AJMAL MIAN, J.---This is a petition under Article 184(3) of the Constitution of the. Islamic Republic of Pakistan, 1973 (hereinafter referred to as the Constitution) filed by Mst. Noor Jehan wife of Ghulam Rasool, who is the mother of Ex-Capt. Arshad Jamil (hereinafter referred to as the convict), who stands convicted and sentenced on 5-10-1992 by the Field General Court Marshal for committing of Qatli-i-Amd of nine persons of Tando Bahwal. His death sentence was confirmed by the then Chief of Army Staff on 29-10-1992.
The convict submitted an appeal to the Chief of Army. Staff through the Superintendent of Central Jail, Hyderabad, which was treated as a mercy petition as there was no right of appeal provided by then pursuant to the judgment of the Federal Shariat Court, which was upheld by the Shariat Appellate Bench and 1st January, 1989 was specified as the date by which the necessary legislation was to be made. However, it seems the right of appeal was provided by Act XXVIII of 1992 which came into force on 22-12-1992. The convict's brother filed Constitutional Petition No.D-454/95 before the High Court of Sind claiming the right of appeal against the above conviction by virtue of the above judgments of the Federal Shariat Court and the Shariat Appellate Bench. However, the above Constitution petition was dismissed on 26-9-1995 by a Division Bench of the High Court of Sind. Against the above judgment of the High Court C.P.No.4646/95 was filed, which was dismissed by this Court on 6-10-1996 for the following reasons:-- "Law is fairly well-settled that the right of appeal is a creature of statute and it must be specified in clear terms that the appeal lies against a decision, judgment or order. No one can claim to have a right of appeal unless it is expressly conferred by a statute. Such a right cannot be inferred by implication. Refer (1) I.C.I. Pakistan Limited v. Salahuddin and others (1991 SCM R 15), (2) Habib Bank Limited v. The State and 6 others (1993 SCM R 1853) and (3) Karam Dad and another v. Emperor (AIR 1941 Lahore 414). Needless to observe that the right of appeal conferred by section 133-B was not given retrospective effect.
6. In the aforesaid view of the matter, no right of appeal was available to the petitioner's brother Ex- Captain Arshad Jameel when he was convicted and sentenced to death by the Adjutant-General Branch of General Headquarters. No exception can, therefore, be taken to the impugned judgment of the High Court. This petition is accordingly dismissed, leave sought is refused and the stay order already granted by this Court is vacated."
2.After that Civil Review Petition No.86 of 1996 was filed by the brother of the convict, which had come up for hearing before us today. We had dismissed the same on the ground that no case for review of the judgment was made out.
3. It seems that on 26-10-1996 the convict's mother filed the above Constitution Petition. The Additional Registrar raised the following objection and returned the petition:-- "In Human Right Case No.9 of 1993 this Court was pleased to hold as follows:-- 'Where a party has exhausted all his remedies up to Supreme Court he cannot be permitted to avail of human rights forum for the purpose of reopening the matter. This will destroy the finality and will be violative of Constitutional provision.
In view of the above position this Constitution petition is not entertain able and is hereby returned."
4. Mr. Raja Muhammad Ibrahim Satti, the learned ASC for the petitioner requested that the above Constitution petition be taken up as the execution of the sentence awarded to the convict was fixed for tomorrow. We granted the same.
5. We called upon him to satisfy us that the above office objection was not sustainable. His submission was that the point which he has urged in the above Constitution petition, namely, that since section 302 has ceased to be the law at the relevant the for the reason that on 5-6-1992 when the alleged offence was committed by the convict Ordinance No. IV of 1992 was in the field, which was in fact repetition of Ordinance No. VII of 1990 dated 5-9-1990 for the fifth the and that even on 5-10-1992 when the convict was convicted, Ordinance No. X of 1992 was in the field, which was repetition of Ordinance VII of 1990 for the sixth the, which according to him, were nullity in law as an Ordinance cannot be repeated in place of getting an Act passed by the Parliament. Reliance was placed by him on the case of The Collector of Customs, Karachi and others v. Messrs New Electronics (Pvt.) Limited and 59 others (PLD 1994 SC 363). His further submission was that in view of the above legal position the trial of the convict under section 302 and his conviction there under was nullity in law and violative of Article 9 of the Constitution, as it was coram non judice. He has referred to the leave granting order in the case of Riaz Ahmed v. The State (PLD 1996 SC 589), in which list of 18 Ordinances has been given which has been repeated from the to the on the subject of criminal law amendment, which included enactment of section 302, P.P.C. And in which leave has been granted to consider the legality of the same and so also of the conviction recorded there under. The above leave granting order is not of any help to the convict as the above leave has been granted against the judgment of the Lahore High Court passed in criminal appeal and murder reference. .
6. The question in issue before us is, as to whether after the convict through his brother availed of remedy by way of a petition for leave to appeal under clause (3) of Article 185 of the Constitution, the above Constitution petition under clause (3) of Article 184 of the Constitution is competent. In support of his contention that the above Constitution petition is competent he has relied upon a judgment of this Court in the case of Khalil-uz-Zaman v. Supreme Appellate Court, Lahore and 4 others (PLD 1994 SC 885), in which a Bench of to learned Judges of this Court entertained a direct petition under Article 184(3) of the Constitution against the judgment of the Supreme Appellate Court (which comprised a Judge of the Supreme Court and to learned Judges of the High Court concerned by virtue of clause (5) of Article 212-B of the Constitution) and set aside the judgment of the Supreme Appellate Court by holding that Qatl-i-Amd committed by the husband of his wife leaving behind child/children was not liable to Qisas and, therefore, the Courts had no lawful authority/jurisdiction/power whatsoever to convict an accused under section 302, P.P.C. Without commenting upon correctness of the above judgment as it is already in issue in some pending case/cases, it will suffice to observe that the Supreme Appellate Court was a Special Appellate Court constituted under the above special Article i.e. Article 212-B of the Constitution, which was to operate for a period of three years from 27th July, 1991. The above Supreme Appellate Court cannot be equated with the Supreme Court of Pakistan exercising jurisdiction, inter alia, under Articles 184 and 185 of the Constitution and, therefore, the above case has no application to the case in hand.
This Court while declining leave to appeal by the above order dated 6-10-1996 exercised jurisdiction under clause (3) of Article 185 of the Constitution whereby the conviction was not interfered with. The ground which has now been urged before us, if legally sustainable, was available to the convict at all the material the i.e. From the the of the trial by the Field General Court Marshal till dismissal of the petition for leave to appeal by this Court. The mere fact that there was an omission on the part of the convict not to press into service the above ground would not entitle the convict or any other person on this behalf to reagitate the question of legality of his conviction through a proceeding under clause (3) of Article 184 of the Constitution.
7. It may be observed that a proceeding under clause (3) of Article 184 of the Constitution cannot be initiated, the effect of which will be to re-open a matter, which is already finally adjudicated upon by the Supreme Court in exercise of its regular jurisdiction under Article 185 of the Constitution. It may be observed that the ~ jurisdiction under clause (3) of Article 184 of the Constitution is of the nature of the jurisdiction provided for in Article 199 of the Constitution, clause
(5) of which expressly, inter alia, provides that the Supreme Court and a High Court is not included for the purpose of invoking jurisdiction under the above Article as they are not covered by expression "person" used in the above Article.
8. It would not be out of context to refer to a. Supporting note of one of us (Ajmal Mian, J.) in the case of Syed Wasey Zafar and 4 others v. Government of Pakistan through Secretary, Finance and.
Others (PLD 1994 SC 621), in which following observations have been made while comparing the jurisdiction in juxtaposition under Articles 184(3) and 199 of the Constitution:-- "A perusal of the above-quoted provision of the Constitution indicates that without prejudice to the provisions of Article 199, the Supreme Court has been conferred with the power to entertain a petition under the above provision directly if the following to conditions are fulfilled:-
(i) The case involves a question of public importance; and
(ii) the question so involved pertains to the enforcement of any of the Fundamental Rights contained in Chapter I of Part II of the Constitution.
It may further be noticed that if the above to conditions are met, the above provision of the Constitution confers power on the Supreme Court to make an order of nature mentioned in above Article 199 of the Constitution. It may be pertinent to point out that the scope of Article 199, which confers jurisdiction on the High Courts, is much wider than the jurisdiction conferred on the Supreme Court under the above-quoted provision of the Constitution inasmuch as a High Court not only can enforce a Fundamental Right under clause (2) of the above Article, but can also pass an appropriate order in the matters covered by sub-clauses (a) and (b) of clause (1) of Article 199 of the Constitution, which provide as follows. "
9. We may clarify that the above observations as to the scope of jurisdiction under Article 184(3) are subject to further qualification, namely, that the same cannot be invoked in aid if the Supreme Court has already adjudicated upon the matter in exercise of its regular jurisdiction as pointed out hereinabove. Reliance was also placed by Mr. Satti on the following observation of Shafiur Rahman, J., made in an order dismissing a review petition in the case of Muhammad Hanif and another v.
Sultan (1994 SCM R 279):-- "It is not denied that the ground not argued in the High Court was in fact taken in the memorandum of appeal. There was no express mention that it was given up. What is recorded in the High Court judgment is that no other argument was advanced. The Court at the apex which has a Constitutional duty to do complete justice cannot be inhibited by any such restraint as is suggested by the learned counsel for the petitioners. It has an abiding duty to attend to all the aspects and to take an overall view of the case is dispensing justice."
10. There cannot be any cavil with the legal proposition propounded in the above-quoted extract of the order that this Court being the apex Court and being Constitutionally bound to do complete justice cannot be inhibited by technicalities, but while pressing into service the above principle, we cannot overlook the fact that at the same the it is Constitutionally mandated not to exercise jurisdiction which is not warranted by law. If we were to accept Mr. Satti's contention that notwithstanding that this Court has already exercised jurisdiction in the instant case under Article 185(3) of the Constitution as well as under Article 188 of the Constitution read with Order 26 of Rule 6 of the Supreme Court Rules, it can still entertain a Constitution petition under Article 184(3) of the Constitution, it will disturb the' scheme of the Constitution as a matter which has already been finally adjudicated in exercise of the regular, appellate and/or review jurisdiction would become susceptible to be reagitated, as pointed out hereinabove and that there would be no finality attached to a judgment/order of this Court rendered in exercise of its regular jurisdiction.
Incidentally it may be mentioned that the above office objection is based on the order dated 21-4- 1993 of Shafiur Rahman, J., passed in a Human Right Case No.9/1993 already referred to in the above-quoted office objection. We are, therefore, of the view that no exception can be taken to the above office objection. The above Constitution petition is not entertainable. The office objection is upheld 'and the petition is dismissed.