IN THE HIGH COURT OF SINDH, KARACHI
Cr. Misc. Application No. 385 of 2014
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Date Order with signature of Judge
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For Katcha Peshi
22.12.2014
Mr. Abdul Razzaq Advocate for the applicants.
Mr. Saleem Akhtar Additional P .G
Mr. Mustafa Mahasar A.A.G
Mr. Iqbal Ahmed Soomro State Counsel
Mr. Ashfaq Rafiq Janjua Standing Counsel
M/s Ashraf Ali Nizamani D.I.G Prisons, Karachi, Shafi Mohammad Shaikh Assistant Superintendent Central Prison Sukkur, Mumtaz Shaikh Special Secretary Home Department, Wahab Ahmed Additional Secretary Home Department are present in court.
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Through this Criminal Miscellaneous Application filed under Section 561-A Cr.P.C read with Article 199 of the Constitution, both the applicants Attaullah and Mohammad Azam have prayed that the impugned order dated 19.12.2014 passed by the A.T.C No.-V, Karachi Division, in Special Case No.29 of 2002, whereby an application moved by the father of the applicant Attaullah was dismissed in which he prayed to the learned trial court not to issue Black Warrants till decision of the IInd review petition pending in the Hon’ble Supreme Court. The request was not acceded to and the trial court issued the Black Warrants of the applicants on 19.12.2014 for execution on 23.12.2014. The applicants have also attached copy of an order passed by the hon’ble Supreme Court in Criminal Miscellaneous Appeal No.11 of 2002, in Criminal Review Petition No.Nil of 2012, in Jail Petition No.504 of 2012 on 13.10.2014, the order of the hon’ble Supreme Court in the Miscellaneous Appeal is reproduced as under:-
“13.10.2014:
Although ordinarily second review petition before this Court is not competent by virtue of the provisions of Order XXVI Rule 9 of the Supreme Court Rules, 1980 yet the learned counsel for the appellant has pointed out that in the case in hand the only piece of evidence worth any consideration against the appellants was their correct identification in a test identification parade but the supervising Magistrate had confirmed before the learned trial court that the appellants had not been identified by the eyewitnesses in that parade with reference to any role played by them during the incident in issue. It has, thus, been maintained by the learned counsel for the appellants that the case in hand was practically a case of no legal evidence against the appellants but despite that their sentences of death had been upheld up to this Court without even adverting to such a critical flaw in the prosecution’s case.
2. In the peculiar circumstances of this case noted above the rigors of Order XXVI Rule 9 of the Supreme Court Rules, 1980 are relaxed by invoking Article 187(1) of the Constitution and the provisions of Order XXXIII Rule 6 of the Supreme Court Rules, 1980 and consequently objection No.1 raised by the office is overruled. The learned counsel for the appellants shall, however, remove the other objections raised by the office within the time fixed by the office for the purpose. This appeal is disposed of in these terms”.
2. The learned counsel for the applicants argued that since the second review petition is pending therefore, the execution of Black Warrants may be suspended till such time the second review petition is decided or in alternate some reasonable time may be allowed to the applicant to approach the Apex court.
3. According to the comments filed by the Superintendent Central Prison, Sukkur today in court, the learned A.T.C No.-V, Karachi issued Black Warrants on 19.12.2014 for its execution on 23.12.2014 at 6:30 a.m. It is pertinent to mention that under the Chairmanship of hon’ble Chief Justice of Sindh High Court, a full court meeting was convened on 18.12.2014 where the full court discussed Paragraph 39 of Chapter 24-B of the High Court Rules and Orders, Volume-III, in which earlier it was provided that in issuing warrants for execution of the sentences of death, the Sessions Judges should as directed by the government to fix the date for the execution of the sentence that is not less than 14 days or more than 21 days from the date of the issuance of the warrant.
4. After due deliberation and discussion, the full court amended Paragraph 39 of Chapter 24-B of the High Court Rules and Order Volume-III and fourteen days’ time was substituted for seven days. After latest amendment made on 18.12.2014, the Paragraph 39 as notified by the Home Department, Government of Sindh on 19.12.2014 is reproduced as under:-
“39. In issuing warrants for the execution of sentences of death, Sessions Judges should as directed by Government fix a date for the execution of the sentence that is not less than seven or more than twenty one days from the date of the issue of warrant.”
5. It is an admitted fact rather clearly transpiring from the comments filed by the Superintendent Central Prison, Sukkur as well as documents attached with the comments that the Black Warrants of the present applicants were issued by the learned trial court on 19.12.2014 with the date of execution as 23.12.2014. After making aforesaid amendment by this court, there is no ambiguity or doubt that the Sessions Judge should as directed by the government fix the date of execution of the sentence that is not be less than seven (07) or more than twenty one (21) days from the date of issuance of warrant.
6. Not only the officers present in court but the learned Additional Advocate General has also admitted that the period of seven (07) days’ time was not considered by the trial court in terms of the amendment made by this court in Paragraph 39 while issuing black warrants of the applicants.
7. As result of above discussion, we dispose of this Criminal Misc. Application with the directions to learned trial court to issue fresh Black Warrants of the applicants/convicts and fix the date of execution strictly in accordance with Paragraph 39 of Chapter 24-B of the High Court Rules and Order Volume-III. Meanwhile the execution of Black Warrant of the applicants is postponed. So far as the arguments of Mr. Abdul Razzak learned counsel for the applicants in respect of IInd Review Petition is concerned, we cannot pass any order when the matter is already pending in the apex court so he may move to the hon’ble Supreme Court for the fate of second review petition. The Criminal Miscellaneous Application is disposed of accordingly.
Judge
Judge