' SAJJAD ALI SHAH, C.J.---This appeal with leave of the Court is directed against order dated 10th March, 1992 passed by, a Division Bench of the High Court of Sindh in Constitution Petition No, D-190 of 1986, whereby, after dismissal of the main petition for non-prosecution, application for restoration/re-hearing is dismissed as non-maintainable on the ground that the same had been filed after delay of five years.
2. Briefly stated that relevant facts in the background are that eight persons including the two appellants before us were put on trial for offences under sections 302, P.P.C., 13-D, Arms Ordinance, and 17(4) of Enforcement of Hudood Ordinance read with Martial Law Regulation 27 for committing dacoity at Pasha Petrol Pump, Deh Leyani, Police Station Kot Diji, District Khairpur on 20th October, 1984 at 2-00 a.m,, during which Rashid Khan, Cashier of the Petrol Pump, was murdered and cash and other property taken away. In that connection Muhammad Afzal lodged F.I.R. No, 113/84 on 24th October, 1984 at Kot Diji Police Station of District Khaipur. The case was tried before the Summary Military Court No, 36, Khairpur, in which all the eight accused persons including the two appellants before us were sentenced to death. It is claimed by the appellants that they were informed about the death sentence on 27th February, 1986, which was after lifting of Martial Law on 30th December, 1985. Their death sentence was converted into life imprisonment by order of the President of Pakistan,
3. Appellants filed CP D-190 of 1986 in the High Court of Sindh at Karachi and objection was taken that the High Court had no jurisdiction but the same was overruled and the Government of Sindh filed petition for leave to appeal before the Supreme Court. In the High Court, the Constitution petition was dismissed on 3rd August, 1987 for non-prosecution as the counsel stated that he had no instructions. Application for restoration/re-hearing was filed, which was dismissed on 10th March, 1992 as non-maintainable on the ground of delay mentioned above, which is impugned in this appeal before us.
4. Perusal of the impugned order shows that the application for restoration/re-hearing was filed after five years and on that ground it was dismissed as nen-maintainable. It is submitted on behalf of the appellants before us that since they were in jail, they could not remain in touch with their counsei and that since the Government of Sindh had filed petition in this Court against the finding of the High Court that it had jurisdiction to hear the Constitution petition against the sentence awarded by the Summary Military Court and when this Court gave decision in favour of jurisdiction of the High Court on the constitutional side which is reported as Federation of Pakistan v. Malik Ghulam Mustafa Khar (PLD 1989 SC 26), appellants wanted to pursue their Constitution petition in the High Court, and they came to know that it had already been dismissed for non-prosecution, hence they filed application for restoration/re-hearing.
5. We are not satisfied with the explanation for the reason that in the memorandum of the application under Order 9, Rule 9, C.P.C. Explanation given is different as stated in paragraph 3, which is reproduced as under: ' That after the Civil Appeal was pending before the Hon'ble Supreme Court, the petitioners became out of touch with Mr. Nooruddin Sarki their advocate in the High Court of Sindh and had engaged another Advocate and had been waiting for the decision from the Hon'ble Supreme Court."
6. Now if it is correct that the appellants had engaged another Advocate, then that Advocate could have pursued the matter in the High Court and could have found out that the Constitution petition had been dismissed for non-prosecution for want of instructions and application for restoration/re-hearing could have been filed earlier in point of time on acquiring such knowledge.
Name and identity of that Advocate is not disclosed in the above-quoted paragraph, which shows that this assertion is vague in nature and is not factually correct. Had this assertion been correct, then application for restoration would not have been filed after five years. Another ground urged is that appellant Roshan was minor at the time of incident, hence his case should have been tried separately under the provisions of Sindh Children Act (XIII of 1924). This plea cannot be allcwed to be taken at such belated stage for the reason that it was not taken in the memorandum of CP D- 190/86 before the High Court. It is pointed out by the learned counsel that in the memorandum of the Constitution petition filed in the High Court, Roshan had been shown as fifteen years old but perusal of the petition shows that this ground as such was not taken specifically that his trial before the Summary Military Court was illegal and that it had no jurisdiction because he was minor at the time of incident and had to be tried separately under the provisions of Sindh Children Act.
7. For reasons mentioned above, we see no ground to interfere and this appeal is dismissed as having no merits.