MAZHAR IQBAL SIDHU, J.---The petitioner Maqbool Hussain alias Jamala Dogar being a death- convict having failed in obtaining his right of living in this transitional world scheduled to be executed 04.08.2015 has filed the instant constitutional petition. It appears appropriate that its caption as well as prayer both may be taken down "Petition under Article 199 read with Article 10(1) of the Constitution of the Islamic Republic of Pakistan, 1973 to the effect that the petitioner at the time of his arrest and during investigation was denied the Fundamental Right "to consult and be defended" by a legal practitioner, therefore, his conviction and sentence to death is void."
"Prayer: It is, therefore, respectfully prayed that in the light of submissions made in paras above this learned court be pleased to declare that the petitioner having denied his Fundamental Right of consultation and defence of a legal practitioner at the very inception of his prosecution, arrest and investigation the entire subsequent process of trial and sentence is void and his death sentence needs to be declared without lawful authority and of no legal effect. It is further prayed that pending disposal of the main petition this learned court be pleased to suspend operation of death sentence already awarded to him and his mercy petition before the President of Pakistan be also remained suspended till the present petition is finally decided."
2. It may be apt to expendable to dilate upon facts of the case as have already been discussed and answered upto Hon'ble Supreme Court of Pakistan.
3. On 07.7.2015 C.M. No.2 of 2015 filed in this petition was dismissed by the following order:- "Main writ petition of the petitioner is pending before another learned Division Bench that is still at motion stage, yet to be admitted for regular hearing and is fixed for 16.7.2015. On an application submitted by the learned counsel for the petitioner keeping in view the extreme urgency regarding stay of execution of death sentence of the petitioner, this CM has been entrusted to this Bench by a special order dated 6.7.2015, passed by the Hon'ble Chief Justice.
2. Through this CM, learned counsel seeks suspension of execution of death sentence awarded to him by the learned Judge, Suppression of Terrorist Activities Court, Multan Division Multan, in case FIR No.136 of 1996, registered under sections 302, 148 and 149, P.P.C., at police station Sarai Sadhu, District Khanewal.
3. Learned counsel referring to Article 10(1) of the Constitution of Islamic Republic of Pakistan, 1973, contends that the petitioner at the time of his arrest and during investigation was not allowed to consult and defended by a legal practitioner, hence, investigation in this case and the trial thereafter was not sustainable in the eyes of law. Learned counsel further adds that in the writ petition filed by the petitioner important constitutional questions have been raised and there is every likelihood of acceptance of the writ petition, therefore, till decision of the writ petition execution of sentence of the petitioner may be suspended.
4. Heard.
5. Admittedly, the petitioner was convicted and sentenced by the learned trial court vide its judgment dated 4.5.2000, whereas, Maqbool Hussain, petitioner along with others was convicted and sentenced under section 302(b) and 149, P.P.C., on five counts. Feeling aggrieved by the judgment of the learned trial Court, the petitioner filed appeal bearing Criminal Appeal No.229 of 2000, before this court which was dismissed vide judgment dated 13.6.2006.
Thereafter, the petitioner filed Criminal Petition No. 541-L of 2006, before Hon'ble Supreme Court of Pakistan and was dismissed and leave was refused to the petitioner on 24.7.2006.
6. We are of the considered view that after passing the judgment by the Hon'ble Supreme Court of Pakistan, this court cannot pass any order regarding conviction and sentence already approved by the Apex Court of the country, therefore, the instant CM for stay of execution of the sentence of the petitioner being devOid of any force is dismissed."
4. Thereafter on 30.7.2015, following order was passed by the learned Division Bench of this court:- "The petitioner is a condemned prisoner detained in District Jail; Multan.
2. Learned counsel for the petitioner through present writ petition seeks declaration from this court regarding the deprivation of the petitioner of his fundamental right to consult the legal consultant during the course of investigation contending that due to omission on the part of the police at the time of investigation to provide legal assistance, case of the present petitioner has been seriously prejudiced.
3. Relying upon the provisions of Article 10(1) of the Constitution of the Islamic Republic of Pakistan, 1973, it has been submitted that it is the fundamental right of each and every accused to have the assistance of legal consultant during the course of investigation and prior to putting his defence but in the present case the same right was not provided which is against the mandate of Constitution. Submits that in view of the matter, judgment recorded by this court endorsing the conclusion of court of Sessions awarding sentence of death to the petitioner is legally not sustainable.
Though it was admitted by learned counsel for the petitioner that leave to appeal was declined by the Apex Court but submits that "leave refusal order" is not a judgment and as such this court can examine the grounds of attack agitated by the petitioner which are of public importance.
4. The learned Standing Counsel for Pakistan and learned Additional Advocate-General in attendance have opposed the contentions contending that the petitioner was convicted under section 302(b) of the Pakistan Penal Code, 1860, whose appeal was declined by a learned Divison Bench of this court answering the Murder Reference in positive and leave to appeal was declined by the Apex Court. Further submitted that mercy petition of the petitioner was also dismissed by the President of the Islamic Republic of Pakistan.
5. Exercising the right of rebuttal, learned counsel for the petitioner has sought help from the dictum laid down in Marinda v. Arisona 384 U.S. 436 (1996) contending that the right of consultation to the legal expert cannot be denied to any accused but the petitioner was declined such right. Making reference to the facts of the Report under reference, it was contended that the matter was agitated before the Supreme Court of United States of America even after final determination of the fate of the petitioner in the Report under reference and the contentions of the petitioner in the reference case with reference to the moot point agitated before this court were endorsed by the Supreme Court of United States of America.
6. As matter of public importance and interpretation of Article 10(1) of the Constitution of the Islamic Republic of Pakistan, 1973, has been agitated on behalf of the petitioner, therefore, let notice be issued to the learned Attorney General for Pakistan under Order XXVII-A of the Code of Civil Procedure, 1908.
7. Notice be also issued to the complainant.
8. Report/parawise comments shall be submitted on behalf of Federation of Pakistan and Province of Punjab within a period of three weeks.
C. M. No.3-15.
9. Through present petition, the petitioner seeks suspension of sentence of death which has attained finality. Contended that the mercy petition of the petitioner has been dismissed by the President of the Islamic Republic of Pakistan and matter has been referred to the learned Special Court Anti-Terrorism, Multan, for issuance of black warrant.
10. Relying, upon the contentions raised on legal premises in the writ petition referred to, the learned counsel for the petitioner contends that arguable case has been made out by the petitioner and as such if the execution of sentence of death is not suspended, the writ petition shall become infructuous.
11. On the other hand, learned law officers representing the Federation of Pakistan and Province of the Punjab have drawn attention of this court to the order dated 7th of July, 2015, handed down by a learned Division Bench of this court whereby CM No.2 of 2015 seeking the same relief was dismissed.
12. Factum of dismissal of CM No.2 of 2015 though was not disputed by learned counsel for the petitioner but was contended that at that time, mercy petition of the petitioner was pending which was rejected later on.
13. We have gone through the order dated 7th of July, 2015, sassed by a learned Division Bench of this court. Perusal of para No.3 of the order clearly reveals that grounds agitated before us seeking suspension of sentence were canvassed before the learned Division Bench but ultimately the CM seeking the suspension of sentence of death was dismissed.
14. In view of the matter, in the absence of any fresh ground, no indulgence can be shown in favour of the petitioner.
15. Dismissal of mercy petition by the President of the Islamic Republic of Pakistan even after decision of CM No.2 of 2015, cannot be considered as fresh ground to invoke jurisdiction of this court seeking same relief.
16. In view of the matter, present C.M. Is hereby dismissed."
Then on C.M. No.4 of 2015 order dated 3.8.2015 was passed infra:- "Through instant CM, it has been prayed that in the main petition notices have been issued to the learned Attorney General of Pakistan and complainant. Report and parawise comments were ordered to be submitted by the Federation of Pakistan and Province of the Punjab within a period of three weeks. Now, the petitioner has been scheduled to be executed on 4.8.2015. Points involved in the petition have been considered of public importance and of applicability of fundamental rights of a citizen guaranteed by the Constitution and if the execution is not stopped, then the petition would become infructuous. Prima facie the balance of convenience goes in favour of the petitioner and he has also a good prima facie case in his favour.
In case, the execution is not stopped, the petitioner would be made to stand at skeftheart for execution, therefore, instant application may be accepted.
It is second CM, earlier was dismissed by this court vide order dated 07.7.2015. At that time, the execution warrants of the petitioner were not scheduled. Now, it has been ordered that petitioner may be executed by 4.8.2015.
3. In view of the submissions made by learned counsel, prima facie a case for suspension of execution order is made out; therefore, notice be issued to the respondents and complainant for 11.8.2015. Till then, the proceedings of execution of blackwarrants of the petitioner scheduled to be executed by 4.8.2015 are ordered to be suspended.
DR (J) shall inform to the Superintendents concerned.
4. It is paramountly mentioned that the writ petition was heard by a learned Division Bench comprising our learned brother Mehmood Maqbool Bajwah and Farrukh Gulzar Awan-JJ, therefore, propriety demands that instant petition may be heard by the said Division Bench or by a learned Division Bench in which one of our learned brothers may be gracing the Bench. File is remitted to the office for obtaining an appropriate order from our lord, the Hon'ble Chief Justice in this context."
The Hon'ble Chief Justice was again pleased to entrust the case to the same Bench for final disposal of tile petition by following observations:-
26. Paras Nos.1 to 25 antes may be referred.
27. The above said case was on the cause list of Hon'ble Division Bench headed by Hon'ble Mr. Justice Mazhar Iqbal Sidhu on 3.8.2015 and their lordships were pleased to pass the following orders:- "3. In view of the submissions made by learned counsel, prima facie a case for suspension of execution order is made out; therefore, notice be issued to the respondents and complainant for 11.8.2015. Till then, the proceedings of execution of black-warrants of the petitioner scheduled to be executed by 4.8.2015 are ordered to be suspended.
DR (J) shall inform to the Superintendents concerned.
4. It is paramountly mentioned that the writ petition was heard by a learned Division Bench comprising our learned brothers Mehmood Maqbool Bajwah and Farrukh Gulzar Awan-JJ, therefore, propriety demands that instant petition may be heard by the said Division Bench or by a learned Division Bench in which one of our learned brothers may be gracing the Bench. File is remitted to the office for obtaining an appropriate order from our lord, the Hon'ble Chief Justice in this context."
28. Submitted for appropriate orders.
Sd/- (Nasir Mehmood)
Inch:CRC (Writ)
07.8.15.
Assistant Registrar (CRCs)
Sd/- (Rana Muhammad Younis)
Assistant Registrar (CRCs)
07.8.2015.
Deputy Registrar (Judi. II)
Sd/- Imran Safdar DR(J)
07.8.15 Addl. Registrar (J),
29. Paras 1 to 27 are respectfully referred.
30. Submitted for appropriate orders. Sd/- Addl. Registrar (Judicial)
07.8.2015.
HON'BLE CHIEF JUSTICE Same DB. Sd/- On behalf of respondent No.1 (Federation), following comments were placed on record:- Respectfully Sheweth: Preliminary Objections: That the issue involved in the instant petition is substantially , related to other respondents and the impleadment of answering respondent (M/o Law, Justice and Human Rights) is unnecessary and unwarranted, therefore, the petition is defective for misjoinder of necessary parties, hence, the name of the answering respondent may be deleted from the array of respondents.
Facts: It is respectfully submitted that the petitioner was convicted to death and the matter attained finality upto the Supreme Court of Pakistan. Although the issue involved in the instant petition relates to Province of Punjab, however, the ground of non-provision of right to be defended by the legal counsel does not arise at this belated stage as the petitioner has to raise such legal objection at the first instance during the trial of the case or at appeal stage.
In view of the aforesaid submissions, it is humbly prayed that the petition may please be dismissed with costs, being without lawful merit."
5. To this petition, learned counsel for the petitioner first of all has read Art.10(1) of the Constitution to develop his arguments and submitted that writ is a post-conviction remedy, can be invoked at any time, notwithstanding all (procedural) forums have decided the case and has referred to and relied upon postulate laid down by the Full-Bench of this court in case of Tahir Rasheed v. The State in Writ Petition No.277 of 1992 decided cn 14th December, 1992 (1993 PCr.LJ 1826) as under:- "Special Courts for speedy trial (Ordinance XXXVIII of 1991)
S. 5 Constitution of Pakistan, 1973, Article 199 execution of death sentence, stay of----Accused's Constitutional petition challenging vires of the Ordinance having been dismissed, High Court suspended the execution of death warrant of the accused for a week enabling him to file a petition for leave to appeal before Supreme Court.
Rehmat Khan v Federation of Pakistan and others (PLD 1993 Lah. 70 fol.)"
Learned counsel has further referred to and relied upon the case of 'Miranda v. Arizona' quoted by his lordship Justice (R) Fazal Karim in his book written with the titled of "Judicial Review and Public Actions" Vol-I at page No. 626 as follows:- "And in Miranda v. Arizona, the right to counsel has been extended to interrogation stage. The question at issue in that case was the admissibility of statements obtained from a defendant while in custody. It was inter alia held that a person taken into custody must be warned prior to any questioning that he has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney and that if he cannot afford in attorney, one will be appointed for him prior to any questioning if he so desires.
Opportunity to exercise these rights must be afforded to him throughout the interrogation. After such warning has been given, and such opportunity afforded him, the individual may knowingly and intelligently waive these rights and agree to answer questions or make a statement. But unless and until such warnings and waiver are demonstrated by the prosecution at trial no evidence obtained as a result of interrogation can be used against him."
It has been argued that constitutionally the law is supreme law of the land that has to be followed in stricto sensu and it is also an aphorism of law that when law requires a thing to be done in a particular way, it should have been done in that way, otherwise it never been said to have been done in the eye of law.
The second point raised in this petition is that it is a case of first impression. Learned counsel submits that a point of law available in the case never been raised up to all forums but is raised after the procedural corridors are shut then the point of law raised constitutionally has to be considered a case of first impression and it has also been examined in its all pros and cons.
GUARANTEEING OF FUNDAMENTAL RIGHTS: Learned counsel has submitted that the Constitution ordains guaranteed enforceability of fundamental rights and all laws in consistent and in derogation of fundamental rights are to be considered void, here, learned counsel has emphasizedly relied upon the provisions of Art.10 of the Constitution, the same is relatively jotted down as under:- 10 Safeguards as to arrest and detention..........................
1) No person who is arrested shall be detained in custody without being informed, as soon as may be, c of 'the grounds for such arrest, nor shall he be denied the right to consult and be defended by a legal practitioner of his choice.
2)..............................................................
3)..............................................................
4)..............................................................
Explanation I. In this Articles, "the appropriate Review Board" means ,--
(i) In the case of a person detained under a Federal Law, a Board appointed by the Chief Justice of Pakistan and consisting of a Chairman and two other persons, each of whom is or has been a Judge of the Supreme Court or a High Court; and
(ii) In the case of a person detained under a Provincial law, a Board appointed by the Chief Justice of High Court concerned and consisting of a Chairman and two other persons, each of whom is or has been a judge of a High Court.
Learned counsel has also referred certain excerpts of the commentary of law of evidence penmanship by late Mr. Justice Muhammad Munir Khan and has contended that in west it is an established practice that whenever an accused of a case is arrested, then he is asked to phone to his counsel but here in the homeland this practice has intentionally been avoided and conununicationally a gap has been created by the concerned authorities, their such actions/omissions in this respect are totally unconstitutional and the courts are obliged to be more strict on the enforceability of the fundamental rights. Learned counsel has referred to the Constitutions of 1956 and 1962 even Indian Act, 1935 and developed his arguments that same sub- article mentioned supra of Article 10 has been consistently followed as in the Constitution of 1973.
Adds that age long typical and incorrigible attitude of the police of homeland is liable to be judicially mended and it may not be inappropriate to describe that the revolution through judicial process would remain the best and also subsists to. Further submitted while interpreting the Articles of the Constitution judicial approach may not be restrictive rather be dynamical, liberal and progressive, reasons being that the same effects the subjects of the State. Learned counsel has orchestrated his arguments by the following legal precedents:- 2002 SCMR 1478 PLD 1957 Lahore 496 PLD 1957 Lahore 813 & 388 PLD 1993 SC 473 PLD 1995 SC 66 2012 SCMR 1610 (Indian)
Learned counsel has further submitted that morality of law shall never be allowed to be ignored and it remains imperative on the courts to ensure the enforcement of fundamental rights.
DUTIES OF THE COURT:- It has been submitted that learned judge is supposed to wear the laws on the sleeves of his gown and if proper assistance is not rendered to the learned Judge/Court on account of inefficiency or lack of knowledge or due to some other reasons, it does not mean that learned trial court may not to omit proper application of law on the facts and circumstances of the case while deciding the same. In this respect, learned counsel has relied upon on the following precedented laws:- PLD 1965 SC 690 PLD 1976 SC 315 PLD 2005 SC 819 2007 SCMR 01 Learned counsel at the conclusion of his arguments has submitted that instant petition may be accepted and all judgments passed in this case may be declared null and void directing the trial of the petitioner afresh. Further added that it is a matter of public importance, therefore, heaven would not fall if sometime is given to the petitioner to make rip-rap at the portal of Hon'ble Supreme Court of Pakistan in this respect as the petitioner has already kept on dreaming the noose in the hands of hangman for the last 09 years.
6. Conversely, learned Law Officers representing the Federation of Pakistan and Province of Punjab have opposed the submissions by relying upon a maxim that law helps the vigilant but not the indolent and submitted that petitioner was arrested to investigation to try to conviction to appeal to its dismissal and then refusal of the leave to appeal by the Hon'ble Supreme Court of Pakistan throughout was represented by the legal experts and before instant petition, it has never ever been agitated either by the petitioner or anybody else on his behalf that he was not provided legal assistance or his fundamental right was infringed. Further submitted that the Hon'ble Supreme Court of Pakistan has closed the door of this courts to pass any order in this case by refusing leave to appeal implying that orders passed by the learneetrial court and that of this court are just, legal and equitable, now even mercy petition of the petitioner has also been refused by the Worthy President of Pakistan. He was scheduled to be executed on 4.8.2015 but owing to an injunctive order passed by this court, the petitioner respited, instant petition is misconceived. Learned Law officers have also referred to the cases of convicts remained in the talk of electronic as well as print media of the country i.e. Saulat Mirza and Shafqat Hussain etc. Learned Law officers have not produced copies of the orders of the said two cases but has relied upon the case titled Ram Sarup, petitioner v. Union of India and another, respondents (AIR 1965 SC 247) (V 52 C 44). Learned Indian Supreme Court has held in that case, its postulate (a) is reproduced as under:-
(a) Constitution of India, Art. 22 (1)---Accused merely alleging that certain relatives who sought interview with him after arrest were refused permission and that procedure resulted in a denial of opportunity to defend himself by engaging a civil lawyer through their help - No request made by accused to the Court martial for being defended by lawyer of his and no such request turned down by the Court - Held there had been no denial of the right guaranteed by the Article."
At the last, it has been prayed that instant petition may be dismissed.
7. Heard. File has been gone through.
8. The petitioner was noticed have been named in the FIR along with co-accused. He endured his physical remand under section 167(1) to (7), Cr.P.C., obviously the learned remanding magistrate must have applied his mind while granting the remand of the petitioner and handing over him over to the police for investigation. It may not be out of context to mention here that during the investigation both the parties were confronted as object of investigation is to collect the evidence.
Then on the conclusion of investigation report under section 173, Cr.P.C. Was prepared, then by following a legal process it was placed before the learned trial court who took the cognizance and before commencing of trial proceedings, copies of the documents required under section 265-C, Cr.P.C. Were handed over to the petitioner seven days before and he was got knowledge/information as to the proposed charges and evidences of the prosecution to be led against him specifically on the basis of allegations contained in the FIR and the other evidence collected partway investigation. He was indicted under section 265-D, Cr.P.C. To denial under section 265-E, Cr.P.C. The charges and the prosecution witnesses examined under section 265-H, Cr.P.C., were cross-examined under section 133(2) of Qanun-e-Shahadat Order, 1984 by a learned counsel engaged by him of his choice. During the trial throughout, learned counsel for the petitioner has been joining the proceedings in the presence of the petitioner and after closure of prosecution evidence, the statement of the petitioner under section 342, Cr.P.C. Was recorded by formulating first question as follows: "Q- Have you ,heard and understood the prosecution evidence recorded in your presence.?
Ans. Yes."
It may also not be out of context to mention here that the statement of an accused is generally recorded in presence of his learned counsel then all incriminatory evidence sequentially was put to him and the petitioner accordingly replied in the negative and if he wanted any explanation it was also offered by him then he had an ample opportunity to make any statement or offered any explanation against the prosecution allegation then another opportunity is granted, when a question has put to him as to the leading of evidence in his defence. It is pertinent to note that a Separate question was also put to the petitioner that he would like to be examined under section 340(2), Cr.P.C. As his own witness on oath in -disproof of the allegation and charges levelled against him by the prosecution to which he denied but produced defence evidence under sention 265-F(7), Cr.P.C. And the court heard the arguments under section 265-G, Cr.P.C., now in this way during the investigation as well as trial proceedings petitioner was cognizant of all the facts and circumstances of the prosecution case as well as his own defence then after the passage of the judgment of the learned trial court he came in appeal before this Court, it never ever remained the case of the petitioner that he was not provided proper legal assistance or defended or he was not properly heard or his case was prejudiced on account of certain legal lapses and even at the appellate stage he had a right to adduce additional evidence in his defence under section 428, Cr.P.C. But nothing of any sort is explored in this respect. Lastly the petitioner stood at the portal of the Hon'ble Supreme Court of Pakistan praying that being innocent he may be acquitted by setting aside the impugned orders and judgments rendered by the learned trial court as well as by the High Court but the Hon'ble Supreme Court of Pakistan after hearing his learned counsel at length refused the leave to appeal against the judgment of the High Court in limine implying that the judgment of convictions and sentences delivered by the learned trial court and upheld by the High Court attained finality. Now under the Criminal Procedure Code all forums were approached by the petitioner then at the last constitutionally proceeded to the Worthy President of Pakistan to seek constitutional relief by a mercy petition, the same too was turned down.
The petitioner started appearing before the courts since 1996 represented by his learned counsels and prior to the filing of instant petition it never ever remained his plea that his fundamental right guaranteed by Article 10(1) of the Constitution, was infringed.
From the above circumstances, the Court finds that the petitioner was sufficiently, legally and constitutionally protected before executed to death. A similar matter was agitated before Supreme Court of India and their lordships declined the relief. Reference may made to in a case reported supra i.e. In (AIR 1965 SC 247 (V52 C 44).
9. The Court concludes that the petitioner was represented at all forums by the legal experts, never ever agitated as to non-proper assistance/defence or denial of fundamental rights. Judicial system of the land for the criminal administration of justice has not denied the petitioner any legal, procedural and fundamental right, thus, the Court has not been persuaded with the submissions made by learned counsel for the petitioner to accept this petition. The case law relied upon esteemedly regarded is not applicable in this case, the instant petition being misconceived and shorn of reasons stands dismissed.
10. All concerned be intimated about the dismissal of. Instant petition and no more injunctive order is in field for the execution of the petitioner.
No order as to costs.