1986 PLP 1605 (CLC)

NAIMUDDIN, C.J.‑‑The petitioner has filed this petitioner under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, inter alia praying that the conviction recorded against him in case F.I.R. No. 94 of 1985, dated 6‑5‑1985 of the Landhi Colony Police Station, Karachi, by Summary Military Court No. 40, be declared to be bad in law, illegal etc. Alongwith this petition he has filed an application under Article 199(4) of the Constitution (being C.M.A. No. 435 of 1986), praying to restrain the respondents, their agents, servants, employees from arresting the petitioner and/or acting upon the order of conviction passed by the Summary Military Court No.4, in the aforementioned case pending disposal of the petition.

2. The learned Advocate‑General, Sind and the learned Deputy Attorney‑General object to the maintainability of the petition on the ground that the petitioner is a fugitive from law. The learned Deputy Attorney‑General in support of his contention relied on Hayat Bakhsh and others v. The State 1981 S C M R 1.

3. It is clear from the contents of the application that the petitioner is a fugitive and therefore, his petition itself is not properly constituted. The petitioner before filing the petition should have submitted to the process of justice and thereafter he could seek the remedy in the Court by way of appeal, petition or otherwise. 3‑A. If any authority is needed reference may be had to a decision of full bench of the Supreme Court consisting of Hamoodur Rahman, C.J. Muhammad Yaqub Ali and Abdus Sattar, JJ in Gul Hassan and others v. The State P L D 1969 S C 89, Muhammad Yaqub Ali J, who wrote the opinion of the Court at page 93 of the report observed:‑ " ....that the attorneys and members of the bar will bear in mind the serious consequence of committing contempt of this Court in moving on behalf of a prisoner who is a fugitive from law. The appeal filed by the counsel on the basis of the power of attorney executed by Gul Hassan in favour of Khawaja Muhammad Khan before his absconsion was thus not properly constituted and should have been dismissed by the High Court on that ground alone. In this view Gul Hassan being a fugitive from law and a contemner was not entitled to hearing and leave granted to him on limited questions of law was liable to be rescinded. As to the proceedings under section 374, Cr.P.C. we endorse the view adopted by the learned Judges in the High Court that if a prisoner decamps and thereby forfeits the right of audience the sentence of death may be confirmed in his absence."

4. In another decision of full bench of the Supreme Court consisting of Muhammad Munir, C.J., A.S.M. Akram, M. Shahab Din, A.R. Cornelius and Muhammad Sharif, JJ, namely Chan Shah v. The Crown P L D 1956 F C 43, Cornelius, J (as the Honourable Judge then was) at page 46 of the report observed as follows:‑ "The present is an 'individual case' and in our opinion, it is an essential condition of the administration of justice, in a case affecting an individual or individuals, that the persons concerned should submit to the due process of justice. We cannot conceive of a more flagrant violation of this condition that a case ‑‑‑ life the present ‑ where the individual seeks the interference of the severing to obtain revision of a judicial order, when he is himself engaged in setting that judicial order at naught. We accordingly dismiss this petition, by reason of its being, in the existing circumstances wholly unsuitable for the exercise of this Court's special jurisdiction in criminal cases . .....Attorneys and Advocates who appear to present petitions, on the criminal side ‑ other than those which lie as of right are under a duty to see that they are acting in furtherance of justice. It seems to us that this duty is clearly violated when aid, for securing interference by this Court with a judicial order, is given by these officers of the Court to persons who, to their knowledge, are in contempt, i.e. as fugitives from justice, without at the same time ensuring that such persons conform to the judicial orders applicable to them.

5. The case of Gul Hassan has been followed in the case of Hayat Bakhsh and others v. The State 1981 S C M R 1 by the full bench of the Supreme Court consisting of Anwarul Haq, C.J. Muhammad Haleem, Karam Elahi Chauhan, Muhammad Afzal Zullah and Abdul Kadir Shaikh, JJ, while writing the opinion on behalf of the Court Muhammad Afzal Zullah, J at page 15 of the report observed as follows:‑‑ "There is considerable weight in the argument that when a convict becomes fugitive before filing petition for leave to appeal, his petition itself would not be properly constituted. This can be noticed as one line of reasoning in the case of Gul Hassan. The second proposition submitted by the learned counsel is also correct, because it flows from the first one. If a convict after filing a petition became fugitive and does not surrender, he deprives himself of relief claimed in the petition. Similarly, there would be no difference if he .absconds after obtaining special leave to appeal, or after obtaining a bail order. It is not possible to agree with Mr. Zafar that in this situation the absconder can get the benefit of his appeal being kept pending sine die till he surrenders. Nor will there be any justification for the proposition that if there are more convicts/ appellants, the appeal of the absconder should be separated and adjourned sine die to await his surrender in case he cannot be benefited on the hearing of the appeal of his co‑appellant. There is no basis or principle for adopting this suggestion as a normal course by this Court; and if that is done, it would be placing premium on the negative conduct of the absconding appellant if he is allowed to remain fugitive from justice and also benefited by deciding his appeal in his favour when hearing the appeal of his co‑convict. Such course, if adopted as a normal routine, would not only encourage abuse of process of this Court, but would also disturb the fabric of administration of justice at the appellate stage.

6. It is, therefore, clear that this petition, by fugitive from law is not maintainable and we accordingly dismiss it.