1993 P Cr (PLP)

4. While controverting the arguments of the learned counsel for the petitioners, the learned counsel for respondents argued that according to section 10 of the Interim Constitution Act, 1974, the President has the power to grant pardon, reprieve and remit the sentence, and the President has exercised the powers under section 10 of the Interim Constitution Act, 1974. It was also contended by the learned counsel for the respondents that section 27 of the Islamic Penal Laws Act cannot override section 10 of the Constitution. It was next contended by the learned counsel for the respondents that although section 31(5) of the Constitution conveys that no law repugnant to the Qur'an and Sunnah will exist in this country but it is not the job of the Courts to legislate or to enact a law but this provision is meant for the Legislature and it is entirely the job of Legislature to make laws according to Qur'an and Sunnah. Unless and until section 10 is repealed, the President has the powers to grant pardon under section 10 of the Constitution. It was further argued by the learned counsel for the respondents that the President has not exercised his review powers and there is no bar on the President for reconsidering the mercy petition. Now the President has exercised the powers while considering the different circumstances, particularly when the respondent No.2 is behind the bars from the last 19 years. When the previous application was rejected by the President, at that time, the respondent had not spent such period in the death cell.

5. I have heard the learned counsel for the parties and perused the documents appended with the petition. A perusal of the impugned order shows that the President passed the impugned order under section 10 of the Interim Constitution Act, which confers powers on the President, as such. Under section 10 of the Constitution, the President has the powers to grant pardon, reprieve and respite and to remit, suspend or commute any sentence passed by any Court, Tribunal or other authority. A plain reading of the impugned order clearly shows that the President exercised the powers available to him under section 10 of the Interim Constitution Act. As this contention of the learned counsel for the petitioners is concerned that in the light of the provisions of section 27 of the Islamic Penal Laws Act, 1974, only the legal heirs of the deceased can grant pardon and the President has no powers to grant pardon or to commute any sentence, it is without any substance for the I following reasons:-- (i)???????? That the provisions contained in the Islamic Penal Laws Act, 1974, cannot override the Constitutional provisions. The Constitution is a fundamental document on which the entire political, legal and social structure of the country is based. Unless and until section 10 of the Interim Constitution is amended, the provisions of Islamic Penal Laws Act cannot form a basis for challenging the vires of the order passed by the President under section 10 of the Interim Constitution Act; (ii)??????? That when section 10 of the Interim. Constitution confers powers on the President to grant pardon and commute sentence and when the President has exercised the powers under section 10 of the Interim Constitution, then it cannot be said that the order of the President is without any jurisdiction but the order of the President has been passed according to the provisions of the Constitution; (iii)?????? Although the Islamic Penal Laws Act contains a provision whereby only the legal heirs of the deceased can grant pardon to the convict, but at the same time, the Interim Constitution also contains the aforesaid provision whereby the President is empowered to grant pardon or commute the sentence and naturally the provisions of the Constitution will prevail. This view finds support from an unreported case of the High Court titled Muhammad Khaliq v. Azad Government decided by the Division Bench on May 14, 1992, whereby the pardon granted by the President under section 10 of the Interim Constitution Act, 1974, was challenged by Muhammad Khaliq in a writ petition which was dismissed by the High Court in limine. Subsequently, an appeal was riled before the Supreme Court of Azad Jammu and Kashmir which too was dismissed and the Supreme Court observed as under:-- " .... We have given our due consideration to the matter and we are of the opinion that the President has been given powers under section 10 of the Interim Constitution Act to give pardon etc. Thus, the said power cannot be curtailed by a subordinate legislation. The provisions contained in section 5 of the Islamic Penal Laws Act, 1974 cannot override the provisions contained in section 10 of the Constitution. Therefore, we are of the considered view that there is no force in this appeal. Hence it is hereby dismissed with costs."

6. As this contention of the learned counsel for the petitioners is concerned that section 10 of the Interim Constitution Act, 1974 is derogatory to section 31(5) of the Constitution Act, so the order of the President is derogatory to section 31(5) and is liable to be set aside carries no substance for the following reasons:-- Section 31(5) has no nexus with the order passed by the President under section 10 of the Constitution. Unless and until section 10 of the Interim Constitution is amended or repealed, the President has the powers to grant pardon or commute the sentence and this Court cannot declare the order issued by the President in exercise of powers under section 10 of the Interim Constitution Act, null and void, on the basis of the provisions of section 31(5) of the Act. Section 31(5) of the Interim Constitution Act is meant for different eventuality, which deals with the powers of the Legislatures and conveys that it is the duty of the Legislatures to enact or legislate according to Qur'an and Sunnah, and bring all the existing laws in conformity with the Qur'an and Sunnah. It is appropriate that the terms of this provision 31(5) be clearly comprehended which is as under:-- "Section

31. Legislative powers.--(l) Subject to the succeeding provisions of this section, both the Council and the Assembly shall have the power to make laws. (a)??????? for the territories of Azad Jammu and Kashmir. (b)??????? for all State Subjects wherever they may be: (c)??????? and for all officers of the Council or as the case may be, the Government, wherever they may be. (2)??????? Subject to subsection (3); (a)??????? the Council shall have exclusive power to make laws with respect to any matter in the Council Legislative List set out in the Third Schedule, hereinafter referred to as the Council Legislative List; and (b)??????? the Assembly shall, and the Council shall not have power to make laws with respect to any matter not enumerated in the Council Legislative List. (3)??????? Neither the Council nor the Assembly shall have the power to make any law concerning-- (a)??????? the responsibilities of the Government of Pakistan under the UNCIP Resolutions; (b)??????? the defence and security of Azad Jammu and Kashmir; (c)??????? the current coin or the issue of any bills, notes or other paper currency; or (d)??????? the external affairs of Azad Jammu and Kashmir including foreign trade and foreign aid; (4)??????? No tax shall be levied for the purposes of the territories of Azad Jammu and Kashmir except by or under the authority of an Act of the Council or the Assembly; (5)??????? No law shall be repugnant to the teaching and requirements of Islam as set out in the Holy Qur'an and Sunnah and all existing laws shall be brought in conformity with the Holy Qur'an and Sunnah."

7. The amplitude of this provision is that it is meant for the Legislature and it cast a duty upon Legislature, to enact the new Laws according to the Qur?an and Sunnah, rather by this section a mandate has been given to the Legislature to enact the new Laws according to the Our'an and Sunnah and to bring all the exiting Laws in conformity with the Our'an and Sunnah through the amendments. Section 31 deals with the Legislative Powers of Legislature. As stated above it impose certain restriction and duty upon Legislature. According to section 31(5) all the existing Laws have to be brought in conformity with the Qur'an and Sunnah by necessary legislation through the process of legislation. This provision is very much clear. It did not intend to strike down automatically all the existing Laws. All the existing Laws despite of being repugnant to Our'an and Sunnah will continue to operate till amended or repealed. This view finds support from P L D 1979 (SC) AJK 60 relevant page 67, which reads as under:-- "... This section, it appears is not happily worded as it is comparable to Article 227 of the Constitution of Islamic Republic of Pakistan (1973). However, even as it is worded, it does not strike down all existing laws even if they are repugnant to the Injunctions embodied in the Holy Qur'an and Sunnah. All that its relevant subsection (5) states is that legislation is not to be repugnant to the teaching and requirements of Islam as set out in the Holy Qur'an and Sunnah. For this it contains a mandate that all existing laws are to be brought m conformity with the Holy Our'an and Sunnah. This very mandate about the existing laws which are not in conformity with the requirements of Holy Qur'an and Sunnah makes it amply clear that the law-maker did not intend to strike down automatically all such existing laws. Therefore, in our view, all such existing laws will continue to be operative till the mandate of bringing them in conformity with the Holy Qur'an and Sunnah is carried out through proper legislation. Section 48 of the Courts and Laws Code, 1949 or subsection (5) of section 31 of the Constitution Act do not per se render laws which are on the statute book as inoperative even if they are not according to tenets of Islam."

8. Now it is very much clear that unless and until the section .10 of Interim Constitution is amended or repealed it will operate and it will not automatically cease to operate merely on the basis of section 31(5) of the Interim Constitution Act, 1974.

9. Although now by the tenth amendment in the Constitution on March 20, 1993, section 10 has been amended, but the impugned order was passed by the President on 12-6-1990, when section 10 was very much operative and the President was empowerd to pass an order under section 10 of the Interim Constitution Act, so this amendment will not have any affect on the order passed by the President on 12-6-1990.

10. Even otherwise, as the Courts are concerned, they are governed by the codified law. The legislation is not the job of the Courts but it is entirely the job of the Legislature. The Courts have to decide the cases according to condified law. When the section 10 is on the Statute Book and is a codified law, unless and until it is amended or repealed it will operate and the Courts have to decide the cases according to the codified law. This view finds support from P L D 1983 SC (AJ&K) 86 and 1983 P Cr. L J 841.

11. As the other contention raised by the learned counsel for the petitioners is concerned, that when once the mercy petition was rejected by the President, then he was not competent to consider the second mercy petition, it carries no substance. The President has the powers under section 10 of the Interim Constitution Act to grant pardon and commute sentence. There is no restriction on the President for reconsidering the mercy petition. He was entitled to reconsider the mercy petition at any time before the execution of death sentence, according to the changed circumstances of the case. As this contention of the learned counsel for the petitioners is concerned that the President reviewed his own order, it is factually incorrect. The President in fact, did not review his previous order, but he considered the mercy petition on the ground, that the respondent is behind the bars and in the death cell from the last 19 years and the President was competent to do so even before the execution of the death sentence.

12. As stated above that it has already been held by the Supreme Court of Azad Jammu and Kashmir that the President has the powers under section 10 of the Interim Constitution Act, 1974 to grant remission or commute the sentence, I am bound by the judgment of the Supreme Court of Azad Jammu and Kashmir. The nutshell of the above discussion is that finding no force in this writ petition, it is hereby dismissed. Keeping in view the peculiar circumstances of the case no order as to costs. N.H.Q./8/H.C.A????????????????????????????????????????????????????????????????????? Writ petition dismissed.