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Civil Petition No.457 of 1978, decided on 17th November, 1979.

(On appeal from the judgment and order dated 30‑5‑1978 of the Lahore High Court at Lahore in Writ Petition No.2738 of 1978) .

‑‑‑Arts. 185(3) & 199‑‑Writ jurisdiction‑‑Exercise of‑‑Conviction and sentence by Summary Military Court under Martial Law Regulations‑‑‑Legality challenged through constitutional petition one month after serving out sentence‑‑High Court dismissing writ petition on ground that mere declaration about conviction could not be granted in writ jurisdiction when effective alternate remedy was available to petitioner‑‑All principles applicable to hearing of criminal appeals would not apply to exercise of writ jurisdiction in cases of conviction by Supreme Court‑‑Petitioner's conduct in challenging his conviction at belated stage relevant factor for considering question as to whether, he should be granted any relief in exercise of writ jurisdiction /petition for special leave to appeal‑ Order of High Court, being unexceptionable in circumstances, leave to appeal refused.

Asghar Ali, Advocate Supreme Court and Sh. Masud Akhtar, Advocate‑on‑Record for Petitioner.

Nemo for Respondent.

Date of hearing: 17th November, 1979.

‑‑This petition for special leave to appeal calls in question the dismissal of petitioner's writ petition by an order dated 30‑5‑1978, whereby the learned Judge in the Lahore High Court refused to interfere with the petitioner's conviction under Martial Law Regulations by a Summary Military Court. The petitioner was tried and convicted by a Military Court for offences under Martial Law Regulations, 5, 10, 13 and 33 on 26‑3‑1978 and was sentenced to one month's rigorous imprisonment. He did not challenge the conviction during the period of sentence, after the expiry of which a writ petition was filed on 28th May, 1978, with the prayer that the order of conviction and sentence be declared to be without lawful authority. It was also prayed as an interim relief that during the pendency of the writ petition, it should be directed that the petitioner's conviction by the Military Court "cannot be used" against him.

The learned Single Judge dismissed the writ petition in limine mainly on the ground that the petitioner had undergone the sentence before filing of the writ petition. It was also observed in the impugned order that "mere declaration under Article 199 of the Constitution invoking extraordinary jurisdiction cannot be, granted when effective alternative remedy is available to the petitioner. He should approach some other appropriate forum for redress of his grievance."

Learned counsel has contended that notwithstanding the fact that the petitioner had served the sentence, he was entitled to get the validity or otherwise of his conviction by a Military Court, determined by the High Court in its writ jurisdiction. It is not disputed that the writ jurisdiction of the High Court is discretionary. The petitioner chose not to challenge his conviction at the time of conviction nor during the period that he served his sentence. Not only this, he waited for nearly a month after the expiry of the sentence to challenge his conviction. All the principles applicable to the hearing of criminal appeals would not apply to the exercise of writ jurisdiction in cases of conviction by a Special Court. The petitioner's conduct undoubtedly was the relevant factor for considering the question as whether he should be granted any relief in exercise of writ jurisdiction. The learned Single Judge noted two circumstances for not exercising the discretion in his favour. It cannot be said that either of the circumstances is' such that it could be legally noted by the learned Judge and that it was otherwise not relevant or proper. Similar considerations would apply to the grant of special leave to appeal under Article 185 of the Constitution. The order of the learned Single Judge, in the circumstances of the case, is unexceptionable. We do not consider it a fit case for granting leave. This petition accordingly is dismissed.

M.I. Leave refused.

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