' Malik Ghulam Jilani has moved this Constitutional petition which is third in the series directed towards achieving the same end viz. Deferment of the sentence of death passed by this Court and upheld in appeal by the Supreme Court on Mr. Z. A. Bhutto. The first petition filed was W. P. No, 716/79 dismissed in limine by me on 13-2-1979. The next one was W.P. No, 929/79 also disposed of by me on 28-2-1979. As the facts of the present petition go back and find adequate mention in order passed in W. P. No, 929/78, I would riot reproduce it except to indicate that one of grounds on which that petition then failed has been taken care of by the petitioner by informing General Muhammad Ziaul Haq as the Chief Martial Law Administrator, that he has no authority according to the petitioner's understanding of the situation to deal with the mercy petition filed by him (Annex. C).
2. He has also moved the detaining authorities namely Superintendent Jail as controlled by the Home Secretary and the Chief Secretary, Punjab calling upon them that execution of sentence of death cannot take place unless the mercy petition is disposed of as required by sub-para. (2) of para. 103 and under clause (2) of sub-para. (5) of para. 103 of the Jail Manual by respondent No, 5 or a duty appointed successor.
3. The reliefs now sought for by the petitioner are in following terms :- "(1) That respondent No, 4 be directed to refrain from passing an order on Annexurers A/1 and B as the purported President of Pakistan.
(ii) That respondents Nos. 1 and 2 be directed to forward the petition (Annexure A/1) filed by the petitioner as a friend of Mr. Zulfiqar Ali Bhutto to respondent No, 7 as prescribed.
(iii) That the respondent No, 7 be directed to refrain from obtaining Orders thereon (Annexure A/I) from respondent No, 4.
(iv) That respondent No, 7 be directed to obtain the orders thereon of Mr. Fazal Elahi Chaudhry, as President of Pakistan.
(v) That in the event of respondent No, 5 being held by this learned Court to have ceased to hold office of President of Pakistan, respondent No, 7 be directed thereupon, to withhold the said petition for necessary consideration/orders by the duly competent President of Pakistan i,e, other than respondent No, 4.
(vi) That pending the determination of either of the aforesaid petitions by the duly competent President of Pakistan respondents Nos. 1, 2, 3, 6 and 7 be directed to refrain from executing the sentence of death upon Mr. Zulfiqar Ali Bhutto. A direction to this effect be given to respondents Nos. 1, 2 and 3 as the superior authority and officers of all Superintendents of Jails in the Province of Punjab.
(vii) That pending the determination of either of the aforesaid petitions by the duly competent President of Pakistan, the respondents be directed to refrain from removing or permitting the removal of the said Zulfiqar Ali Bhutto to any place outside and beyond the jurisdiction of this Hon'ble Court viz. The Province of Punjab ; and
(viii) That the petitioner be allowed such other relief or reliefs as may be deemed necessary."
4. The sum and substance of the arguments of the learned counsel for the petitioner is that though ordinarily the mercy or pardon powers is a prerogative of the Crown in or state of affairs with a written Constitution and distribution of State functions it has come to vest in the President under Article 45 of the Constitution and in a different context under the statutory provision in the Provincial Government and through it in the President again. On this reasoning it is urged that unless not a de Pao but a de jure President is there and such a power is exercised, the execution of the sentence should remain in abeyance and he has a right in law to get an order directing the Superintendent Jail and other superior authorities concerned with the detention of the convict not to carry out the sentence till a de jure President takes over and exercises the authority.
5. In order to establish that the present de facto incumbent of the office of President is not the de jure President, reference is made to the failure of respondent No, 5 to vacate the post of President in the manner prescribed under the Constitution and the disqualification suffered by the present incumbent when testa on the standard of qualifications prescribed in the Constitution. It is so contended that the Succession Order has not issued from competent quarters, is not dictated by any requirement of the principle of State necessity as laid down in Begun: Nusrat Bhutto's case.
6. At the very start of the argument it was indicated to the learned counsel for the petitioner that if he wanted to maintain this petition purely as a quo warranto petition it could be straightaway admitted to full hearing and the necessary parties for that purpose were respondents 4, 5 and 7.
The learned counsel for the petitioner was not satisfied with this and wanted that the relief in the manner asked for and to the extent indicated was what the petitioner wanted and nothing short of it.
7. The learned counsel has very ably assisted me in understanding not only the problem which required consideration and decision but also the peripheral area of adjudication concerning exercise of public power particularly the pardon power. At this stage while I am dismissing the petition in limine I do not want to go into in greater detail than is absolutely necessary for the present purposes.
8. The first circumstance which stands in the way of the petitioner is the fact that he has a right certainly to file a petition for mercy for a friend, relative or in a rare case even for a party man or strainer as provided under the Jail Manual but there his right ends. He cannot, on the strength of such' a mercy petition, get a substantial cause with regard to the lawful authority of the detaining authority or the pardoning authority be examined in its full legal perspective. The examination of the questions raised is of necessity restricted by the nature of right in the proceedings the relief that he could possibly get and the limits of the statutory authority of the Superintendent. The Superintendent, Jail is not concerned with the 4e facto or the de jure authority of the President. He has to see only that he receives an order from A the appropriate quarters through the hierarchy provided and prescribed in the Jail Manual. It has been provided in the same document as to what he will do in case of doubt, in ease of further unforeseen developments taking place and how far he will exercise his own judgment with regard to postponing tit execution. It is this principle which has been made the ground No, (iv) in m order in W. P. No, 929/79. The power of pardon, the grant, the abeyance or the refusal to grant it, cannot collaterally be challenged in proceedings started after filing mercy petition as the scope is entirely of a quo warrant proceeding.
9. The attention of the learned counsel was drawn to the judgment is Nasirullah Khan Babar v. Chief of Army Stag G. H. Q., Rawalpindi and another (1), in which the authority of respondent No, 5 to be President in succession to respondent No, 6 has been recognized and held good. For the present, proceedings such a decision in the background gives if nothing el does give. Authority prima facie to respondent No,
4. The learned counsel then contended that even if he can be said to have the colour of authority it is not bona fide and in that context he had gone on to the principle of State necessity, the qualifications provided by the Constitution for the President and the disabilities suffered by the respondent No,
4. This, as I said, is substantially a different question and for or woos as pointed out in ground No, (v) of para. 8 of judgment of the earlier writ petition the de facto officer ship is prima facie found established by existence of de jure office colour of authority or title, physical possession, public recognition, reputation and existence of revolutionary Government.
10. Another point which has been engaging my utmost attention is not so much in the domain of legality as of equity. It is that what the petitioner is seeking is not to perpetuate, may be indefinitely, the agony of the convict by keeping in abeyance the . Exercise of mercy power, for one does not know nor has it been made clear as to when a de jure President of his liking is to come into existence.
11. I find no merit in the petition. Which is dismissed in limine. {{FOOT NOTE}}
(1) PLD 1979 Pesh. 23 {{FOOT NOTE}}