P L D 1984 Lahore 162 (PLP)

High Court cannot stay the execution of sentence on the alleged ground of discrimination, in that clause (c) of sub‑article (4) of Article 9 of the Provisional Constitution Order, 1981, specifically prohibits High Court to suspend an order of conviction in respect of any person who has been convicted by any Court or tribunal includ ing a Military Court or Tribunal established under Martial Law Order or Martial Law Regulation. Furthermore, such petition is not entertainable under Article 15 of the Provisional Constitution Order, 1981, inasmuch as, High Court in the exercise of its constitutional jurisdiction is not competent to issue any process against the Chief Martial Law Administrator or a Martial Law Administrator or any person acting under the authority of either. The stay of petitioners execution would have the effect of suspending the operation of the judgment of the Special Military Court which is beyond the jurisdiction of this Court. What cannot be achieved directly cannot be permitted to be achieved indirectly. S. M. Zafar for Petitioners. Munir A. Sheikh, Deputy Attorney‑General for Respondents. Date of hearing: 30th January, 1984. IRSHAD HASSAN KHAN, J.‑‑This petition under Article 9 of the Provisional Constitution Order (I of 1981) seeks a declaration that exercise of power by the President under Article 45 of the Constitution, whereby the petitioners' mercy petition has been rejected for commutation of death sentences awarded to them under sections 302, 307 and 149, P. P. C. read with Martial Law Regu lation No. 9' ,and section 332/149, for causing death of one Muhammad Aslam, by Special Military Court No. II, Baluchistan is without lawful authority and of no legal effect and for a direction to dispose of the mercy petition afresh keeping in view the principles of Qur'an and Sunnah and following the same in terms of the Shariat.

2. The petitioners' case is that after announcement of sentence by Special Military Court, the petitioners have compromised with heirs of the de ceased agreeing thereby to give hand of the daughter of one of the petitioners to a male member of family of the deceased and also gave rupees six lacs to his heirs including the father, mother and two brothers. It is submitted that this fact was specifically mentioned in paragraph 5 of the mercy petition submitted to the Chief Martial Law Administrator, President of Pakistan, but it appears that it has escaped his notice.

3. Mr. S. M. Zafar, learned counsel for the petitioners vehemently contended that powers conferred by Article 45 of the Constitution on the President of Pakistan to grant pardon, reprieve and respite and to remit, suspend or commute any sentence passed by any Court, Tribunal or other authority, specially in a case where the sentence is one of death, is a power which must be exercised in accordance with the principles of Quran and Sunnah, which are that where the parties have compromised and compounded, the persons charged with the offence, are entitled to be set free. In the instant case, it is submitted that the accused are not praying for setting them free, but merely requested for the commutation of their sentences from death to life imprisonment. Mr. S. M. Zafar, learned counsel for the petitioners made reference to the preamble of the Constitution. Article 2, Chapter 11 relating to Principles of Policy and Chapter 3‑A of the Constitution, Articles 31 (i) and 34 to contend that Islam is the State religion of Pakistan and after imposition of Martial Law, the Chief Martial Law Administrator has announced that endeavours will be and are being made to restore as soon as possible democracy and representative institutions in accordance with the principles of Islam wherein the State of Pakistan exercises its power and authority through the chosen representatives of the people and until then interim measures are necessary. It is, therefore, duty of the President of Pakistan to exercise the power conferred on him under Article 45 within the framework provided by Quran and Sunnah. He strongly relied on judgment of the Federal Shariat Court in Muhammnd Riaz v. Federal Govern ment (P L D 1980 F S C 1) that provisions of section 302 of the Pakistan Penal Code are repugnant to the injunctions of Islam for not providing compensation and compoundability. It is also submitted that the Federal Shariat Court had fixed 1‑4‑1984 as the date of amendment in the Penal Code in the exercise of powers conferred on it under Article 203‑B. That being so, the President was bound to follow this principle of Quran and Sunnah while execrising his powers under Article

45. He also relied on the judgment in Gul Hassan Khan v. Government of Pakistan (P L D 1980 Pesh. l) which was relied upon by the Federal Shariat Court.

4. Mr. Zafar next contended that the word "law" used in the Constitu tion has been interpreted in Ch. Manzoor Elahi v. Federation of Pakistan (PLD 1975SC66) to include all such principles as have the binding force on account of moral, customary or other sociological reasons. He also referred to the following observations of Hamoodur Rahman, J. in Government of West Pakistan v. Begum Agha Abdul Karim Shorish Kashmir! (PLD1969SC14) that; "Law is here not confined to statute law alone but is used in its generic sense as connoting all that is treated as law in this country including even the judicial principles laid down from time to time by the superior Courts. It means according to the accepted forms of legal process and postulates a strict performance of all the functions and duties laid down by law. It may well be, as has been suggested in some quarters, that in this sense it is as comprehensive as the American "due process" clause in a new garb. It. is in this sense that an action which is mala fide or colourable is not regarded as action in accordance with law. Similarly, action taken upon extraneous or irrelevant considerations is also not action in accordance with law. Action taken upon no ground at all or without proper application of the mind of the detaining authority would also not qualify as action in accordance with law and would, therefore, have to be struck down as being action taken in an unlawful manner". Reference was also made to the following observations in Haji Nizam Khan v. Additional District Judge, Lyallpur (P L D 1976 Lah: 930) "In other words, the mandates contained in Clause (1) of Article 31 and Article 34 (held in abeyance vide C. M. L. A's. Order No. 1 of 1981) have been made the responsibility of all the organs and authorities of the State and, may be, of citizens and institutions as well and not only those organs and authorities and persons of the State as are mentioned in the restricted definition in Article

7. Thus, looked at, the mandate contained in Clause (1) of Article 31 has‑ to be carried out by the State as defined in Article 7, as also by other organs, authorities and institutions in Pakistan, which would necessarily include the judiciary with greater emphasis and responsibility on the superior judiciary; which under the Constitution, declares law through interpretation to be followed by all subordinate Courts. It is thus clear that the definition in Article 7 and the provisions of Article 29(t) do not, in any way, restrict duty and the responsibility of the judiciary of Pakistan to carry out the mandate contained in Clause (1) of Article 31." *(the parenthesis is mine). In the light of the ratio laid down in the aforesaid precedents, Mr. S. M. War argued that the principles of Qur'an and Sunnah have even a superior reason for its binding nature and that the superior Courts of this country have been following this principle, if and when, the need arose. In this regard, he referred to Muhammad Anwar v. The State (1981 S C M R 372), where the Supreme Court granted leave to appeal to examine the question as to where the com plainant having compromised with the accused and having accepted compen sation could this be treated as a mitigating circumstance for reduction of sentence to life imprisonment because it is in accordance with principles of criminal justice under the Islamic Law and jurisprudence. He also relied on the dictum of the Supreme Court in Muhammad Bashir v. The State (P L D 1982 S C 139), that while affirming the finding of "guilty" under section 302, P. P. C., the statute has left no choice to Court, but to punish the culprit with either of the two main sentences provided therein‑death or imprisonment for life; it has left it open for the Court to award any one of them, in the circumstances of each case in accord with sound judicial principles, including those which are based on Islamic Jurisprudence and teachings. Reference was also made to Abdul Rahman Mobashir v. Syed Amir Ali Shah Bokhari (P L D 1978 Lah. 113), to contend that the Shariah law wherever possible should be applied on principles of justice and equity in case where the parties are Muslim in preference to any principle of English Law or any other law.

5. Mr. Munir A. Sheikh, the learned Deputy Attorney‑General, who was directed to assist this Court submitted that the exercise of power by the President under Article 45 of the Constitution is not justiceable ; principles of Shariah cannot be enforced by invoking the constitutional jurisdiction of this Court and it can be pressed into service only in the manner laid down in Part VII, Chapter 3‑A of the Constitution. It is next contended that in the precedents cited by learned counsel for the petitioners, the Supreme Court reduced the sentences following the principles of Shariah in the exercise of its appellate jurisdiction and there was no statutory bar to do the same. In the instant case, no such power vests in this Court under Article 9 of the Provisional Constitution Order, 1981.

6. Having given anxious consideration to the submissions of learned counsel for the petitioners and on closer examination of the precedents cited by him at the Bar, the same were not found to be helpful in the facts of the present case. The mere fact that Federal Shariat Court in Muhammad Riaz v. Federal Government (P L D 1980 F S C 1) has declared section 302, P. P. C. repugnant to the injunctions of Islam for not providing compensation and compound ability and had fixed 1‑4‑1984 as the date for amendment of the Penal Code would not make it the law of the land, in that, an appeal is pending against this judgment before the Shariat Bench of the Supreme Court and operation of the aforesaid judgment has been suspended by order dated 25‑1‑1981, passed in Shariat Appeal No. 13 of 1981. We are, therefore, inclined to hold that no direction can be issued to the President for exercising his power) under Article 45 of the Constitution. Such a direction would tantamount to making an encroachment on the powers vested in the Shariat Bench of the Supreme Court under Article 203‑F of the Constitution. The jurisdiction of this Court to examine this matter is also expressly barred under Article 203‑G of the Constitution which provides that "save as provided in Article 203‑F, no Court or Tribunal, including the Supreme Court and a High Court, shall entertain any proceedings or exercise and power or jurisdiction in respect of any matter within the power or jurisdiction of the Court." The term `Court' has been defined in clause (b) of Article 203‑B of the Constitution. It means the Federal Shariat Court constituted in pursuance of Article 203‑C. The references made to the various constitutional provisions by Mr. S. M. Zafar do not advance his case under the scheme of the Constitution, which specifically provides the procedure and methodlogy for the islamisatior of the laws. The declaration sought by the petitioner in pith and substance, purports to seek a declaration that the provisions of section 302, P. P. C. are repugnant to the injunctions of Quran and Sunnah on the basis of judgment of the Federal Shariat Court. Such a declaration cannot be granted by this Court and the petitioner is, therefore, not entitled to the relief claimed in the writ petition. Our view is fortified by the dictum of the Supreme Court in B. Z. Kaikaus v. President of Pakistan (P L‑D 1980 S C 160), wherein it was held that enforcement of laws including the islamisation of laws is the function of the State and the Court cannot take over such job of enacting laws.

7. This Court in the exercise of its constitutional jurisdiction is not at liberty to declare an act of the President void merely because in its opinion it is opposed to the principles of Quran and Sunnah or is otherwise unjust unless it can be shown that such injustice or repugnancy is prohibited by a final order of the Federal Shariat Court or Shanat Bench of the Supreme Court, as the case may be, and such a right is guaranteed or protected by the Constitution. The declaration given by the Federal Shariat Court has not yet attained finality, as its operation has been suspended. It is, therefore, not the law of the land. Clearly the relief claimed by the petitioners is not justiceable, particularly, when the matter is sub judice before the Shariat Bench of the Supreme Court, as to whether or not the provisions of section 302,' P. P. C. are against the injunctions of Islam.

8. It is true that Manzoor Elahi's case, a wider meaning was given to the connotation "law ", so as to include not only the statute law but also the principles laid down a from time to time by the superior Courts but this view has undergone a shift as reflected from the pronouncement of the Supreme Court in Fauji Foundation v. Shamimur Rehman (PLD 1983 SC 457) wherein Muhammad Haleem C. J. observed: ‑ "In Manzoor Eahi k. Federation of Pakistan P L D 1975 S C 66 a wider meaning was given to the expression "law" as used in Article 2 and Fundamental Right No. I of the 1962. Constitution so as to include not only statute law but also the judicial principle laid down from time to time by the superior Courts and judicial norms obtaining in Pakistan. This wider connotation of the word "law" was rejected later in F. B. Ali's case, which view was re‑affirmed an Federation oaf Pakistani v. United Sugar Mills Ltd. P L D 1977 S C 397 In this view of the matter, I fail to see how the Court could have placed reliance on the opinion of Muhammad Akram, which was not the decision of the Court in the case and ignore "law" this Court in which ethical as well as philosophical concept; of lave were brushed aside rind a precise weaning to the word "law" was given as `statue law,. '

9. Udder Article 45 of the Constitution the President enjoys unfettered powers to grant pardon, reprieve and respite, and to remit, suspend or commute any sentence passed by the Court, Tribunal or other authority without the intervention of judicial proceedings. This field under the Constitution is reserved exclusively for the President who also enjoys absolute immunity in respect of his official acts and is not answerable to any Court under sub article (P L D 1973 S C 49) of Article 248 of the Constitution. The exercise of power by the President under Article 45 is not dependent on any rule of Shariah unlessl it is made law of the land. Refer Hamood‑ur‑Rehman, C.J s observational in Zia‑ur‑Rehman's case (2), that judiciary is not concerned with the decisions on questions of policy. Its function is to enforce the Constitution and to see that other organs of the State confine themselves within the limits pre scribed therein. This view was reiterated in Fauji Foundation's case.

10. Mr. S. M. War further submitted that it is learnt that the President has in a similar ‑ case accepted the compromise and commuted the sentence of death to life imprisonment of one Muhammad Khanan of Kolho. The case of aforesaid condemned prisoner was allegedly decided on 4‑12‑1983. That being so, the same standard ought to have been applied in the instant case. Learned counsel further submitted that a fresh mercy petition has also been made to the Chief Martial Law Administrator today. The file of the said case is not before us. Be that as it may, this Court cannot stay the execution of sentence on the alleged ground of discrimination, in that clause (c) of sub‑article (4) of Article 9 of the Provisional Constitution Order, 1981, specifically prohibits this Court to suspend an order of conviction in respect of any person who has been convicted by any Court or Tribunal including a Military Court or Tribunal established under Martial Law Order or Martial Law Regulation. Furthermore, this petitioner is not entertainable under Article 15 of the Provisional Constitution Order. 1981, inasmuch as, this Court in the exercise of its constitutional jurisdiction as not competent to issue any process against the Chief Martial Law Administrator or a Martial Law Administrator or any person acting under the authority of either. The stay of petitioners' execution would have the effect of suspending the operation of the judgment of Special Military Court which is beyond the jurisdiction of this Court. It is well‑settled that what cannot be achieved directly cannot be permitted to be achieved indirectly. For the foregoing reasons, the writ petition is hereby dismissed in limine. Petition dismissed.