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Criminal Review Petition No. 17‑R of 1982, decided on 4th October, 1982.
(Review of Judgment and order dated 21‑6‑1982 of the Supreme Court of Pakistan in Criminal Appeal No. 35‑P of 1979).
Pakistan (1973)‑
< [if supportLists]>- ----Art. 188 and Supreme Court Rules, 1980, O. XXVI‑Review‑Con tention that Advocate‑on‑Record having not informed Advocate of petitioner as to date fixed for hearing of appeal and as such points on which petition for leave to appeal earlier granted could not be agitated and prejudice caused to petitioner's case Advocate‑on‑Record stating to have informed Advocate of petitioner with regard to date of hearing of appeal but he being busy in Session of Majlis‑e‑Shoora at capital city could not appear‑Advocate‑on- Record, however, stating to have prepared case and could argue- Court allowing him to do so, Advocate‑on‑Record arguing case and judgment delivered after considering all points urged‑Held, Respon sibility rests with counsel for appellants in such cases to be present for representing their clients and should give preference to such duty over any other work they might have in hand at such particular time Review petition being not competent dismissed in circumstances. [Review by Supreme Court].
Mufti Muhammad Idris, Advocate Supreme Court of Pakistan and Jalaluddin Khan, Advocate‑on‑Record for Petitioner.
Nemo for the State.
Date of hearing : 4th October, 1982.
‑This is a petition for review of the judgment delivered by this Court on 21‑6‑1982 in Criminal Appeal No. 35‑P of 1982.
2. The above‑noted Criminal Appeal of Faqir Hussain, the condemned prisoner and the connected Criminal Appeal No. 36‑P of 1979 (Mst. Fatima v. Fagir Hussain and others) came up for hearing before this Court at Peshawar Circuit. Appeal No. 36‑P of 1979 against the acquittal order in favour of Jamilur Rahman, co‑accused of the petitioner, was dismissed and judgment of the learned High Court, Peshawar dated 4‑7‑1979 was maintained; while Cri minal Appeal filed by the petitioner against his death sentence was dismissed.
3. The learned counsel for the petitioner contended that the appeal came up for hearing on 20‑6‑1982 and the Advocate of the petitioner was not informed of the fixation of appeal by Mr. Nur Ahmed Khan, Advocate‑on Record. Therefore, the points on which petition for leave to appeal was granted by this Court could not be agitated by the learned Advocate‑on‑Record, and this has caused prejudice to the case of petitioner as his case was not properly presented by the counsel of his choice. We have seen the record of the case and find that the Advocate‑on‑Record Mr. Nur Ahmad Khan was present on the date of hearing and he was asked by the Court whether he would be able to represent the petitioner or not. He stated that the learned counsel for the, petitioner Mufti Muhammad Idris was informed of the date of hear in but he was busy in the Session of the Majlis‑e‑Shoora at Islamabad, and, therefore, he would not be able to appear. He (Mr. Nur Ahmad Khan Advocate‑on‑Record however) stated that he has prepared the case and would be able to argue. Therefore, the learned Advocate‑on‑Record was allowed by the Court to argue the case and after considering all the points urged in the grounds of appeal' and the Leave Granting Order, judgment was delivered on 21‑6‑1982. We consider that it is the responsibility of the counsel for the appellants in such cases to be present for representing their clients and should give preference to this duty over any other work they might have in hand at that particular time.
4. The next point which the learned counsel Mufti Muhammad Idris contended was that the learned appellate Court partially accepted the appeal with regard to the murder of Salim extending him the benefit that he had exceeded the right of private defence, altered the conviction from 302, P. P. C. to 304(I), P. P. C. and sentenced him to life imprisonment and fine of Rs. 2,000. Sentence of death with regard to Aslam (deceased) was maintained whereas in same transaction Aslam was believed to have made an intrusion into the house of the petitioner. He followed Salim to the house of the petitioner. Thus he was also an intruder and could be forced to leave the house of the petitioner and in this process if any injury was caused to Aslam it would be in the same category in which the offence regarding Salim has been committed. He further contended that the confessional statement of the petitioner taken together with his statement recorded under section 342, Cr. P. C. has not been fully discussed in its true legal perspective as the same has not been
analysed before this Court. None of these contentions has any force. The date of hearing was notified by the Advocate‑on‑Record to the learned counsel for the petitioner; arguments were heard in detail and the judgment delivered by this Court has dealt with all the points raised in the grounds of appeal. We also did not find any error apparent on the record. This Review petition is not competent and the same is accordingly dismissed.
Petition dismissed.
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