ExHay. Mirza MUSHTAQ BAIG vs GENERAL COURT MARTIAL
The petitioner sought leave to appeal against the order of the High Court rejecting his application for restoration of a writ petition that had been dismissed for non-prosecution. The petitioner had originally challenged his 1976 conviction and sentence of life imprisonment by a Military Court through a writ petition filed in 1979, which was dismissed in May 1991 due to non-appearance. The petitioner contended he received notice after the hearing date, while his counsel was absent despite having full notice and despite the petitioner allegedly taking away the file. The Supreme Court held that the High Court's refusal to restore the writ petition suffered from no illegality, irregularity, or jurisdictional defect, emphasizing that an advocate remains duty-bound to appear on the date of hearing until formally discharged or until their power of attorney is cancelled in accordance with the rules, regardless of whether the client has taken away the case file. Consequently, the petition for leave to appeal was dismissed.
- Whether an advocate is duty-bound to appear on the date of hearing even if the client has taken away the case file?
- Does an order of the High Court refusing to restore a writ petition dismissed for non-prosecution warrant interference when the counsel had full notice of the hearing?
- Can a writ petition challenging a military court conviction be restored after dismissal for non-prosecution without a valid explanation for the absence of the party and counsel?
ORDER
' SALEEM AKHTAR, J.---The petitioner seeks leave to appeal against the order passed by the learned Judges of the High Court whereby his application for restoration of the writ petition dismissed for non-prosecution was rejected.
2. The petitioner had filed the writ petition challenging his conviction by the Military Court which was confirmed on 18-10-1976 imposing life imprisonment for the murder of Ex-Hay. Zulfiqar Khan.
He seems to have served out the sentence. He filed the writ petition in the year 1979. It was dismissed for non-prosecution on 4-5-1991. In the application it was alleged that the petitioner received the summons from the High Court on 11-5-1991 whereas the hearing was fixed on 4-5-1991 and therefore he could not attend the Court. The learned Judges were of the view that although the petitioner was absent, he was represented by a senior counsel, who should have attended the Court and no valid explanation has been offered for his absence. The petitioner has stated that he had taken away the file from the learned counsel and therefore he did not appear on the date of hearing. The learned Judges have taken note of the fact that cause list was issued and the advocate had full notice of the date of hearing and it was his duty to pursue the case. Even in cases where the papers have been taken away by the client, it is the duty of the advocate to appear on the date of hearing till such time he withdraws his power or it is cancelled according to rules by the client. The impugned order does not suffer from any illegality, irregularity or want of jurisdiction. The petition is dismissed.
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