PLJ
2024 SC (Cr.C.) 88.jpg)
[Appellate Jurisdiction]
Present: Qazi Faez Isa, CJ,
Syed Mansoor Ali Shah,Amin-ud-Din Khan and Athar Minallah, JJ.
versus
FEDERATION OF PAKISTAN and others--Respondents
Crl. Misc. A. No. 6 of 2020 in Crl. A. No. Nil of 2020,
decided on 10.11.2023.
(Against the order of the Registrar dated 17.01.2020)
.jpg)
Criminal
Law Amendment (Special Court) Act, 1976 (XVII of 1976)--
----S. 12(3)--Appeal, right of--Act of Court--The appellant was
convicted and the criminal appeal against such judgment was filed--Criminal
appeal was not numbered as the appellant had not surrendered himself--Appeal
was not fixed and the appellant passed away--A right of appeal also accords
with the Constitution of the Islamic Republic of Pakistan--Inordinate delay
neither the appellant nor his counsel can be faulted--No one should be made to
suffer on account of an act of Court, or as in this matter, on account of
inaction--An appeal is the right of every convict--Criminal Miscellaneous is
allowed and consequently the unnumbered criminal appeal be
numbered. [Pp.
89 & 90] A, B, C, D, E, F
1999 SCMR 1619; PLD 1989 SC 6 ref.
Mr. Salman Safdar, ASC for Appellant.
N.R for
Respondents.
Date of hearing:10.11.2023.
Order
Qazi Faez Isa, C.J.--Learned Mr. Salman Safdar representing the
appellant, General (Retd.) Pervez Musharraf, states that the appellant was
convicted by a Special Court and had a right to prefer an appeal against his
conviction under Section 12(3) of the Criminal Law Amendment (Special Court)
Act, 1976. The appellant was convicted vide judgment dated 17 December
2019 and the criminal appeal against such judgment was filed on 16 January
2020, which was within time as the said provision stipulates that a convict
‘may prefer an appeal to the Supreme Court within thirty days of the passing of
the judgment.’ However, the criminal appeal was not numbered as the Institution
Officer of the office of the Supreme Court objected to its filing as the
appellant had not surrendered himself; in this regard reliance was placed on
the proviso to rule 8 of Order XXIII of the Supreme Court Rules, 1980.
2. Against the said office objection, dated 17
January 2020, Criminal Miscellaneous Appeal No. 6/2020 was filed on 14 February
2020, which was put up for hearing in Chamber before Justice Umar Ata Bandial,
as his lordship then was, and, after noting the contentions of the learned
counsel, he observed vide his order dated 25 February 2020
that, ‘It would be appropriate that these points are considered by a Bench of
this Court. Accordingly, let the present C. M. Appeal be fixed before the Court
for hearing.’ However, the learned counsel states, the appeal was not
fixed in Court till today, and the appellant passed away on 5 February 2023.
3. The learned counsel relies on the case
which he had also cited before the learned Judge in Chamber, that is, Benazir
Bhutto v State (1999 SCMR 1619), and submits that it was fully
applicable, in particular its paragraph 11, at page 1628. He further states
that in the Benazir Bhutto case reliance was placed upon the decision in the
case of Pakistan v General Public (PLD 1989 Supreme Court 6) wherein the
Shariat Appellate Bench of this Court had directed that in the laws under
consideration provisions be made for providing a right of appeal. He further
states that a right of appeal also accords with the Constitution of the Islamic
Republic of Pakistan (‘the Constitution’) as it is an adjunct to fair trial and
due process as provided in Article 10A of the Constitution.
4. We enquired from the learned senior
counsel, Mr. Hamid Khan, representing Mr. Taufiq Asif, learned senior counsel,
Mr. Rasheed A. Rizvi, representing Sindh High Court Bar Association, learned
Mr. Haroon-ur-Rashid, Vice President of the Pakistan Bar Council, learned Hafiz
Abdul Rehman Ansari, representing himself, in the connected matters fixed
today, that is, CMA No. 677/2020, etc., whether they have any objection if
Criminal Miscellaneous Appeal No. 6/2020 is allowed and they as well as the
learned Additional Attorney-General state that they have no objection to the
extent of numbering of the criminal appeal provided the question regarding the
intervening death of the appellant will be considered later.
5. It is unfortunate that despite the order of
the learned Judge in Chamber, directing that the said criminal miscellaneous
appeal be fixed in Court this was not done till today (10 November 2023), that
is, the same was not fixed for a period of over three years and eight months
for no discernable reason. For this inordinate delay neither the appellant nor
his counsel can be faulted. This Court has repeatedly held that no one should
be made to suffer on account of an act of Court, or as in this matter, on account
of inaction. Even otherwise an appeal is the right of every convict.
Accordingly, Criminal Miscellaneous Appeal No. 6/2020, assailing the office
objection, is allowed and consequently the unnumbered criminal appeal be
numbered. The record of the Special Court be summoned and be put up alongwith
the said appeal for hearing in Court.
6. The learned Mr. Salman Safdar states that
he is in contact with the widow, son and daughter of the appellant and will be
informing them that the appeal has been numbered and fixed for hearing and will
be taking instructions from them.
7. The said appeal be fixed in Court on
Tuesday, 21 November 2023 at 11.30 am alongwith the abovementioned petitions.
(K.Q.B.) Petition
allowed
.jfif)
