TAUQEER MIR Versus THE STATE
KHALIL‑UR‑REHMAN RAMDAY, J.‑‑‑ In an occurrence which had taken place on 28‑2‑1988 at about 8‑30 p.m. near the Car Park of Hall Road Hostel of King Edward Medical College at Lahore, one Zubair Khan had got murdered while Fayyaz Hamid and Intezar P.Ws. had received injuries on their persons as a result of a murderous assault mounted on them. The information about this occurrence had been recorded as F.I.R. No.75/88 on 28‑2‑1988 at Police Station Qila Gujjar Singh and after investigation, the case in question had been entrusted for trial to a learned Special Court for Speedy Trials No.II at Lahore, a Court which had been constituted under the Special Courts for Speedy Trials Act XV of 1987.
2. Irfan Baig and Akhtar Hussain accused were arrested while Qadir Sultan and Tauqeer Meer accused absconded and after the requisite proceedings having been taken against them under section 8(4) of the above mentioned Act XV of 1987, the two latter accused persons were tried IN ABSENTIA as provided by the said Act.
3. Through a judgment dated 4‑8‑1988, all the above‑mentioned four accused persons were found guilty of the charges levelled against them and punished as under:‑
Qadir Sultan (absconder):
Under section 302/34, P.P.C. for the murder of Zubair Khan deceased.
Death with a fine of Rs.50,000 or four years' R.I. in default, plus a direction for payment of Rs.50,000 as compensation to the heirs of the said deceased.
Under Section 307/34, P.P.C.
For murderous assault on Fayyaz and Intezar P Ws.
Imprisonment for life, plus a direction to pay Rs.20,000 to each of the said two P.Ws., as compensation.
Tauqeer Meer (absconder). Irfan Baig and Akhtar Hussain:
Under section 30?/109 P P C for abetting, the murder of Zubair Khan deceased.
Imprisonment for life, with a fine of Rs.20,000 or two years' R.I. in default with a further direction to pay Rs.20,000, as compensation to the heirs of the deceased.
Under section 307/1(A, P.P.C.
For abetting, the murderous assault on Fayyaz Hameed and Inteza r P.Ws.
Ten years' R.I., plus a fine of Rs.10,000 or one year R.I. in default with a direction to pay to each one of them Rs.10,000 to the said P.Ws., as compensation.
4. Irfan Baig and Akhtar Hussain convicts, above‑mentioned, challenged, the above‑mentioned convictions and sentences recorded against them through Crl. A. No.862 of 1988 which appeal came up before a learned Division Bench of this Court and after the said appeal had been allowed on, 13‑5‑1990, both these convicts were acquitted of the charges levelled against them.
5. Qadir Sultan, the absconding convict was allegedly arrested on 31‑12‑1990 whereafter, he filed an appeal, through jail which was received in this Court on 11‑5‑1991 and which was originally registered as Crl. Misc. No.622‑M ,of 1991 in Criminal Appeal No.862 of 1988 but was subsequently registered as an independent appeal bearing. Criminal Appeal Nn‑104 of 1992.
6. Another appeal, bearing Crl. A. No.292 of 1992 was filed in this Court on behalf of the still absconding Tauqeer Meer convict which was, however; dismissed on 2‑3‑1992, as being incompetent. He, however, subsequently surrendered and filed Crl. A. No.332 of 1992 on 9‑3‑1992.
Both these appeals i.e. Crl. A. No.10‑J of 1992 and Crl. A. No332 of 1992 of Qadir Sultan and Tauqeer Meer convicts are being disposed of together through this single judgment.
8. The learned counsel representing the State submitted at the very outset that both these appeals were hopelessly barred by time and thus, deserved to be dismissed on this short ground alone.
9. In Ziaullah Khan's case PLD 1989 Lah. 554, it was held by this Court that the trials held IN ABSENTIA against the accused persons as envisaged by section 8 of Act XV of 1987 were violative of Article 10 of the Constitution and were thus, a nullity in the eyes of law. This: judgment of our Court was maintained by the Supreme Court in Government of Punjab v. Ziaullah Khan and others 1992 SCMR 602.
10. As has been mentioned above, the trials against both the appellants before us, in the above‑noted case, had been held IN ABSENTIA. The said trials were, therefore, no trials in the eyes of law and were void AB‑INITIO .
11. It has been held more than once that limitation prescribed for filing; appeals etc. did not start running in cases of actions which were void AB‑ INITIO . Reliance, inter alia, is placed on Mst. Rehmat Bibi v. Punnu Khan and others 1986 SCMR 962; Malik Khawaja Muhammad v. Marduman Babar Kahol and others 1987 SCMR 1543 and Hussain Bakhsh and others v. Settlement Commissioner and another PLD 1969 Lah. 1039.
12. This being so, it is held that the two appeals under adjudication are not hit by the limitation prescribed for filing of the same and in view of the declaration of this Court that the trials held IN ABSENTIA were un constitutional, the said two appeals are allowed and the impugned judgment dated 4‑8‑1988 passed by the Punjab Special Court for Speedy Trials No.II of Lahore, a Court constituted under the Special Courts for Speedy Trials Act No.XV of 1987, is set aside as being a judgment arising out of a trial which was incompetent.
13. Since we have held that the trial in question was no trial in the eyes of law and since both the appellants have now surrendered, this case, alongwith the record shall be sent to the District Magistrate of Lahore who shall then entrust the same to the competent Magistrate/Court for a trial, in accordance with law.
14. Crl. A. No.332/92 and Crl. A. No.10‑J of 1992 are disposed of in the above terms.
M. B.A./T‑87/L Order accordingly.