AHMED NAWAZ vs THE STATE

ORDER

' AJMAL MIAN, J.---This is a petition sent by the convict, Ahmed Nawaz son of Noor Hussain, who has been condemned to death against the judgment, dated 26-2-1992 passed by a Division Bench of the Lahore High Court in Criminal Appeal No, 75/J/1988 filed by the petitioner against the following convictions and sentences:--- "(1) under section 302, P.P.C. Death with a fine of Rs,30,000 in default 5 years' R.I. Rs,20,000 be paid as compensation to the legal heirs of the deceased on account of recovery of fine.

(2) under section 353, P.P.C. 2 years' R.I. With fine of Rs,5,000 in default three months' R.I.

(3) under section 30713.P.C. 4 years' R.I. And fine of Rs, 10,000 in default one year R.I." dismissing the above appeal and maintaining the above convictions and sentences.

2. The petitioner and the co-accused Ahmad Gul were tried under section 302/307/353/34, P.P.C.

Pursuant to F.I.R. Registered at Police Station Kaloor Kot, District Bhakkar. The prosecution case was that the petitioner Ahmad Nawaz was armed with a rifle and acquitted co-accused Ahmad Gul was armed with a gun. On 15-12-1987 at 11.30 a.m. In the area of Wathoia Basti Oadanwali in furtherance of their common intention, they used criminal force against Muhammad Mumtaz S.I., a public servant, and made a murderous assault on him. They fired at the police party and also committed the intentional murder of Abdul Rehman, Constable, while they were chased by the above police party for arresting them. In support of the case the prosecution relied upon the testimony of eye-witnesses Zulfiqar (P.W.9) and Allah Bakhsh (P.W.10), who were members of police party alongwith deceased Abdul Rehman, besides medical evidence and Chemical Examiner's report indicating that the empties recovered from the place of incident matched with the rifle produced by the petitioner. The learned trial Court, after appraisal of the evidence, convicted the petitioner as above and acquitted the above co-accused Ahmad Gul through the judgment, dated 21-9-1988. Against the above judgment, the petitioner filed above Criminal Appeal, which has been dismissed through the impugned judgment. After that the petitioner has sent the above petition from Jail.

3. Mr. Muhammad Munir Piracha, who has been engaged for the petitioner, in support of the above petition, has contended that Ch. Ehsan-ulHaq, who presided the Punjab Special Court for Speedy Trails No, VIII, Sargodha, and who recorded the above convictions and sentences, was not qualified in terms of section 4(2) of the Special Courts for Speedy Trials Act, 1987 (Act XV of 1987), hereinafter referred to as the Act, as he was not and had not been a Judge of the High Court or was not a Sessions Judge who was qualified for appointment as a Judge of the High Court and, therefore, the trial and the resulting convictions and sentences were coram non judice. He has invited our attention to the factum that the wordings of subsection (2) of section 4 of the Act and of Special Courts for Speedy Trials Ordinance, 1987 (Ordinance II of 1987), hereinafter referred to as the Ordinance, were different inasmuch as under the latter, a person who was or had been or was qualified for appointment as a Judge of a High Court, could be appointed; whereas, this is not so in the Act.

4. In order to appreciate the above contentions, it may be pertinent to reproduce section 4 of the Act and of the Ordinance, which reads as follows:--- ' Section 4 of the Act "4. Constitution of Special Court.---(1) The Government may, by notification in the official Gazette, establish for the whole or a part of the Province one or more Special Courts.

(2) A Special Court shall consist of a person, to be appointed by. The Governor in consultation with the Chief Justice of the High Court, who is, or has been, a Judge of High Court, or is a Sessions Judge who is qualified for appointment as a Judge of a High Court.

(3) A Special Court shall sit at such places as the Government may by order, specify in that behalf."

' Section 4 of the Ordinance "4. Constitution of Special Courts.---(1) The Government may, by notification in the official Gazette, establish for the whole or any part of the Province one or more Special Courts.

(2) A Special Court shall consist of a person, to be appointed by the Government, who is, or has been, or is qualified for appointment as a Judge of a High Court.

(3) A Special Court shall sit at such places as the Government may, by order, specify in that behalf."

5. A comparison of the above two quoted provisions of the Act and the Ordinance indicate that under the former provision, a Special Court is to be consisted of a person who is or has been a Judge of the High Court or is a Sessions Judge, who is qualified for appointment as a Judge of the High Court. Whereas under the latter provision, a Special Court is to be consisted of a person who is or has been or is qualified for appointment, as a Judge of the High Court. In other words, under the former provision, a sitting High Court Judge or a retired High Court Judge or a Sessions Judge who is qualified for appointment as a Judge of the High Court, can be appointed as the Special Court; whereas under the latter provision, even an Advocate who has put in required number of years practice, can be appointed as the Special Court.

6. The above contention might have some force if the appointment of Ch. Ehsan-ul-Haq would not have been made under the Ordinance and the Act would not have contained section 15(3), which inter alia saves the appointments made under the Ordinance. It was candidly conceded by Mr. Muhammad Munir Piracha that factually the appointment of Ch. Ehsan-ul-Haq as the Special Court was made while the Ordinance was in the field. In this view of the matter, the above contention is devoid of any force.

7. On merits, Mr. Piracha was unable to point out any infirmity in the concurrent judgments of the two Courts below. We have also gone through the same and find that the High Court has rightly held that the case against the present petitioner stood proved beyond reasonable doubt. Leave is, accordingly, refused.