1994 P Cr (PLP)

Appellants Muhammad Ramzan son of Muhammad Yousuf, Abdul Malik son of Dost Muhammad, Ghulam Farid son of Dost Muhammad and Mumtaz son of Dost Muhammad alongwith Mst. Maqsood Mai (acquitted co- accused) were tried by the learned Sessions Judge, Bahawalpur, who vide his impugned judgment, dated 27-5-1991 convicted and sentenced the appellants under section 302/34, P.P.C. to undergo imprisonment for life each with a fine of Rs.5,000 each, in default whereof to suffer further R.I. for 6 months each. They were also directed to pay compensation of Rs.5,000 each under section 544-A, Cr.P.C. to the legal heirs of the deceased and in default whereof to undergo 6 months' R.I. each. They were also convicted under section 449/34, P.P.C. and sentenced to 5 years' R.I. each with a fine of Rs.2,000 each, in default whereof to suffer R.I. for I months each. Both the substantive sentences were ordered to run concurrently. They were also extended the benefit of section 382-B, Cr.P.C. To assail their conviction and sentence the appellants have come up in appeal. The complainant has also preferred connected Criminal Revision No.45 of 1991 for enhancement of sentence to the appellants, which shall also be decided by this judgment.

2. The appellants alongwith their acquitted co-accused Mst. Maqsood Mai and six unknown accused were named by the complainant (P.W.6) Ayyaz Mehmood son of deceased Muhammad Ramzan, as assailants. Five unknown co-accused were neither arrested nor challaned by the police. P.W.7 Gul Muhammad, brother of the deceased and resident of the adjacent house stated in his statement that he witnessed the four appellants armed with axes and five unidentified persons armed with Dangs and another unknown person armed with a pistol which was not used by him at the time of attack on his deceased brother Muhammad Ramzan. The unknown person holding pistol at that time was neither challaned nor arrested.

3. The appellants were challaned and sent up for trial before the Special Court for Speedy Trial, Bahawalpur Division, Bahawalpur, who on 28-3-1989 framed a charge under sections 460/34/109, 302/34/109 and 307/34/109, P.P.C. to which they denied and claimed trial. The learned Judge, Speedy Trial Court recorded statements of P.Ws.l, 2 and 3 on 28-3-1989, of P.W.4 on 2-4-1989 and of P.W.5 on 3-4-1989. Thereafter the Speedy Trial Courts became extinct and the case was sent to the learned Sessions Judge, who entrusted the same to the Additional Sessions Judge, Bahawalpur where statements of P.Ws.6, 7, 8 were recorded on 18-9-1990 and that of P.W.9 was recorded on 14-1-1991. After suspension of the Additional Sessions Judge, the learned Sessions Judge on 5-5-1991 recorded the statement of P.W.10 and after hearing arguments pronounced the impugned judgment on 27-5-1991.

4. The learned counsel appearing for the appellants has argued that the law relating to speedy trial was originally promulgated on 26-7-1987 through the Special Courts for Speedy Trials Act No.II of 1987 and on 8-11-1987 the said Ordinance was substituted by the Special Courts for Speedy Trials Act NoXV of 1987 and the Legislature fixed the life of the Act to be one year from the date of its enactment. But before the expiry of this period of one year, an amending Ordinance NoXIX of 1988 was promulgated on 13-10-1988 which substituted the one year life of this Act with "two years". The said amending Ordinance was, however, not placed before the National Assembly in terms of Article 89(2) of the Constitution and consequently the same stood repealed on the expiry of four months from its promulgation i.e. on 12-2-1989. The learned counsel also placed reliance on Government of Punjab through Secretary, Home Department v. Zia-Ullah Khan and 2 others 1992 S C M R 602, and in view of the pronouncement of the Supreme Court, Special Courts for Speedy Trials Act No. XV of 1987 became extinct after 12-2-1989, with the result that no Special Court constituted by the above-said Act existed thereafter. Therefore, all proceedings taken by these Courts after the said date were the proceedings taken without lawful authority and of no legal effect.

5. In the present case the trial commenced before the Special Court for Speedy Trial, Bahawalpur on 28-3-1989 when the charge was framed and on the same day statements of three witnesses P.Ws.l, 2 and 3 were recorded and thereafter on 2-4-1989 statement of P.W.4 and on 3-4-1989 of P.W.5 were recorded by the same Court. The trial continued after the above-mentioned crucial date i.e. 12-2-1989. All the proceedings thereafter were coram non judice, held without jurisdiction and hence of no legal effect. The appeal is allowed. The judgment of the trial Court and the conviction and sentences passed by it are set aside as being void and unlawful. The case is remanded for trial afresh.

6. The record of this case shall be sent to the District Magistrate, Bahawalpur, who shall cause entrustment of this case to the Court of competent jurisdiction for fresh trial in accordance with law. The case having been remanded, the connected criminal revision stands disposed of.

7. The appellants were arrested on 10-9-1988 and since then they are in the jail. In the circumstances, they are admitted to bail provided they furnish bond in the sum of Rs.2,00,000 each, with two sureties each, in the like amount to the satisfaction of the Deputy Registrar of this Court. N.H.Q./M-1410/L Case remanded