1. GHULAM SAFDAR SHAH, C. J.-These five review applications, in which: the questions of facts and law are the same, have been filed against the orders of this Bench dated 30-4-75 by which the writ petitions of respondents Khizar Hayat, Ayub Khan, Umar Khan, Abdullah Shah, Fazal Rahman, Phulel Khan and Jan Alam were allowed and it was held that in view of the Amnesty Order of President of Pakistan dated 22-12-71 (hereinafter called Amnesty Order), the death sentences awarded to each one of them would stand commuted to imprisonment for life.
2. The only ground urged in all these applications is that in the impugned judgments the ratio of the judgment of Supreme Court of Pakistan in the case of Ibrar v. The State (1974 SCMR 27) has been misconceived and consequently these judgments are liable to be reviewed. The learned Advocate-General argued that by a careful reading of the said judgment, it would be seen that what their Lordships have laid down therein is that the Amnesty Order would apply only to those cases, which, on the day it was promulgated, were pending execution and not to those which were pending in Supreme Court by appeal or in appeals against the judgments of High Court. In support of this contention he relied on a judgment of Indian Supreme Court in the case of K. M. Nanavati v.
3. The State of Bombay (AIR 1961 SC 112).
4. The facts in that case were that accused Nanavati, who was Second in Command of I. N. S., Mysore, was convicted by Bombay High Court under section 302, P. P. C. But on the same any the Governor of Bombay, in exercise of power under Article 161 of the Constitution, suspended his, sentence for the period during which his intended appeal before Supreme Court of India was not disposed of. A perusal of the judgment would show that in Bombay High Court the constitutionality of the said order of Governor was assailed before a Special Bench. But their Lordships held it to be valid, disagreeing also with the view of Advocates appearing as amicus curiae that the order in question would not affect the power of Supreme Court with particular reference to rule 5 of Order XXI of the Rules of that Court by which the petition for special leave to appeal of accused Nanavati was not to be posted for hearing until he had first surrendered to his sentence. The majority in Supreme Court, however, disapproved this finding of High Court with these observations :- "This is an -essential difference between the general power to grant pardon etc., and the power to suspend sentence in criminal matters pending in criminal matters before the Supreme Court. The first is an exclusively executive power vesting in the Governor under Article 161; it does not vest in the Supreme Court; and so the field covered by it is exclusively subject to the exercise of the said executive power; and so there can be no question of any conflict of powers obviously postulates the existence of the same or similar power in two authorities; on the other hand, the latter power vests both in this Court and the Governor; and so the field covered by the said power entrusted to the Supreme Court under Article 142 can also be covered by the executive power of the Governor under Article 161, and that raises the problem of a possible conflict between the powers.
5. Where the Governor in exercise of his powers under Article 161 had passed an order granting suspension of the sentence on a convict on the ground that he intended to file an appeal before the Supreme Court the order could only operate until the matter became sub judies in the Court on the filing of the petition for special leave to appeal. After the filing of such a petition it would be for the Supreme Court, when moved in that behalf, either to apply rule 5 of Order XXI or to exempt the petitioner from the operation of that rule. It would be for the Supreme Court to pass such orders as it thought fit as to whether the petitioner should be granted bail or should surrender to his sentence or to pass such other or further orders as it might deem fit in all the circumstances of the case. It follows that the petitioner for special leave cannot be exempted from the operation of Order XXI, rule 5, Supreme Court Rules by reason of the order of suspension of sentence passed by the Governor under Article 161."
6. It would thus be seen that the Supreme Court approved the power of Governor to grant pardon etc. Under Article 161 of the Constitution. But in regard to suspending the sentence of a convict, when the Court was seized of his case by way of petition for special leave to appeal, a different view was taken in view of rule 5 of Order XXI of the Rules of Court. It is, therefore, clear to us that this judgment would rather go against the contention of learned Advocate-General, for by the Amnesty Order passed by the President of Pakistan the death sentences awarded to respondents were commuted by him to imprisonment- for life in exercise of his constitutional prerogative and not suspended as is the case of accused Nanavati.
7. Before proceeding with the facts of cases of respondents however, it would be proper to reproduce the Amnesty Order dated 22-12-71, on the basis of which a similar order was notified by Provincial Government on 23-12-71, which reads as under:- "Home Affairs Division.-The President of Pakistan has been pleased to commute to transportation for life all death sentences awarded by the ordinary criminal Courts which are pending execution.
8. Issue cypher messages to all Provinces."
9. The essential words in this Order would seem to be "pending execution". And the learned Advocate- General agreed that no sooner a High Court confirms the death sentence of a convict, than his sentence would be deemed to be pending execution. Now starting from these premises, it would suffice to say, in so far as the facts of each one of the cases of respondents are concerned, that long before the Amnesty Order was notified, the death sentence of each one of them had been confirmed by High Court, although their cases were then pending before Supreme Court in appeals or by way of petitions for special leave to appeal. In the light of the unambiguous language used in the Amnesty Order however, we are of the view that the death sentences awarded to all convicts by ordinary criminal Courts would automatically stand, commuted to imprisonment for life.
10. Provided before the Order was notified on 22-12-71 the High Curt had confirmed the said sentences.
11. We are, therefore, unable to agree with the learned Advocate-General that just because the cases of respondents were pending in Supreme Court when the Amnesty Order was notified, they would lose the beneficent effect of that Order.
12. The learned Advocate-General, however, reiterated his contention, relying on the case of Ibrar v.
13. The State and argued that in that case the death sentence of accused was commuted to imprisonment for life not on the strength of Amnesty Order but in the appellate jurisdiction of their Lordships. It is true that the last paragraph of that judgment, in which notice was taken of the Amnesty Order, would appear to seemingly support the contention of learned Advocate-General.
14. But it would be proper to take note of few other judgments of Supreme Court in which some discussion would be found on the same point.
15. The first judgment to which our attention was invited is entitled Abdul Hamid v. The State (1972 SCMR 165) and in there the relevant discussion would be found in the penultimate paragraph which is as under :- "The learned counsel for the petitioner has submitted that as a result of the general amnesty granted by the Government, the capital sentences of condemned prisoners have been commuted but this concession was withheld from the petitioner, because of the review petition filed in this Court. We cannot appreciate as to how the review petition can be an impediment in the commutation of the petitioner's sentence in consequence of the amnesty proclaimed by the Government. At any rate, he can avail of it after the disposal of the review petition.
16. The judgment would show that the appeal of accused Abdul Hamid in that case had been dismissed by Supreme Court. But later he filed an application for the review of that judgment.
17. Notwithstanding the pendency of said application, however, their Lordships took the view, in regard to the Amnesty Order, that " . . . . . We cannot appreciate as to how the review petition can be an impediment in the commutation of petitioner's sentence by the Government. At any rate, he can avail of it after the disposal of the review petition."
18. Now the principle of law thus laid down in this passage would appear t be that regardless of the pendency of appeal of a convict in the Supreme Court, or for the matter of that the way it ended, he would be entitled to the beneficial effect of Amnesty Order provided, of course, that before the Order was notified on 22-12-71 his death sentence had already been confirmed by High Court.
19. The next case in the series is Falak Sher and others v. The State (PLD 1975 SC 179). In that case, the benefit of Amnesty Order was not given to accused, for their death sentences were confirmed by High Court after the Order was notified on 22-12-71. We feel that the earliest judgment of their Lordships in the case of Abdul Hamid v. The State would support us, for there a clear finding was recorded that the accused was entitled to beneficial effect of the Amnesty Order even after the disposal of his review application.
20. Looking at the contention of learned Advocate-General from another angle, let us take the example of a joint trial of two convicts, one of whom is acquitted by High Court and the other convicted and sentenced to death. Assuming for a moment that the condemned prisoner, his case being covered by Amnesty Order, takes advantage of its beneficial effect and gets his death sentence commuted to imprisonment for life and does not go in appeal to Supreme Court.
21. Whereas in the case of his co-accused the State goes in petition for special leave to appeal in consequence of which the judgment of High Court is set aside, he is convicted and sentenced to death. But at the conclusion of proceedings, he prays that under the Amnesty Order his sentence be commuted to imprisonment for life. On these facts, therefore, will it be possible to refuse his prayer, and we have no hesitation that his prayer cannot be refused. After all, he had been acquitted by High Court and obviously there wag no occasion for him to have claimed the benefit under the Amnesty Order. To contend, therefore, that after his conviction by Supreme Court of Pakistan in appeal, filed against him by State, he cannot claim the beneficial effect of Amnesty Order, would be absurd just as it would be illogical.
22. The learned Advocate-General lastly argued that the Supreme Court of Pakistan is not an "ordinary criminal Court" within the meaning of that expression used in the Amnesty Order. And this, according to him, would disentitle all those convicts to its benefit whose cases were pending in Supreme Court when it was notified. We were not impressed with this contention. For if it was accepted it would have led to the same anamolous situation of which we have spoken in the 3rd case, namely, Doso alias Dost Muhammad and another v. The State (1974 SCMR 430), the relevant discussion would be found in the last para of the judgment which reads as under:- "Mr. Muhammad Hayat Junejo, learned counsel for the appellants, has contended that general amnesty was granted by the President and, therefore, the appellants' sentence should be reduced to transporta--tion for life. In a recent decision at Peshawar, we have considered this aspect of this question and we consider that in the circumstances of the present case, the appellants are entitled to reduction of sentence if not already reduced. We would, therefore, reduce the death sentence of the appellants to transportation for life."
23. It is true that in that case as in the case of Ibrar v. The State Supreme Court of Pakistan had taken notice of Amnesty Order. But even so commuted the death sentences of convicts to imprisonment for life seemingly under its appellate powers.
24. Now by reading all these cases together, however, it would be noticed that unlike the present proceedings, in which the scope of Amnesty Order has been subjected to thorough examination, no substantial arguments had been addressed at the Bar of Supreme Court. And thus the question does not seem to have received consideration in depth. We are, therefore, of the humble view that their Lordships cannot be said to have drawn distinction between those cases in which death sentences were, before the notification of Amnesty Order, confirmed by High Court, but the convicts had not gone in appeal to the Supreme Court, and those who had done so and their appeals were pending, the preceding para. Besides, the use of expression "ordinary criminal Courts" in that order was evidently intended to convey that its beneficial effect would not apply in those cases in which death sentences were awarded by Military Courts or Martial Law Courts.
25. In our opinion, the unambiguous language of Amnesty Order admits of no doubt whatever. A cursory look at this Order would show that the benefit conferred thereunder would be available in all cases in which, before the Order was notified. High Court had confirmed the death sentence of a convict. In point of fact, the result in question would follow as a matter of automation, without the intervention of any agency and thus we do not see the relevancy of the argument of learned Advocate-General, that just because a convict goes in appeal to the Supreme Court of Pakistan he would lose the said benefit which bad already come in his way under the Amnesty Order.
26. These review applications have, therefore, no force in them and are dismissed. But under the circumstances, no order is made as to costs.
27. S. Q.