18 January 2004	Sunday	25 Ziqa'ad 1424

KARACHI, Jan 17: A three-member bench of the Supreme Court reserved its order earlier this week on a crucial question involving the right of a private person or complainant to challenge the acquittal of a convict by a high court under the Anti-Terrorism Act, 1997.

An ordinance was promulgated in October 1998 to allow private complainants to move an appeal in the Supreme Court against a high court judgment reversing an anti-terrorist court decision.

The ordinance was not laid before the National Assembly and lapsed in February 1999. Appeals were, meanwhile, filed by private complainants against acquittals by high courts. Two such appeals were moved by Haji Ghulam Rasool of Faisalabad against the acquittal of Ijaz and Javaid, who were convicted and sentenced to death by an anti-terrorism court for killing his son, by a division bench of the Lahore High Court.

The respondents, Ijaz and Javaid, questioned the maintainability of appeals and a Supreme Court bench, comprising Justices Mian Mohammad Ajmal, Hamid Ali Mirza and Khalilur Rehman Ramday, heard the attorney-general and all four advocates-general at the principal seat to settle the issue.

Attorney-General Makhdoom Ali Khan submitted that a temporary piece of legislation did not protect actions taken under it beyond its own life. Citing a ruling by nine judges of the Supreme Court in the Sabir Shah case and the provisions of Articles 89 and 264 of the Constitution, he said the appeals had become infructuous under the ATA.

The argument was adopted by the law officers of Sindh, NWFP and Balochistan. The Punjab advocate-general, however, maintained that the appeals were competent and valid under Section 6 (A) of the General Clauses Act. They were competently filed under a valid and existing law, the expiration of which did not result in their abatement. The bench reserved its order after hearing the law officers.

The same bench, meanwhile, set aside a Sindh High Court judgment acquitting a murder convict and commuting the sentence of his co-accused.

Mukhtar and Umar Daraz of the Market PS, Hyderabad, were prosecuted for killing Mohammad Ayub in December 1988 under the ordinary penal laws. Ayub's father, Bundoo, lodged the first information report. The trial sessions court convicted and sentenced them to serve rigorous imprisonment for life and pay a fine of Rs 10,000 each. The high court acquitted Umar Daraz and altered the conviction of Mukhtar and reduced his jail term to five years. Fines were altogether remitted.

Complainant Bundoo challenged the high court decision before the Supreme Court. Additional Advocate-General Qazi Khalid Ali represented the prosecution and Advocate Abdul Mujib Pirzada represented the respondents. The AAG submitted that the offence of deliberate murder stood proved against the respondents. The medical report and the recoveries made from them fully corroborated the prosecution case. The motive and provocation were duly borne out by the prosecution story.

The three-member SC bench set aside the high court judgment and restored the sessions court order.