1998 PLP 1270 (SCMR)

ZIA MAHMOOD MIRZA. J.

This petition seeks leave to appeal against the judgment of a Division Bench of High Court of Sindh, Hyderabad Circuit, dated 26-9-1995 whereby constitutional petition filed by the present petitioner to seek a direction to be issued to the Federation of Pakistan and others, respondents herein to provide a right of appeal to his brother Ex. Captain. Arshad Jameel who was convicted by Field General Court Martial, was dismissed.

2. Facts relevant for the disposal of this petition briefly stated, are that the petitioner's brother Ex-Captain Arshad Jameel was convicted under section 302, P.P.C. on the charge of committing Qatl-i-Amd of as many as nine persons, all residents of Tando Bahawal (Sindh) and sentenced to death by Field General Court Martial on 5 10 1992. His death sentence was confirmed by the then Chief of Army Staff on 29-10-1992. The convict is stated to have submitted an appeal to the Chief of Army Staff through Superintendent of Central Jail, Hyderabad which it is stated was treated as mercy petition and rejected which decision was conveyed to the Superintendent of Central Prison, Hyderabad vide letter dated 14-9-1993. Mercy petition filed before the President of Pakistan also met no better fate and was rejected, information whereof was given to the convict through District Magistrate, Hyderabad vide letter dated 1-8-1995.

3. It appears that the condemned prisoner had also approached the Adjutant-General Branch, General Headquarters, Rawalpindi claiming that he had a right of appeal but his appeal was wrongly treated as mercy petition. and rejected. This request/claim was turned down by Adjutant-General Branch vide its letter, dated 26th October, 1993 addressed to the Superintendent, Central Prison, Hyderabad (available at page 64 of the paper book) saying that "Newly added section 133-B of Pakistan Army Act which provides right of appeal to the convicts has ?come into effect from 22nd December, 1992. Since this case s cached its finality before that date, therefore, it does not fall within the purview of Pakistan Army Act section 133-B".

4. Feeling aggrieved, the present petitioner filed a Constitutional Petition 0-454 of 1995 in the High Court of Sindh, Hyderabad Circuit praying that the letter, dated 26th October, 1993 issued by Adjutant-General Branch, General Headquarters, Rawalpindi may be declared as without lawful authority and of no legal effect and "the respondents may please be directed to provide the right of appeal to Ex-Captain Arshad Jameel, condemned prisoner and the aggrieved persons i.e. convicted by any Court Martial w.e.f. 1-1-1989 as they are required by law to do so". Learned Judge of the High Court dismissed the Constitutional petition vide the impugned judgment. One of the learned Judges of the Division Bench held that the Constitutional petition was not maintainable in view of the bar contained in Article 199(3) of the Constitution in respect of any action taken in relation to the Members of Armed Forces of Pakistan while the other learned Judge (Rana Bagwan Das, J) held that the right of appeal to the persons convicted by a Court Martial was provided by section 133-B which was inserted in Pakistan Army Act with effect from 22-12-1992. "The case of condemned prisoner, however, was concluded on 29th October, 1992 when neither the right to appeal nor forum of hearing such appeals was available under the law." It was accordingly held by the learned Judge that the convict Arshad Jameel was not entitled to right of appeal as it was not available at the time of his conviction.

5. We have heard the learned counsel for the petitioner as also the learned Attorney-General for Pakistan who has appeared on notice. Learned counsel for the petitioner has contended that section 133 of the Pakistan Army Act which completely barred the remedy of appeal against any decision of Court Martial was struck down by the Federal Shariat Court finding it to be repugnant to the Injunctions of Islam and it was directed that the Appellate Court be set up to hear appeals against convictions recorded by Courts Martial under the Army Act and for that purpose, necessary amendment in the Act be made by 29th February, 1984. The matter was taken in an appeal which was dismissed by the Shariat Appellate Bench of this Court upholding the decision of the Federal Shariat Court with further direction to carry out the necessary amendment in section 133-A of Pakistan Army Act, 1952 by 1st January, 1989. Learned counsel made a grievance that the direction of Shariat Appellate Bench was not complied with in so far as the necessary amendment was not carried out by 1st of January, 1989. It appears that the Bill for making necessary amendment in Pakistan Army Act in pursuance of the direction of the Shariat Appellate Bench was moved in the Assembly in the year 1989 but it was finally passed on 22-12-1992 when it received the assent of the President. By this amendment, section 133-B was inserted in Pakistan Army Act providing for a right of appeal against the decision of a Court Martial awarding a sentence of death, imprisonment for life, imprisonment exceeding three months, or dismissal from the service. Right of appeal thus became available after the aforesaid amendment was duly carried out. Learned counsel, however, argued that notwithstanding the failure of the Government to carry out the necessary amendment in the Act within the time fixed by the Shariat Appellate Bench, the right of appeal would be deemed to have become available on the expiry of the prescribed period during which the amendment should have been brought. Precise submission of the learned counsel was that the right of appeal became available to the persons aggrieved from 2nd of January, 1989 by virtue of the decision of the Shairat Appellate Bench. We find no merit in this contention. Federal Shariat Court and the Shariat Appellate Bench of this Court are no doubt empowered to decide that any law or provision of law is repugnant to the Injunction of Islam and also to specify the day on which the decision shall take effect. Clause (3) (al of Article 203-D of the Constitution, however, lays down that if any law or provision of law is held by the Court to be repugnant to the Injunction of Islam, the President in the case of a law with respect to a matter in the Federal Legislative List or the Concurrent Legislative List or the Governor in the case of a law with respect to a matter not enumerated in either of those Lists, shall take steps to amend the law so as to bring such law or provision into conformity with the Injunctions of Islam. As noted above, necessary amendment in the Pakistan Army Act was made by adding section 133-B which created a Court of Appeals and provided a right of appeal to "Any person to whom a Court-martial has awarded a sentence of death, imprisonment for life, imprisonment exceeding three months, or dismissal from the service after the commencement of the Pakistan Army (Amendment) Act, 1992" which Act, as stated above, received the assent of the President on 22-12-1992. 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 SCMR 15), (2) Habib Bank Limited v. The State and 6 others (1993 SCMR 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 8 the. petitioner's brother Ex-Captain Arshad Jameel when he was convicted and sentenced to death by Field-General Court Martial and it was rightly so held 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. A.A./M-94/S?? ??????????????????????????????????????????????? ??????????????????????????????????????????????? Leave refused.