Mr. Justice Raja Shahid Mehmood Abbasi and Mr. Justice Qazi Muhammad Amin Ahmed in their judgment have decided the issue regarding territorial jurisdiction of Constitutional Court in Writ Petition No. 1243 of 2016.
1. Planted on a roadside, within the area of Bungalow B-52, University Road Karachi, an improvised explosive device blasted a Ranger mobile on 9-12-2011 at 7:01 a.m, resulting into death of two personnel with multiple injuries to others; incident was reported by Muhammad Jawad, Inspector vide FIR No.808 at Police Station Sachal District Maleer Karachi (East).
Muhammad Farhan Khan, petitioner herein, was arrested as an accused in the said incident on 31-12-2011 and sent to face trial before a Special Court established under the Anti-Terrorism Act,1997, however, in the wake of Constitution (Twenty-first) Amendment Act (I) of 2015, the case was taken over by a Field General Court Martial convened at Karachi, proceedings whereof, culminated into his conviction on multiple counts with sentences that included penalty of death. The Court of Appeals rejected the appeal on 15-3-2016. It is stated at the bar that a mercy petition filed before the Chief of Army Staff met with no better fate; the learned Standing Counsel for the Federation, in attendance on Court call, however, disputed the assertion. Through this Constitutional petition vires of findings, returned by the Field General Court Martial and affirmed by the Court of Appeals, are being assailed on a variety of grounds; the petition was blocked by an office objection, overruled by a learned Judge in Chamber for adjudication on judicial side, pursuant whereto, the case was posted for hearing when learned counsel for the petitioner were confronted with the question of territorial jurisdiction of this Court, in response whereto, it is argued that as the conviction and sentences returned by the Field General Court Martial were affirmed by the Court of Appeals at Rawalpindi, therefore, the Rawalpindi Bench of the Lahore High Court Lahore is the appropriate forum to dispute validity thereof; in support whereof, reliance is placed in the cases of Flying Craft Paper Mills (Pvt.) Ltd. Vs. Central Board of Revenue Islamabad (1997 SCMR 1874), Trading Corporation of Pakistan (Pvt.) Ltd Vs. The Pakistan Agro Forestry Corporation (Pvt.) Ltd. & another (2000 SCMR 1703) and Anoud Power General Ltd. Vs. Federation of Pakistan & others (PLD 2001 S.C. 340) to canvass that in view of applicability of Section 20 of the Code of Civil Procedure, 1908, both, Sindh High Court as well as Rawalpindi Bench of Lahore High Court Lahore had concurrent jurisdiction and as such the petition was maintainable.
2. The authority of this Court to judicially review the vires of an act done or proceedings taken in connection with the affairs of the Federation, within its territorial jurisdiction cannot be doubted, however, the Constitutional arrangements contemplated under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 are to be faithfully observed in order to uphold the principle of judicial comity and harmony. It has been held in the case of Sandalbar Enterprises (Pvt.) Ltd. Vs. Central Board of Revenue and others (PLD 1997 S.C. 334) that in order to determine the question of territorial jurisdiction, the dominant purpose behind recourse to law is to be taken into consideration; relevant portion is advantageously reproduced below:
“The petitioners’ prayer was for a direction to the Customs Authorities at Karachi not to levy the regulatory duty. The above relief could have been granted by the High Court of Sindh within whose jurisdiction the person performing the affairs of the Federation is discharging his functions.
We may observe that it has become a common practice to file a writ petition either at Peshawar, or Lahore, or Rawalpindi or Multan etc. to challenge the order of assessment passed at Karachi by adding a ground for impugning the notification under which a particular levy is imposed. This practice is to be depreciated. The Court is to see, what is dominant object of filing of the writ petition. In the present case, the dominant object was not to pay the regulatory duty assessed by a Customs official at Karachi. We are, therefore, not inclined to grant leave. Leave is refused.”
The “dominant” purpose that brings the petitioner to this Court at Rawalpindi is repudiation of a judgment originally rendered within the territorial limits of Sindh High Court and proceedings drawn up subsequent thereto in continuation thereof, therefore, the judgments referred to by the learned counsel for the petitioner have been cited out of context as those related to the orders/notifications originally issued in the Capital whereas, as pointed out above, in the present case the conviction and sentences awarded to the petitioner were returned by a Tribunal convened in the Province of Sindh, mere affirmation whereof by a functionary in Rawalpindi would not take petitioner’s case out of the territorial jurisdiction of Sindh High Court to be concurrently death with by some other High Court, as the Court of Appeals or office of the Chief of Army Staff are not place specific, designated under the law. Though in writ proceedings, the provisions of Code of Civil Procedure, 1908 are applicable, nonetheless, in criminal matters, arrangements envisaged under Chapters II & XV of the Code of Criminal Procedure, 1898 cannot be lost sight of which inter-alia provide ordinary place of inquiry and trial of offences as well as appellate forums to a convict. The same view has been expressed by a Division Bench of Sindh High Court in the case of Aqeel Kareem Dhedhi Vs. National Accountability Bureau through Chairman and 3 others (PLD 2015 Sindh 1).Though it is a case of single accused, however, there may be situations where more than one accused/convict tried by a Military Court may opt for different High Courts on the ground that Court of Appeals or the Chief of Army Staff dealt with their cases at Rawalpindi; such inexpediencies and anomalies are real possibilities that may be aptly avoided by faithfully observing the territorial limits demarcated under the Constitution. For the foregoing reasons, the petition stands dismissed. However, the petitioner may approach the Sindh High Court, if so advised.
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