0
KARACHI, Aug 6: The Sindh High Court set aside on Friday its own judgments in appeals filed by two convicts in a car snatching case and remanded the case for retrial by a district and sessions judge within three months.
Jan Haider, Sardar and Mohammad Ayaz alias Cheema were arrested and booked for snatching a vehicle in May 2001. They were tried and convicted by an anti-terrorism court and sentenced to various terms of rigorous imprisonment in March 2002. They were also required to pay compensation of Rs 10,000 each to the owner of the snatched vehicle or serve, in default, rigorous imprisonment.
Jan Haider and Sardar moved jail appeals against their conviction and sentences. The appeals were heard by a division bench, comprising Justices Mohammad Roshan Essani and Sarmad Jalal Osmany.
Their counsel argued and assistant advocate-general Habib Ahmed conceded that the case was not triable by the ATC as the Anti-Terrorism Act had already been amended to exclude car jacking from its purview.
The offence was also made punishable with rigorous imprisonment for seven years. The bench, however, partially allowed their appeals and commuted their sentences.
Mohammad Ayaz, the third convict, also moved an appeal to challenge his conviction and sentence subsequently. His counsel submitted that the trial was coram non judice and the conviction and sentence was unsustainable in law.
The ATC had no jurisdiction to try the case and pronounce a judgment. But the judgments on co- convicts' appeals had created a paradoxical situation as their conviction by the ATC was upheld but their sentences reduced by the SHC appellate bench, he submitted.
The division bench seized of the third appeal, which consisted of Justices M. Mujibullah Siddiqui and Mohammad Afzal Soomro, observed that the previous two judgments on appeals arising out of the same ATC decision were rendered in ignorance of the amended provision of the ATA.
The case came up before the ATC after the amendment had been made and was not, therefore, triable by it under the ATA. Exercising the high court's inherent power under Section 561-A of the Criminal Procedure Code, the bench rectified the error and remanded the case to a district and sessions judge for retrial within three months.
PETITION DECLINED: A Sindh High Court division bench declined on Thursday to take up a writ petition challenging a constitutional provision out of turn.
The petition, moved by Maulvi Iqbal Haider through Advocate Sohail Hameed, questions the restoration of the original age of superannuation prescribed by the 1973 Constitution for superior court judges.
The age was extended by three years (from 65 to 68 years) for judges of the Supreme Court and to 65 years (from 62 to 65 years) for high court judges under the Legal Framework Order of 2002. The 17th amendment adopted by the parliament restored the old retirement age.
The LFO also raised the minimum age for elevation to the high court from 40 to 45 and the provision was retained by the 17th amendment. The petition challenged both the 17th amendment provisions as being 'repugnant to the independence of the judiciary'.
It also claimed that a constitutional amendment could not properly be so called if it did not 'improve' the basic law. An application was moved for urgent hearing of the petition but a division bench, comprising Justices Anwar Zaheer Jamali and Gulzar Ahmed, observed that no urgency was attached to the matter and it could be heard after the summer vacations, which were about to end.
DISMISSED: The Sindh High Court summarily dismissed on Friday a writ petition seeking prosecution of the Alliance for Restoration of Democracy and Muttahida Majlis-i-Amal for supporting a non-Muslim in the Tharparkar byelection.
Appearing in person, petitioner Haji Gul Ahmed submitted that a non-Muslim should not be put up and supported by parties claiming to introduce an Islamic system in the country and subscribing to the ideology of Pakistan. Opposition to the ruling party's nominee, howsoever intense, did not justify support to a non-Muslim candidate for a general seat, he contended.
The petitioner failed to cite any provision of law or the Constitution that barred the parties from supporting a non-Muslim candidate for a general seat. A division bench, comprising Justices Anwar Zaheer Jamali and Gulzar Ahmed, had asked him which law or provision of law warranted prosecution of parties for lending their support to a non-Muslim candidate.
The bench dismissed the petition in limine, observing that it could not order registration of case as prayed in the absence of violation of any law. The ARD and MMA are supporting Dr Mahesh Malani against prime minister-designate Shaukat Aziz in NA-229 (Mithi, Tharparkar) in the upcoming byelection.
NOTICES ISSUED: The Sindh High Court on Friday issued notices to the customs authorities and other respondents for August 25 in a writ petition seeking seizure of consignments of contaminated betel-nuts.
