P L D 1977 Supreme Court 212 (PLP)

MUHAMMAD GUL, J.-This appeal by special leave under Article 212(3) of the Constitution is from the order of the Sind Services Tribunal, dated 30-9-1974 and raises a question as to the effect and operation of pardon granted by the Governor purporting to be under Article 5 of Martial Law (Pending Proceedings) Order, 1972 (P. O. 14 of 1972) to the appellant who was convicted for a criminal offence? The facts are these. The appellant permanent resident of Sialkot District was practising Advocate in Karachi. He was appointed Additional City Magistrate Karachi in 1959 by Government of West Pakistan. After serving in various Districts be was posted as section 30 Magistrate at Jhelum, where a criminal case under sections 354, 341 and 506, P. P. C. was registered against him and another person at the city Police Station Jhelum on 25:12-1969. The appellant along with the co-accused was tried by a Summary Military Court and sentenced to one year's R. I. by order dated 21-5-1970. The sentence was promulgated with immediate effect and expired in 1971. In the meantime the Province of West Pakistan was dissolved by the Province of West Pakistan (Dissolution) Order, 1970, (P. O. 1 of 1970) and in its stead four new Provinces were created with effect from the 1st July 1970. However, it appears that the appellant was allocated to the Province of Sind as A. C. M., Karachi (under suspension), presumbly because on his first appointment to the Provincial Civil Service he was posted A. C. M., Karachi. As a result of the appellant's conviction by the Summary Military Court he was dismissed from service vide Sind Government's Notification No. SP-3/16-SOX issued on the 8th May 1972. After his dismissal from service, he submitted a "representation" to the Governor of the Punjab praying for the quashment of his conviction and re-instatement in service as from the date of suspension. The plea taken in support of the above prayer was that the appellant had been victim of political vendetta because of his refusal to help a named person who was a candidate to the National Assembly during the last general election and further that his trial by the Summary Military Court was illegal and mala fide. The Punjab Governor on 24-2-1973 made the following order : "In exercise of the powers conferred by President's Order No. 14 of 1972, I, Ghulam Mustafa Khar, Governor of the Punjab, on consideration of a mercy petition in respect of accused Ch. Muhammad Asghar son of Fazal Ahmad, hereby pardon the said accused" Thus it will be seen that the Punjab Governor purported to grant pardon to the appellant after he had undergone his sentence and did not make any order for his restoration to service. Armed with the above order by the Punjab Governor, the appellant however moved the Government of Sind for restoration to service as A. C. M., Karachi. This was refused vide Sind Government's letter dated 11-3-1974. He addressed yet another application to the Chief Minister Sind. This too was refused vide letter dated 5-8-1974. The appellant then filed an appeal before the Sind Service Tribunal under section 4 of the Sind Services Tribunal Act 1973 for his restoration to service. The plea taken by the appellant that Governor's order granting pardon to the appellant was equivalent to his acquittal was repelled. The Tribunal took the view that the effect of granting pardon to the appellant was merely to remit his sentence and not to annul his conviction. The question is whether the Tribunal is right in the view it bad taken in the case and to dismiss the appeal by the appellant. It is note-worthy from the statement of the case as set out above that in his representation to the Governor Punjab, the appellant did not actually ask for pardon, nor for the remission of his sentence. This was obviously because he had already served his sentence and therefore, nothing remained to be remitted. It is no wonder therefore, that the appellant described his petition to the Punjab Governor as "representation" for his "re-instatement in service from the date of suspension with all the benefits". But the prayer conveniently ignored the fact that the appellant had been dismissed from service by the Governor of Sind as an aftermath of the appellant's conviction by the Summary Military Court. It is difficult to see how and upon what principle the order of the Punjab Governor pardoning the appellant could oblige the Governor Sind to restore the appellant to his former position from which he had earlier been removed. The latter is not under the direction of the former. Indeed this explains why the Governor of the Punjab merely pardoned the appellant purporting to be under Article 5 of the Martial Law (Pending Proceedings) Order, 1972 (P. O. 14 of 1972) and made no order as to his restoration to his former office. There is however, no gainsaying the fact that the Punjab Governor had the power to grant pardon to the appellant under Article 5 of P. O. 14 because` he was convicted by a Military Court in the Punjab had also undergone his imprisonment in that Province. It may also be readily conceded that power can be exercised even if he had already served his sentence. Article 5 is in general terms and reads : "Annulment and commutation.-(1) Any person who deems himself aggrieved by the finding or sentence of a Martial Law Authority may, where no petition has been submitted against such finding or sentence, submit a petition against such finding or sentence to the President? of Pakistan if the sentence is one of death, and in all other cases, to the Governor of the Province concerned. (2) On such a petition, the President or, as the case may be, the Governor may, with or without any conditions, grant pardon or remit, reduce, commute or suspend any sentence." It is also important to observe that power to grant pardon under the above provision is different from the Provincial Government's power to order commutation or grant remission under section 401, Cr. P. C. The section by its subsection (1) empowers the Provincial Government "to remit the whole or part of the punishment to which (any person) has been sentenced". The section does not include within its ambit, power to grant pardon. Power to grant pardon until the coming into force of P. O. 14 of 1972 bad been ` exclusively reserved to the President and before him, the Governor General under the successive Constitutional enactments. Again power to grant pardon is much larger power in its content than the power merely to remit a sentence, and pardoning power, and as far as I am aware, was never given to the Governor of a Province before. Explaining the nature of pardoing power of the American President under section 2 of Article II of the Constitution of that country Marshall, C. J. in U. S. v. Wilson 7 Pet 150, referred to the common law principle of the Crown's prerogative as under : "As this power had been exercised from time immemorial by the executive of that Nation whose language is our language, and to whose judicial institutions ours bear a close resemblance ; we adopt their principles respecting the operation and effect of a pardon, and look into their books for the rules prescribing the manner in which it is to be used by the person who would avail himself of it." The effect of pardon by the British Sovereign is stated in Monograph 952 of Halsbury's Laws of England, 4th Edition (p. 608) as follows : "The effect of a pardon under the Great Seal is to clear the person from all infamy, and from all consequences of the offence for which it is granted, and from all statutory or other disqualifications following upon conviction. It makes him, as it were, a new man, so as to enable him to maintain an action against any person afterwards defaming him in respect of the offence for which he was convicted

." Mr. Maqbool Ahmad Qadri, learned Advocate-on-Record for the appellant in his written argument in the case relied upon the scope and significance of "pardon" in the Black's Law Disctionary, and excerpts from the American Jurisprudence, Volume 39-in support of his argument that pardon when it is "full" "reaches both the punishment prescribed for the offence and the guilt of the offender". Particular reliance was placed upon the following passage in paragraphs 51 and 62 at pp. 550-553 of the latter, which, is a compilation of greaty authority: "51??????????.. ?In the case of a full pardon, it relieves the punishment and blots out of existence the guilt of the offender to such an extent that in the eyes of the law he is as innocent as if he had never committed the offence. So completely is an offence considered to be obliterated by a pardon that it has been held that pardon of treason or felony, even after conviction, will enable a man to have an action of slander for calling him a traitor or felony. Any attempt, in the case of a full pardon, to restrict its effect, even by express terms, so as to leave the legal disabilities of a conviction resting upon the convict would be repugnant to the grant, and void. 52???????????? ?When a pardon is given to an offender after his term of imprisonment has expired, it removes all that is left of the consequences of conviction-his disabilities. Many times the Courts have said that it makes him, as it were, a new man, and gives him a new credit and capacity, but this broad generalization is not accepted by all the Courts literality and in its entirety . . . . . ' The rule is fully stated in paragraph 59 at page 555 ibid in these terms: "The general rule in that where an office has been forfeited in consequence of a conviction of a criminal offence, the subsequent pardon of the person convicted does not restore him to the office so forfeited, although the pardon doubtless restores him to eligibility for appointment or election to his office. It is likewise well settled that a pardon does not restore one to a licence or other special privilege forefeited by reason of his conviction of a crime of which he is disbarred following his conviction of crime, a pardon of that crime does not of itself restore his right to practice law, and the same rule applies to a physician whose license has been revoked following conviction of a crime of which he is subsequently pardoned Similarly, the following statement on pardons in paragraph 11 at pp. 576-578 of Corpus Juris Secundum, Volume 67 is also instructive : It has been stated that .the effect of a full pardon is to make the offender a new man, and that full pardon blots out the existence of guilt, so that in the eye of the law the offender is as Innocent as if he had never committed the offence. However, these statements, characterized as generalizations, have not been universally accepted, recognized, or approved. Moreover, a pardon does not so overate for all purposes, whether the pardon is, or is not, based on the innocence of the prisoner ; since as the every essence of a pardon is forgiveness or remission of penalty, a pardon implies guilt ; it does not obliterate the fact of the commission of the crime, and the conviction thereof ; according to the judicial decisions on question it does not wash out the moral stain ; as has been tersely said it involves forgiveness and not forgetfulness.?????????? ." In the same paragraph at page 580 it is stated ; "Where a public office has been forfeited by conviction of a crime, a subsequent pardon does not operate to restore the pardoned person to the office so forfeited. Moreover, while it has been held that a pardon restores to the offender his eligibility to hold public office. including an office which may have been forfeited by his conviction, it has also been held, on the ground that the right to hold office is a political privilege rather than a civil right, that the pardon of the executive will not remove disqualification for public office resulting from conviction of crime. A statute providing that one of the qualifications for office or employment tinder civil service is a good moral character, and that one convicted of a felony is not of good moral character and is therefore, disqualified, has been held to be invalid in so far as it may be applied to bar conclusively one who has received a full pardon ; and under such statute it has been held that, while a pardon does not itself restore the character of the pardoned individual applying for public office or employment, the offender is entitled to an opportunity of proving that, although he committed the acts resulting m his conviction, he is now a man of good moral character. .,???????????? ??..2?????????... "thus it will be seen that according to the above statements of law, a free pardon does not restore a convicted person to public office forfeited by or in consequence of conviction ; nor does it restore a right to a licence or practice' a profession which has been revoked because of the conviction, though it may remove disability for fresh grant or employment. Mr. Maqbool Ahmhd Qadri strongly relied on the English case in Hay v. Jartries (1890) 24 Q B D 561, of the Tower Division, London in which tire rule laid down was that "free pardon under Royal Sign Manual", to a person convicted of felony and therefore disqualified by section 14 of the Licensing Act (33 8t Vict. C. 29) from selling spirits by retail would remove such disqualification and the licence might be granted to him. In that case Jhon Hay was convicted of felony on 8-11-1x83 and sentenced to seven years penal servitude. On 9-5-1885 he received free pardon under Her Majesty's Sign Manual. On 7-8-1889, he applied to the licensing justices to transfer to him the licence of a fully licensed public house. He was refused licence by the licensing Justices on the ground that having been convicted of felony within the terms of section 14, they had no power to grant the licence. The Q. B. D. held that the disqualification imposed on Hay by section 14 was removed by pardon and the licence might be granted to him. The case however, is only an authority for removal of disqualification in respect of "eligibility" for grant of licence and not for "restoration" of licence if already cancelled in consequence of conviction for felony. Similarly, see John Bennet v. Dr. Kesadale 79 E R 651 relied upon by the learned Advocate-on-Record for the appellant is not authority for the broad proposition canvassed by him that pardon ipso facto results in "restoration" of a forfeited office in consequence of a conviction. In the precedent case Sir Jhon Bennet who held the office of Chancellor of the Archbishop of New York, brought an assize for that office, and the defendant endeavoured to obtain an injunction to stay that suit, because the plaintiff had lately been found guilty in the Star Chamber of bribery and other misdemeanours in his office and had been fined ? 20,000 censured to be imprisoned and "made of incapable of any office of judicature". He produced a pardon, by the late King in his defence, and it was resolved by justices and Barons. that . "This pardon bath taken away all force of the sentence in the Star Chamber, except for the fine of twenty thousand pounds, and all inabilities are discharged thereby, and that the sentence never took from him the office, but the execution thereof, nor gave authority to place others. . the sentence by itself cannot take away the office, which is a freehold; and the pardon having taken away all the offences, they therefore, conceived it convenient to permit him to proceed with his assize . . . . . ." Thus it will be seen that following the plaintiff's conviction in that case there was no actual separation of Sir Jhon Bennet from his office which was "freehold", and it was because of that, it was held that the sentence never took from him his office but the execution thereof nor gave authority to place others

" In an obvious reference to this case it has been observed in the foot note in American Jurisprudence Volume 39 at page 555 as follows :- ' "In England it has been held that an office forfeited in consequence of a criminal conviction is restored in the event of a pardon being, granted. It seems that the office is never really forfeited, but that. the right to exercise it is merely suspended." In Ex parte Garland (1866) 4 Wall. 33, it was observed that pardon if granted before, prevents any of the penalties and disabilities consequent upon conviction from attaching. If granted after conviction, it removes the penalties and disabilities and restores the grantee to all social rights; it makes him as it were a new man. There is only this limitation to its operation i "it does not restore offices forefeited or property or interest vested in others in consequence of the conviction and judgment. In Jhon Kaete v. United States S C Rep. Ed. 149-157, also cited on behalf of the appellant,, the question presented for determination was, whether the general pardon and amnesty by the Presidential Proclamation on the 25th December 1868 will entitle one receiving their benefits to the proceeds of his property "previously condemned and sold" under the Confiscation Act of 1862, (12 State at L. 580Y after such proceeds had been paid into the Treasury. After a review of a number of precedent cases, the U. S. Supreme Court made the following observations, which in my opinion are very pertinent to the instant case: "A pardon is an act of grace by which an offender is released from the consequences of his offence, so far as such release is practicable and within control of the pardoning power, or of officers under its direction. It releases the offender from all disabilities imposed by the offences, and restores to him all his civil rights. In contemplation of law, it so far blots out the offence, that afterwards it cannot be imputed to him to prevent the assertion of his legal rights. It gives to him a new credit and capacity, and rehabilitates him to that extent to his former position. But it does not make amends for the past. It affords no relief for what has been suffered by the offender in his person by imprisonment. forced labour. or otherwise; it does not give compensation for what has been done or suffered, nor does it impose upon the Government any obligation to give it. The offence being established by judicial proceedings, that which has been done or. suffered while they were in force is presumed to have been rightfully done and justly suffered, and no satisfaction for it can be required. Neither does the pardon affect any rights which have vested in others directly by the execution of the judgment for the offence, or which have been acquired by others whilst that judgment was in force . . . . :' Incidentally, this also brings into relief another important aspect of the case, which has not been adverted in the argument on behalf of the appellant. The question how and under what principle can the pardon granted by the Punjab Governor on 24-2-1973 to a person on the pay roll of the Province of Sind can bind that Province which after the dissolution of the Province of West Pakistan, became a distinct political entity with its executive authority vesting in the Governor of Sind? It can scarcely be controverted that the order dated 24-2-1973 being an executive fiat of the Punjab Governor had binding effect within the Province of the Punjab and upon officers subordinate to him and not in another Province. Finally, it was argued that the appellant's trial and conviction by the Summary Military Court was illegal and mala fide. This aspect of the case rests in mere allegation. There is nothing whatever, to suggest that the appellant was granted pardon on that basis, nor there is any finding in that behalf, by any Court of appropriate jurisdiction. That being so the order of the Summary Military Court convicting the appellant under sections 354 and 391, P. P. C. is fully protected under clause (2) of Article 280 of the Interim Constitution. See Karamat Ali v. The State P L D 1976 S C

476. For the foregoing reasons, I would maintain the order of the Services Tribunal Sind, refusing to restore the appellant to his former position as Additional City Magistrate, Karachi though for different reason. and would accordingly dismiss the appeal. I would add however, that the pardon removes the appellant's disability for any further employment by a Government. DORAE PATEL, J.-I agree. MUHAMMAD HALBBM, J.-I agree. S. A. H.?????????????????????????????????????????????????????????????????????????????????????????????? Appellant dismissed.