' MIAN NAZIR AKHTAR, J.--- This judgment will dispose of Criminal Appeal S.C. (Tribunal) No,1 of 1998/BWP. (Shahsawar v. State), Murder Reference S.C. (Tribunal) No,1 of 1998/BWP. (State v.
Shahsawar etc.), Criminal Appeal S.C. (Tribunal) No,2 of 1998/BWP. (Abdul Jabbar v. The State) and Criminal Appeal S.C. (Tribunal) No,3 of 1998,BWP. (Muhammad Shafi v. The State) in which common questions of law and facts are involved.
1. The appellants alongwith Abdul Sattar (since acquitted) were tried in the Special Court-II, Anti- Terrorism, Bahawalpur for offences under sections 302, 394, 353, 186 and 324 of the P.P.C. For having caused the murder of Muhammad Aslam, Constable and launched murderous assault on Muhammad Ashraf, gun-man. The trial Court found them guilty under section 302-B/34 of the P.P.C. As well as under sections 324/34 and 394/34 of the P.P.C.
2. Shahsarwar and Abdul Jabbar appellants were awarded sentence of death under section 302- B/34 of the P.P.C. For causing murder of Muhammad Aslam, deceased. They were ordered to pay compensation amounting to Rs,40,000 each to be paid to the legal heirs of the deceased under section 554-A of the Cr.P.C. And in default of payment to undergo further R.I. For one year each.
Muhammad Shafi appellant was awarded life imprisonment under section 302-B/34 of the P.P.C.
He was also ordered to pay compensation amounting to Rs,40,000 to the legal heirs of the deceased. Under section 324/34, P.P.C., the appellants were sentenced to R.I. For 10 years with a fine of Rs,10,000 each and in default of payment to undergo further R.I. For six months. Under section 394/34, P.P.C., they were sentenced to R.I. For 5 years each with a fine of Rs,5,000 each and in default of payment to undergo further R.I. For three months each. They were given the benefit of section 382-B of the Cr.P.C.
3. In the very outset, learned counsel for the appellants raised two preliminary arguments. First, that the occurrence had taken place on 12-3-1997 while the Anti-Terrorism Act, 1997 was enforced on 20-8-1997, hence the Court lacked jurisdiction to try the appellants; that under para. 2-A of the Schedule offence under section 302, P.P.C. Is triable by a Special Court if committed after the commencement of the Act as specifically mentioned under para.2(a)(iii) of the Schedule; that the Act cannot be given retrospective effect because it adversely affects the appellants' rights qua legal remedies of the appeal, revision, review before the High Court and the Supreme Court of Pakistan. He explained that the Act was applicable prospectively as was evident from the reading of the provisions of paras.2-A and 2-C of the Schedule as well as section 38 of the Act. Second, the appellants were not given a fair opportunity to defend themselves which caused serious prejudice to them. He urged that the two defence counsel provided at the State expense were not given reasonable time to prepare the defence which caused serious prejudice to the appellants who were convicted on a capital charge in undue haste. He submitted that the Presiding Officer of Special Courts ought to conduct the proceedings with special care and caution so as to inspire public confidence and must not deviate from the prescribed procedure and settled norms of conducting a criminal trial in a fair and impartial manner. His precise objection is that the appellants were given copies of necessary documents including statements of under section 161 of the Cr.P.C. On 5-12-1997 and the case was adjourned for 19-12-1997 for framing of charge. They were told to engage a counsel till the said date failing which, it was noted that they would be provided defence counsel at the State expense; that the appellants were not able to engage any counsel; that in the interim order dated 19-12-1997 it was mentioned that the Court had provided two advocates at the State expense on 17-12-1997, although 17-12-1997 was not a date of hearing; that the names of the two defence counsel said to have been appointed at the State expense were not mentioned in interim order dated 19-12-1997; that they had no contact with the appellants and the Court illegally framed charge on 19-12-1997 and then recorded evidence of five witnesses on 20-12-1997 when the appellants were not properly defended; that the prosecution evidence was recorded on 22-12-1997 and 23-12-1997 and the judgment was announced on 10-1-1998 that the Court had recorded statements 'of about 17 witnesses when the appellants were not properly defended by any counsel; that thereafter Shahsawar appellant engaged a private counsel Mr. Mumtaz Hussain Bazmi, Advocate on 23-12-1997 who cross-examined the remaining witnesses and that in this manner the appellants were seriously prejudiced in their defence.
4. On the other hand, learned A.A.-G. Urged that by virtue of the provisions of the schedule, offence under section 302, P.P.C., even if committed prior to enforcement of the Act, was triable by the Special Court; that the provisions of section 38 of the Act have the limited purpose of making it clear that for an offence amounting to a Terrorist Act, as defined in the Act, even if committed prior to the enforcement of the Act, the sentence would be the same as provided under the law existing at the time of commission of the offence. He further urged that the Special Court was bound under the law to include the trial expeditiously and had allowed time for about a fortnight to the appellants to engage a counsel; that on their failure to do the needful the Special Court provided two Advocates to the accused persons who properly performed their duty; that the prosecution had proved its case against the appellants to the hilt and that a few procedural error pointed out by the appellants' learned counsel were not sufficient to vitiate the trial.
5. We are not impressed by the first argument raised by the appellants' learned counsel regarding his challenge to the retrospective operation of the Act. Section 38 of the Act referred to by the appellants' learned counsel is reproduced below for ready reference:-- "Where a person has committed an offence before the commencement of this Act which if committed after the date on which this Act comes into force would constitute a terrorist act hereunder he shall be tried under this Act but shall be liable to punishment as authorised by law at the time the offence was committed."
' Section 38 provides that trial of a scheduled offence which had taken place before the commencement of the Act can take place before the Special Court but the punishment for the offence, though constituting a terrorist act as defined under the Act, shall be the same as authorised by law at the time of commission of the offence. This section is not meant to provide that a scheduled offence if committed before the commencement of the Act would be triable by the Special Court only if the same amounted to a terrorist act as defined under the Act. In fact, the Act contemplates two categories of offences (i) terrorist acts defined under section 6 and punishable under section 7 of the Act and (ii) scheduled offences punishable under the penal laws of the land. By virtue of section 12 of the Act, the Special Court has been vested with exclusive jurisdiction to try the scheduled offences, notwithstanding anything contained in the Code of Criminal Procedure or in any other law in force. Subsection (1) of section 12 is relevant which reads as under:-- "(1) Notwithstanding anything contained in the Code or in any other law, a scheduled offence committed in an area in a Province shall be triable only by the Special Court exercising territorial jurisdiction in relation to such area."
' Under the schedule to the Act following offences are triable by a Special Court:- "SCHEDULE (See Section 2(e)
1. Any offence punishable under this Act.
(2) Any offence punishable under any of the following sections of the Pakistan Penal Code (Act XLV of 1960), namely:--
(a) section 302--
(i) if committed with a cannon, grenade, bomb rocket; or
(ii) if the victim is a member of police, armed forces or civil armed forces or is a public servant; or
(iii) if committed during or while committing the offence of robbery or dacoity and committed after the commencement of this Act; or
(b) sections 295-A, 365, 365-A; and
(c) sections 392 to 395, 397, or 398, if in committing the offence, the offender or any of the offenders commits the offence of murder of Zinabil-Jabr punishable under sections 6, 7, 8 or 10 or the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (VII of 1979) and committed after the commencement of this Act.
(2-A) Any offence punishable under sections 6, 7, 8 or 10 or the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (VII of 1979), if committed in committing any of the offences punishable under sections 392 to 398 of the Pakistan Penal Code (Act XLV of 1860) and committed after the commencement of this Act.
(3) An offence punishable under subsection (4) of the section 10 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (Ordinance No,VI of 1979), if committed after the enforcement of this Act.
(4) Any attempt or conspiracy to commit or any abetement of any of the aforesaid offences."
' Evidentlly certain offences were made triable by the Special Court only if committed after the commencement of the Act. For example, offence under sections 392 to 395, 397 or 398 of the P.P.C.
If in committing the offence the accused commits the offence of murder of Zina-bil-Jabr, punishable under section 6, 7, 8 or 10 or Ordinance VII of 1979 and offences under sections 6, 7, 8, 10 of Ordinance VII of 1979 involving commission of offences under sections 392 to 398 of the P.P.C.
The condition "if committed after the commencement of the Act" is not relevant in respect of some offences mentioned in the schedule and the said offences are triable by a Special Court even if committed prior to enforcement of the Act. Under para.2 of the Schedule, the offence under section 302 if committed with a cannon, grenade, bomb or rocket or if the victim is a member of police, armed forces or civil armed forces or is a public servant can be tried by a Special Court even if the offences had taken place before enforcement of the Act. The condition and committed after the commencement of this Act" is relevant only under para. 2(a)(iii) of the schedule regarding the offence of murder, if committed during or while committing the offence of robbery or dacoity. The use of the word "or" at the end of paras. 2(a)(i) and (ii) of the Schedule, separates the said paras from para. 2 (a)(iii) and the expression "after the commencement of the Act" cannot be imported into paras. 2(a)(i) and 2(a)(ii) of the Schedule. Similarly, offences under sections 295-A, 365 and 365-A under para. 2(b) and other offences under para. 4 can be tried by a Special Court notwithstanding the fact that the same were committed before the enforcement of the Act. It is significant that offence under sections 295-A, 365 and 365-A do not involve commission of murder of Zina-bil-Jabr. Therefore, the conditions regarding commission of murder of Zina-bil-Jabr and commission of the offence after the commencement of the Act mentioned under para. 2(c) of the Schedule are relevant only qua sections 392 to 395, 397 and 398 of the P.P.C. As regards offence of murder covered under paras.. 2(a)(i) and (ii) of the Schedule, the Special Court has exclusive jurisdiction to try the same even if the offence was committed before the enforcement of the Act.
The argument that by giving retrospective effect to the provisions of the Act qua the offence of murder under paras. 2(a)(i) and (ii) of the Schedule, the substantive rights of the appellants are adversely affected cannot be agitated before this Tribunal which has limited jurisdiction to decide the appeal and dos not enjoy the plenary powers under the Constitution of Pakistan to strike down any provision of the Act on the touch-stone of fundamental rights secured to the citizens under the Constitution of Pakistan. Therefore, the first argument raised by the appellants' learned counsel is repelled.
6. The second argument raised by the appellants' learned counsel regarding mode of trial and lack of a fair opportunity of defence appears to have considerable weight. We find from the record that the appellants were provided copies of the documents including statements of the P.Ws. Recorded under section 161 of the Cr.P.C. On 5-12-1997 with a specific order that the appellants should engage a counsel till then. Thus, initially the Court had provided a reasonable opportunity to the appellants to engage a counsel. However, thereafter the Court committed a number of errors which caused serious prejudice to the appellants in their defence. After distributing the copies on 5-12-1997 the case was adjourned for 19-12-1997 for framing of charge but the words, appear to have been added subsequently in different ink. On 19-12-1997 the Court passed the following order:- {{URDU TEXT}} "It appears that the words {{URDU TEXT}} were also added subsequently in different ink. Admittedly, 17-12-1997 was not a date of hearing and it is not understandable as to how the defence counsel were appointed by the Court in the absence of the appellants. Even if it is presumed that two defence lawyers at the State expense were appointed by the Court on 17-12-1997, the appellants had no occasion to meet them and hand over copies of necessary documents for preparing their defence till 19-12-1997. The name of the two defence counsel appointed at the State expense is not mentioned in the interim order. There is yet another serious infirmity which, per se, is sufficient to vitiate the trial. The Court was conducting joint trial of four accused persons and each one of them had an independent right of being defended by a counsel. Therefore, the Court was under legal obligation to provide a defence counsel to each accused at the State expense. There is nothing to show that the accused persons had opted to be defended by only two Advocates said to have been provided by the Court at the State expense. Moreover, as mentioned above, the two defence counsel was able to meet the appellants only on 19-12-1997 and needed reasonable time to prepare defence in consultation with the appellants. Ordinarily in a case of this nature involving a large number of P.Ws. (about 33) we would have considered time between one week to two weeks to be necessary to enable the defence counsel to prepare the case. However, since the Special Court, after taking cognizance had to conduct proceedings day to day under section 19 of the Act, it could not grant an adjournment for more than two working days as provided under section 19(8) of the Act. The Court ought to have granted adjournment for two days in the interest of justice on 19-12-1997. The discretion granted to the Special Court in the matter of adjournment ought to be exercised reasonably and fairly to secure the interest of justice. In the present case, the Court granted adjournment for one day which was not adequate, in the circumstances of the case. The Court recorded statements of 17 prosecution witnesses including three eye-witnesses namely Muhammad Ashraf P.W.3, Nazir Ahmad, P.W.4, and Muhammad Ismail, P.W.10 when the appellants were not properly defended through a counsel. Shahsawar appellant engaged a private counsel who took part in the proceeding on 23-12-1997 but the other accused had not engaged any counsel. In this manner, the appellants were seriously prejudiced in their defence.
7. In their statements recorded under section 342 of the Cr.P.C. The appellants had voiced their grievance that they were not given an opportunity to engage a counsel of their choice. In reply to question No,1 under section 342 of the Cr.P.C. Shahsawar appellant stated:- "I was not given the opportunity to engage my counsel. I am unaware of the evidence recorded to the extent of P.W.17 when I engaged my counsel myself."
' Abdul Jabbar, appellant stated:- "I was not given the opportunity to engage my counsel of my choice in spite of my application submitted."
' Muhammad Shafi Appellant stated:-- "I have not been given the opportunity to engage counsel of my choice. Two State counsels have been engaged by the Court to defend me. The evidence has been recorded in my presence and in the presence of the said counsel."
' Likewise the acquitted co-accused Abdul Sattar stated:- "I was not given the opportunity to engage my counsel of my choice."
' It is significant that Shahsawar, Abdul Jabbar appellants and Abdul Sattar acquitted co-accused did not refer to appointment of any defence counsel on their behalf at the State expense. However.
Muhammad Shafi, appellants stated that two State counsel had been engaged by the Court to defend him. Prima facie, it indicates that the two State counsels had probably come in contact with Muhammad Shafi who gave some instructions to the learned counsel and felt that they were appointed to defend him. whatever the correct position, one thing is evident that the Court had failed to discharge its legal duty of providing a defence counsel to each accused separately and to give a reasonable opportunity to the defence counsel to prepare the case. The Special Courts must take care in conducting the trial in accordance with the prescribed legal procedure and principles governing administration of criminal justice so as to inspire public confidence. They must not sacrifice the interests of justice and fair play at the altar of speedy trial.
8. The Special Court constituted under the Anti-Terrorism Act, 1997 has to conduct the trial in accordance with the procedure provided under section 19 of the Act. The provisions of the Code of Criminal Procedure, so far as they are not inconsistent with the provisions of the Act also apply to the proceeding before the Special Court, as laid down under section 32 of the Act. Under section 342(1) of the Cr.P.C. An accused person has right to be defended by a pleader in his trial before any criminal Court. This right is of paramount importance and has to be jealously guarded in order to protect life and liberty of the citizens. If adequate opportunity of defence through a pleader is not provided to an accused person it will also be violative of the fundamental right regarding security of person enshrined under Article 9 of the Constitution of Pakistan which provides, "No person shall be deprived of life or liberty save in accordance with the law".
' In the absence or proper opportunity of defence through a counsel, an accused person may be deprived of his life or liberty in violation of the law. To enjoy the protection of law and to be treated in accordance with the law is inalienable right of every citizen as laid down under Article 4 of the Constitution of Pakistan. The opportunity of defence through a counsel must be reasonable and fair keeping in view the nature of each case. In some cases time for a few hours to prepare the defence may be adequate but in others, particularly those involving capital charge time for one week or more may he needed. In the case of Khadim v. The Crown PLD 1954 Lah. 69 it was held:-- "....When the accused is brought for trial, Sessions Judge, who finding that it is necessary to appoint counsel at Government expense for the prisoner, nominates a counsel merely to stand and watch the trial without giving him an opportunity to study the necessary documents and think over the case makes a farce of the rule which entitles a prisoner charged with a capital offence to free legal assistance. It is true that where it is discovered on the date fixed for the trial that the accused is without counsel postponement of the trial becomes necessary, causing delay and expense. But the rule is intended to be observed and, if such adjournment becomes necessary, it must be granted irrespective of all considerations of expense and delay, unless the case is perfectly simple and the Judge is conscientiously of the view that a few hours' time would be sufficient to enable counsel to take instructions from the prisoner and study the necessary documents in order satisfactorily to prepare himself for the defence of the prisoner."
' In the case of Baisakur Ghara v. The State 1971 PCr.LJ 1047 the conviction recorded by the Court was set aside and the for retrial because the defence counsel engaged by the State was afforded a short time of two and a half hours to prepare the case. While refusing to confirm the sentence of death and allowing the appeal the Court was pleased to hold.
' We are, therefore, of opinion that the defence lawyer could not do proper justice in the matter for want of time and there has been a miscarriage of justice in the case and the case should go back to the Court of Session for retrial of the accused after giving him proper opportunity to defend himself and sufficient time to the defence Advocate to take proper defence on behalf of the condemned prisoner."
' The Court was further pleased to observe as under, ' It is unfortunate that the accused has been given extreme penalty of law without affording proper opportunity to defend himself.'
' In the case of Muhammad Sharif v. The State PLD 1973 Lah. 365, a Division Bench of the Lahore High Court was pleased to hold, "There is no indication that the lawyer had any consultation with the accused and took instructions from him. Under section 340, Cr.P.C. An accused had a statutory right to be defended by a counsel.
The rule of the High Court, quoted above, says that the counsel is to be appointed ' in time to enable him to study necessary documents'. The time to be allowed in each case would vary but we feel that in a case entailing capital sentence at least a week's time has to be allowed to the counsel concerned. The statutory right of an accused, particularly in a charge entailing capital punishment cannot be abridged by appointment of counsel a day or two before the trial."
' In the case of Yahya Bakhtiar, Advocate v. The State PLD 1983 SC 291, the Supreme Court was pleased to hold that a defence counsel appointed by the Court on the same day (in the absence of the accused) ought to be given time to prepare the case after obtaining proper instructions from the accused. The relevant part from the judgment reads as under:-- "Another illegality committed was that the Special Court did not give the counsel so appointed by it, time to prepare the case and seek instructions from the appellant, because the Court had asked him to conduct the cross-examination of Manzoor Hussain (P.W.23) the same day of his appointment and had proceeded with further recording of evidence from the next day."
9. In the present case, it appears that the learned Special Judge was oblivious of his legal obligation to provide defence counsel to each accused separately. Even the two Advocates said to have been appointed at the State expense on 17-12-1997 had no occasion to come into contact with the appellants before 19-12-1997.
10. As discussed above keeping in view the facts and circumstances of the case, the defence counsel ought to have been given time for two days to prepare the case. Having failed to act in consonance with the letter and spirit of the rule laid down under section 340(1) of the Cr.P.C., the Special Court has committed as gross illegality which vitiates the trial.
' For the foregoing discussion, we accept the appeal, set aside the appellants' conviction and remand the case to Special Court No,1 presided over by Mr. Bakhtiar Ali Sial, Judge Special Court 1 Anti-Terrorism, Bahawalpur for holding fresh trial in accordance with the law. It is clarified that the trial Court shall proceed afresh from the stage of framing the charge and conclude it in accordance with the law and subject to the observations made in this judgment.