1990 PLP 1196 (MLD)

Intizam Hussain v. The Crown P L D 1951 F C 1.12; Crown v. Habibullah P L D 1952 Lah. 587 and Eid Wali v. The State 1985 P Cr. L J 987 ref. Kh. Muhammad Saeed for Appellant. Raja Muhammad Hanif Khan for the Complainant. Syed Manzoor Hussain Gillani A. G. for the State. BASHARAT AHMAD SIIAIKII, J.‑‑This appeal which is of an unusual nature has been filed by a convict who was sentenced to death more than ten years ago but the sentence has not so far been executed. The convict now claims A that he has been in imprisonment for a long time and the sentence of death awarded to him has become un-executable in law. A writ petition filed by him in the High Court has been dismissed and he has now come up in appeal with leave of the Court. The facts necessary for disposal of this appeal arc that Mehtab Khan, the appellant before us, and four others were tried by `Zilaee Adalat' Poonch under sections 5 and 15 of the Islami Tazcerati Qawaneen Nafaz Act read with sections 302, 307, 326, 341/148/149 of the Penal Code. On 17‑12‑1976 the trial Court found all of them guilty under different sections and Mehtab Khan was awarded the sentence of death under section 5 of the Islami Tazcerati Qawaneen Nafaz Act (hereinafter to be called the Islamic Act) and a fine of Rs. 500 under section 15 of the same Act. On an appeal taken to the High Court the four other accused were acquitted while the sentence of death awarded to the appellant was converted into transportation for life. The tine was however increased from Rs.500 to Rs. 5,

000. This Court, on 17‑9‑1978, accepted the appeal filed by the State and restored the sentence of death awarded to the appellant by the `Zilaee Adalat'. This sentence as mentioned elsewhere has not been so far executed. The appellant filed a writ petition in the Azad Jammu and Kashmir High Court on 31‑1‑1988. He prayed that writ of prohibition may be issued against the State to refrain it from taking any action in connection with the execution of the death sentence at such a belated stage. He attached with this writ petition a certificate issued by the Superintendent Central Jail Muzaffarabad on 27th January, 1988 to the effect that Mehtab Khan had undergone actual imprisonment of 11 years 10 months and 13 days and if to it are added the remissions earned by him during his imprisonment the total imprisonment undergone by him comes to 18 years 6 months and 24 days. It may be mentioned here that in Azad Jammu and Kashmir transportation for life for the purposes of computation is fixed at 14 years under section 57 of the Penal Code. Based on this certificate it was urged by Mehtab Khan that he had already undergone the sentence of transportation for life and since these two punishments cannot be imposed for one offence, it would be against the demands of justice if the death sentence is executed on him. He also submitted in the writ petition that due to inordinate delay in execution of the sentence and also in the light of sentence passed by the High Court, he gained the expectation of life and as such sentence of death could not be executed now. He also pleaded the fact that he had been undergoing the agony of the fear of death for a long time as a ground in support of his prayer. A learned single Judge in the High Court dismissed the writ petition in limine on 7th of April, 1989. The learned Judge found no substance in the writ petition because he was of the view that to issue directions prayed for would tantamount to sitting in appeal on the judgment of the Supreme Court. The learned Judge also observed that the learned counsel appearing for Mehtab Khan could not satisfy him that in cases of conviction awarded under the Islamic Act sentences could be commuted by the State. Kh. Muhammad Saeed, the. learned counsel appearing for Mehtab Khan, appellant contended that the view taken by the learned .Judge in the High Court that the acceptance of the writ petition would tantamount to sitting in appeal on the judgment of the Supreme Court is not correct because the grounds urged in the petition filed in the High Court had not been considered by this Court and the factors on which the writ was based came in existence many years subsequent to the decision of this Court passed in 1978. The learned counsel contended that delay in execution of sentence is usually disapproved by the superior Courts. In this connection he referred Intizam Hussain v. The Crown PLD 1951 FC 1.12, Crown v. Habibullah PLD 1952 Lah. 587 and Eid Wali v. State 1985 P Cr. L J

987. Mr. Manzoor Hussain Gillani, the learned Advocate‑General, submitted that the High Court was not authorised to issue a writ in the case because a writ petition cannot be based on the mere ground of interest of justice when support could not be drawn from a legal provision. He submitted that a mercy petition filed by the appellant had been dismissed on 16th of April, 1979. The appellant also moved a Shariat petition which was rejected by the Shariat Court and an appeal brought to this Court against the order of the Shariat Court was also dismissed. He submitted that about two Years have also been consumed in the disposal of the writ petition in the High Court and hearing of the appeal in this. The learned Advocate‑General contended that the frivolous proceedings Court on time to time by the appellant were mainly responsible for the delay initiated from time to time by the appellant were mainly responsible for the delay in execution of his sentence. Raja Muhammad Hanif Khan, the learned counsel on behalf of the complainant, brought to our notice the fact that his client, Muhammad Arif, a son of the deceased in the case had filed a writ petition m the High court seeking a direction to the State that the sentence of death in respect of Mehtab Khan may be executed. We cannot but regret that a situation has arisen in which machinery of the State has failed to put into effect the sentence imposed by this Court with the result that the convict now raises the point that he has undergone imprisonment for life which was not awarded to him while the sentence awarded by the Court still remains unexecuted. However, we have no doubt that the writ petition filed by y the appellant has been rightly dismissed by the High Court. Under section 44 of the Azad Jammu and Kashmir Interim Constitution Act a writ of prohibition, which has been prayed for by the appellant, can only be issued to a person performing functions in connection with the affairs of A7ad Jammu and Kashmir to refrain him from doing that which he is not permitted by law to do. The contention of the appellant is that it will be neither legal nor just to execute the sentence of death at this belated stage but no law has been cited in support of this contention. In order to succeed the appellant had to show that if not forbidder, the State would be doing an act without jurisdiction or in violation of law. But there is no law which lays down that if a sentence of death is not executed within a specified time it becomes unenforceable. In fact if the sentence of death is carried out it would be in obedience to law and not violative of it. We are of the view that what the appellant is attempting to seek cannot be given to him by a Court of law. That comes within the ambit of mercy with which Courts have nothing to do. Mercy is the prerogative of the executive which alone can consider the grounds urged by the appellant in the light of the law, if approached. So far as this Court is concerned, no case has been made out for interference in the order of the High Court. With the above observations the appeal is dismissed. N.H.Q./274/S.CA. Appeal dismissed.