' B.G.N. KAZI, J.-Ch. Ijaz Ahmad, Advocate for the petitioners absent. At the hearing on 13-3-1984 he was also absent but he had submitted a letter informing the Court that since the petitioners had been executed and their relatives had no interest to contest the petition and it may not be fixed at Quetta. However, in view of the previsions of rule 15 of the Federal Shariat Court (Procedure) Rules, 1981, even though the counsel A for the petitioners was not present, the matter was ordered to be fixed for hearing today at Quetta. As already stated the learned counsel for the petitioners has once again remained absent.
2. Obyar and Khudai Nazar, petitioners, tried by the Special Military Court No, 2, Khuzdar, on the charges under sections 302/307)148 and 149, P. P. C. Read with M. L. R. 9 and were sentenced to death on 6-8-1983. The petitioners filed the instant Shariat Petition in this Court B under Article 203- D of the Constitution of Islamic Republic of Pakistan praying that section 401 of Criminal Procedure Code in so far as it does not provide for the compounding of the offence under section 302, P. P. C.
Being against the Injunctions of Islam as laid down in the Holy Qur'an and Sunnah, may be ordered to be amended by the Government.
3. Before the petition could be heard as already stated, the two petitioners were executed as their mercy petitions were rejected.
4. The objection to the prayer in the instant petition could be that under Article 203-D of the Constitution this Court has been given the power to examine and decide question whether or not any law or provision of law is repugnant to the Injunctions of Islam as laid down in the Holy Qur'an and the Sunnah of the Holy Prophet. However, 'law' has been defined in Article 203-B inter alia as not covering law relating to procedure of any Court or tribunal. It may, however, be stated here that in the decision of this Court in' Muhammad Ruiz etc. v. Federal Government etc. (1), it was inter alia held that this Court was a successor to Shariat Bench of the High Court and issues decided by Shariat Bench of High Court were binding and this Court was debarred from adjudicating same issues once again. The question as to whether the provisions of section 401, Cr. P. C. Are not within the jurisdiction of this Court to examine with regard to repugnancy to the Injunctions of Islam was examined and it was held that sections 401, 402-A and 402-B, Cr. P. C. With regard to suspension of decision and commutation or remittance of sentence are not pertaining to law of procedure but vest jurisdiction in the Central or Provincial Government to suspend, remit or commute the sentence passed by a Court of law. It was further observed that findings of the Peshawar High Court in Gul Hassan's case (2), that the provisions of sections 401, 402-A and 402-B were subject to the jurisdiction of the Shariat Bench was binding on this Court.
5. The, matter under consideration in the instant petition was already dealt with by the Shariat Bench of the Peshawar High Court in the case of Gul Hassan and the Government was directed to make the necessary amendment in the law. On behalf of the Government, however, appeal was C filed before the Supreme Court and the order with regard to amending the law was suspended till the hearing of the appeal. The aforesaid appeal has not been decided so far and the legal position remains same as it was.
(1)PLD1980 FSC 1 (2) PLD 1980 Pesh. 1 ' Nothing new has been urged in the instant petition which could be brought out in the order of this Court, and the petitioners were executed and their relatives have lost interest.
6. Under the circumstances stated above no useful purpose will be served by repeating what has already been stated in the aforesaid decision of the Shariat Bench of the Peshawar High Court, to which this Court is successor Court. We, therefor, dismiss the Shariat Petition.