P L D 1961 (W (PLP)

INAMULLAH, J.‑This is an application, in revision under section 439,.Cr. P. C. by the State against an order passed by the learned Sessions Judge, Karachi on the 25th January 1961 refusing to issue a revised execution warrant authorising the Superintendent, District Jail, Jhelum to execute the sentence of death passed against one Muhammad Ashraf. The facts giving rise to this revision application are these: Muhammad Ashraf was convicted under section 302, P. P. C., and sentenced to death by the learned District and Sessions Judge, Karachi. The death sentence was confirmed by this Court. The District Judge thereafter issued a warrant of execution of the death sentence under section 381 of the Criminal Procedure Code. This warrant was addressed to the Superintendent of Jail, Karachi. The Provincial Government thereafter transferred the prisoner to the District Jail; Jhelum, West Pakistan.

2. Muhammad Ashraf had filed an appeal to the Supreme Court which was dismissed. He had also filed a mercy petition to the Government. The learned advocate for the State was riot able to state if the mercy petition had been disposed of by the Government.

3. A telegram was received by the District and Sessions Judge, Karachi from the Superintendent of Jail Jhelum for the issue of a fresh warrant for the execution of the death sentence. The I‑earned District and Sessions Judge, Mr. Kharal informed. the Superintendent of Jail Jhelum that as the mercy petition was pending before the Government, orders for execution of the sentence will be issued by it.

4. On 8th October 1960 an application was made by the Assistant Secretary, Administration of Karachi to the District and Sessions fudge, Karachi requesting him to issue an amended execution warrant. The learned Sessions Judge dismissed the application holding that after having once issued a warrant under section 381, Cr. P. C., he was functus officio. The learned Sessions Judge also observed that the condemned prisoner being in Jhelum the warrant issued by him would be beyond the jurisdiction of the learned Judge.

5. The Sessions Judge was again moved by Mr. Haleem, A. P. P. under instructions from the Government of West Pakistan requesting for the issue of a fresh warrant authorising the Superintendent of District Jail Jhelum to execute the death sentence. The learned Sessions Judge, Mr. Kazi dismissed the application mainly on the ground that the Court having once issued the warrant for execution of the sentence was functus officio The present revision application is directed against this order.

6. We have heard Mr. Haleem, the learned advocate on behalf of the State. After hearing the learned advocate we think that there are three points that require our consideration namely: (1) Whether the Sessions Judge. Was functus. officio‑ after having once issued the warrant of the execution of the sentence ; (2) Whether the Superintendent Jhelum Jail could execute the sentence without fresh warrant ; (3) Whether the Sessions Judge, Karachi will have jurisdic tion to issue a warrant to the Superintendent Jhelum Jail. We shall deal with these questions separately.

7. Section 381 of the Cr. P. C., lays down that when a sentence of death passed by a, Court of Session is submitted to the High Court for confirmation such Court of ,Session shall on receiving the order of confirmation cause such order to be carried into effect by issuing a warrant or by taking such other steps that may be necessary. The language of section 381 of the Cr. P. C., does not either explicitly or impliedly bar the jurisdiction of the Court of Session to issue amended warrant of execution of the sentence. Under section 14 of the General Clauses Act, 1897 where, by a Central Act or regulation any power is conferred then unless a different intention appears that power may be exercised from time to time as occasion requires. Section 38 11 of the Cr. P. C., confers a power on the Court of Session .on receiving the order of confirmation of death sentence of the High Court to cause such order to be carried into effect by issuing a warrant. This is a power which the Sessions Court can by virtue of section 14 of the General Clauses Act exercise from a time to time as occasion requires. That it is so is clear from rule 2 of Chapter XX‑F of volume 3 of Rules and Orders of the High Court of Judicature at Lahore that where a condemned prisoner is transferred from one jail to another the Seasons Judge will issue revised warrant for the execution of the sentence of death to the Superintendent of the jail to which the condemned prisoner is transferred. It may be mentioned here that this rule Being a rule on the original side of the Court it, does not apply to this region of the former Province of Sind. There is no similar provision in the Sind Courts Criminal Circulars which apply to the District Courts within the jurisdiction of this Bench.

8. The next question for consideration is whether the Superintendent of Jhelum Jail can execute the sentence of death without a fresh warrant authorising him to do so. After giving a careful consideration to section 381 of the Cr. P. C., we have come to the confusion that the law requires a specific warrant authorising the Superintendent or keeper of the jail at any particular place to execute the sentence. Form 35 to Schedule V of the Criminal Procedure Code reads as under :‑ XXXV. Warrant of execution op a sentence of death. (See section 381) To the Superintendent (or keeper) of the jail at whereas (name of prisoner), the 1st, 2nd, 3rd, (as the case may be) prisoner in ease No. of the Calendar at the session held before me on the day of _________19_________, has been by a warrant of this Court, dated the__________ day of __________committed to your custody under sentence of death ; and whereas the order of take Court of confirming the said sentence has been received by the Court ; This is to authorise and require you, the said Superintendent (or Keeper) to carry the said sentence into execution causing the said to be hanged by the neck until he is dead at (time and place of execution), and to return this warrant to the Court with an endorsement certifying that the sentence has been executed. Given under my hand and the seal of the Court, this day of______________19_____________ . (Seal) (Signature).

9. A perusal of the above forms would show that the authority to execute the sentence is to‑be given to the Superintendent of the particular jail where the condemned prisoner is. In the matter c of death sentence the procedure laid down under the Criminal Procedure Code is to be strictly followed. The power to remove the prisoner from one place, to another is to be distinguished from the authority to execute the sentence of death. The power of the Provincial Government to remove the prisoner from one Province to another cannot confer power on the Superintendent of Jail to execute the sentence. At any rate, the Prisoners Act is silent on this aspect of the question. Rule 2 of Chapter XXVIII of Volume 3 of the Rules 'and Orders of the High Court of Judicature at Lahore supports 'this conclusion that where also prisoner is transferred from one place to another a revised warrant for the execution of the sentence of death will be issued to the Superintendent of the Jail to which the condemned prisoner is sent.

10. The pendency of mercy petition before the Government ray have the effect of staying the execution of the sentence. It cannot confer power upon the Superintendent of Jail to execute the sentence. This power has been given to the Court of Session under section 381 of the Cr. P. C.

11. The third question that requires consideration is whether the amended warrant that would be issued by the Sessions Judge, Karachi will be binding on the Superintendent of Jhelum Jail. A perusal of section 381, Cr. P. C. would show that it is the3 Court of Session which submitted the sentence of death for con firmation to the High Court which has jurisdiction to cause the order to be carried into effect by issuing a warrant or taking such other steps as may be necessary. The mere fact that the condemned prisoner has been transferred to another place will not deprive the Court of Session at Karachi to issue another warrant. authorising the Superintendent Jhelum Jail. No other Sessions Court except that of Karachi will have jurisdiction to issue the warrant contemplated by section 381, Cr. P. C.

12. We would for the reasons given above order the learned Sessions Judge to issue a ,revised warrant to the Superintendent of Jail, Jhelum. The learned Sessions Judge will comply with the Form XXXV to Schedule 4 of the Criminal Procedure Code. We would however make it clear that if the mercy petition by the Government has not been disposed of the operation of the warrant will remain stayed as provided under rule 104 of the Punjab Jail Manual printed in 1955. In the event of the final orders of the Government to carry out execution of the sentence the Superintendent of Jail shall appoint a day as provided under Rule 104 (vii) of the Punjab Jail Manual. It may be that the order of the Government about the execution of the sentence may have been already received by the Superintendent. The learned Sessions Judge, Karachi should, therefore, fix the date of execution of the sentence so as to give a clear one week's time after the receipt of the warrant by the Superintendent so as to permit the usual antecedent formalities, e.g., summoning of relatives and friends for last interview, the making of a will, etc., being observed in due order and without precipitation.

13. While disposing of this application we would observe that the Federal Capital and Sind Courts Criminal Circulars be brought in line with the rule appearing in Chapter XXF, Volume 3 of the Rules and Orders of the High Court of Judicature at Lahore so as to direct the Sessions Judge to issue a revised warrant for the execution of the sentence of death to the Superintendent of the Jail to which the condemned prisoner is transferred.

14. The Sessions Judge to very expeditiously comply with the directions contained in this order. K. B. A. Order accordingly.