' IBAD-UR-REHMAN LODHI, J.---Through this Constitutional Petition, the petitioner, whose real brother Qais Nawaz was murdered on 21-1-1996, seeks-a direction of this Court for execution of death sentence to Shoaib Sarwar, the death convict.
2. Precisely, history of the matter is that the trial of the murder of above noted Qais Nawaz resulted into a judgment, passed by the learned Sessions Judge, Rawalpindi, on 22-7-1998, holding Shoaib Sarwar son of Ghulam Sarwar responsible of the said death and he, after conviction was sentenced to death.
3. The Murder Reference within the meaning of section 374, Cr.P.C. Was answered in affirmative by this Court on 2-7-2003, when Criminal Appeal No,188 of 1998, filed by the convict was dismissed.
4. The Hon'ble Supreme Court of Pakistan in Criminal Petition for leave to appeal No,364 of 2003 refused to grant leave to the convict on 3-4-2006.
5. The unsuccessful petitioner sought review through Criminal Review Petition No, 10 of 2006, of such leave refusing order, which too was dismissed by the Hon'ble Supreme Court of Pakistan on 5-10- 2006.
6. In order to avoid the execution, the convict with a plea of his being juvenile at the time of, commission of offence, preferred fresh proceedings seeking benefit of section 7 of the Juvenile Justice System Ordinance, 2000, but remained unsuccessful before the original forum, when his such plea was refused to be accepted on 29-3-2008.
7. The said findings were challenged by Shoaib Sarwar before this Court by way of Writ Petition No,384 of 2008, which was dismissed on 7-4-2008.
8. Leave against such findings was refused by the Hon'ble Supreme Court of Pakistan on 22-7-2008, when Civil Petition No,432 of 2008 was filed.
9 After affirmative answer to the Murder Reference by this Court on 2-7-2003, the learned Sessions Judge, Rawalpindi, on 22-8-2003, issued warrant of execution of sentence of death as required under-- section 381, Cr.P.C. Read with Schedule-V Form-XXXV, authorizing the Superintendent Central Jail, Rawalpindi to carry the said sentence into execution by causing the said Shoaib Sarwar to be hanged by neck until he be dead at the place of execution i,e, Central Jail, Rawalpindi, on Wednesday 10th of September, 2003.
10. The death convict managed his shifting from Central Jail, Rawalpindi to. District Jail, Abbotabad in September, 2006.
11. From a communication dated 23-7-2007, the Interior Ministry in Government of Pakistan, Islamabad, informed, the Home Secretary (N.-W.F.P.) Peshawar (as it then was) intimating that the President was pleased to reject the Mercy Petition of condemned prisoner Shoaib Sarwar son of Ghulam Sarwar confined at the relevant time in District Jail, Abbotabad, and the Provincial Government was directed to carry out the execution of condemned prisoner. Before the execution was carried out, from Aiwan-e-Saddar, Islamabad, it was intimated to all concerned that the President was pleased to stay the execution of condemned prisoner Shoaib Sarwar till 23-8-2007.
This grace time was further extended till 19-9-2007 and subsequently up to 18-9-2010.
12. Subsequent thereto, the Ministry of Interior in Government of Pakistan through communication dated 17-8-2010, informed all the Provincial Home Secretaries and all Inspector Generals of Prisons in all the Provinces about the direction of the President of Pakistan to stay the execution of death sentences up to 31-12-2010 of all condemned prisoners, except those involved in acts of terrorism or anti-State activities.
13. The respondents in their respective comments to the writ petition, placed reliance on the said exemption granted by the President of Pakistan. A copy of letter addressed to the Home Secretaries in all the Provinces from the Government of Pakistan in Ministry of Interior dated 29-3-2013 is also on record, intimating that along with others, the death convict Shoaib Sarwar in the present case, has been given further extension in time up to 30-6-2013 by postponing the execution of death sentence upon the said condemned prisoner.
14. Today, when the learned Deputy Attorney-General appeared, he was asked to verify as to what is the present position as to the policy of the Federal Government upon execution of death sentences, to which after some gap of time, he produced a U.O.No,I(8)/DS(IA-I)1998, dated 17-8- 2013, by the Secretary to the Prime Minister, which reads as under:-- "PRIME MINISTER'S OFFICE ISLAMABAD.
' Subject:- EXECUTION OF DEATH SENTENES.
' On the basis of various applications received in the President's Secretariat, by or on behalf of convicts, for the stay of execution of death sentences, Secretary to the President vide U.O.
No,5(3)2010 (Legal Vol-IV) (Part), dated 15-08-2013 (copy attached) has conveyed desire of the President to discuss the subject matter with the Prime Minister.
2. President's Secretariat has been conveying similar communications from time to time Since, the President is currently out of country and discussion on the subject between the President and the Prime Minister is pending, therefore, in due deference to the wish of the President, it has been desired that all executions of death sentences may be held in abeyance till the discussion takes place between the Prime Minister and the President". ' on the subsequent day of issuance of above U.O. i,e, 18-8-2013, the Additional Secretary in Ministry of Interior, Government of Pakistan, has forwarded such desire of the Prime Minister of Pakistan to all Provincial Home Secretaries.
15. The Government of Pakistan in Ministry of Interior vide U.O. No,8/11/2008-Ptns (Part File), dated 29-12-2011, has extended the sanction of the President of Islamic Republic of Pakistan in postponing the execution of death sentences up to 31-3-2012 of all condemned prisoners, except those involved in acts of terrorism or anti-State activities.
16. From the above narrated facts, what emerges is that after 30-6-2013, with particular reference to Shoaib Sarwar, the death convict in the present case, the execution was never postponed and presently, the said condemned prisoner is getting benefit of U.O note dated 17-8-2013, issued by the Secretary to the Prime Minister and as office memorandum. From Ministry of Interior in Government of Pakistan dated 18-3-2013 consequently issued conveying such desire of the President to all concerned.
17. Article 45 of the Constitution of Islamic Republic of Pakistan, 1973, empowers the President to grant pardon, reprieve, and respite and to remit, suspend or commute any sentence passed by any court, tribunal or other authority.
18. The word used "any" prior to "sentence" and "court" denotes to a particular sentence awarded .By a particular court or tribunal and, thus, the President would be competent to grant any stated relief to a deserving person with reference to any particular sentence passed by any court or tribunal or other authority by exercising such constitutional domain. An omnibus order granting such relief to whole of the class of condemned prisoners without any specification is not the intention of the Constitution.
19.What is restraining the relevant authorities to execute death sentence to the condemned prisoner is the U.O note dated 17-8-2013 of the Secretary to the Prime Minister, wherein the President has never been shown to have exercised his such Constitutional Jurisdiction as provided under Article 45 of the Constitution to grant any available relief within the meaning of said Article.- 20.The desire of the President to discuss the subject-matter with the Prime Minister, at any cost, could not be treated as a formal and final order passed by the President within the meaning of Article 45 of the Constitution. When on 7-8-2013, the desire of the President was conveyed, as noted hereinabove, it was further noted that the President was currently out of country and until his return and on account of due deference to the wish of the President, it was desired by the Prime Minister that all execution of death sentences may be held in abeyance till the discussion takes place between the Prime Minister and the President.
21.According to the learned Deputy Attorney-General, U.O note dated 17-8-2013 is the last document available on the subject, which is holding the field and on the strength of which the execution of death sentences has been held in abeyance.
22. The reasons noted in such U.O note must have been come to an end by now and it believes that after 17-8-2013, the President must have been returned to home land, but according to the learned Law Officer, proposed discussion never took place and the legal sentences confirmed at the level of the Hon'ble Supreme Court of Pakistan are not being executed, rather held in abeyance on account of unconstitutional and unauthorized exercise of jurisdiction conveyed by the Secretary to the Prime Minister almost a year ago. This is highly non-serious attitude on the part of the constitutional authorities to deal with such delicate and serious issue. The exercise of the discretion by the President under Article 45 of the Constitution is to meet at the highest level the requirements of justice and clemency, to afford relief against undue harshness, or serious mistake or miscarriage in the judicial process. If such general amnesty is provided against judicial decisions, it would amount to attach the clog of miscarriage in all judicial process adopted in cases, as a result whereof, the accused of murder cases were awarded death sentences. This is not the intention of law and the Constitution also. For the present, there is no Presidential Order in field granting any pardon, reprieve and respite with regard to any death sentence passed by the courts of law.
23. The result of above discussion is that it is declared that inaction on the part of the respondents in executing death sentence upon the death convict Shoaib Sarwar son of Ghulam Sarwar, in view of warrant of execution issued by the learned Sessions Judge, Rawalpindi, on 22-8-2003, is an act, which is without lawful authority and having no legal effect; this writ petition is allowed directing the respondents to act upon the warrant of execution dated 22-8-2003, issued by the learned Sessions Judge, Rawalpindi, or any fresh warrant to be issue by learned Sessions Judge, Rawalpindi, as a consequence of decision of present writ petition.