1993 PLP 1619 (SCMR)

Dr. Khalid Ranjha and Tanvir Ahmad, Advocate‑on‑Record (absent) for Appellants. Raja Abdul Ghafoor, Advocate‑on‑Record for the State. Date of hearing: 25th January, 1993. SALEEM AKHTAR, J.‑‑‑This appeal by leave of the Court challenges the judgment passed by the learned Judges of the Division Bench of the High Court whereby appellants' appeal filed under section 12 of the Special Courts for Speedy Trials Act, 1987, was dismissed and the conviction and sentence awarded by the learned trial Court was maintained.

2. The appellants were convicted under section 302/34, P.P.C. and were sentenced to death and fine of Rs.50,000 each or in default 5 years' R.I. each, Aslam, the co‑accused was awarded life imprisonment and fine of Rs.50,000 or in default 5 years' R.I., but he has not appealed against the judgment.

3. Javed Nazir complainant and brother of the deceased Aurangzeb lodged F.I.R. stating that outside Shalimar Hotel near Ganga Ice Factory he was taking tea with Haji Muhammad Akram while Chiragh Din, one of the accused, who has been acquitted was sitting on a cot outside his under construction shop. Javed appellant alongwith his three companions came there. in a white car and inquired from Chiragh Din about Aurangzeb deceased who said that he (Aurangzeb) should not be left alive. The complainant hearing of this rushed to the Chowk to inform his brother who was present there alongwith Ashraf and Manzoor alias Bhola. Hearing this all of them got up for their houses, but in the meantime Javed reached there in the white car. Javed armed with Klashnikov and Liaquat appellant and Safdar alias Tedi, who is stated to have been killed in a police encounter before the trial, carrying fire arms came out from the car and stopped Aurangzeb telling him that he would not go alive. They fired at him and he fell down on the roadside. After having satisfied that Aurangzeb had died they left in the same car. It was also stated that another companion of Javed was sitting in the car, who usually accompanied them, but his name and address was not known and could be identified. In the F.I.k. Abdul Hamid Butt was mentioned as an eye‑witness of the occurrence. The motive for the crime was stated to be that Javed was living in Shora Kothi, but as his family was engaged in nefarious activities due to objection and opposition by the residents of the Mohallah in which the deceased had taken a leading role, they had to vacate the house and shift to their residence at Sadar Bazar Javed bore grudge against the deceased. The learned trial Court convicted the appellants and Aslam co accused, but Chiragh Din was acquitted. The same has been maintained by the High Court.

4. Leave was granted to inter alia to examine whether on the strength of subsection (3) of section 12 of the Act XV of 1987, direct appeal to the Supreme Court can still be filed as a matter of right. This legal question has arisen due to the language used in section 12 of the Special Courts for Speedy Trials Act, 1987 (hereinafter called the Act). Prior to the promulgation of this Act, Special Courts for Speedy Trials Ordinance, 1987 (Ordinance II of 1987) was promulgated in which section 12 provided for appeal in the following manner:‑‑ "

12. Appeal.‑‑(1) An appeal shall lie to the Supreme Court within seven days of the final judgment passed by the Special Court, and a copy of the judgment shall be supplied to the accused and the prosecutor, free of cost, on the day the judgment is pronounced. (2) The Advocate‑General may, and on being directed by the Government, shall present to the Supreme Court an appeal against an order of acquittal passed, or for enhancement of a sentence awarded, by the Special Court. (3) The Supreme Court shall decide an appeal within such time as may be determined by rules made by the Supreme Court in that behalf keeping in view the purposes of this Ordinance." It can be seen that appeal was provided to the Supreme Court against the final judgment passed by the Special Court. Under subsection (2) on being directed by the Government the Advocate‑General could file appeal against the order of, acquittal or for enhancement of sentence awarded by the Special Court before the Supreme Court. Subsection (3) provided for framing of rules by the Supreme Court for the purpose of deciding the appeal. On the promulgation of the Act it was to remain in force for a period of two years from 11‑11‑1987. In this Act section 12 provided for appeal, but under subsections (1) and (2), the appeal could be filed before the High Court. Thus there was a departure from the Ordinance inasmuch as after the enforcement of the Act, appeal could be filed before the High Court and not the Supreme Court. However, subsection (3) remained the same as in the Ordinance. Therefore, it provided that the Supreme Court shall decide an appeal within such time as may be determined by the Rules made by the Supreme Court. Again, the Act was amended by the Special Courts for Speedy Trials (Amendment) Ordinance, 1988 promulgated on 13‑10‑1988 which extended the life of the Act to two years. In section 12, subsection (1‑A)was added which reads as follows:‑‑ "An appeal presented to the High Court shall be decided by the High Court within three months." However, subsection (3) remained untouched in its original form and continued to be a part of the statute. It is in this background that the question of appeal to the Supreme Court has to be considered.

5. At the outset it may be mentioned that the Act does not provide for an appeal to the Supreme Court. Subsection (1‑A) further confirms that the appeal has to be filed and decided by the High Court. The fact that subsection (3) has not been amended is a mistake on the part of the legislature which twice failed to notice the discrepancy by keeping subsection (3) intact. In such circumstances, the Court can substitute and correct the errors which are manifest on the record and are not in consonance with the language and spirit of the Act itself. Therefore, under the Act an appeal to the Supreme Court does not lie.

6. The next question is whether it will lie under Article 185(3) of the Constitution. By this Article an appeal to the Supreme Court from a judgment, decree, order or sentence of a High Court to which clause (2) does not apply, shall lie to the Supreme Court provided leave to appeal is granted. This is a Constitutional right and is not dependent upon the right conferred by the Act. As the appeal is not hit by clause (2) of Article 185 the appellants have a right to file an appeal with the leave of the Court. Such leave has been granted and we therefore advert to consider the merits of the case.

7. Dr. Khalid Ranjha, learned counsel for the appellants contended that the conviction has been based on the evidence of interested witnesses and chance witnesses which was not sufficiently corroborated by unimpeachable evidence. The incident occurred at 6‑45 p.m. on 24‑4‑1987 and the F.I.R. was registered at the police station at R‑15 p.m. The persons involved in the incident were known to each other, so the question of mistaken identity or substitution of the accused should be ruled out. It has been contended that in the FIR except Javed the names of other persons sitting in the car were not mentioned and by adding the names of Liaqat, Aslam and Safdar the prosecution has improved the case and falsely implicated them. In the FIR the incident has been described in two parts, one when Javed came in a white car and inquired from Chiragh Din about the deceased near Shalimar Hotel where the complainant was present. While describing this part of the incident the complainant has not given the names of the persons sitting in the car. The second part is when Javed reached the Chowk where the deceased was present whom the complainant had informed him about his designs. At that time the names of all the persons except Aslam have been mentioned in the FIR. The fact that they came out of the car and started firing at Aurangzeb has been described which seems to have been witnessed by two witnesses including Abdul Haraid Butt. So far Aslam is concerned, it vas stated that he is a man who always accompanies Javed and can be identified. Similar is the statement of the complainant in Court. The learned counsel for the appellant wants to take advantage of these facts by construing that except Javed the names of other accused were not mentioned at the first stage. This does not justify the rejection of the entire prosecution case as there is every possibility that at that time when Javed reached he may have been in the company of persons who were not known to the complainant but at the time of firing at Aurangzeb, the persons named were present and committed the offence. In the first part the complainant did not name anyone except Javed but as subsequently he had described the names of all the persons and if it is assumed that Javed straightaway came to the place where Aurangzeb was present, then it can conveniently be deduced that those persons who had been named and are charged with the offence were present there from the very beginning.

8. The complainant by virtue of his relationship and the enmity he bore against Javed may have been an interested witness, but the other witness, namely, Abdul Hamid Butt is an independent and natural witness. He has seen and related the entire incident. It is contended that as he had gone inside the house to bring a match box, he could not have seen the incident and came out of his house after the occurrence. He had stated that Aurangzeb was sitting 15 paces away from his house. He had gone inside the house to bring match box and hurriedly came out hearing the shot and saw Javed armed with klashnikov, Liaqat armed with carbine and Safdar armed with klashnikov, firing simultaneously at Aurangzeb. The fourth companion was sitting in the car whom he had seen with the accused before the present occurrence on some occasion. Even if this witness had gone inside the house and came back and saw the accused armed with fire‑arms standing near the deceased who had received fire‑arm injuries, the conclusion would be that the accused had committed this offence. The presence of the appellants armed with fire‑arms in the face of the incident can be taken note of as highly relevant factors. In our view Abdul Hamid Butt is 'a natural, independent and disinterested witness and his testimony cannot be rejected. The learned Judges of the High Court on proper appreciation of the evidence have dismissed the appeal on cogent reasons. No interference is required. The appeal is dismissed. N.H.Q./M‑1767/S Appeal dismissed.