' This writ petition was filed with the following prayer:--- "It is, therefore, most respectfully prayed that this petition may very graciously be accepted directing the respondent concerned to postpone the execution of Muhammad Yousaf son of the petitioner till the final adjudication of the decision by the Honourable Supreme Court of Pakistan as well as the Government of Pakistan.
' It is further prayed that any further proceedings be immediately stayed till the final adjudication of the matter.
' Any other writ relief or directions expedient in the interest of justice be also issued in vindication of the grievances afore-referred."
2. Briefly put, the facts of the case which gave rise to the filing of the petition, as narrated in this petition, were/are that the petitioner's son, namely, Muhammad Yousaf, was booked in the case F.I.R. No,272 of 2000, dated 6-7-2000, registered with the Police Station, Batala Colony, Faisalabad, in respect of an offence under section 302, P.P.C. On the allegation of strangulating his wife, namely, Sheerin Hameed, to death. After due investigation, he was indicted on the charge of murder of the said lady, in consequence whereof, he was sentenced to death by the learned Sessions Judge, Faisalabad. The said Muhammad Yousafcondemned-prisoner, filed Criminal Appeal No,1169 of 2002, which was dismissed by this Court vide judgment dated 28-9-2005; consequently, his death sentence was confirmed...Criminal Petition No,494-L Of 2005 filed by .The said Muhammad Yosaf against the judgment of this Court was dismissed. By the Honourable Supreme Court, whereafter, Criminal Petition No,44 of '2005 was also dismissed by the Honourable Supreme Court. A Civil Miscellaneous Application No,107 of 2008 in Criminal Review No,44 of 2005 in Cr.P.L.A No,494-L of 2005 seeking reversal of the order dated 22-1-2008, whereby the review petition filed by the said Muhammad Yousaf was dismissed by the Honourable Supreme Court, is pending adjudication before the Honourable Supreme Court, as claimed by the petitioner herein.
3. It appears that after the dismissal of the criminal review petition filed by petitioner's son, a black- warrant for the execution of the death sentence awarded to Muhammad Yousaf, petitioner's son, has been issued. According to the petitioner, the said black-warrant is going to be executed on 5th of August, 2008. Muhammad Yousaf-condemnedprisoner filed an application before the learned Sessions Judge, Faisalabad for stay of execution of death sentence, mainly on the ground that his application seeking restoration of his review application was pending before the Honourable Supreme Court. However, the said application was dismissed by the learned Sessions Judge, Faisalabad vide order dated 22-7-2008.
4. This petition came up for hearing before this Court yesterday, i,e, 29th of July, 2008 on which date Mr. Qamar-uz-Zaman Qureshi, learned Deputy Attorney-General and Ch. Muhammad Hussain, learned Addl. Advocate-General were directed to submit report and parawise comments on behalf of respondents Nos.3 and 5, respectively. They were further directed to solicit instructions from the concerned quarters.
5. In pursuance of the said order, Mr. Aamir Rehman, learned Deputy Attorney-General as well as Ch. Muhammad Hussain, learned Additional Advocate-General have entered appearance. The latter submitted the report and parawise comments on behalf of respondent No,3, which have been placed on the record. However, respondent. No,5 failed to comply with the order dated 29th of July, 2008. Explaining the reason for non-submission of the report on behalf of Government of Pakistan, the learned Deputy Attorney-General has submitted that on the same issue, the Honourable Supreme Court has already taken suo motu notice, which is pending adjudication but neither report nor the parawise comments have been submitted by the Government of Pakistan before the Honourable Supreme Court, so far. The preparation of the same, according to the said learned Deputy Attorney-General is in the pipeline and some more time is likely to be consumed in the said process.
6. Be that as it may, both the parties have been heard at length.
7. Learned counsel for the petitioner has contended that on the eve of birthday of Mohtarma Benazir Bhutto, ex-Prime Minister of Pakistan, the worthy Prime Minister had announced that a summary would be sent to the worthy President of Pakistan for commutation of death sentence awarded to all the condemned-prisoners in Pakistan into that of imprisonment for life. He further adds that a summary in this regard has already been prepared on the direction of the Prime Minster of Pakistan and has been sent to worthy President of Pakistan; that under Article 48 of the Constitution of Pakistan, the President of Pakistan is bound to act in accordance with the advice of the Cabinet or the Prime Minister of Pakistan; that therefore, there is every likelihood of the said summary being approved by the President of Pakistan, however, in view of the fact that the Honourable Supreme Court of Pakistan has already taken suo motu notice in this regard, some time is likely to be consumed in the acceptance of the afore-said summary by the President of Pakistan but if the execution of the black-warrants issued against the petitioner's son is not stayed, the petitioner would suffer irreversible loss; that under Article 4 of the Constitution of Pakistan, it is inalienable right of every citizen to be dealt with in accordance with law; that the Honourable Supreme Court has already taken a suo motu notice regarding the summary sent by the Prime Minister of Pakistan for commutation of death sentence of all the condemned-prisoners into that of imprisonment for life, therefore, propriety demands that till the decision of the matter by the Honourable Supreme Court, the execution of the-black-warrants of the condemned-prisoners be stayed; that the Human Rights Organizations in all over the world are crying out for the abolition of the death sentence and in most of the countries 'death sentence' has already been abolished; that in the said backdrop, the execution of petitioner's son would amount to sheer violation of Articles 3 and 5 of Universal Declaration of Human Rights adopted and proclaimed by the United Nations in 1948; that the impugned black-warrants if executed, would take away the life of the petitioner's son in violation of Article 9 of the Constitution of Pakistan; that power to remit the death sentence under Article 45 of the Constitution is not open to question as has already been laid down by the Honourable Supreme Court in the case of Abdul Malik v. The State PLD 2006 SC 365. To augment his contentions, the learned counsel has placed reliance on the case of Hakim Khan and 3 others v.
Government of Pakistan through Secretary Interior and others PLD 1992 SC 595.
8. Conversely, the learned Addl. Advocate-General has opposed this petition tooth and nail by submitting that the Home Department of the Government of the Punjab has not received any intimation from the Ministry of Interior, Islamabad or the President's Secretariat regarding the commutation of death sentence of the condemned-prisoners into that of life imprisonment, therefore, there is no impediment against the execution of black-warrants of the condemned- prisoners, who are awaiting the execution of death sentence since long; that the petitioner is basing his claim on some news item and there is nothing on the record to suggest that any summary in this regard has indeed been sent by the worthy Prime Minister of Pakistan to the President of Pakistan; that after the publication of the said news item, the death sentence of six condemned prisoners has already been executed in the month of July, 2008, the list of whom has been attached with the report and parawise comments submitted by respondent No,3; that the Honourable Supreme Court has not taken suo motu notice in favour of the abolition or commutation of death sentence of the condemned-prisoners, rather, it has proceeded other way round, therefore, the pendency of the said suo motu matter cannot advance the case of the petitioner.
' Learned Deputy Attorney-General has submitted that under Article 48 of the Constitution of Pakistan, on receipt of an advice of the Cabinet or the Prime Minister, the President may require the Cabinet or, as the case may be, the Prime Minister to reconsider such advice, either generally or otherwise. However, in view of the said Article, the President is bound to act in accordance with the advice tendered after such reconsideration, therefore, according to the Learned Deputy Attorney- General, the advice sent by the Prime Minister if there is any, can be referred back by the President for its reconsideration.
9. After hearing both the parties at some length, we have straightway noticed that the case law cited by the learned counsel for the petitioner does not advance his case, as the same is distinguishable. In the case of Hakim Khan (supra), the President had commuted the death sentence awarded to the condemned-prisoners on the advice of the then Prime Minister. The said order passed by the then worthy President was challenged before this Court through a Writ Petition No,26 of 1989, which was finally decided by a learned full Bench of this Court vide a detailed judgment reported as Sakina Bibi v. Federation of Pakistan PLD 1992 Lah. 99, whereby it was held that the death sentence awarded to the respondents therein, could not be commuted to life imprisonment by the President. However, the said judgment was set aside by the Honourable Supreme Court in the case of Hakim Khan (supra ) and it was held as under:-- "The provisions of Article 2-A were never intended at any stage to be self executory or to be adopted as a test of repugnancy or of contrariety. It was beyond the power of the Court to have applied the test of repugnancy by invoking Article 2-A of the Constitution for striking down any other provisions of the Constitution (Article 45)."
' It was further held by the apex Court as under:-- "As regards the merits of the question involved in the case, the punishment of death awarded were not by way of Qisas. The sentences of death awarded were under Ta'zir. Just as a sentence of Ta'zir is imposed on State's command and not as a right of the individual under God's law, the State as represented by the President, has and continues to have in respect of Ta'zir punishments, the right of commutation, remission etc."
10. After going through the said judgment and considering the arguments advanced by the learned counsel for the petitioner, we have observed that there is no cavil with the proposition that in view of the law laid down by the Honourable Supreme Court, the President has got a power to commute the death sentence awarded to the condemned-prisoners in the case of Ta'zir, while exercising his powers under Article 45 of the Constitution but the facts of the case are distinguishable from those of the case cited by the learned counsel for the petitioner entirely.
Admitted, till today, the President has not accepted the summary, if any, sent by the worthy Prime Minister, so there is no notification in the field to commute the death sentence awarded to the condemned prisoners awaiting the execution of death sentence. The summary, alleged to have been submitted by the Prime Minister of Pakistan to the President of Pakistan, admittedly, is not available before us. The learned Deputy Attorney-General has not taken a concrete stand on the existence of such a summary, rather, the Government of Pakistan has not opted to submit the report and parawise comments before this Court on the ground that the matter is already pending before the Honourable Supreme Court and according to him, first of all, the report in this regard would be submitted by respondent No,5 before the Honourable Supreme Court. Moreover, in view" of the provisions of Article 48 sub-clause (4) of the Constitution, this Court feels handicapped to direct respondent No,5 to produce the advice tendered by the Prime Minister or the Cabinet, as the case may be, to the President of Pakistan, before this Court. Be that as it may, till today, neither there is any law nor any Presidential Order in the light of which the execution of death sentence could be stayed by this Court.
11. Insofar as propriety to stop the execution of death sentence during the pendency of the suo motu matter before the Honourable Supreme Court is concerned, the said relief can only be granted by the Honourable Supreme Court. As far as the contention that the, President of Pakistan is bound by the advice of the Prime Minister under Article 48 sub-clause (2) of the Constitution, is concerned, the same has not been found tenable in view of sub-Article (2) of the said Article, which reads as under:--- "Notwithstanding anything contained in clause (1), the President shall act in his discretion in respect of any matter in respect of which he is empowered by the Constitution to do so and the validity of anything done by the President in his discretion shall not be called in question on any ground whatsoever."
' After reading the said provision in conjunction with Article 45 of the Constitution, it appears that the power to grant pardon, reprieve, respite and to remit, suspend or commute any sentence passed by any Court, Tribunal or any authorities, lies in the exclusive jurisdiction of the President of Pakistan, therefore, tentatively speaking, subject to the decision of the Honourable Supreme Court where the suo motu matter is pending in this regard, we are of the opinion that the advice of the Prime Minister to commute the death sentence is not binding on the President of Pakistan as enshrined in the said sub-Article. However, he may exercise his discretion in this regard on the receipt of summary of the Cabinet or the Prime Minister, as the case may be.
12. Be that as it may, learned counsel for the petitioner has failed to convince us that the action of execution of death sentence of petitioner's son is violative of any law or, for that matter, any Presidential Order or Notification. So much so, that till today, the incumbent President has not passed any order on the subject matter in exercise of his discretion devolved upon him by Article 45 of the Constitution. Therefore, there is no violation of Article 4 of the Constitution of Pakistan in this case. Similarly, the death sentence awarded to petitioner's son, which has been maintained upto the level of the Honourable Supreme Court, would not be violative of Article 9 of the Constitution of Pakistan. Besides, there are other multiple reasons for the dismissal of this petition.
Firstly, admittedly, C.M. No,107 of 2008 filed by Muhammad Yousafcondemned prisoner in Cr.R.P.
No,44 of 2005 in Cr.P.L.A No,494-L of 2005 is pending before the Honourable Supreme Court.
Petitioner's son, i,e, a condemned-prisoner in the changed circumstances of the case may seek the self same relief from the Honourable Supreme Court in the said matter, if so advised. Furthermore, in the backdrop of the peculiar circumstances of this case, the petitioner may move an application before the worthy President of Pakistan for seeking the relief of respite in the execution of death sentence by invoking the Presidential powers under Article 45 of the Constitution of Pakistan.
Moreover, we are of the view that during the pendency of the suo motu matter before the Honourable Supreme Court, this Court cannot pre-empt the decision of the Honourable Supreme Court.
13. For all the reasons mentioned above, this petition stands dismissed in limine.