This constitutional petition was moved on 13th February, 1984 and was immediately fixed for hearing by us in Court. After hearing Mr. Abdul Haleem Pirzada, we issued notices to Assistant Advocate-General and called for the report from respondent No, 3 and fixed the case for further hearing for 14th February, 1984. Copies of the petition were ordered to accompany the notices.
2. Today, Mr. Abdul Haleem Pirzada relying upon para. 4 of the affidavit of the petitioners affirmed that the petition under Article 45 of the Constitution of Pakistan read with Article 2 of the Provisional Constitution Order No, 1 of 1981 has been filed in the Secretariat of the President at Islamabad. The learned counsel has filed his personal affidavit before us to affirm that the petition under Article 45 of the Constitution, copy of which has been placed on the record as Annexure "A" to this petition has been delivered to Mr. Commodore Mehdi Incharge of the Cell in the Presidential Secretariat dealing with such petitions and the said officer had entertained the petition to be placed before the President of Pakistan for appropriate orders under Articles 45 of the Constitution. We are satisfied that the petition Annexure "A" attached to the petition has been filed on 2nd February, 1984 and is awaiting disposal in the Office of the President.
3. Mr. Zawar Hussain Jafferi Assistant Advocate-General, who appeared on Court notice, submitted that a petition filed by the condemned prisoner has been dismissed by the President, vide communication received in the Provincial Secretariat from the Section Officer, Ministry of Interior, Government of Pakistan intimating the Secretary, Government of Sind, Home Department that :- "the President has been pleased to decline to interfere on behalf of the condemned prisoner Niazoo alias Niaz Muhammad son of Amir Bux confined in Central Jail, Sukkur."
4. Before examining the arguments of the learned counsel it is better to reproduce paras. 5 and 6 of the petition :- "(5) That on 15th September, 1981, the petitioner's son Niazoo moved a mercy petition to the Honourable Governor of Sind in terms of section 420, Cr. P. C. Which was sent to him through the respondent No, 3.
(6) That though no reply was received by the condemned prisoner but since 15th February, 1984, has been fixed as day for the execution of penalty of death, it was presumed that the prisoner's submitted petition to the Honourable Governor of Sind in exercise of his discretionary powers conferred upon him under the Code of Criminal Procedure, had been turned down."
5. The learned counsel for the petitioner has argued before us that two remedies are available to the condemned prisoner ; one by way of a mercy petition under section 402 of the Cr. P. C. Which is addressed to the Provincial Government. The other being remedy of a higher order of getting reprieve and pardon from the President of Pakistan in exercise of powers enjoyed by him under Article 45 of the Constitution of the Islamic Republic of Pakistan. The learned counsel contended that the petition which stands disposed of and dismissed was filed before the Provincial Government in response to a requisition addressed to the Superintendent, Central Jail by the Secretary to the Government of Sind, Home Department which was in the following terms :- "Supreme Court has dismissed the petition of the condemned prisoner. You are directed to send mercy petition ; Jail Roll complete in all respects in favour of the said condemned prisoner immediately."
Counsel contends that condemned prisoner's right to seek protection under Article 45 and the corresponding privilege of the President to examine and dispose of the petitioner's case under Article 45 yet remains untapped.
Even otherwise the comparison of section 401, Cr. P. C. With Article 45 would show that inherently the concept of power and the considerations to be applied for the exercise of that power in these two provisions are A different and distinguishable from each other. In the case of mercy petitions addressed to the Provincial Government in terms of section 402. Cr. P. C. The Provincial Government is to act within the tight jacket of clause 2 of section 401, strictly following the procedure prescribed. Section 401 (2), Cr. P. C. Will give some idea how and with what limitations this power is to be exercised.
"401(2) Whenever an application is made to the Provincial Government for the suspension or remission of a sentence, the Provincial Government, may require the Presiding Judge of the Court before or by which the conviction was had or confirmed to state his opinion as to whether the application should be granted or refused, together with his reasons for such opinion and also to forward with the statement of such opinion a certified copy of the record of the trial or of such record thereof as exists."
The power, on the other hand enjoyed by the President under Article 45 is totally independent and discretionary without any procedural trappings and is exercisable without any fetters. It is in the nature of prerogative of the sovereign which is incorporated in all constitutional instruments of modern States where monarchies have yielded place to symbolic Sovereign as Head of States. The power of the Head of State has however been preserved even under most advanced democracies where the grant of such powers by the people to the constitutional heads is most reluctantly conceded and exercise of the power is most jealously guarded. Article 45 of our Constitution is as follows :- "45 President's power to grant pardon, etc. The President shall have power to grant pardon, reprieve and respite, and to remit, suspend or commute any sentence passed by any Court, Tribunal or other authority."
As stated above the learned counsel for the petitioner contended that his client had two remedies and one he has exhausted while the other which is a constitutional remedy and which he has now invoked by moving petition under Article 45 of the Constitution, is pending consideration. According to him, the present petition has brought to light a very important new development which has taken place after the filing of the mercy petition before the Provincial Government. This new development he has narrated in the following paras. Of his petition which he has filed under Article 45 before the President of Pakistan :-
(10) That an important major event which has taken place subsequent to the rejection of the appeal of the condemned prisoner is that the petitioner has paid Qassas (blood money) to the legal heirs of the deceased. As keeping in view the principles of the Islamic Law based on the injunctions of the Holy Quran and the Sunnah the respectable of the area brought about a compromise between the parties and on payment of very substantial amount of money which has. Been accepted as Qassas (blood money) by the legal heirs of the deceased they have pardoned the condemned prisoner by compounding the offence according to the principles of Islamic Law and they are ready and prepared to confirm this fact even before your Goodself or before any other person or any functionary of the State, as may be directed by your Goodself provided an opportunity to that effect is granted by your Honour.
(11) That according to the Islamic Laws the offence is compoundable as per the injunctions of the Holy Quran and the Sunnah whereby it is provided that the legal heirs of deceased can compound the offence and receive Qassas (blood money) as compensation.
(12) That it would be worthwhile to mention here that although Pakistan was made in the name of Islam but this is a fact of our History that for about 30 years after the creation of Pakistan this fact was ignored by all previous Governments and no heed was paid for realisation of this noble mission for which Pakistan was made nor any steps were taken to enforce Nizam-e-Islam (Islamic Laws as ordained in the Holy Quran and the Sunnah.) Your Honour has for the first time taken the bold, noble and the historic step of a true Muslim and has declared the resolution to enforce the Islamic System of Justice in letter and spirit and active steps are being taken to practically implement and enforce the Islamic Law in the real spirit, in spite of heavy odds.
(13) That an Ordinance for enforcement of the Islamic 'System and Law of "Qassas and Diyat" has been made and the Federal Shariat Court has also given unanimous judgment to the effect that the present Penal Law of Pakistan which does not provide for the compounding of such offences on payment of blood money is contrary and repugnant to the principles of Islamic and the law aforesaid is likely to be enforced in the near future. As a matter of fact our Courts have already started giving due considerations to this principle of Islamic Law and it has been particularly upheld by the Supreme Court of Pakistan in the case of Muhammad Bashir reported in PLD 1982 SC 139 where the appeal of the accused person was allowed because of the compromise by the accused party with the legal heirs of the deceased on the payment of blood money. The principle of Qassas in Islamic Law is based on the Philosophy and divine wisdom that by giving a pardon the parties compromise and the feud is brought to an end, harmony is created, peace is restored and divine justice is done in accordance with the injunctions of Islamic Law which is divine." b. The learned counsel further stated that under Article 104 clause (ix) of rule 104 of the Pakistan Prison Rules the Superintendent Central Prison, Sukkur, respondent No, 3 before us, is bound to stay execution of the condemned prisoner after the telegraphic information sent to him by the father of the condemned prisoner vide Annexure "D" dated I 1 th February, 1984 to this petition. Rule 104, clause (ix) of the Pakistan Prison Rules runs as follows :- "(ix) In the event of its coming to knowledge of the Superintendent at any time before the execution of the sentence that altogether exceptional circumstances have arisen which plainly demand a reconsideration of the sentence, he is at liberty, anything in the foregoing rules notwithstanding, to report the circumstances by telegraph to the Provincial Government and ask for its orders and to defer execution till they are received."
The learned counsel has urged that on receipt of the telegram the respondent No, 3 was enjoined to act in terms of the above rule but instead of doing so he seems to be set on carrying out execution of the condemned prisoner in total disregard to and complete violation of this rule.
7. We have given our anxious thought to the points raised and argued before us by the learned counsel for the petitioner as well as the Assistant Advocate-General. We have also perused the statement of the respondent No, 3 filed before us by the Assistant Superintendent who present in Court in compliance with the order of this Court dated 13th February, 1984. It is agreed position between the two counsel that the by virtue of the communication, dated 8th January, 1984 was totally different from the constitutional petition pending disposal with the President now. Whether decision contained in the communication of 8th January, 1984 would cast reflections on the decision yet to follow in the exercise of powers under Article 45 is debatable but prima facie it is clear that the grounds raised in this petition to invoke the constitutional powers of the President are based on the doctrine of Qassas which has been considered and followed by the Supreme Court of Pakistan in the case of Muhammad Bashir v. State . The view we are taking finds support from the judgment of Rustom S. Siddha, J. Reported in PLD 1982 Lah.
40. The only distinction which draws out attention is that in that case the sentence was passed by the Military Court and was confirmed by the Chief Martial Law Administrator which incidentally happened to be the President of Pakistan also. In the present the disability of the Courts to interfere in cases of conviction recorded and sentence passed by the Military Courts is not there. The observations of the learned Judge may be reproduced in extenso as the facts of that case bear close similarity to these of the case before us:-- ...........However, it is the contention of the learned counsel for the petitioners that the representation made by the petition under section 131 of the Pakistan Army Act, which basically is first appeal preferred by the convicts against their conviction and sentence was rejected by the Chief Martial Law Administrator, but that the mercy petition filed thereafter by the convicts under Article 45 of the Constitution of Pakistan is still pending and that till the same is decided by the President of Pakistan, the sentence of death imposed on petitioners cannot be executed by the Provincial Home Secretary or the Superintendent of the Jail concerned. I agree with the contention of the learned counsel for the petitioners. Basically, the right of representation given to convict under section 131 of the Pakistan Army Act is by way of appeal and the considerations which should weigh with the superior officer who decides such a petition should be the same as is expected to be a person who deals with an appeal. Legal and factual matters are expected to be considered by the prescribed officer dealing with the petition under section 131 of the Pakistan Army 'Act, 1952, even though the judgment may be short and not disclose such an appraisal. However, a right given to any convict under Article 45 of the Constitution of Pakistan (1973) to pray for mercy is a right which supersedes that given to him under section 131 of the Pakistan Army Act. It may be that the person who is the prescribed officer under section 131 of the Pakistan Army Act is the President of Pakistan himself, but it cannot be forgotton that he exercised his powers under section 131 of the Pakistan Army Act as the Chief Martial Law Administrator whereas the exercise of powers by him under Article 45 of the Constitution of Pakistan, 1973 are in his capacity as the President of the country. The latter power granted to the President under the Constitution supersedes the power granted to him acting in his capacity as the Chief Martial Law Administrator under the Army Act. In this case, it cannot be forgotton that the complainant party has compromised the matter with the convicts/petitioners, as alleged and this another consideration may prevail with the President of Pakistan to commute the death sentences of the petitioners. Para. 2 of the Provisional Constitution Order, 1981 has preserved Article 45 of the Constitution of Pakistan, 1973 and there is no order made by the President or the Chief Martial Law Administrator, which has in any way abridged the said power. In these circumstances, it is the duty of the Provincial Home Secretary and the Superintendent Jail, Kot Lakhpat, Lahore, respondents Nos. 1 and 2 has ensured that the death sentences are not executed till the mercy petition filed by the convicts under Article 45 of the Constitution of Pakistan, 1973 are finally decided by the President of Pakistan. If they fail in this duty they would be culpably liable."
8. As important questions of law and of constitutional importance are involved we admit this petition to regular hearing and issue notice to the learned Attorney. General of Pakistan. In the meanwhile the execution of the petitioner shall be stayed and the black warrant issued for his hanging shall remain suspended. PLD 1982 SC 139