P L D 1994 Peshawar 35 (PLP)

‑‑‑‑S.5(5)‑‑‑Jurisdiction‑‑‑Special Court is for all purposes vested with powers of a High Court. (d) Criminal Procedure Code (V of 1898)‑‑‑ ‑‑‑‑S. 374‑‑‑Reference to High Court‑‑‑Section 374, Cr.P.C. contemplates a reference by a Court of Session passing a sentence of death to the High Court for confirmation and if the sentence is passed by a Court with powers of a High Court no reference is required for the confirmation of the death sentence by the High Court or any other Court. Subhan Sher for Petitioner. Muhammad Azam Khan, Addl. A.-G. for the Province. Abdul Hakeem Khan Kundi for the Federation. Date of hearing: 30th June, 1992. ABDUL KARIM KHAN KUNDI, J; ‑‑This writ petition arises in the background of facts that by his judgment and order dated 5‑12‑1988 the Special Court constituted under the Special Courts for Speedy Trials Act, 1987 (hereinafter referred to as the Act) awarded death sentence on three counts to A the writ petitioner on the charges of the murder of Jarjais Khan, Wilayat Ali and Malik Ali Gauhar. It was ordered that the award of death sentences to the convict‑petitioner shall be subject to confirmation by the Peshawar High Court, Peshawar.

2. By a general amnesty order dated 7‑12‑1988 the President of the Islamic Republic of Pakistan was pleased to commute all death sentences awarded by the Military or other Courts up to 6th of December, 1988 to imprisonment for life and the writ petitioner was also benefited by the said general amnesty order and was accordingly taken out of the death cell and made to serve the sentences of life imprisonment as ordinary prisoner. He did B not avail a right of appeal in the first instance neither the Special Court made a reference for confirmation of his death sentences. It was sometime in April, 1991 that a letter emanated from the Interior Division, Government of Pakistan addressed to the Home Secretaries of the four provinces on the subject of clarification of certain issues arising out of the general amnesty order dated 7‑12‑1988 and it was stated that in view of the judgment of the Lahore High Court, Bahawalpur Bench dated 16‑3‑1991 in Criminal Appeal No. 26 of 1987 and Murder Reference No.4 of 1987 there emerged out a 3 correct legal position that the general amnesty order dated 7‑12‑1988 shall be applicable to those prisoners only whose death sentences had been already confirmed by the High Court by 6‑12‑1988, that in pursuance of the letter dated 9‑4‑1991 the writ petitioner was once again placed in death cell on 4‑7‑1991. Writ petitioner was prompted to file appeal against his conviction and sentences and also the instant writ petition. His Criminal Appeal was entertained although sufficiently time‑barred due to the reason that he was misled by the judgment and order of the trial Court which awarded him the death sentences subject to confirmation by the Peshawar High Court on 5‑12‑1988 although under the statute the order of the Special Court was itself a final order, in no way necessitating the confirmation of death sentences by C the High Court. His Criminal Appeal was, however, otherwise dismissed on merits by a judgment and order dated 24‑5‑1992.

3. Today we heard Mr. Subhan Sher, Advocate learned counsel for the petitioner, Mr. Muhammad Azam Khan, Additional Advocate‑General for the Province and Mr. Abdul Hakeem Khan Kundi, Advocate for the Federation and we found that section 5(5) of the Act vested the Special Court with all the powers which a High Court has in relation to a trial before it under the Code of Criminal Procedure while with further reference to section 4(2) we found that a Special Court was to consist of a person to be appointed by the Governor in consultation with the Chief Justice of the High Court and he must have the qualification to be or has been a Judge of the High Court or a Sessions Judge or retired Sessions Judge to be qualified for appointment as a ID Judge of the High Court. The Special Court was thus for all purposes vested with powers of a High Court.

4. Section 374, Cr.P.C. contemplates a reference by a Court of Session passing a sentence of death to the High Court for confirmation and if the I sentence is passed by a Court with powers of a High Court there is not to be IE made a reference for the confirmation of the death sentence by the High Court or any other Court. The learned Additional Advocate‑General contended with reference to section 12 of the Act that since appeal from a final judgment passed by the Special Court was to lie to the High Court as such even if the said Special Court was vested with the powers of a High Court still he shall be deemed subordinate to the High Court and a death sentence awarded by him shall be subject to confirmation by the High Court. On reading the Statute we have not found a provision for making of a reference by the Special Court of a death sentence for confirmation to the High Court while the provisions of f section 374, Cr.P.C. have been otherwise found inapplicable to the case because the Special Court has not at all acted as a Sessions Court and was vested with the powers of a High Court under the Statute. Consequently we shall accept this writ petition, declare the letter dated 9‑4‑1991 of the Federal Government followed by the letter dated 28‑4‑1991 of the Inspector‑General of Prisons, Government of N.‑W.F.P. and subsequent placing back the petitioner in death cell in pursuance thereof as acts without lawful authority on their part and would accordingly direct the Government of N.‑W.F.P. and the Superintendent, Central Jail Peshawar to take out the petitioner from the death cell and to allow him to serve the sentences of life imprisonment on three counts since the Presidential General Amnesty Order dated 7‑12‑1988 commuting death sentences into life imprisonment was duly applicable and operative in case of the petitioner. N.H.Q./1505/P??????????????????????????????????????????????????????????????????????????????????? Petition accepted.