrelled with each other.
3. Subsequently convict Abdul Qadir, opened fire upon him with klashnikov at Jewa which resulted in his death. Accordingly P.W. Abdul Rehman reported the matter to Naib-Tehsildar, Sorab who registered a case vide F.I.R. Exh.P./5-A on 3rd October, 1994 at 10-50 a.m. Investigation of the case was commenced by P.W. Syed Jamal Shah, as such he alongwith Doctor proceeded to place of incident, from where he took into possession four empties of klashnikov, in presence of witnesses vide recovery memo. Exh.P./3-A. It may be noted that at the time when Naib-Tehsildar alongwith the doctor reached at the spot dead body of deceased Gul Muhammad had already been buried.
4. Therefore, it was not examined. Reportedly convict ' Abdul Qadir could not be arrested as he absconded towards Larkana from where, he was arrested through S.H.O. Police Station Nasirabad, District Larkana and was brought to Soorab on 7th February, 1995. On completion of investigation, appellant alongwith co-accused Khuda Bakhsh was sent up to answer the charge before the Special Court, S.T.A., constituted under the Suppression of Terrorist Activities (Special Courts) Act, 1975 (hereinafter referred to as "the Act of 1975").
5. ' Convict did not plead guilty and claimed trial. It may be noted that co-accused Khuda Bakhsh, brother of convict, could not be arrested, therefore, trial Court decided to proceed against him in absentia under section 5-A(4) of the Act of 1975.
6. ' Prosecution to prove the charge, led evidence of P.Ws. Sher Muhammad, Muhammad Alam, Muhammad Anwar, Mst. Zainab, Abdul Rehman and Syed Jamal Shah. The statement of convict under section 342, Cr.P.C. As well as on oath under section 340(2), Cr.P.C. Were recorded, in which he denied the prosecution case. Two witnesses namely Din Muhammad and Khamisa alias Piara were produced by him in defence as D.Ws. 1 and 2.
7. ' Learned Special Court, on completion of trial, found the convict, guilty under section 302, P.P.C. And awarded him death penalty, subject to confirmation by this Court, vide impugned judgment, dated 13th September, 1997. The appellant had also challenged the conviction by filing separate appeal.
8. ' Mr. Aslam Chishti, learned counsel appeared on behalf of convict-appellant, whereas Mr. Noor Muhammad Achakzai, learned Additional Advocate-General, represented the State.
9. ' It is to be noted that learned Special Court constituted under the Act of 1975, functioning at different Session Divisions, had sent Reference for confirmation or otherwise, of the death sentences, awarded to the convicts. In most of those matters, major penalty was awarded to the culprits in absentia. During hearing of those cases, question cropped up for consideration; whether the Special Court functioning under the Act XV of 1975, can competently send Reference to the High Court for confirmation or otherwise of death sentence, in terms of section 374, Cr.P.C.? When we admitted the instant reference, it was deemed proper to dilate upon this aspect of the case thoroughly, because Mr. Aslam Chishti, learned Senior counsel appearing on behalf of the accused was of the view that it is mandatory for Special Court, where it awards death sentence to accused, to forward reference to the High Court for confirmation of such sentence as required under section 374, Cr.P.C.
10. ' Mr. Aslam Chishti, learned counsel to elaborate his point canvassed that the provisions of Code of Criminal Procedure are applicable to the trial of offences by Special Court mutatis mutandis save to the extent of inconsistency and to substantiate his contention, the learned counsel made reference to sections 6 and 9 of Code of Criminal Procedure Code, section 6 thereof defines various classes of criminal Courts, including the Court of Session, whereas; section 9 deals in respect of establishment of Court of Session for every Session Division by Provincial Government and to appoint a Judge for such Court; with powers to try offences and to award sentences to accused for the offence to which he/they are found guilty and cognizable by such session Court. Accordingly the learned counsel submitted that under section 6 of Act XV of 1975 a Special Court may pass any sentence against accused as authorised by law and the Special Court shall have all the powers as are conferred and exercisable by a Court of Session exercising original jurisdiction and as such according to Mr. M.A. Chishti for awarding sentence by Special Court in exercise of its powers under section 6 of Act XV of 1975 would be the same as a Sessions Judge could exercise while passing a sentence. Thus, attending to the crucial issue, he in order to further supplement his contention, made reference to the provisions of subsection (2) of section 31 of the Code of Criminal Procedure whereby a Sessions Judge or Additional Sessions Judge is competent to pass any sentence authorised by law provided that any sentence of death passed by any such Judge, shall be subject to confirmation by the High Court, and therefore, the learned counsel emphasised that notwithstanding the provisions of section 5-A of the Act XV of 1975 about the competence of Special Court to regulate its own procedure, any sentence of death passed by Special Court shall be equally subject to confirmation by the High Court, as if passed by a Sessions Judge or Additional Sessions Judge, as provided under section 374 of the Code of Criminal Procedure. For sake of convenience the Code of Criminal Procedure and Suppression of Terrorist Activities (Special Courts) Act, 1975 (Act XV of 1975) hereinafter would be referred as Code and Act, respectively. Lastly, the learned counsel contended that if it is held by the Court that death sentence passed by Special Court is not required to be confirmed by the High Court, it would amount to exclude impliedly the procedural and other remedial provisions of the Code; including the one by which, the accused gets benefit of section 382-B of the Code stands extended.
11. ' The learned amicus curiae Raja M. Afsar strively submitted that penalty of death passed by a Special Court under the Act does not require confirmation by the High Court under section 374, of Cr.P.C. Because Act XV of 1975 was primarily enacted by the Legislature to curb the acts of sabotage, subversion and terrorism and to provide speedy trial of offences committed in furtherance of or in connection with such acts. According to the learned amicus curiae, such objective and intent of the Legislature is manifest and reflects from the preamble and from the peculiar provisions of the Act itself which being a special law in its context, nature of its letter and spirit, entails its own peculiar distinctive procedure for trial of scheduled offences and awarding of sentences. To elaborate and advance his argument, he made reference to section 5 of the Code (Cr.P.C.) which deals with two categories of offences. Its subsection (1) deals with trial of offences under Pakistan Penal Code, which provides that all offences under Pakistan Penal Code shall be investigated, inquired into, tried and otherwise to be dealt with according to the provisions hereinafter contained. Whereas; its subsection (2) deals with the trial of offences against other laws, according to which, all offences under any other law shall be investigated, inquired into, tried and otherwise to be dealt with according to the provisions of the Code but subject to any enactment for the time being in force regulating the manner or place of investigation, inquiring into, trying or otherwise dealing with such offences. He further contended that the offences described in the schedule to the Act, inclusive of section 302, P.P.C. If committed with prohibited automatic or semi-automatic weapon, such as klashnikov, G-3 Rifle shall be deemed to be scheduled offence and exclusively triable under Act XV of 1975, and therefore, Special Court constituted under section 3(1)(b) of Act XV of 1975 will exercise powers under section 6 of the Act and as far as the exercise of power of Sessions Judge is concerned do not withstand to the fact, whether the Special Court is presided over by the sitting Judge of the High Court, retired Judge of High Court or an Advocate who can be appointed as Judge of High Court or headed by the Sessions Judge or Additional Sessions Judge. According to the learned counsel, the powers of Session Judge under the Code of Criminal Procedure have been defined by section 31(2) which provides that a Sessions Judge or Additional Sessions Judge may pass any sentence authorised by law; but sentence of death passed by any such Judge shall be subject to confirmation by High Court and the later part of this subsection, according to the learned counsel would not be applicable to Special Court otherwise the Legislature had no prohibition to provide that the sentence of death passed by a Special Court shall be subject to confirmation by High Court. To further emphasize the proposition yet from another angle; according to learned amicus curiae, the reference for confirmation of death sentence under section 374, Cr.P.C. Is required to be submitted before High Court but if the Presiding Officer of Special Court happens to be Judge of High Court; the question would be to whom such reference be submitted, so to avoid such anomalous situation, the confirmation of death sentence passed by Special Court has not been made subject to confirmation by High Court.
12. ' Mr. Noor Muhammad Achakzai, learned Additional Advocate-General contended that no confirmation, of death sentence passed by Special Court is required to be done by High Court because it would frustrate instead to advance the object of the Act XV of 1975 for speedy disposal of the cases in respect of the scheduled offences. According to him if the procedure in respect of confirmation of death sentence provided in section 374, Cr.P.C. Be followed, it would render the object of Special law as redundant and superfluous. He placed reliance on PLD 1957 SC (India) 381, AIR 1962 SC 1239 and AIR 1965 SC 202.
13. ' We have heard the learned counsel for the parties and the learned amicus curiae at length and perused the relevant provisions of the Act (Act XV of 1975) objectively with reference to its context and considered to explore the aim and object of enacting the law, as well as the scope in respect of offence which can be tried by Special Court to meetwith the expediency for which Act XV of 1975 has been enacted. Preamble of the Act manifestly lays emphasis for enacting the Special Provisions to be expedient for the purposes of suppressing acts of sabotage, subversion and terrorism and to provide for speedy trial of offences committed in furtherance of or in connection with such acts. Subsection 2(b) of the Act defines Scheduled offences i,e, offences specified in the schedule to the Act, which contain and enumerate a number of offences of P.P.C., Arms Act, Pakistan Arms Ordinance, 1965, Explosive Substances Act, Railways Act, Telegraph Act etc. On perusal of the schedule it can be conveniently inferred that Special Courts were not established only to try the offences of P.P.C. But also the other offences falling under different laws referred to in the schedule to the Act. It is substantially important to note that subsection (1) of section 3 of the Act, 1975 empowers Federal Government to establish/constitute special Courts by notification, consisting of a person who has been or is qualified for appointment as Judge of High Court or is for a period of not less than three years exercised, whether continuously or not, the powers under the Code (Cr.P.C.) of a Sessions Judge or an Additional Sessions Judge. The plain and analytical approach to this provision of the Act, makes it abundantly clear that besides Sessions Judge or Additional Sessions Judge, a person who has been or is qualified for appointment as Judge of High Court, can be appointed as Presiding Officer of Special Court. Similarly any Judicial Officer having experience of not less than three years, either as a Sessions Judge or Additional Sessions Judge can be appointed as Presiding Officer of the Special Court. Section 5 of the Act XV of 1975 provides the procedure of taking cognizance of offence which varies to the procedure provided in section 190, Cr.P.C. For taking cognizance of offence. Under the Special Procedure of the Act in terms of section 5, the Officer Incharge of Police Station after completion of investigation of the case has directly to forward challan to Special Court in respect of any scheduled offence, under section 173, Cr.P.C. Within 14 days inasmuch as; a Special Court can directly take cognizance of a scheduled offence and without such case being sent to it under section 190, Cr.P.C. The special mode of taking cognizance was deliberately and purposely introduced, in order to ensure speedy disposal of cases triable under the Act. Likewise section 5(A) makes it obligatory for the Presiding Officer of Special Court to proceed with the trial of the case day to day and to decide the case speedily, without adjourning the proceedings for any purpose, unless such adjournment is in its opinion necessary in the interest of justice which shall not be for more than two days. Subsection (4) of section 5 of the Act authorises the Presiding Officer of such Court to hold trial of accused in absentia as well, by appointing an Advocate on behalf of the accused and in such case if conviction has been recorded a right has been given to the accused to question before the same Court within sixty days from the date of passing of the order, if he appears himself voluntarily or apprehended and brought before the Special Court and he satisfies it that his absence was not intentional, the Special Court itself shall set aside the conviction and proceed to try him for the offence, for which, he is charged; and such is an additional facility provided to accused who has been convicted by Special Court in absentia, with exceptional powers conferred on the Court to set aside such findings and conviction recorded by it. It is to be observed that different provisions embodied in this section are meant to promote and advance the object of the law for which it was enacted. It is pertinent to note that no such procedure has been introduced in the code for the disposal of criminal cases. As far as section 6(1) of the Act is concerned, it deals with powers of Special Court, in respect of passing of sentences authorised by law; provisions whereof appear to have been borrowed from subsection (2) section 31 of the Code. Comparison of the words employed in both these provisions clearly suggest that in the former provision, Special Court is empowered and invested with all the authority and competence to pass any sentence authorised by law and shall have the same powers conferred by the Code on a Court of Session exercising original jurisdiction whereas; by virtue of later provision, Sessions Judge or Additional Sessions Judge, may pass any sentence authorised by law, but any sentence of death passed by any such Judge, shall be subject to confirmation by the High Court. As far as latter provision relating to confirmation of death sentence is concerned, those have been intentionally omitted from the former provision, because for instance, if Special Court is presided over by a Judge of the High Court; who obviously being not a Session Judge would not make reference for confirmation of death sentence to its own High Court, and if such reference for confirmation of death sentence is sent to High Court; it would be against the letter and spirit of section 374 of the Code, as well as amount to defeating the object of the Act and its provisions relating to the speedy trial of offences.
14. It may be noted that the object of making reference to High Court for confirmation of death sentence under section 374, Cr.P.C. Is not aimless but meant for reappraisal and reassessment of entire facts of the case in the light of the law, so as the High Court should satisfy itself about the guilt or innocence of the accused persons, as it has been held in Juman and others v. The State of Punjab PLD 1957 SC India 381. Similarly in AIR 1965 SC 202, the Honourable Supreme Court of India held that in a murder trial, when an accused person stands charged with the commission of offence, punishable under section 302, he stands the risk of being subjected to the highest penalty, prescribed by Indian Penal Code and naturally judicial approach in dealing with such cases is to be cautious, circumvent and careful. In dealing with such offences or Reference proceedings, where the question of death sentence is involved, the High Court has to deal with the matter carefully and to examine all relevant and material facts and circumstances before upholding the conviction and confirming the .Sentence of death. In view of these two principles, it is to be examined; whether the enactment (Act XV of 1975) has provided all safeguard to an accused who is charged for any of the offences falling within the mischief of schedule, including section 302, P.P.C., the Special Court would apply all care and caution to ensure that major penalty of death awarded to accused is strictly in accordance with the settled principles of criminal administration of justice based upon the material available on record and not for any other extraneous or arbitrary consideration or reason. Answer to this question can be conveniently found in the enactment itself which has prescribed the qualification for appointment of Presiding Officer of Special Court under section 3, wherein it has been provided that he has been or is qualified for appointment as Judge of High Court or has experience of not less than three years at his credit of having exercised the powers of Sessions Judge or Additional Sessions Judge and such provision is meant to ensure that Sessions Judge or Additional Sessions Judge to be appointed as Presiding Officer of the Special Court, is an experienced person in the field. Therefore, he would be competent enough in disposing the matters not only speedily but with due care and caution, otherwise the law could have declared that any Sessions Judge or Additional Sessions Judge to be eligible to such appointment, without the condition of prescribed tenure about exercise of powers.
15. As far as the procedural and remedial provisions of the Code are concerned, including the acquittal of accused at any stage of the proceedings under section 249-A, or 265-K or execution of sentence under section 381, Cr.P.C. As well as the extension of benefit to accused of the period for which he remained in custody as under-trial prisoner is concerned, those provisions shall remain available to accused under section 382-B, Cr.P.C. Even if he is tried by Special Court, because in the interest of justice the principles of Code of Criminal Procedure would remain conveniently operative but as regards sending of reference to High Court by Special Court is concerned where death sentence has been awarded to accused by such Court; would not be permissible in view of the object and purpose for which Act XV of 1959 was enacted and the scheme of the law itself provides that the Special Court has to adopt special procedure to ensure that the offences falling within the purview of the schedule to the Act are required to be disposed of expeditiously.
16. As above discussed preamble of the statute is its prefatory statement following the title and precedes the enacting clauses; thereby declaring the reasons or motives for and the object sought to be achieved by the enactment of the statute. Patently and by any stretch of judicial interpretation of statutes; Special enactment cannot be equated to a General Law on the subject, which, obviously, does not deal with a particular subject as is embraced in its folds by a special law under its own substantive, regulatory and procedural provisions. Special statute inherently by its provisions is a departure and contrast to a general law containing provisions relating to such subject; for which a special statute is made operative; the very objective of enforcing a Special Law is to bypass the provisions of general law and it is on account of such express legislative intent that general law always leans favourably to special law except to the unpermissible extent under the provisions of such statute and save to the extent of applicability of remedial or beneficial provisions of general law and not inconsistent to the provisions of Special Law.
17. ' At this juncture, it may also be noted that a Criminal Court, constituted under sections 6 and 9 of the Code of Criminal Procedure, if is seized with a case which entails punishment for death, makes reference to the High Court under section 374, Cr.P.C. For purpose of confirmation of death sentence, because said Court is subordinate to the High Court, but a Special Court under the Act of 1975, being not subordinate to High Court, is not bound to make reference. This aspect of the case can also be viewed from another angle i,e, if an order has been passed by the Special Court whether that is reviseable by High Court under section 439, Cr.P.C. Or under Article 203 of Constitution of Islamic Republic of Pakistan? Answer to this proposition necessarily would be that as Special Court is not subordinate to High Court, therefore, no order passed by it is reviseable under section 439, Cr.P.C. In forming this view we are relying on the judgment reported in Muhammad Ibrahim v. The State PLD 1990 Kar. 250 and Abdul Khalique v. The State PLD 1990 Kar.
18. 448 . The principle discussed in the last mentioned authority has been approved by Honourable Supreme Court in the case of Sheikh Rashid Ahmad v. The State PLD 1996 SC 168. In this very context reference to the judgment delivered in the case of Habib Bank Limited v. The State and 6 others PLD 1988 Kar. 49 would also not be out of place, because in this report, concerning to the orders passed by a Special Court, constituted under the Offences in Respect of Banks (Special Courts) Ordinance (IX of 1984), the Division Bench of Karachi High Court, on the same analogy examined that notwithstanding the fact that a Special Court was to follow procedure prescribed by Criminal Procedure Code for trial of cases by Magistrate in matters with respect to which, no procedure has been prescribed by Ordinance of 1984, or fact that appeal was provided to High Court in terms of subsection (1) of section 10 of the Ordinance of 1984, but the subordinate Court would not be an inferior Court to the High Court for purpose of section 435 or 439, Cr.P.C.
19. Thus, for the foregoing reasons, we are inclined to hold that on awarding of death sentence by the Special Court, constituted under the Act of 1975, no reference for the purpose of confirmation of the sentence, shall be competent before the High Court, in accordance with the provisions of section 374, Cr.P.C. However, if convict submits an appeal against the sentence to High Court within the prescribed limitation, that would be disposed of, in accordance with law.
20. ' Now turning towards the merits of case. After hearing of appeal as well as the reference, we reserved the judgment and before it could be announced on 17th October, 1997, Mr. Aslam Chishti, learned counsel for convict Abdul Qadir, submitted an application alongwith compromise, which has been effected between the parties. Request was made by him to accord permission to compound the offence and thereby acquitting the convict of the charge. To ascertain the contents of compromise, legal heirs of deceased Gul Muhammad were directed to be produced in Court. In pursuance of our order, Mst. Zainab widow of deceased and Messrs Yar Muhammad and Faiz Muhammad, brothers of deceased appeared in Court and stated that besides them, deceased is not survived by any other legal heir and they also testified to the contents of compromise. Their statements were duly recorded on oath. On recording of statements, we are satisfied that the legal heirs of deceased, named hereinabove have entered into compromise with the convict, in accordance with law, therefore, permission is accorded to compound the offence. Consequently, conviction/sentence of death awarded to Abdul Qadir son of Muhammad Ibraheem under section 302, P.P.C. By Sessions Judge, Kalat at Mastung, vide judgment, dated 13th September, 1997 is set aside. He is set at liberty, if not required in any other case.
21. In view of the reasons and discussion made hereinabove, it is held that reference under section 374, Cr.P.C. Will not be competent before High Court if the sentence of death has been awarded by the Special Court. As for as appeal filed by the convict Abdul Qadir is concerned, it is accepted because permission has been accorded to parties to compound the offence.
22. ' Before parting with the judgment, we would like to place our thanks on record for Raja M. Afsar, Senior Advocate who has assisted us to the best of his abilities in the instant case.