1. ' SAEEDUZZAMAN SIDDIQUI, J.-This petition under Article 9 of the Provisional Constitution. Order is filed by one Amir Bux son of Ellahi Bux father of a condemned prisoner Niazoo alias Niaz Muhammad Shahani who is at present confined in the Central Prison, Sukkur. The circumstances leading to the filing of the present petition are as follows.
2. ' Niazoo alias Niaz Muhammad was convicted for an offence under section 302, P. P. C. And sentenced to death and fine of Rs, 3,000 by the Additional Sessions Judge, Sukkur, on 15-11-1976. The death sentence awarded to the said convict was confirmed by this Court on 11-1-1978 and a petition filed against the order of this Court confirming the death sentence was dismissed by the Supreme Court on 22-8-1981. Thereafter, a review petition was presented in the Supreme Court but the same was also dismissed on 24-2-1983. A mercy petition moved to the Govey nor, Province of Sind, under section 401, Cr. P. C. Was rejected on 15-9-1983. Thereafter, a mercy petition dated 28- 3-1983 was filed by Niaz Muhammad through jail authorities to the President of Pakistan under section 402-A, Cr. P. C. The above petition filed by Niaz Muhammad was duly processed in the Secretariat of the President and by order, dated 2nd of January, 1984 the petition was rejected by the President. After rejection of the above petition another petition under Article 45 of the Constitution of 1973, was sent directly to the President, by the father of convict on 2-2-1984 for clemency. It appears that in the meantime a date was fixed for execution of Niaz Muhammad (Convict) and a black warrant was also issued by the authorities. The petitioner in these circumstances approached this Court under Article 9 of the P. C. 0 and prayed for stay of execution of condemned prisoner until disposal of his mercy petition by the President. The above petition came up for preliminary hearing before a bench of this Court consisting of lbadat Yar Khan and Ally Madad Shah, JJ. On 14-2-1984 and the same was admitted to regular hearing in view of the importance of legal and constitutional point raised before the bench and consequently execution of the condemned prisoner was stayed. During pendency of the petition the petitioner has been informed by the respondents that the petition filed by him before the President has been disposed of as not maintainable. The learned counsel for the petitioner, however, maintained that the petition filed by the petitioner has not been disposed of by the President and its alleged disposal by the respondents as not maintainable is no disposal in the eye of law. In these circumstances when the case came up for hearing before the Court on 17-10-1984 the following order was passed :- "Mr. Abdul Haleem Pirzada, Advocate for the Petitioner..
3. ' Mr. Samiullah Qureshi, Advocate for the Respondent No, 1.
4. ' Mr. Zawar Hussain Jaffery, A. A.-G. For the Respondents Nos. 2 and 3.
5. ' Mr. Samiullah Qureshi representing No, 1 files a communication signed by Mr. Muhammad Daud, Section Officer dated 21-4-1984 informing the petitioner Amir Bux that 'Petition dated 2-2-1984, submitted to the C. M. L. A.'s Secretariat invoking clemency for your son pending execution of death sentence' has been disposed of, 'as not being maintainable under the law.' Mr. Haleem Pirzada learned counsel for the petitioner has objected to the contents of this communication and his objection is that under Article 45 of the Constitution it is the exclusive power of President of Pakistan to dispose of the petition after considering the plea raised in the mercy petition. From the communication it appears that the petition has not even been placed before the President and has been disposed of as not being maintainable at the Secretariat level. The learned counsel for the respondent No, I is allowed time, at his request, to verify whether the petition was placed before the President and orders obtained thereon. Further, the counsel to seek instructions who has disposed of the petition 'as not being maintainable under the law.' The learned counsel is directed to obtain this information telegraphically by 21st October, 1984. The matter may be placed in Court on 22-10-1984. The learned counsel for the respondent No, 1 is directed to furnish copies of the letters to the learned counsel for petitioner."
6. ' Thereafter, the above petition came up for regular hearing before us on 13-2-1985 and on that date the learned counsel for the respondents produced before us the original file containing the summary put up before the President on the petition of Niaz Muhammad filed under section 402-A Cr. P. C. And the order of President dated 2-1-1984 passed thereon. After seeing the file we adjourned the regular hearing of the case on 4-3-1985 on which date above file was one again produced before us and was left with us. We heard the learned counsel for the parties at length and reserved orders thereon 4-3-1985. It is not disputed before us that the above petition filed by the father of convict never came up before the President for consideration as in the view of Ministry of Interior as well as Ministry of Law the earlier petition of the condemned prisoner having been rejected by the President on 2-1-1984 a second petition on the case subject was not maintainable.
7. ' Mr. Haleem Pirzada, the learned counsel for the petitioner contended that the powers vested with the President of Pakistan to extend clemency and pardon to a convict under Article 45 of the Constitution is independent of his power under section 402-A, Cr. P. C. And as such the rejection of petition filed by the convict Niazoo to the president under section 402-A, Cr. P. C. Was no bar to the filing of another petition under Article 45 of the Constitution. It is accordingly contended that the position taken by the respondent that in view of the rejection of petition of condemned prisoner filed by him under section 402-A, Cr. P. C. The subsequent petition for clemency filed by his father before the President under Article 45 of the Constitution is not maintainable, is untenable in law.
8. The learned counsel for the respondents on the other hand maintained that as the power to be exercised by the President under section 402-A. Cr. P. C. And under Article 45 of the Constitution are same therefore, exercise of power by the President under any one of the above provisions will exhaust the power under both the provisions. After a careful consideration of the provisions of section 402-A, Cr. P. C. And Article 45 of the Constitution of Pakistan, -I am unable to agree with the contention of the learned counsel for the respondents.
9. A closer study of the provisions of section 402-A, Cr. P. C. Will show that the President in a case where sentence of death has been awarded may exercise those powers which are conferred on the Provincial Government under sections 401 and 402, Cr. P. C. It is thus quite clear that the powers available to President under section 402-A, Cr. P. C. Are not even ash wider as those of the Provincial Government as the exercise of these powers by the President are restricted only in cases of death sentences. Again, the powers under section 401 are available only for the purposes of suspension and remittance of a sentence with or without condition in the prescribed manner thereunder and under section 402, Cr. P. C. Only sentence can be commuted in the manner stated therein. None of these two provisions of law vest the President with power to grant pardon, reprieve and respite. In contradistinction to these powers of President under section 402-A, Cr. P. C. The authority enjoyed by him under Article 45 of the Constitution is much wider in scope and is unbridled and unlimited in the nature of a sovereign prerogative. The President under Article 45 of the Constitution can in his discre tion grant pardon reprieve and respite beside remitting, suspending or commuting and sentence passed by any Court, tribunal or authority. The powers conferred on the President under Article 45 of the Constitution are on a much higher pedestal than those available to him under the Code of Criminal Procedure. I am, therefore, in no doubt that the exercise of power by the President on a petition, under section 402-A, Cr. P. C. Could not exhaust his authority under Article 45 of the Constitution. The powers under sections 401 and 402,C Cr. P. C. Are much inferior and lesser in scope than those enjoyed by the President under Article 45 of the Constitution is also clear from the Provisions of section 402-B of Criminal Procedure Code which reads as under :- 402-B. Certain restrictions on the exercise of powers by Provincial Government. Notwithstanding anything contained in section 401 or 402, the Provincial Government shall not, except with the previous approval of the President, exercise the powers conferred thereby in a case where the President has passed any orders in exercise of his powers under the Constitution to grant pardons, reprieves and respites or to remit suspend or commute any sentence or of his powers under section 402-A.
10. I am, therefore, of the view that in spite of rejection of the petition of condemned prisoner Niaz Muhammad by the President under section 402-A, Cr. P. C. The second petition filed by the father of prisoner under Article 45 of the Constitution was maintainable and it was open to the President, if he so desired, to exercise that power notwithstanding an earlier exercise of power by him under section 402-A, Cr. P. C. I am also of the view that a petition addressed to President under Article 45 of the Constitution can only be disposed by the President personally and, therefore, its disposal at the secretarial level as not maintainable by respondents cannot amount to its disposal by the President.
11. I now turn to the power of this Court with reference to reliefs claimed by the petitioner in the above petition. It can be doubted that the exercise of power under Article 45 of the Constitution by the President is purely discretionary and in the nature of a sovereign prerogative. Exercise of such powers are neither controlled by the Courts nor the Courts can compel exercise of such power by President. It is, therefore, clear that no order in the nature of a writ can be issued by this Court for compelling exercise of power under Article 45 of the Constitution. In this connection a reference may be made with advantage, to the following observations of the Supreme Court in the case of Muhammad Ayub Khan v. Superintendent Jail (1).
12. "It is quite clear that the mercy petition filed by the petitioner has been dismissed at one stage and unless on the basis of the subsequent mercy petition said to have been filed, mercy is in fact, extended to the petitioner, and sentence of death commuted, the order already passed must hold the field. In Muhammad Sadiq and another (C. P. S. L. A. No, 182 of 1978) it has been held that the discretion of the President in a mercy petition was not liable to interference in the exercise of writ jurisdiction. No cognizance of the subsequent petition filed by the petitioner can be taken. This petition fails, and is dismissed hereby."
13. ' No doubt the petitioner has not asked for issuance of any writ compelling exercise of the powers by the President under Article 45 of the Constitution but in my humble view the grant of prayer in the petition will amount to indirectly compelling the President to exercise his powers under that provisions of the Constitution which clearly is not permissible as that which cannot be done directly, cannot be allowed to be done indirectly. The original file placed before us by the learned counsel for the respondents shows that the clemency petition dated 2-2-1984 filed under Article 45 of Constitution was returned by the C. M. L. A. Secretariat without remark to Ministry of Interior on or about 10-4-1984 and it was after that it was disposed of at the Secretariat level by that Ministry in the F light of the opinion of Ministry of law as not maintainable. This disposal of petition by the Ministry of Interior is already held by me as not amounting to disposal of petition by the President.
14. However, this fact can not entitle the petitioner to the issuance of any direction in the nature of a writ to compel exercise of the power by the President under Article 45 of Constitution. I am, nevertheless confident that in view of the above discussion the authorities concerned will not omit to place the petition dated 2-2-1984 addressed by the petitioner to the President of Pakistan under Article 45 of the Constitution before the President for his perusal and disposal, before the convict is executed by the jail authorities. With these observation I dismiss this petition with no order as to cost.
(1) 1979 SCM R 302