' MUHAMMAD BASHIR KHAN JEHANGIRI, J.---This writ petition under Article 199 of the Constitution of the Isamic Republic of Pakistan, 1973, by Khan Bahadur, petitioner, seeking declaration "that the order dated 7-12-1988 promulgated vide Notification No, 8/15 dated 8-12-1988 is illegal, unlawful, without lawful authority, without jurisdiction and consequently of no legal effect as regards the case passing through the process of judicial determination on the date of its promulgation" and "directing respondent No,3 to order the arrest of respondent No, 1 released from Central Jail, Haripur, while undergoing life imprisonment on account of promulgation of the impugned order and remain confined in Jail until the final decision of the Criminal Revision No, 14 of 1982 pending disposal before this Court" has arisen in the following circumstances.
2. Sher Ahmad, respondent No, 1, and his son Astam Khan were placed on trial for the murder of Rustam Khan son of Muhammad Yousuf Khan, resident of Kialak, District Abbottabad, by firing. Mr. Ejazul Hassan Khan the learned Sessions Judge, Abbottabad, as then he was, by his judgment dated 1-6-1982 convicted accused Sher Ahmad under section 302 of the Pakistan Penal Code and sentenced him to imprisonment for life and a fine of Rs,5,000 or in default thereof to undergo further rigorous imprisonment for one year. The amount of fine, if realized, was directed to be paid to the legal heirs of the deceased by way of compensation as provided under section 544-A, Cr.P.C. The learned Sessions Judge, however, acquitted Astam Khan of the said charge. Respondent Not filed Criminal Appeal No,7 of 1982 against the judgment dated 1-6-1982 of the learned Sessions Judge, to challenge his conviction and sentence. The petitioner, on the other hand, assailed the judgment of the learned Sessions Judge and filed Criminal Revision No,14 of 1982 for enhancement of the sentence of imprisonment for life to normal penalty of death. The petitioner had also filed Criminal Revision No, 15 of 1982 challenging the acquittal of co-accused of respondent No, 1.
Criminal Revision No, 15 of 1982 was decided by this Court vide judgment dated 19-11-1984 directing the learned trial Court to hold trial de novo of Astam Khan. At the same time it was decided that Criminal Appeal No,7 of 1982 and Criminal Revision No,14 of 1982 would remain pending and shall be decided along with the case emerging out of the fresh trial of Astam Khan accused. In the meantime, general amnesty was announced by the Federal Government vide impugned order dated 7-12-1988 by virtue of which respondent No,1 was released from Jail under the provision of clause 'D' of the said Order. Criminal Appeal No, 7 of 1982 filed by respondent No, 1 came up for hearing before this Court on 14-10-1989. In pursuance of the statement of the learned counsel for respondent No,1 at the Bar that his client had since been released in pursuance of the impugned order, a Division Bench of this Court comprising of Raza Ahmad Khan, J., as his Lordship then was, and Abdur Rehman Khan, J. Dismissed the appeal "having become infructuous".
3. The main grievance of the petitioner is two-fold: Firstly, that the impugned order of amnesty dated 7-12-1988 was without lawful authority, without jurisdiction and of no legal effect as regards the case of Sher Ahmed respondent No,1 was concerned and, secondly, that in any case, respondent No,1 had not attained the age of 60 years on the date of the promulgation of the said order according to entries in his own Identity Card."
4. By way of preliminary objections the respondents Nos.1 and 2 had questioned the maintainability of the petition and also that the writ petition as framed and worded and the reliefs sought therein, in effect, seek to challenge the powers of the President exercised under Article 45 of the Constitution which could not be made a subject-matter of challenge in writ jurisdiction. The impugned order of the President dated 7-12-1988 was defended both on factual and legal plane.
The contention that under Article 2-A of the Constitution the President of Pakistan has been denuded of the powers of pardon or grant amnesty to the prisoners was controverted and it was urged that Article 2-A could not militate against other Articles of the Constitution of Pakistan.
Additionally, Respondent No,1 in his written statement raised as many as 8 preliminary objections which are as follows:-- "(1) The petitioner was a party to Criminal Appeal No,7 of 1982 decided by High Court on 24-10-1989 and although impugned order was in existence, he or his counsel representing him singularly failed to challenge the order on its validity or the consequential release of respondent No,1. He is estopped from reagitating the plea now raised by him.
(2) The petitioner is guilty of laches. He is indirectly seeking to set aside the judgment of High Court dated 14-10-1989, after an elapse of about a year and a half.
(3) The petitioner not caring to challenge an order at first instance knowing fully well such order having been in the field and also adverse to his interest, cannot be permitted to impeach the same at subsequent stage.
(4) The plea which was available to petitioner at the time of hearing of Criminal Appeal No,7 of 1982 and was not taken up by him would be deemed to have been waived or abandoned and acquiesced in the impugned order.
(5) The petitioner had an alternate and adequate remedy to impugn the order of High Court by way of appeal before Supreme Court of Pakistan but he deliberately failed to file an appeal and allowed the judgment of High Court to become final. Thus where efficacious remedy was availabale and not exhausted, writ petition is not competent.
(6) That failure by petitioner to avail the particular remedy provided under the law of the land before competent forum within prescribed time furnishes sufficient ground for dismissal of writ petition.
(7) That writ does not lie to question High Court's own order.
(8) That petitioner has raised controversial and disputed questions of facts which cannot be determined in writ petition."
On facts the allegations of the petitioner were also controverted.
5. Mr. Fazal-e-Haq Abbasi, learned counsel appearing on behalf of the petitioner, in support of this petition, raised the following contentions:--
(a) That the impugned order dated 7-12-1988, whether passed under the provisions of the Constitution or Cr.P.C. Could not be made applicable to the cases 'passing through the process of judicial determination' if the principle of harmonious interpretation of the Constitution is to be observed.
(b) That if the interpretation of the impugned order adopted by respondents Nos.3 and 4 is allowed to hold field, it will make the provisions of Articles 2-A, 4, 25, 227, 204 etc. Subservient to the provisions contained in Article 45 of the Constitution. The principles of established law respecting interpretation of Constitution lawfully militate against the said interpretation of the Constitution.
(c) That the independence of judiciary and conformity to the Injunctions of Islam of all the laws has been enjoined in the Objectives Resolution forming the basis of the Constitution as well as in the other provisions of the Constitution itself. Thus, if the impugned order is allowed to be interpreted as it has been done, it will destroy the fundamental complexion of the Constitution which essentially envisages a system of trichotomy. It will almost amount to creating chaotic conditions as regards interpretation and implementation of the provisions of the Constitution.
(d) That besides the foregoing, case of respondent No,1 did not even fall within the ambit of the impugned order dated 7-12-1988 as age of respondent No,1 according to his Identity Card could not be sixty years on the date of promulgation of the impugned order. Thus, the age of respondent No,1 would be a disputed fact which could be resolved only according to judicial principles and not by unilateral decision of a doctor.
(e) That considering the Islamic Law relating to remission of sentence on account of pardon it would appear as if provisions of Article 45 could no longer be even resorted to after the Objectives Resolution was made part of the Constitution, in the year 1985. Besides, mercy and justice could not be completely divorced of each other. As such, the requirements of justice must go along when considerations of mercy are being weighed which cannot be possibly read in the impugned order.
(f) That the point involved for decision of this Court besides being of interpretation of the Constitution is of great public importance which certainly calls for detailed analysis and laying down law specifically resolving the controversy involved herein.
6. On behalf of the respondent, it was vehemently argued that the powers of the President of Pakistan under Article 45 of the Constitution of the Islamic Republic of Pakistan could not be (1,ucqioned because as Head of the State, he had been invested with such powei s and the exercise thereof could not be questioned in any manner whatsoever. It was also argued that Article 2A of the Constitution was devoid of overriding effect qua the other provisions of the Constitution and, therefore, it could not be invoked to challenge the impugned orders.
7. The President of Pakistan acting upon the advice of the Prime Minister vide Letter No,8/15/88- Ptns., Islamabad, dated the 8th December, 1988, purporting to act under Article 45 of the Constitution of the Islamic Republic of Pakistan issued the following order:- "(a) To commute all death sentences awarded by the Military or other Courts up to the sixth of December, 1988 to imprisonment for life.
(b) To grant pardon to all women prisoners except those convicted for murder who are undergoing imprisonment under sentences awarded by the Military or other Courts.
(c) To remit the sentences of all persons who have been convicted and sentenced under MLR-31 in absentia, such persons will however have to face trial for the substantive offences for which they may be charged.
(d) To remit the sentences of convicts who are above sixty years of age and have undergone imprisonment for five years or more under sentences awarded by the Military or other Courts.
(e) To remit the sentences of all persons other than members of armed forces convicted and sentenced by Military Courts for offences not involved in drugs smuggling, corruption, embezzlement, bank fraud, robbery, dacoity, murder, rape or unnatural offence. The case of the members of the armed forces will be reviewed by the competent authorities of the armed forces.
(f) To grant to all convicts in Pakistan remission of three months in their sentences whether awarded by the Military or other Courts.
' To grant remission from the dates of their imprisonment to all persons convicted and sentenced by Military Courts to whom remissions have so far been denied.
(h) To direct that in computing the total period of imprisonment to be undergone by prisoners convicted and sentenced by Military Courts, the period served as under trial prisoners be included."
8. In this case, the legality of the impugned order has been questioned on the grounds enumerated above. The following propositions call for determination in this cases:--
(i) Whether Article 2A, which was inserted by President's Order No, XIV of 1985 in the Constitution of Pakistan, 1973 and made a substantive part thereof has resulted in denuding the President of the powers of remission of sentence of life imprisonment of a convict passed by any Court, Tribunal or Authority in respect of persons found guilty of murder despite the powers conferred on him by Article 45 of the Constitution of Pakistan?
(ii) Whether respondent No,1 was or was not entitled to the relief of remission of his sentences of imprisonment for life under paragraph `EY of the impugned order on the ground that he was aged less than 60 years at the time of issuance of the impugned order?
(iii) Whether, after dismissal of Criminal Appeal of respondent No,1 on the ground of his having been released from Jail in purusance of the impugned order, the writ in hand would be competent?
9. On the first point, the Supreme Court in the case of Hakim Khan and 3 others v. Government of Pakistan and others PLD 1992 SC 593 has held that Article 2A was not a supra-Constitutional measure. This newly-added Article has, therefore, got no overriding effect in so far as the powers of the President under Artiel 45 of the Constitution are concerned.
' While repelling the argument advanced on behalf of the petitioner therein that Article 2A is a supra-Constitutional provision, his Lordship Dr. Nasim Hasan Shah, J., as his Lordship then was, very ably interpreted Article 2A vis-a-vis, the other provisions of the Constitution and its ture import in the following paragraph of the report:-- "This rule of interpretation does not appear to have been given effect to in the judgment of the High Court on its view that Article 2A is a supra-Constitutional provision. Because, if this be its true status then the above-quoted clause would require the framing of an entirely new Constitution. And even if Article 2A really meant that after its introduction it is to become in control of the other provisions of the Constitution, then most of the Articles of the existing Constitution will become questionable on the ground of their alleged inconsistency with the provisions of the Objectives Resoluton.
According to the opening clause of this Resolution the authority which Almighty Allah has delegated to the State of Pakistan is to be exercised through its people only 'within the limits prescribed by Him'. Thus all the provisions of the existing Constitution will be challengeable before Courts of law on the ground that these provisions are not 'within the limits of Allah' and are in transgression thereof. Thus, the law regarding political parties, mode of election, the entire structure of Government as embodied in the Constitution, the powers and privileges of the President and other functionaries of the Government will be open to question. Indeed, the very basis on which the Constitution is founded, namely, the trichotomy of powers i,e, that the three great organs of the State have their own particular spheres of authority wherein they exercise their respective powers or the system of checks and balances could be challenged, along with all the ancillary provisions embodied in the 1973-Constitution in relation thereto. Thus, instead of making the 1973-Constitution more purposeful, such an interpretation of Article 2A, namely, that it is in control of all the other provisions of the Constitution would result in undermining it and pave the way for its eventual destruction or at least its continuance in its present form."
10. Again the learned Full Bench comprising of three eminent Judges of :shore High Court in the case of Mst. Sakina Bibi v. Federation of Pakistan ?LD 1992 Lah. 99 notwithstanding striking down clause (a) of the impugned under, which was, however, not approved by the Supreme Court in Hakim Khan's case cited above, have held the view to which we respectfully subscribe, hat:-- "With regard to para. (d), we hold that in case of the convicts who are above sixty years of age, and have not been convicted under the Hudood, Qisas and Diyat Ordinance, their sentences can be remitted under the order impugned."
' The first proposition is thus answered accordingly.
11. The question as to whether the respondent No,1 was or was not aged Lout 60 years at the time of the impugned order of amnesty is essentially one if fact. We could have, therefore, answered the proposition in the negative on be short ground that fading of fact is not open to interference by this Court in C he exercise of its Constitutional jurisdiction. To our mind it was for the jail authorities to have gone into this question deeply. The alternative remedy was, therefore, available to the petitioner to have approached the said authorities md if he could prove to their satisfaction that respondent No,1 was not entitled the relief on account of his age being less than sixty years at the time of issuance of the impugned order, they would have passed an order accordingly. -laving not done so the petitioner would not be entitled to the relief on this 7ound alone. However, with the help of the learned counsel for respondent sTo.1, we have gone through the record of the case. The judgment of the earned Sessions Judge is dated 1-6-1982. When respondent No,1 was examined in the Court under section 342, Cr.P.C. He was described to be 54/60 years. The impugned order was passed on 8-12-1988. If he was 55 on 1-6-1982 he would be 61 on 1-6-1988 and in case he was 60 on the crucial date he would be more than 65. The assertion that with reference to the age of respondent No,1 entered in his Identity Card he was only 57 years old on the crucial date is untenable when the certificate of Jail Doctor on the point of age of respondent No,1 is taken into consideration. As far as the report of Radiologist furnished in pursuance of the order of this Court is concerned, it is also not of much help to us. It may be observed that the petitioner being rustic villager cannot be said to have correctly described his age in the Identity Card. In majority of the cases the age in the Identity Cards in case of rustic villagers is recorded at the behest of those who fill up the forms for them and enter the age by approximation. In this view of the matter, the proposition No,2 is answered accordingly.
12. Before proceeding further we would pause for a while and point out at this juncture that the petitioner could have challenged the order dated 24-10-1989 before the Supreme Court of Pakistan, passed by a Division Bench of this Court in Criminal Appeal No,7 of 1982 and having not availed of this opportunity the order dated 24-10-1989 has attained finality. In this context reference may be made to the case of Allah Bakhsh and another v. Muhammad Ismail and others (1987 SCMR 810).
13. The learned counsel for respondent No,1 has raised a preliminary objection that the petition is incompetent as in effect, final orders passed by the High Court have been challenged in this writ petition. We, however, do not agreed with the learned counsel for the petitioner that because of the fact that the High Court had not decided Criminal Appeal No,7 of 1982 on merits the orders passed by it will not have any effect on the maintainability of the writ petition. A bare reading of Article 199 of the Constitution of Pakistan, 1973, would make it clear that the High Court is not a 'person' to whom a writ of High Court can be directed. The obvious result is that the petition is barred by the provisions of the Constitution itself and the petitioner cannot be granted any relief in writ jurisdiction of the High Court. Their Lordships of the Supreme Court in the case of Malik Firoz Khan Noon v. The State PLD 198 SC (Pak.) 333 held that when the Judges of the High Court function in different capacity under different jurisdiction they do not act as different Courts but exercise the power of the same Court and that distribution of those powers is more than an internal arrangement among the Judges of the same Court. (See also PLD 1961 Peshawar 40).
14. The true scope and effect of clause 'A' of the impugned commutation order dated 7-12-1988 which was issued from the Ministry of Interior on 8-12-1988 came up for consideration before a Full Bench of the Supreme Court which was reported as Eid Muhammad and another v. The State PLD 1993 SC 14 with particular reference to the law laid down by the Supreme Court in Muhammad Aslam.v. Superintendent, District Jail and others PLD 1977 SC 39. It was held that each amnesty had to be interpreted and given II effect to on its own words and not by reference to any earlier or different amnesty order and that, therefore, the law laid down by the Supreme Court in the light of the earlier amnesty order will have no bearing on the true interpretation of the impugned commutation order. In the case of Eid Muhammad cited above although true interpretation of clause 'A' of the impugned order was considered, nonetheless some guidance can be sought from the aforesaid judgment for the true intent of clause 'D' of the impugned order which has been challenged in this petition. We can do no better than reproduce the law laid down by the Supreme Court on the construction of the aforesaid order which reads as under:-- "It is clear from the departmental construction of the order, the language in which it was couched and the liberal content of it, that the amnesty benefited all those who had been convicted and sentenced to death even by the Sessions Court while their sentence of death was awaiting confirmation by the High Court or in appeal, further appeal or by way of mercy petition. The view taken by the High Court in the case of Ahmad alias Ahmun and 3 others (1991 PCr.IJ 1445) is not correct."
15. The argument identical to the one advanced before the Supreme Court in Eid Muhammad's case was also advanced before us that this relief of amnesty covered only those who were convicted by the Military Courts during the Martial Law period and were political prisoners and that the benefit had not been extended to the convicts sentenced by other Courts. Respectfully following the dictum of the Supreme Court in the case of Eid Muhammad, we also hold that this dispensation was without qualification or condition and benefited the others who were not political prisoners or cases of conviction by Military Courts. The very expression 'Military or other Courts' would suggest that the words 'other Courts' were used in contradistinction to and exclusive of Military Courts.
16. Again, the petitioner was released from jail on 22-12-1988 while this petition has been filed on the 7th March, 1991 after a lapse of 2 years and 4 months. We had asked the learned counsel to explain this delay to which he could not put forth any rational explanation. The inordinate delay in filing this writ petition for which no explanation has been offered despite specific query from this Court, we are not inclined to interfere in the Constitutional jurisdiction.
17. For all that has been stated above, we do not find any merit in this petition and, therefore, dismiss the same. In view of the complicated questions of law involved in this petition, the parties are left to bear their own costs.
Writ . revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.