' SHAHID ANWAR BAJWA, J.---With consent of the learned counsel this Constitution Petition was finally heard at Katcha Peshi stage and is being decided accordingly.
2. Bone of contention in this petition is Plot.'SB-35, Block 13-B, Gulshan-e-Iqbal, Karachi (hereinafter referred to as the subject plot). On 21-11-2007 an agreement to sell was entered into between the petitioner as the Vendee and one Wahid Bux as the Vendor. Agreement stated that the Vendee had paid amount of Rs,100,000 as advance and amount of Rs,1,25,000 was to be paid in installments within one year. It was also stated that a separate receipt for another amount of Rs,100,000 had been executed. Amount of Rs,3,25000 was stated to be consideration for sale. It is stated in the petition that the petitioner took possession of the subject plot and set up business there under the name of Madadgar Autos. It is also stated that the petitioner paid property tax and had electricity, gas and telephone connections in his name and paid the bills accordingly.
3.. Civil Suit No, 615 of 1983 was filed by the petitioner against said Wahid Bux as well as the present respondent No,3 and certain other persons. After pleading purchase it was prayed that the defendants Nos.1 and 2 be directed to specifically perform the contract dated 2111-1977 by executing sale-deed in respect of the subject plot in favour of the ' present petitioner. In the alternative refund of amount of sale consideration already paid i,e, Rs,2,50,000 together with amount of appreciation in value of the subject plot was prayed. Permanent injunction restraining the defendants etc. From executing sale-deed or any instrument in respect of the subject plot in the name of any other person was also sought. In the suit interim order was granted. Due to change in pecuniary jurisdiction of this Court on original side, suit was transferred to the lower Court.
4. On 17-12-1985 F.I.R. No, 582 of 1985 was recorded at Police Station Gulshan-e-Iqbal. Complainant was present respondent No,3. She stated that she had purchased the subject plot from one Kazim Ali in 1978 and during her absence present the petitioner took illegal possession of the plot on the basis of forged documents. She also stated that she being Parda-Nasheen lady had nominated an Advocate, the present respondent No,4 to appear on her behalf in Court of law and during course of investigation. F.I.R. Was registered on the basis of complaint sent by the complainant to Deputy Martial Law Administrator. After F.I.R. Was registered the case was sent to a Military Court which framed the charge on December 19, 1985 and finally vide order dated 28-12-1985 the petitioner was convicted and sentenced to R.I. For 1 year and fine of Rs,700,000. It was so ordered that the plot shall be restored to the plaintiff, the real owner. This Constitution Petition has been filed against the order of conviction dated 28-12-1985 and the following prayers are made:- "(1) Declare that the impugned registration of. F.I.R. No 582 of 1985 as well as the proceedings carried out and conviction awarded by the respondent No,2 to the petitioner-on 28-42-1985 was patently illegal, void ab initio and since no limitation runs against a void order, the impugned conviction order dated 28- .12-1985 be set aside as void ab initio, coram non judice, illegal without jurisdiction, having no legal effect.
(II) Direct the respondent No,2 to return the original documents, sale agreement dated 21-11-1997 as well as payment receipts dated 20-3,1978, 28-6-1978, 29-1-1997 and 5-9-1979 which were illegally kept by respondent No,2 during the preceding of the aforesaid F.I.R. No, 582 of 1985.
(III) Grant such other/better relief which this honourable Court may deem fit and proper under the circumstances of the case.
(IV) Costs of the petition."
5. Before turning to the submissions made by the learned counsel it may be stated that as far as civil suit is concerned, it was dismissed and appeal against it was also dismissed. Against the appellate order Revision Application No 84 of 2009 is pending in this Court.
6. Learned counsel for the petitioner made the following submissions:--
1. The petitioner in the Military Court was charged under Chief Martial Law Order 77 R/W CMLO No, 5 of 1977. Learned counsel submitted that MLO 77 ordained that a Military Court can try only the following offences:..
"(a) treason, subversion, sedition, sabotage, prejudicial activity and seducing members of Armed Forces or persons in the service of Federal Government or Provincial Government or in the service of any autonomous or semi-autonomous body in which the Federal Government or a Provincial Government has an interest:
(b) murder, rape, unnatural offence, kidnapping and abduction;
(c) bribery, corruption and criminal misconduct;
(d) robbery, loot, dacoit and arson;,
(e) smuggling, hoarding, adulteration and black-marketing;
(f) Contravention of any Martial Law Order or Martial Law Regulation."
' Contention of the learned counsel was that these offences could be tried by the Military Court only if they were in respect of Federal Government or Provincial Government or a body in which any such Government had an interest. Learned counsel submitted that the allegation against the petitioner did not fall in any of those categories. When it was pointed out to the learned counsel that through amendment made in MLO 77 with effect from 17-6-1981 cheating, criminal misappropriation of the property, criminal breach of trust, forgery, using as genuine a forged document and dishonestly receiving or retaining property in respect of any these offences has been included in the jurisdiction of Military Courts and since murder and rape are also included, learned counsel did not press this ground:-
2. Learned counsel next submitted that at no stage in the criminal process did the plaintiff appear in person and she was all along represented by respondent No,4. Learned counsel relied upon Qaid Johar v. Murtaza Ali and another, PLD 2008 Karachi 342:
3. Learned counsel referred to judgment of the Civil Judge (judgment dated 3-9-2005) and submitted that the Civil Judge has been overwhelmingly- influenced by the judgment of the Summary Military Court as- also has been the Appellate Court in its judgment dated 24-4-2009.
4 Learned counsel submitted that earlier Writ Petition No,257 of 1986 was filed by the petitioner in which, the following prayers were made:-- "(i) That the notice of respondent No,2 dated 15-3-1986 is without lawful authority as such is of no legal effect and this Hon'ble Court maybe pleased to quash the same.
(ii) Consequent action of the respondent No,2 dated 27th July, 1986 of dispossessing the petitioner from Plot No, SB-35, Blockl3-B, Gulshan-e-Iqbal, Karachi is also illegal, ultra vires and without jurisdiction.
(iii) Any other further additional relief/reliefs which this Hon'ble Court deem fit and proper in the circumstances of the case.
(iv) Costs of the petition."
' That petition was dismissed by Division Bench of this Court vide order dated 16-12-1991 and while concluding the Division Bench observed as under: "The petitioner has to prove that he had a right to retain possession on the basis of sale agreement.
Also that without challenging conviction by Martial Law Court he could impugn the execution of a part of his conviction by respondent No,2, through notice dated 15-3-1986."
5 Learned counsel conceded that in that writ petition conviction was not challenged. Learned counsel submitted that the Martial Law was withdrawn on December 30, 1985 and in withdrawal of Martial Law Order it was directed that where the order had been passed by the Military Court but had not been confirmed:- "6. (1) Every case which, having been decided and disposed of by a Special Military Court, is immediately before the appointed day, pending confirmation of the findings or, the sentence or of both, and every petition or application for review in respect thereof, so pending, shall, on or after the appointed day, be confined, or dealt with and disposed of, as the case may be, by the President if the sentence passed by the Special Military Court is that of death or amputation of hand and, in other cases, by the Governor concerned, or the Force Commander Northern Areas as the case may be."
' Learned counsel submitted that no confirmation has been ordered by the Governor. Learned counsel submitted that conviction was against all canons of natural justice and therefore petition is maintainable. In this regard relied upon Federation of Pakistan and another v. Ghulam Mustafa Khan, PLD 1989 SC 26. Regarding delay in coming to this Court learned counsel relied upon Imran Ashraf and 7 others v. The State, 2001 SCMR 424 and Ziaul Rehman v. The State, 2001 SCMR 1405. He also relied upon Muhammad Afzal Khan v. Karachi Development Authority, PLD 1984 Karachi 114, Ghulam Nabi v. The State, 2003 PCr.LJ 454, Mian Muhammad Nawaz Sharif v. The State, PLD 2009 SC 814, Shahsawar and 2,others v. The State, 2000 SCMR 1331, Allah Wadhayo and another v. The State, 2001 SCMR 25, State v. Zulfiqar Ali Bhutto and others, PLD 1978 Lah. 523, Noora and another v. The State, PLO 1973 SC 469, and Muhammad Din and others v. The State, PLD 1977 SC 52.
7. Mr. Faisal Siddiqui, learned counsel for respondent No,3 made the following submissions:--
(1) Petitioner filed a Constitution Petition bearing No,257 of 1986 which was decided in 1991.
Petitioner made certain prayers but did not challenge conviction in that petition and thus he challenged only a part of the order passed by the Military Court and therefore he is disentitled now to challenge rest of the order by the principle of constructive res judicata which is also applicable to criminal cases. Learned counsel relied upon PLD 1982 Quetta 41, 1988 CLC 1803, PLD 1958 Lah 1014, 1999 CLC 813.
(2) Learned counsel submitted that this is a Constitution Petition and though limitation is not applicable doctrine of laches applies. Learned counsel submitted that C.M.A. No,619 of 2011 has been filed under Section 5 of Limitation Act, in which only ground that is pleaded is that petitioner is now 74 years of age. No reason for the delay is given. He submitted that in a case which suffers from laches the Court cannot go into merits of the case. Learned counsel relied upon Gulzar Ahmed Qureshi v. Federation of Pakistan through. Secretary, Ministry of Justice, Islamabad and others, 1999 MLD 2815, Amir-UdDin v. Member (Revenue) Board of Revenue, Punjab, Lahore and another, 2000 MLD 376, Aqil Ahmed and 12 others v. Mirza Ahmed Baig Ghazi and another 1982 CLC 961.
(3) Learned counsel submitted that Civil Court has not decided purely on the basis of order of Military Court but has independently assessed the entire record. Regarding prayer class (ii) learned counsel submitted that the petitioner could have summoned these documents when he led evidence in the civil suit and now it is too late in the day to do so. Learned counsel relied upon 1999 MLD 281.
8. While exercising his right of reply Mr. Khawaja Shamsul Islam submitted that laches are not attracted. He relied upon Pakistan Post Office v. Settlement Commissioner and others, 1987 SCMR 1119 and Ardeshir Cowasjee and 10 others v. Karachi Building Control Authority (KMC), Karachi and 4 others, 1999 SCMR 2883.
9. We have considered the submissions made by the learned counsel and have also gone through the record.
10. Order of punishment against the petitioner was passed by the Military Court on 28-12-1985 and it was confirmed by the DMLA Sec-1 Zone-C, on 29, December 1985. Petitioner was given R.I. For one year. This Constitution Petition has been filed on 23-6-2009 i,e, after a lapse of 24 years. An application under section 5 of the Limitation Act has been filed and in that application apart from pleading illegality, unconstitutionality of the order etc., it is stated that petitioner now is 74 years of age and is carrying weight of illegal conviction. Nothing material has been stated that why he did not approach this Court during last 24 years. Mr. Khawaja Shamsul Islam relied upon Imran Ashrafs case (Supra), where it was observed that no party should suffer on account of wrongs committed by judicial functionaries and also technicalities should not be overlooked without causing miscarriage of justice. First observation was made in respect of an application under section 540, Cr.P.C. And second observation was made en passant. Learned counsel next relied upon Ziaul Rehman's case (Supra). In this case there was 266 days delay in filing the petition such delay was, condoned. Muhammad Afzal Khan's case (Supra) is a service matter. The petition was filed in 1980 (C.P. No, 62 of 1980 which indicates that it was filed at the beginning of the year) and the order that was challenged was communicated to him on 31-12-1979. The case is therefore clearly distinguishable. In Ghulam Nabi's case (Supra), it was observed that it is duty of the trial Court in case of a person who is illiterate and poor to come to his rescue.
11. In Muhammad Nawaz Sharif's case (Supra) the former Prime Minister of Pakistan was accused of being involved in hijacking of plane which was carrying Chief of Army Staff from Colombo to Karachi. He was convicted by the Anti-Terrorist Court. Conviction was maintained, in part, by a Full Bench of this Court by a majority judgment. Judgment of this case was passed on 30-10-2001 but Criminal Petition was filed in the Supreme Court in 2009. More than 8 years of delay was condoned by the Supreme Court. For the condonation of delay the following reasons were given:-
16. The period of delay of more than eight years in filing the present petition for leave to appeal can be broadly divided in two phases; the first is the petitioner's absence from the country for about seven years and the second is his abstinence from approaching this Court for almost a year and a half after his return.. For the purpose of condonation of delay for the first phase, the circumstances under which the petitioner left the country are not as relevant as the resolution of the issue whether the petitioner was prevented from returning to the country. It has been the consistent stand of the petitioner that despite efforts he had not been allowed to return to Pakistan. His stand is substantiated by the judgment pronounced by this Court in the case of Pakistan Muslim League
(N) v. Federation of Pakistan and others (PLD 2007 SC 642) (ibid) and the ensuring events. It was declared that the petitioner was entitled to enter and remain in Pakistan and that no hurdle or obstruction was to be created by any authority to prevent the petitioner's return. Pursuant to the said direction, the petitioner embarked on a return journey to Pakistan and took a flight from London to Islamabad. However, after landing at Islamabad, he was not allowed to leave the airport and was sent out of the country. In view of violation of the order of this Court, an application for contempt of Court was filed before this Court. A similar abortive attempt was earlier made in the year 2004 by the - petitioner's brother, Mian Muhammad Shahbaz Sharif, and he was not allowed to leave the airport and put on a flight destined for overseas. The above facts clearly demonstrate that the petitioner was prevented from returning to Pakistan."
' Thereafter the Supreme Court. Noticed that the petitioner returned to Pakistan on 27-11-2007 and his contention that he never accepted the Order dated 3-11-2007 by which the Judges were made non-functional and removed and then it observed as follows:-- "The stand taken by the petitioner in the above paragraphs was also taken before us in Review Petitions Nos. 45 and 46 of 2009 in Civil Petitions Nos. 778 and 779 of 2008 titled Federation of Pakistan v. Mian Muhammad Nawaz Sharif and others. There the petitioner had not challenged before this Court his disqualification by the Lahore High Court to contest election for the National Assembly nor did he appear as respondent when the judgment of the High Court was assailed by the Federation of Pakistan. In the said review petitions, a specific issue (Issue No,1) regarding his stand was framed: "Whether petitioner's non-appearance could be condoned for the reasons given, by him and whether the findings given without hearing him have led to miscarriage of justice amounting to an error on the face of record to warrant exercise of review jurisdiction"." After detailed discussion on the observations made, on the question in the judgment under review and extensively 'quoted there from, we had accepted the petitioner's explanation for non-appearance in the following term's:- "However, on a deeper appreciation of the stance taken and after hearing their learned counsel, it has been found us that petitioner's non-appearance was not attributable to a personal bias against the Court then constituted but on account of a public stand that they had taken before entering the process of elections i,e, the collective oath which they and all the party candidates had taken on the issue relating to the Imposition of "State of Emergency" on 3rd November, 2007 and resolve to launch a movement for the restoration of superior judiciary. The restoration of the Hon'ble Chief Justice-of Pakistan and other judges who were deposed on the imposition of "State of Emergency" and the immediate appearance of the petitioners by way of filing these review petitions indicate that the stance taken was based on a certain moral grounds which stood vindicated. The same cannot be dubbed as either contumacious or reflective of acquiescence to warrant the impugned findings."
12. Learned counsel next relied upon Shahsawar's case (Supra). There does not appear to be any observation in this case regarding delay in filing the petition. Next case relied upon by learned counsel was Allah Wadhayo's case (Supra). Again there appears to be no observation in respect of delay in approaching the Court. Same is the position of Zulfiqar Ali Bhutto's and Noora's case (Supra). In Muhammad Din's case (Supra). 6 of the 22 petitions were barred by time and delay was condoned by the Supreme Court by observing that the petitioners were convicted for capital crime and therefore in line with consistent practice of the Court, delay was condoned. It may be pointed out that 3 of the 6 petitions were filed in 1976 and the other 3 were filed in 1975 and judgments in all these cases had been passed by the Lahore High Court on 22nd September 1975.
13. On the other hand, Mr. Faisal Siddiqui submitted that the petitions are barred by laches. He relied upon Gulzar Ahmed Qureshi's case (Supra). Petitioner in this case was convicted in 1983 by the Summary Military Court and after 1.5 years he challenged his sentence/conviction. If was dismissed by a Division Bench of this Court while observing as follows:- "8. This petition was filed on 26-5-1998 after the judgment passed by this Court in the case of Muhammad Uris (Supra). The first prayer is to the effect that the respondents be directed to produce the record of proceedings of the case of Crime No, 6 of 1983 as well as record of Summary Military Court for the purpose of determining the propriety and legality of the conviction/sentence imposed by the Summary Military Court, Hyderabad. No rule or regulation was cited at the bar by the learned counsel for the petitioner to show that the respondents are required under law to maintain the record of such proceedings for a period which comprises of 15 years. As discussed in the case of Muhammad Uris (supra) the record of Summary Military Court is not available either with the Federal Government or with the Pakistan Army."
14. Learned counsel next relied upon Amir-ud-Din's case (Supra). It was a petition in connection with appointment of Lutnberdar and it was filed after delay of one year and four months. It was observed that since there was no plausible explanation, the petition was dismissed. Last case relied upon by the learned counsel is Aqil Ahmed's case (Supra). There was a delay of 51/2 years. It was case under the- Displaced Persons (Compensation and Rehabilitation) Act, 1958. Petition was dismissed due to laches.
15. We may also refer here to Masroor Hussain and 45 others v. Hair man Pakistan International Airlines and another, 2010 PLC (C.S.) 630, where after referring to relevant part from Halsbury's Laws of England and to Abrar Ahmed Khan v. Sindh Labour Appellate Tribunal and 2 others, PLD 1997 Kar.
444, Iqbal and others v. Government of Sindh, through Secretary Home Department, Karachi and others, PLD 2007 Kar. 335, East Pakistan Railway Workshop Employees League v. Chairman, East Pakistan Railway Board PLD 1968 Dacca 681, Allah Nawaz Shaikh v. Punjab Labour Appellate Tribunal Lahore and another 1996 PLC 297, Muhabbat Ali v. Province of Punjab and others 1995 PLC 667, L.D.A.
Through Director General and another v. N.I.R.0 through Chairman and 49 others 2003 PLC 320, foundations of principle of laches were stated as under:-- "6. A perusal of the above indicates that foundation of principle of laches, jurisprudentially speaking, is the same as that of statutes of limitation. However, in contradistinction to limitation where statute fixes the period for pursuing the claim, equity resort to consideration of the circumstances and two circumstances are critical firstly, acquiescence on part of the complainant and secondly, any change of position that has occurred on part of the defendant. Acquiescence would be sufficient when it is found that the complainant/petitioner was not ignorant of his rights and yet he remained inactive. Even if the petitioner is ignorant of his rights if as a reasonable and prudent man, he should have discovered his right, laches necessarily follow. The second aspect is where any change has been made by the defendant/respondent in the intervening period."
' Thereafter the principles of laches were culled as under:-- "13. Above case-law indicate the position of the law in respect of laches to be as follows:--
(1) A petitioner is bound to prosecute his claim without undue delay because equity refuses its aid to stale demands if a petitioner who has slept upon his right and has acquiesced for a great length of time.
(2) In deciding the question of laches two things weigh with the court firstly, acquiescence of petitioner and secondly change of position that has occurred on respondent's part.
(3) Question 'of laches is to be always considered in the light of conduct of the person invoking the constitutional jurisdiction of High Court.
(4) It is for petitioner to explain reasons for non-approaching High Court within reasonable time.
(5) For acquiescence it is not necessary to prove that the petitioner had knowledge of his right. It would be sufficient to establish that the petitioner could have discovered the truth or have reasons to have done so.
(6) As far as change in defendant's position is concerned, it is only such change which has resulted in causing a delay on part of the petitioner in bringing his action.
(7) In service matters delay of more than 6 months would be normally fatal to the claim of the petitioner."
16. In the present case, as stated above, the petitioner was tried and convicted in 1985 and he has come to this Court after 24 years. Reliance upon Muhammad Nawaz Sharif's case (Supra) is of no assistance to the petitioner because two reasons prevailed with the Court for condoning almost 9 years. Firstly that petitioner was forcibly kept out of Pakistan till almost end of 2007 and secondly the petitioner had adopted a high moral ground of not accepting the Proclamation of November 3, 2007. It may be pointed out that the same Proclamation has been declared by the Supreme Court as without any lawful authority and of no legal effect in Sindh High Court Bar Association v.
Federation of Pakistan and others, PLD 2009 SC 879. Delay in Ziaur Rehman's case was 266 days and in Muhammad Din's case judgment of the High Court was passed on 22nd, September 1976 and some of the petitions were filed in 1975 while other were filed in early 1976. Therefore again delay was much shorter. Pakistan Post Office's case (Supra) was also relied upon by the learned counsel for the petitioner. In that case it was observed that the occasion to meet point of laches would be when objection is specifically taken by the opposite party. In that case no such pleas had been taken whereas in the sent case, specific plea in this regard has been taken. In Ardeshir Cowasjee's case (Supra), a building plan was approved on 4-7-1992. Appellant wrote to the Chief Minister on 18-8-1993 and during the same year filed a writ petition. The facts are therefore, clearly distinguishable.
17. Was the petitioner a silent spectator during all these years intervening between 1985-2009?
Before we answer this question, we may advert to the ground taken in the application for condonation of delay and nothing more is stated than that the petitioner is 74 years old. He may certainly be, but he was not then 74 years in 1985 when the cause accrued to him. During intervening years, the petitioner filed and pursued a civil suit. Being aggrieved by the judgment and decree he filed and pursued an appeal and against the appellate decree he filed and is still pursuing the Revision application. Again during this intervening period, in 1986 he filed Constitution Petition bearing No, D-257 of 1986. This Constitution Petition remained pending for 5 years and all this time he was duly represented and pursued his case and one of the reason that prevailed with the Division Bench of this Court (as quoted above) was that petitioner did not challenge conviction by Military Court and therefore he could not have challenged execution of a part of the conviction order. Therefore petitioner was alive and kicking all these 24 years and all this while he chosen not to challenge conviction. The petition therefore very badly suffers from laches.
18. In view of our conclusions, we do not think it would be necessary to go into other submissions made by the learned counsel.
19. Result of the above discussion is that this Constitution Petition is dismissed. .