FAZAL KHURSHEED Versus S. AGHA JAWED RAZA

1. MAMOON KAZI, J.----- The petitioner was facing charges under sections 302/324/147/148 and 149, P.P.C. before the learned Sessions Judge, Karachi when his case was transferred to Special Military Court No.4, Karachi.

2. The facts of the case are that the petitioner on 13-8-1991 at about 7-30 p.m. had a flight with one Abdul Ghani, the brother of the complainant, in the case. It was alleged that the petitioner alongwith his father Haji Adam, Tayyab, Shari and Younis had attacked the complainant party as all of them wanted to take revenge. Deceased Ibrahim sustained knife injuries as a result of which he died on the spot. Similar injuries had also been sustained by the complainant and Yousuf, Hamid, Hanifa Bai, Rahima Bai and Kulsoom. The police thereafter arrested the petitioner and his father Haji Adam and challaned them before the learned Court of Session from where the case was subsequently transferred as pointed out earlier.

3. The Special Military Court found the petitioner guilty and sentenced him to suffer imprisonment for life. Accused Shafi had absconded whereas accused Tayyab and Younis were released under a remission order issued by the then President of Pakistan. Accused Haji Adam was also subsequently released under another order by the President of Pakistan.

4. The main contention of Mr. Muhammad Ashraf Kazi before us has, been that the Special Military Court which tried the petitioner and convicted him was not properly constituted as one of its members, namely Abdul Alim Bughio who was a Magistrate had not been, vested with powers under section 30 of Cr.P.C. which was one of the requirements of M.L.O.4 of 1982. It may be pointed out that neither this question has been specifically raised in the petition nor the other side had sufficient notice that such a question would be raised by the learned counsel for the petitioner before us today. However, our attention has been invited to the case of Khadim Hussain v. Government of Pakistan 1992 P Cr. L J 1623, wherein a similar objection in regard to constitution of a Special Military Court was repelled as such objection had never been raised before the Military Court where the petitioner was being tried. The petitioner was, therefore, not permitted to raise the objection at a belated stage. Reliance was also placed in this case upon the judgment in the case of Malik Ghulam Mustafa Khar v. Pakistan P L D 1988 Lah.

49. Under the circumstances, this contention of Mr. Muhammad Ashraf Kazi is, unacceptable.

5. The second contention of the learned counsel is that the petitioner should be given benefit under section 382-B of Cr.P.C. According to this section the trial Court while passing sentence of imprisonment on an accused has to take into consideration the period if any during which the accused was detained in custody for the offence for which he had been tried. Perhaps the learned counsel for the petitioner does not realise that we are exercising Constitutional jurisdiction and we are not functioning as an appellate Court. These are the powers which vest in the trial Court and they can also be exercised by an Appellate Court. Therefore, reference to section 382-B in the present case appears to be completely misconceived. Although the learned counsel has pointed out that the petitioner has already undergone sentence of more than eight years by November, 1991 (as is indicated from the report received from the Jail authorities) but going into this question is not at all necessary as the same cannot advance the case of the petitioner in any case. The second contention of Mr. Muhammad Ashraf Kazi is, therefore, also without force.

6. The learned counsel for the petitioner has also argued that the conviction of the petitioner was in violation of Articles 4, 8, 9, 12 and 25 of the Constitution but the learned counsel was unable to advance any convincing argument in support or such contention. Suffice it to say that none of the said Articles appear to have been violated in the present case.

7. In the result, we find no force in this petition and the same is, therefore, dismissed.

8. N.H.Q./M-1822/K Petition dismissed.