FAQIR HUSSAIN vs The STATE
This is a petition for review of a judgment delivered by the Supreme Court of Pakistan in a criminal appeal. The petitioner sought a review of his dismissed appeal and death sentence, contending that his chosen counsel was unable to attend the hearing due to official engagements in the Majlis-e-Shoora, and that the Advocate-on-Record representation prejudiced his case. The petitioner also argued that the benefit of exceeding the right of private defence extended regarding one deceased should have similarly applied to the murder of the other deceased in the same transaction, and that his confessional statement and statement under section 342 of the Code of Criminal Procedure 1898 were not properly analysed. The Supreme Court held that the Advocate-on-Record was present, prepared, and permitted to argue, and that counsel must give preference to court duties over other engagements. The Court further found no error apparent on the record and that all points had been duly considered in the original judgment. Consequently, the review petition was dismissed as incompetent.
- Whether a review petition is competent when the counsel of choice was absent but the Advocate-on-Record argued the case?
- Does the failure of a petitioner's primary counsel to attend due to other engagements constitute a ground for reviewing a judgment?
- Whether an error apparent on the record is established where all points in the grounds of appeal and leave granting order were considered?
- Section 302, Pakistan Penal Code 1860
- Section 304(I), Pakistan Penal Code 1860
- Section 342, Code of Criminal Procedure 1898
ORDER
MIAN BURHANUDDIN KHAN, J.-This is a petition for review of the judgment delivered by this Court on 21-6-1982 in Criminal Appeal No. 35-P of 1982.
2. The above-noted Criminal Appeal of Faqir Hussain, the condemned prisoner and the connected Criminal Appeal No. 36-P of 1979 (Mst. Fatima v. Fagir Hussain and others) came up for hearing before this Court at Peshawar Circuit. Appeal No. 36-P of 1979 against the acquittal order in favour of Jamilur Rahman, co-accused of the petitioner, was dismissed and judgment of the learned High Court, Peshawar dated 4-7-1979 was maintained; while Cri--minal Appeal filed by the petitioner against his death sentence was dismissed.
3. The learned counsel for the petitioner contended that the appeal came up for hearing on 20-6- 1982 and the Advocate of the petitioner was not informed of the fixation of appeal by Mr. Nur Ahmed Khan, Advocate-on-- Record. Therefore, the points on which petition for leave to appeal was granted by this Court could not be agitated by the learned Advocate-on-Record, and this has caused prejudice to the case of petitioner as his case was not properly presented by the counsel of his choice. We have seen the record of the case and find that the Advocate-on-Record Mr. Nur Ahmad Khan was present on the date of hearing and he was asked by the Court whether he would be able to represent the petitioner or not. He stated that the learned counsel for the, petitioner Mufti Muhammad Idris was informed of the date of hear in but he was busy in the Session of the Majlis- e-Shoora at Islamabad, and, therefore, he would not be able to appear. He (Mr. Nur Ahmad Khan Advocate-on-Record however) stated that he has prepared the case and would be able to argue.
Therefore, the learned Advocate-on-Record was allowed by the Court to argue the case and after considering all the points urged in the `grounds of appeal' and the Leave Granting Order, judgment was delivered on 21-6-1982. We consider that it is the responsibility of the counsel for the appellants in such cases to be present for representing their clients and should give preference to this duty over any other work they might have in hand at that particular time.
4. The next point which the learned counsel Mufti Muhammad Idris contended was that the learned appellate Court partially accepted the appeal with regard to the murder of Salim extending him the benefit that he had exceeded the right of private defence, altered the conviction from 302, P. P.
C. To 304(I), P. P. C. And sentenced him to life imprisonment and fine of Rs. 2,000. Sentence of death with regard to Aslam (deceased) was maintained whereas in same transaction Aslam was believed to have made an intrusion into the house of the petitioner. He followed Salim to the house of the petitioner. Thus he was also an intruder and could be forced to leave the house of the petitioner and in this process if any injury was caused to Aslam it would be in the same category in which the offence regarding Salim has been committed. He further contended that the confessional statement of the petitioner taken together with his statement recorded under section 342, Cr. P. C. Has not been fully discussed in its true legal perspective as the same has not beenanalysed before this Court. None of these contentions has any force. The date of hearing was notified by the Advocate-on-Record to the learned counsel for the petitioner; arguments were heard in detail and the judgment delivered by this Court has dealt with all the points raised in the `grounds of appeal. We also did not find any error apparent on the record. This Review petition is not competent and the same is accordingly dismissed.