Petitioner (Mst. Nusrat Perveen) has filed the captioned Constitutional Petition for setting aside the black warrant dated 25.7.2015, regarding execution of her son Abdul Basit, primarily on the ground that he is permanently paralyzed being a chronic patient of tuberculosis meningitis. On 28-07-2015 this Court suspended the black warrant issued for 25-07-2015 till further Orders. Civil Miscellaneous Number 6499/15 was filed in the afore mentioned Writ Petition on 31-08-2015 praying that the Respondents Nos.1 and 3 be restrained for submitting any further requests for issuance of black warrants until the mercy petition, dated 22-07-2015 of the accused Abdul Basit is decided. It was further prayed that the entire medical record of the son of the petitioner be produced before this Court.
2. Brief facts of the case are that the petitioner's son namely Abdul Basit was a nominated accused in case F.I.R No.208 dated 31-03-2008 registered under sections 302/449/34 at Police Station A- Division Okara. The trial court vide judgment dated 19.5.2009, sentenced him to death under section 302(b), P.P.C. On appeal, his conviction and sentence was confirmed by this Court on 12-06-2012 in Criminal Appeal No.772/2009 and finally his death sentence was upheld and maintained by the Honorable Supreme Court of Pakistan vide Order dated 13-12-2012 in Criminal Appeal No. 490-L of 2012. It has been mentioned in Paragraph No.23 of the afore-titled Writ Petition, that the family of the accused Abdul Basit filed various mercy petitions before the President of Pakistan but all the mercy petitions were not accepted.
3. The Counsel for the Petitioner has argued that the petitioner's son was initially lodged in the Sahiwal Jail and was later shifted to Central Jail Faisalabad. In February 2010 there was a clash between the jail authorities and the prisoners of Faisalabad Jail. The son of the petitioner and other jail prisoners confined in Faisalabad jail were subjected to severe torture by the then Superintendent of jail, they were kept in inhumane conditions due to which the petitioner's son contacted infection and is now paralyzed. The counsel has further argued that as the accused Abdul Basit, has become medically unfit therefore he cannot be executed according to Rule 356 of The Pakistan Prison Rules, 1978. And his execution will violate Articles 9, 13, 14 and 25 of The Constitution of Islamic Republic of Pakistan, 1973. The learned counsel relied upon a number of case laws which are jotted down in the Writ Petition.
4. The learned Additional Advocate General and the Counsel for the Complainant vehemently opposed the Writ Petition and argued that the death sentence of the accused Abdul Basit has attained finality hence the Writ Petition be dismissed and he be executed as per law.
5. Arguments heard. Record perused. It is admitted that the son of the petitioner, accused Abdul Basit has availed all the legal remedies available to him against his conviction and execution and his repeated mercy petitions to the President of Pakistan were not accepted, even though he was paralyzed at that time. Neither the petitioner nor the accused Abdul Basit chose to challenge the dismissals of the mercy petitions before any forum.
6. The criminal law of Pakistan has distinctive features as it gives the right of compromise/pardon to the legal heirs of a deceased person in murder cases as contemplated under the Islamic law.
Chapter XXVIII of the Code of Criminal Procedure, 1898, is on Execution. Proviso of Section 381 Cr.P.C.
Is reproduced as under: "Provided, that the sentence of death shall not be executed if the heirs of the deceased pardon the convict or enter into compromise with him even at the last moment before execution of the sentence."
' The law is clear that in Pakistan the ball is always in the court of the legal heirs of a deceased person and they can pardon an accused even at the eleventh hour. Hence the Petitioner still has a chance to avail this remedy to set-aside the execution of the accused Abdul Basit if the legal heirs of the deceased agree to do so.
7. We are of the view that the writ jurisdiction is not the proper forum to suspend or set-aside the execution of a death sentence. The proper forum for that is the Sessions Court as laid down under the Law given in section 381, Cr.P.C., which is re-produced as under:- "S.381. Execution of order passed under Section 376.
' When a sentence of death passed by a Court of Session is submitted to the High Court for confirmation, such Court of Session shall, on receiving the order of confirmation or other order of the High Court thereon, cause such order to be carried into effect by issuing a warrant or taking such other steps as may be necessary."
8. We do not agree with the argument of the Counsel for the Petitioner that as the accused is now paralyzed he cannot be hanged as per the Prison rules. As there is no rule declaring the hanging of a disabled person as illegal. Rule 356(2) of the Pakistan Prisons Rules, 1978 is reproduced as under: "The following scale of drop proportionate to the weight of the prisoner is given for general guidance, the Superintendent must use his discretion and also be guided by the advice of the Medical Officer and the physical condition of the prisoner."
' It is clear in the afore mentioned rule that while hanging an accused person the discretion lies with the Superintendent as to how the hanging is to take place. The only bar for execution is laid down in section 382 Cr.P.C. And Rule 350 of The Pakistan Prisons Rules, 1978 is that of a pregnant woman and there is no bar for executing a disabled accused.
9. In the case titled 'Shaft/at Hussain v. President of Pakistan and others' Civil Petition No.1127 of 2015 the Honourable Supreme Court of Pakistan dismissed the Appeal on 10-06-2015 and held that when all legal remedies have been exhausted then there will be no legal justification to suspend an execution and matter should be dealt in accordance with the laws of Pakistan and the International laws should be kept aside.
10. In a case titled Maabool Hussain @ Jamala Dogar V. Federation of Pakistan and another' in W.P.
No.19907 of 2015 vide judgment dated 12.8.2015 this Court did not stay the execution of an accused who had a similar plea that he could not be executed as he had lost both his legs. The Review Application No.76 of 2015 (2016 CLC 219) was also dismissed by this Court on 20.8.2015.
11. As deliberated above, this Writ Petition is not maintainable and is dismissed. And upon dismissal of the main Writ Petition the Civil B Miscellaneous No.6499 of 2015 automatically stands dismissed.
There is now no injunctive Order in field regarding the execution of the accused Abdul Basit.