P L D 1993 Lahore 70 (PLP)

IRSHAD HASAN KHAN, J.--Rehmat Khan petitioner herein has sought the following reliefs in this Constitutional petition: (i)that Special Courts for Speedy Trials Ordinance XXXVIII of 1991 is not a valid law-, . (ii) that Ordinance XXV of 1991 having lapsed, cannot be acted upon and all rights accrued under it have ceased to have any effect; (iii) that the Supreme Appellate Court was not in existence in the eye of law and, therefore, the proceedings before the said Court are no legal proceedings; (iv) that Special Court for Speedy Trials (Mian Abdul Khaliq), Rawalpindi has ceased to exist; (v) that the reference of the petitioner's case to respondent No3 was invalid and without lawful authority; and (vi) that the petitioner is being confined in Central Jail, Rawalpindi without any valid order of remand and conviction and that he is entitled to be released.

2. The facts in brief are that the petitioner was tried by the learned Judge Special Court for Speedy Trials, Rawalpindi Division and Islamabad Capital Territory for having murdered Tariq Mahmood, Muhammad Sabir and Muhammad Fayyaz on 17-8-1991 at 6-30 a.m. in village Waisa, District Attock, and in consequence thereof he was convicted under section 302, P.P.C., on three counts and sentenced to death. He was also ordered to pay a sum of Rs.50,000 to heirs of each deceased, in default whereof to undergo rigorous imprisonment for six months on each count vide judgment dated 31-3-1992 passed by the learned Judge, Special Court for Speedy Trials.

3. The petitioner being aggrieved with the aforesaid judgment, filed an appeal before the Supreme Appellate Court, on 5-4-1992. The learned Appellate Court, after thorough scrutiny and re-appreciating the evidence on record and providing an adequate opportunity of being heard to the petitioner, upheld the judgment by affirming sentence of death awarded to the petitioner on all the three counts vide judgment dated 18-4-1992, which has been impugned in these proceedings.

4. The writ petition, as well as, application for stay of execution of death sentence were listed for limine hearing today. it is stated in the stay application that on 3-11-1992, the Superintendent of jail Rawalpindi issued notice of execution of the petitioner on 15-11-1992 , at 6-30 a.m relief prayed for in the stay application is since inter linked with the main petition, which is still in motion, we thought it expedient to hear the whole case after., issuing the notice to the learned Advocate-General Punjab, as well as, the learned Deputy Attorney-General as contemplated under Order XXVII(A) of the Code of Civil Procedure.

5. The basic question which need consideration in this petition 'IS as to whether the Ordinance once issued by the President under Article 89 of the Constitution of Islamic -Republic of Pakistan, 1973, can be re-enacted after its lapse on -the expiry of 120 days. This requires examination of the legislative history of the establishment of Special Courts for Speedy Trials. The Special Courts for Speedy Trials Ordinance (No.VI of 1990) was Published in the Gazette of Pakistan, extraordinary, on 27-8-1990. this, was followed by the special courts for speedy Trials ordinance (No-XXIII of 1991) promulgated on 9th of July, 1991.

6. On 28-7-1991, the Constitution (Twelfth Amendment) Act (NoXIV of 1991) was promulgated, whereby Article 212-B was inserted in Chapter 4 of Part VII of the Constitution.

7. The President of Pakistan promulgated the Special Courts for Speedy Trials Ordinance (NoXXV of 1991) on 5-8-1991. This Ordinance lapsed on 4-12-1991. The provisions of Ordinance NoXXV of 1991 were re-enacted on 2-4-1992 and after the lapse of the latter Ordinance on 1-4-1992, the provisions .of Ordinance NoXXXVIII of 1991, were further re-enacted by the Special Courts for Speedy Trials Ordinance (No.II of 1992), which was published in the Gazette of Pakistan, Extraordinary dated 2-4-1991,

8. Mr, Asaf Fasih-ud-Din Verdag, learned counsel for the petitioner submitted that the promulgation of Ordinance NoXXXVII1 of 1991, under which the trial of the petitioner commenced and under in his conviction ' and appeal by the Supreme Appellate Court was also dismissed has the effect of extending the life of the previous Ordinance NoXXV of 1991, which was beyond the competence of the President of Pakistan under Article 89 of the Constitution of Islamic Republic of Pakistan, 'in that the life of an Ordinance cannot be extended by another Ordinance as the Constitution, lays down the limit of IM days for its life to remain current. Further explaining his arguments, it was argued by learned counsel for the petitioner that the Acts which can be categorised as "demised Act cannot be kept in vogue in future except lot the past and closed transactions. According to him even promulgation of Ordinance No.H of 1992 suffered from the same lacuna in law, in that, it was a verbatim of predecessor Ordinances namely, Ordinances NosXXV and XXXVIII of 1991. He has placed reliance on Maulvi Tamizuddin Ahmad v. Province of East Bengal PLD 1949 Dacca 1; Tirathmal and others v. The State PLD 1959 Kar. 594 and Muhammad Miskeen v. Summandar Khan PLD 1991 Lah. 217, to contend that life of an Ordinance cannot be extended by another Ordinance by the President in the purported exercise of -his power under Article 89 of the Constitution.

9. The controversy raised in this petition stands concluded by various . judgments of the superior Courts of this country when in it was held that under Article, 89 of the 'Constitution of the Islamic Republic of Pakistan the President is fully competent to re,-enact ordinance- even if the subsequent Ordinance word by word the same as the preceding Ordinance. Reference may be made to Tirathmal and others v. The State PLD 1959 (W.P.) Kar. 594; Ilism Elahi and others v. The Custodian, Evacuee Property, Lahore and others FLD 1959 Lah. 924; The State v. Abdul Muhammad PLD 1960 (W.P.) Kar.- 733 and the Colony Textile Mills Ltd., Lahore v, The West Pakistan Labour Court (Northern Zone), Lahore and 5 others PLD 1971 Lah. 348 and Begurn Zeb un-Nisa Hamidullah, Editor and Publisher of 'T ' he Mirror', Karachi v. Pakistan through the Secretary, Ministry of Interior, Government of Pakistan PLD 1958 SC 35, the question whether an Ordinance expiring under clause (2) of Article 69 of the 1956 Constitution could be re-enacted by a fresh Ordinance,, was raised but not determined.

10. In view of the principle enshrined in the aforementioned, cases, we are inclined to hold that president is fully competent to re-enact ordinance,, No-XXX VIII of 1991 and Ordinance No.11 of 1992 and therefore, the trial, conviction and dismissal of the appeal of the petitioner by the Supreme Appellate Court do not warrant interference in these. proceedings. which disentitles the petitioner to claim, any equitable relief, inasmuch as, the petitioner admittedly did not raise any objection to the holding of the trial by the Special Court for Speedy Trials but actually participated therein in the expectation of obtaining a favourable decision from the trial Court as well as from the appellate Court- The petitioner himself allowed the trial Court as well as the appellate Court to exercise the jurisdiction which according to the petitioner did not vest in the respective forums. In Ghulam Mohi-ud-Din v. Chief Settlement Commissioner (Pakistan), Lahore and others PID 1964 SC 829 the principle laid down in The King v. William and others Ex parte Philips (LR (1914) 1 KB 608) was approved wherein it was held: 'Against one Of the grounds upon which the Court, in England have consistently held a party eeking such a writ to have disentitled himself to this extraordinary remedy is his failure to object to such usurpation of jurisdiction before the Tribunal concerned or to raise the objection at the earliest opportunity before the Tribunal, whose illegal order he seeks to have quashed by the writ, if he was aware that the Tribunal lacked the jurisdiction it purported to exercise." Also refer S. Sharif Ahmad Hashmi v. Chairman, Screening Committee, Lahore and another 1978 SCMR 367 wherein it was held that a writ against a void order may be dismissed if the petitioner is estopped by his conduct from challenging it. Also see Nawab Syed Raunaq Ali v. Chief Settlement Commissioner and others PLD 1973 SC 236 wherein it was held that an order in the nature of certiorari or mandamus is a discretionary order. Its object As to foster justice and right a wrong Therefore, before a person can be permitted to invoke this discretionary power of a Court, it must be shown that the order sought to be set aside had occasioned some injustice to the parties. If it does not work any injustice to any party, rather it cures a manifest illegality, then the extraordinary jurisdiction ought not to be allowed to be invoked. The same principle was followed in case of Begum Shams-un-Nisa v. Said Akbar Abbas and another PLD 1982 SC 413 and Muhammad'Barnn and others v. Member (Settlement and Rehabilitation), Board of Revenue, Punjab and others PLD 1991 SC 691.

11. When the attention of Mr. Asif Verdag was drawn to the afore mentioned precedents, he, tried to argue that as the said precedents relate to only civil causes therefore, they are not attracted with the same severity to the present case which clearly falls within the category of criminal cases. Short answer to this contention being raised may be found in Hussain Bakhsh v, Settlement Commissioner, Rawalpindi and others PLD 1970 SC 1 which principle was subsequently followed in Muhammad Ajmal Khan v. Lt.-Col. muhammad Shafaat and 4 others PLD 1976 Lahore

396. In any event the case of the petitioner was thoroughly scrutinised in appeal headed by a learned Judge of the Hon'ble Supreme Court and two learned Judges of the High Court and it is not the, case of the petitioner that the impugned decision of the Speedy Trial Court and that of the Supreme Appellate Court was not justified on merits. In fact Mr. Verdag has not even disputed the soundness and validity of the impugned decision on factual plain. Clearly the petitioner is debarred by his conduct to claim any relief in these proceedings and therefore it is not necessary to deliberate further on other allied points.

12. Resultantly, the writ petition fails and is hereby dismissed with no order as to costs. At this stage, Mr. Verdag has made an oral petition under Rule 5 of Order XLI, C.P.C. for stay of execution of the death warrant for a short period to enable the petitioner to file a petition for leave to appeal before F the Supreme Court against this order. Since an extreme penalty of death has been awarded to the petitioner, we are inclined to suspend the execution of the death warrant till 19-11-1992. It has been clarified that in the event of that failure on the part of the petitioner to file a petition for special leave to appeal as above, and seek further relief in that regard from the Supreme Court, this order shall automatically lapse.

13. Before we part with the judgment, it may be further pointed out that after the dose of arguments Mr. Maqbool Elahi Malik, Advocate-General stated that the Sindh High Court in Shariat Petitions Nos.1/88 to 7/88 etc. had held that there was no power under Article 89 of the Constitution authorising the President to re-promulgate an Ordinance which stood repealed in terms of clause 2 of Article 89 ibid and that the Shariat Appellate Bench of the Supreme Court had suspended the operation of the said judgments. The text of the aforesaid judgments are not before us and we are therefore, unable to express G any view in regard thereto. The above are the reasons of short order Of even date. M.BA./R-65/L Petition dismissed