GHULAM HAIDER Versus THE STATE and 4 others
This constitutional petition was filed under Article 199 of the Constitution of the Islamic Republic of Pakistan 1973, seeking a direction to police authorities to arrest respondents Nos. 4 and 5 following their conviction for murder and the subsequent dismissal of their appeal by the High Court. The petitioner contended that despite the High Court's judgment upholding the conviction and sentence, the respondents remained at large. The core legal question was whether the High Court should exercise its constitutional jurisdiction to compel the arrest of convicts when the trial court has failed to execute the sentence. The Court held that the petition was not maintainable, reasoning that the petitioner possessed an alternative and efficacious remedy. Under Section 425 of the Code of Criminal Procedure 1898, the trial court is duty-bound to act upon the High Court's appellate judgment. Furthermore, Section 426(3) of the Code of Criminal Procedure 1898 provides the mechanism for computing sentences after suspension. Consequently, the Court directed the petitioner to approach the trial court or the Sessions Judge, who are legally obligated to issue warrants of commitment upon receiving the appellate judgment.
- Is a constitutional petition maintainable to seek the arrest of convicts when an alternative remedy exists before the trial court?
- What is the duty of the trial court upon receiving a certified copy of an appellate judgment under Section 425 of the Code of Criminal Procedure 1898?
- How is the period of sentence computed under Section 426(3) of the Code of Criminal Procedure 1898 when a convict was released on suspended sentence?
- Article 199, Constitution of the Islamic Republic of Pakistan 1973
- Section 302, Pakistan Penal Code 1860
- Section 34, Pakistan Penal Code 1860
- Section 302(b), Pakistan Penal Code 1860
- Section 425, Code of Criminal Procedure 1898
- Section 426(3), Code of Criminal Procedure 1898
ORDER
Through this petition under Article 199 of the Constitution of the Islamic Republic of Pakistan 1973, the petitioner seeks a direction to respondents Nso.2 and 3 to arrest respondents Nos.4 and 5 forthwith in implementation of the judgment of the learned trial Court and this Court.
2. The brief facts of the case are that the petitioner's son Bashir Ahmad was murdered and F.I.R. No. 125 was registered on 20‑12‑1990 at Police Station Mahmood Kot District Muzaffargarh under section 302/34, P.P.C. against the accused‑respondent. The learned trial Court vide judgment, dated 21‑10‑1991 convicted the respondents under section 302(b), P.P.C. read with section 34, P.P.C. and sentenced them to imprisonment for life. Against the said judgment appeal was filed which was also dismissed by this Court vide judgment, dated 9‑9‑2003.
3. The grievance of the petitioner is that in spite of the fact that the copy of the judgment has been sent to the learned Sessions Judge, Muzaffargarh on 27‑10‑2003 for the execution of the sentence but so far no action has been taken against the respondents in spite of the fact that copies of the same have been supplied to them and the police has not arrested respondents Nos.4 and 5, as such the petitioner has no other alternate and efficacious remedy except to invoke the Constitutional jurisdiction of this Court.
4. I have heard the learned counsel for the petitioner at some length. Respondents Nos.4 and 5 were on bail after suspension of their sentence when Criminal Appeal No.337 of 1991 filed by them was dismissed by this Court on 9‑9‑2003. Under section 425; Cr.P.C. copy of the judgment of this Court is to be certified to the lower Court which has originally passed the judgment and the same Court has to act upon the directions/findings of this Court made in the appeal. According to subsection (3) of section 426, Cr.P.C. the period during which convict was released after suspension of his sentence shall be excluded in computing the term for which he is so sentenced. Hence, the petitioner has an alternate remedy by moving the learned trial Court or learned Sessions Judge, Muzaffargarh to act in accordance with the above provisions, who are duty bound to issue warrants of commitment against the convict on receiving copy of the judgment of this Court passed in appeal. Hence it cannot be said that petitioner has no alternate remedy.
5. For the foregoing reasons, this writ petition is misconceived and being not maintainable is dismissed in limine.
H.B.T./G‑20/L Petition dismissed.