P (PLP)

ABDUL MAJID, C. J.‑The‑facts giving rise to this reference are briefly these. Aziza and Faqira were convicted of murder by the Sessions Judge, Muzaffarabad and sentenced to death cinder section 302 Penal Code. The accused preferred an appeal against their conviction and sentences to the High Court which was dismissed by me sitting as a Single Judge. The proceedings were then submitted to the Government for confirmation of the death sentences passed on the accused. This action was taken in accordance with section 8 of Criminal Procedure Code (Amend ment) Act I of 1948 which runs as follows:‑ " When the Court of Sessions passes a sentence of death after a trial under this Act it shall be subject to confirmation by the Government in accordance with the provisions of section 374 of the Code." The sentences of death were confirmed by the Government in due course. Before the sentences were executed an application was made to the Hon'ble President for permission to compound the case which resulted in conviction of the accused, with the complainant. This application was made with reference to section 47 of the Azad Kashmir Courts and Laws Code, 1948, which runs as follows :‑

" (1) Notwithstanding anything contained in any law or enactment all criminal cases pending or instituted in any Criminal Court, Courts of Sessions or the High Court, may, with the permission of such Court, be compounded. (2) Such a composition shall be in writing and the Court shall cause it to be recorded and on such composition being permitted the accused shall be acquitted. (3) It shall be lawful for the complainant to receive any compensation as consideration for the composition. (4) A case may, with the permission of the Court passing the final sentence, be compounded after its decision and before the sentence is actually executed and procedure prescribed above shall be followed in all such cases." As the application was covered by clause 4 of the above section the question arose whether the Government or High Court should be considered as a Court passing the final sentences. The Hon'ble President referred this question to the High Court for decision and stayed the execution of the sentences. In order to decide this reference two points are necessary to be resolved. The first point is whether the sentence of death passed by the Sessions judge or by the High Court can be treated as final before it is confirmed' by the Government as required by section 8 of Criminal Procedure Code (Amendment) Act I of 1948 and the second is whether the Government in confirming the death sentence exercises the judicial functions and can be deemed to be acting as a Court. Judgment and orders subject to appeal are final only when the appeal is preferred and is disposed of or when the time limit for preferring it has expired. Similarly .a sentence is to be treated as final when it cannot be set aside or interfered with in any manner by any Court or other authority exercising judicial powers. As the sentence of death passed by the Sessions judge or by the High Court is subject to confirmation by the Government it does not become final unless it is ratified by the Government. The confirmation is a sort of final safeguard of the life and liberty of the subject in cases of capital sentences. It is thus clear that in the case of capital sentence the final sentence is passed not by the Sessions judge or the High Court, but by the Government. It now remains to be seen whether the Government in con firming the death sentence exercises judicial functions and con sequently is to be deemed as acting like a Court. The powers to be exercised in confirmation are laid down in sections 375 and 376 Criminal Procedure Code. These powers are not in any manner affected by the appellate powers vested in the High Court as a final Court of justice. In these sections the word used indicate‑that the powers detailed therein are to be exercised by the High Court only. The reason for it is that the power of confirmation also vests in the High Court by section

374. Section 8 of the Criminal Procedure Code (Amendment) Act I' of 1948 impliedly tests all the powers mentioned in the two subsequent sections in the Government. If it were not so then it was necessary to invest the Government with some powers expressly while dealing with confirmation of death sentence. The only reasonable inference in the circumstances is that when the section 374 was amended so as to substitute Government for High Court it was understood that this amendment will be taken to have been made in sections 375 and' 376 Criminal Procedure Code also. Section 375 clause (A) lays down `that when proceedings are submitted for confirmation and‑ it is considered necessary that a further enquiry should be made into or additional evidence taken upon, any point bearing upon the guilt or innocence of the convicted person, a direction may be given for making such enquiry or taking such evidence by the Court or such enquiry‑ might be made or such evidence might be taken by the authority exercising powers in confirmation. Section 376 gives the confirming authority power to confirm the sentence or pass any other sentence warranted by law. It also gives the confirming authority power to annul the conviction or convict the accused of any offence of which the Sessions Court might have convicted him or order a new trial on the same or an amended charge or acquit the accused person. All these powers cannot be possibly exercised unless the Govern ment is in a position to weigh the evidence and the finding of fact given by the Courts of law because if it is not done the question of guilt or innocence of the convicted person cannot be finally decided. The High Court can exercise all the powers detailed in sections 375 and 376 Criminal Procedure Code when deciding an appeal and no express provision was needed for that purpose if the functions of the High Court in confirming the death sentence provided the power of doing so vested in it was not different from the functions when it decided an appeal 'from a death sentence. If the powers in confirmation and in appeal had been identical then I venture to think the legislature would have done nothing but to repeat the language of section 418 and 423 clause 2 of the Criminal Procedure Code for the purposes of confirmation of death sentence by the High Court. It is thus clear that powers in confirmation given to the High Court or to the Government are quite distinct from the powers to be exercised by the High Court on the appellate side. From whatever point of View the question relating to the powers in confirmation is examined the conclusion is that confirming authority cannot discharge its functions unless the powers mentioned in sections 375 and 376 Criminal Procedure Code are exercised. This being the case the Govern ment in confirming the death sentence cannot but be considered as exercising judicial functions and acting as a Court. It may be said that the fact that in section 374 and section, 376 (A) the confirmation is of the sentence and not of conviction and consequently Government does not exercise judicial functions while confirming the death sentence. Confirmation of the death sentence however implies confirmation of conviction also. It is true that the convicted persons strictly speaking has no right of audience before the authority, confirming the death sentence but the powers of a Court and the rights of a party not entitled to be heard before it are matters quite distinct and they must not be confused. ‑Sections 375 and 376 Criminal Procedure Code do nothing but extend the powers in confirmation beyond those of the Appellate. Court but not the rights of sentenced persons and there is a reason for it. At the time of the confirmation of the death sentence all the necessary material including the judgment given in appeal by the highest judicial tribunal is before the confirming authority and it is easy to determine the question of guilt or innocence on its basis without giving the convicted person a right to argue his case as is given to him at the time of appeal. This fact, therefore, that the Government in confirming the death sentence does not hear the convicted person does not lead to the conclusion that the Government does not exercise judicial functions arid acts as a Court while confirming the death sentence. The powers in confirmation as already stated have been provided as a final safeguard of the life and liberty of, the subject in cases of death penalty. If these powers are exercised arbitrarily and of judicially then their very object is defeated. I am, therefore, of opinion that Government assumes the functions of a Court while exercising the powers in confirmation of a death sentence. After all what is Court, it is nothing but a person who has legal authority to take evidence and act judicially. The Government also consist of person or persons and when they exercise powers which enable them to take evidence if necessary and to act judicially otherwise then their function is that of a Court. It is another thing that it is not desirable for the Government to reserve the powers of confirmation for itself but to delegate these powers to the High Court when it is created, because Government cannot possibly exercise them in the manner detailed in sections 375 and 376 Criminal Procedure Code on account of other important duties entrusted to it. The creation of the High Court is necessitated only when it is difficult for the Government to carry on the judicial administration efficiently without the assistance of competent judges. In deciding whether or not the death sentence should be confirmed it is necessary to decide both the issues of fact and law in the light of ‑evidence already recorded by the Court and this can be done only by experienced judges. It appears' that the provision regarding the confirmation of death sentence by the Government was made before the creation of t‑he High Court but the matter of delegation of these powers was overlooked when the High Court started functioning. This matter can now be taken into consideration. So long as the powers regarding the confirmation of death sentence are not delegated to the High Court it is not proper to say that the Government is not exercising judicial functions while confirming a death sentence. My answer to the reference therefore is that for the Purpose of section 47 clause 4 the Government is the Court Passing the final sentence and not the High Court as the law stands at Present. Before concluding 1 might point out that section 8 of Act I of 1948 is defective inasmuch as it does not prescribe the procedure to be followed by the Court of Session and the High Court while submitting proceedings for confirmation of the death sentence. This act was passed vide Resolution No. 226, dated the 15th March, 1948. The High Court was established on the 18th May 1948. It appears that before the establishment of the High Court it was not considered necessary to detail the procedure for submission of the proceedings for confirmation of the death sentence anti hence in section 8 of the said Act no mention was made of the High Court: If it is considered that the powers regarding confirmation of the death sentence should be retained by the Government arid not delegated to the High Court then section 8 should be amended and it should read as follows:‑-- " When the High Court or the Court of Sessions passes sentence of death the proceedings shall be submitted to the Government and the sentence shall not be executed unless it is confirmed by the Government." Explanation :‑The proceedings shall be submitted by the Court of Sessions to the High Court and by the High Court to the Government through the Secretary for Law and Order. Section 375 should be allowed to remain as it is and section 376 should be amended so as to invest Government expressly with all the powers contained therein. This suggestion is being made to remove further doubts in the matter. In case it is considered proper to delegate the authority regarding the confirmation of the death sentence to the High Court then section 8 of Act I of 1948 should be repealed, because the Code of Criminal Procedure adopted by the Government vests all powers of con firmation etc., in the High Court. I think I shall be failing in my duty if I do not point out that section 47 of Azad Kashmir Courts and Laws Code also requires an anxious consideration. All criminal offences under Muhammadan Law are not at all compoundable. All murder cases are also not compoundable. If section 47 is allowed to remain on the statue book then it would mean that there would be no sanctity of life and also difficulty would arise in deciding who should be considered as a complainant for the purpose of com pounding the cases. I would, therefore, suggest that unless the question of " Qassas Law " is thrashed out by an Assembly of Ulamas called for the purpose it should not be adopted simply to proclaim to the public that we are following Islamic Law in all matters. The Pakistan Government has not been able to declare up to this tithe that all criminal offences are compoundable and there seems no reason why we should go ahead of them in doing so. A. RASHID, J.‑There are only two points of importance to be considered in this case which are as follows :‑

(a) Whether the word " Government " used in section 8 of Criminal Procedure Code (Amendment) Act I of 1948 can be taken to mean ` The Court of Government'. (b) What Court passes the final sentence. I am afraid I cannot see eye to eye with the learned Chief justice on both these points for the following reasons :‑‑ (1) Courts exercising criminal powers under the Criminal Procedure Code are named in section 6 of the Code. The, Government is not mentioned therein. Hence it cannot bed considered to function as a Court of Law. (2) Definition of Court as given in the Evidence Act is as follows; ` Court' includes all judges and Magistrates, and all persons, except arbitrators, legally authorised to take evidence. The point arises whether the Government is legally competent to record the evidence. There are no provisions made with regard to it in the Criminal Procedure Code while with regard to the Courts of Magistrates, the Sessions Court and the High Court provision do exist. The time, manner and method of recording the evidence are also provided for the different Courts but the Government does not fall into any of the categories mentioned therein. (3) To the best of my knowledge there is no precedent any where in the world that Government has ever recorded evidence sitting as a Court of Law. (4) In case of acquittal sanction of the Government necessary for lodging an appeal. (See section 417 Criminal Procedure Code). If the High Court accepts the appeal and sentences the accused to death and the Government confirms the sentence, would it mean that the Government has acted as a Court of Law. If so, it would mean that the prosecutor has also become the Judge. (5) The Government performs the duties of Legislature. It also functions as the highest executive authority. Both these functions are combined, in one body, but it cannot assume the role of a Court of law, unless the mantle of an autocrat descends upon its shoulders. (6) Amendment was made in section 374 of Criminal Pro cedure Code so that the power of confirmation of a sentence of death was conferred upon the Government instead of the High Court. The two subsequent sections 375 and 376 were not amended or altered. The rules regarding the interpretation of statutes and the words occurring in the sections has always been quite clear ; that we cannot import any meanings into the words which do not spring out of them in legal or etymological sense. In interpreting the law the Courts are not even permitted to look to the statement of objects and reasons. It, therefore, follows that in sections 376 and 375 of 'the Criminal Procedure Code the word Government cannot be substituted for the words High Court, however desirable it may be. I am further of opinion that even now it; is not desirable to make any such amendment. My reasons f6i this view are as follows :‑ The Government is empowered to take action in all cases of sentence of death and other sentences under section 401 of Criminal Procedure Code and apparently there was no necessity to make a provision as made in section 374 Criminal Procedure Code as far as the question of interference by the Government was concerned. But my view is that this provision was necessary in order to ward off the danger of any sentence of death being executed without the knowledge of the Government. When once the sentence is submitted for confirmation the Government becomes awake to the fact that a certain person has been sentenced to death by the Court. Then the Government may either confirm the sentence or take action according to the provisions of sec tion 401 Criminal Procedure Code. It is, therefore, not necessary to invest the Government with powers under sections 375 and

376. The action taken by the Government in these respects is not that of a Court of law but as the highest executive authority under special provisions of law. It is perhaps unnecessary for me to mention that even the Magistrates have got executive authority. They are not always acting as a Court of law; rather on many occasions in this executive capacity under the Code of Criminal Procedure. It is not, therefore, strange that the Government have been entrusted with or accepted having executive authority in certain respects by the Criminal Procedure Code, such as confirmation of sentence, setting aside‑the sentence or requiring further evidence to be taken by Court, etc., etc. At the time of amendment of section 374 Criminal Procedure Code the High Court did not exist. It came into existence after wards. Where before its creation s, sentence of death passed by the Sessions Court had to be submitted direct to the Government, after its creation it has become necessary that it should be submitted 'through the High Court. There are two reasons for it. , No subordinate department can approach the Govern ment over the head of the Head of the Department. Secondly, the High Court is invested with powers under sections 375 and 376 Criminal Procedure Code and they would be set aside by a subordinate Court by direct submission to the Government. Besides that the" High Court, is exercising appellate and revisional powers. The High Court according to the existing law must submit the case for confirmation of sentence of death after exercising careful scrutiny of the evidence, the finding and the sentence in case no appeal is preferred and the sentence of death is in its opinion the proper sentence. The provisions of law ate framed, amended, altered or repealed after taking into consideration the conditions and circumstances of the subjects, i.e., their religious, political and economic condition. Besides that the relations with other States have to considered. In my opinion the law regarding the confirmation of sentence of death by the Government should be kept intact for the present. (7) Professor Harold J. Laski in his Grammar of Politics, 1926 Edition, Page 297, says :‑ "Were the power of judging joined with the Legislature, the life and liberty of the subject would be exposed to arbitrary control, for the, Judge would then be the legislator. Were it joined to the executive power, the judge might behave with all the violence of an oppressor". Further on, on page 301 he asserts as follows :‑ "I do not think, as has sometimes been suggested, that judicial independence of the executive is attacked in the prerogative of pardon which inheres in the executive. There are three clear reasons for its existence in practically its present form. In the first place, judicial errors do occur. They are, possibly, infrequent, but cases like the Beck case make it imperative that, where they are detected, there should be immediate means of remedy. There is, secondly, the possibility of a wrong assessment of penalty. Judges notoriously vary in the severity of punishment inflicted ; it is necessary to have the means of balancing justice by mercy in the necessary cases. There is, thirdly, the fact that cases occur in which the penalty inflicted ought not to be operative for reasons made evident only after it has been assessed. The power to review in cases like these is obviously essential". In my opinion the views expressed by him are perfectly correct and justified. This would show that neither the legislature nor the Government should act as a Court of law, and that when they are exercising certain privileges they are acting in their executive capacity. The question to be considered is what Court passes the final sentence. The word `final' qualifies the word `sentence' should it be taken to mean the sentence as soon as it is passed becomes final, or should we understand by it a sentence that becomes final in due course. If the former meanings are to be ascribed to these words and the Government is declared a Court of law then we will have to understand that the words confirming the sentence and the words passing the sentence are synonymous. But the stage of confirmation is not reached at the time of passing the sentence. There can be no confirmation unless there is a sentence. But there can be a sentence although no confirmation has been accorded as yet. The question of its being operative or nods quite a separate one. They should we understand that the Government passes the sentence and at the same time accords its confirmation. This view would be abhorrent to all canons of interpretation. The confirming authority must be a separate authority from the one that passes the sentence subject to confirmation. In cases of death sentence it may be High Court or it may be the Government in its executive capacity and not as a Court of law. The powers of confirmation are specially conferred upon and are not inherent in any Court of law. These powers may be conferred upon the High Court or on any other authority such as the judicial Minister, the Cabinet or any other authority deemed fit by the Government. By simply the conferment of the powers of confirmation the authority so invested does not become a Court of law unless it is declared in so many words or it is specially invested with the powers exercisable by a Court of law such as recording the evidence etc. Now let us take it that the Government in conforming the sentence has acted as a Court of law and in reality has passed the sentence and that confirming means passing. Then should it entertain a petition for mercy or otherwise act under section 401 Criminal Procedure Code, because action taken under section 374 does not preclude action under section 401 Criminal Procedure Code. If so it would be nothing short of ridiculous. For the reasons mentioned above I am of opinion that the Government cannot be considered to be a Court of law nor as such it passes the final sentence. The final sentence should in cases of death be considered to have been passed by the High Court, even if no appeal has been filed before it, for the reason that it acts under sections 375 and 376 and forms its opinion after taking further evidence if con sidered necessary by it, or on the material before it. The High Court virtually in sending the case to the Government for confirmation first passes the sentence of death. A. H. Order accordingly.