P L D 1992 Karachi 108 (PLP)

Subsection (2) of the Section 30 of the Prisons Act provides that any such prisoner shall be confined in a cell apart from all other prisoners, and shall be placed by day and by night, under the charge of a guard. A bare reading of the provisions of the Act and the Rules framed there under would show that the sentence of death imposed by the Special Court cannot be executed unless the appeal of the convict is dismissed by the High Court and the conviction is affirmed by the Supreme Court. Article 45 of the Islamic Constitution of the Pakistan provides for commutation of death sentence even like Sections 401, 402, 402‑A, 402‑B and 4o2‑C, Cr.P.C. The rules made under the Prisons Act taking note of these provisions, provide for a petition for commutation by the prisoner. During the pendency of a petition for mercy before the president of Pakistan or the Provincial Government the death sentence shall not be executed. Thus until rejection of the clemency motion by them it is not possible to predicate that there is a self‑executing death sentence. Therefore, a prisoner becomes legally subject to a self‑working sentence of death only when the clemency application by the prisoner stands rejected, of course thereafter Section 30(2) is attracted. In our view, the governing consideration in a case of commutation, where the question arises as to whether effect has been given to it in circumstances such as in the instant case, is to be found in the obligation imposed upon the prisoner by sentence awarded to him and of the officer upon whom the duty is placed by the law of executing the punishment. To ascertain the precise duty of the Jail Superintendent, it is necessary to make reference to certain provisions in the Prisons Act (Act 111 of 1900) (hereinafter referred to as the Act). Section 3 of the Act requires that the officer in charge of a prison shall receive and detain all persons duly committed to his custody, under this Act or otherwise, by any Courts according to the exigency of any writ, warrant or by order by which such person has been convicted or until such person is charged or removed in due course of law. By Section 4 a duty is laid upon the officer incharge to return writ, warrant or order the Court by which it was issued, when it has been duly executed, together with a certificate of such execution showing how the same has been executed or why the person committed thereby has been discharged from custody before the execution thereof. Section 15 requires that the officers incharge of prisons may give effect to any sentence or order or warrant for the detention of any person passed or issued by any Court or Tribunal, whether within or without Pakistan established by law. By Section 16, it is provided that a warrant under the official signature of an officer of such Court or Tribunal as is referred to in Section 15 shall be sufficient authority for holding such person in confinement in pursuance of the sentence passed upon him. Section 17 provides for cases where the officer incharge of a prison doubts the legality of a warrant or order sent to him for execution under this part, or the competency of the person whose official seal or signature is affixed thereto to pass the sentence and issue the warrant or order. It is provided that in such a case the aforesaid officer shall refer the matter to the Provincial Government by whose order on the case he and all other public officers shall be guided as to the future disposal of the prisoner. In the present case, it is clear that aforesaid Shoukat Hayat was duly committed to the custody of the Superintendent of the Central Jail at Karachi by, a warrant issued by the learned Judge, Special Court for Speedy Trials at Karachi who had sentenced him. By that warrant the Superintendent Central Jail was required to keep the prisoner in custody. It is implicit in the warrant that the prisoner is neither awarded simple nor awarded rigorous imprisonment. The purpose behind enacting Section 9 of Special Court for Speedy Trials Act and Rule 26 of Special Courts for Speedy Trials (Sindh) Rules, 1988 is that the concerned jail officer shall not take any steps for the execution of the warrant except on receipt, of and in accordance with the orders of the Government. But this custody is something different from custody of a convict suffering simple or rigorous imprisonment. He is being kept in jail custody till the concerned jail officer receives order from the Government. It was contended that death sentence was commuted by the President of Pakistan and the wife of the prisoner is entitled to approach under section 561‑A, Cr.P.C. We have perused the copy of Review Petition supplied to us by Mr.Halepota. Shoukat Hayat took the following grounds in his Review Petition and also in para 9 of Certificate of counsel‑ "I. That this Honourable Court is wrong in saying that no other point was urged. It is submitted that the Petitioner in the end, urged that the benefit of General Amnesty Order dated 7‑12‑1988 may be extended to him as his case is covered by that order.

9. That this Honourable Court is wrong in saying that no other point was urged. It is submitted that the Petitioner in the end, urged that the benefit of General Amnesty Order dated 7‑12‑1989 may be extended to him as, his case is covered by that order. That Honourable Supreme Court also observed orally that the benefit pointed out by the Learned Counsel should have been allowed to his client as he was entitled to it and it was on the request of the Petitioner's counsel that the Honourable Court agreed to make necessary observation in the Order, but the observation so verbally announced does not seem to have been incorporated in the impugned order." We have also perused the order dated 21‑3‑1990 passed by the Honourable Supreme Court. It is advantageous to reproduce paras. 9 to 11 which are as follows:‑ "

9. The learned counsel then raised a legal plea. He submitted that as the Petitioner was convicted under Section 10(3) of the Hudood Ordinance, the appeal lay before the Federal Shariat Court. The High Court had no jurisdiction to hear appeal and confirm the death sentence. He has referred to Articles 203‑E and 203‑G of the Constitution. Article 203‑E prescribes powers and procedure of the Federal Shariat Court for the purpose of its functioning. According to Article 203‑G, no Court or Tribunal including the Supreme Court and the High Court shall entertain any proceedings or exercise any power or jurisdiction in respect of a matter within the power and jurisdiction of the Court. Learned counsel contended that under Section 20 of the Hudood Ordinance, an appeal from the order of the Court of Sessions shall lie to the Federal Shariat Court. Therefore, irrespective of the fact that conviction has been recorded by a Special Court who had the jurisdiction, this appeal should have been referred to the Federal Shariat Court. He has referred to Ghulam Abbas.v. The State 1988 Cr.L.J.

275. The High Court has placed reliance on Mohammad Abbas v. The State (1984 SCMR 129).

10. In these two cases, the trial was conducted by the learned Sessions Judge but in the present case, the trial was conducted by a Special forum created under Special Courts for Speedy Trials Act, 1987 (Act XV of 1987). The Government by an order under section 5 of this Act transferred the case to the Special Court. The learned counsel has not challenged the jurisdiction of the Special Court. Section 3 of the Act contemplates that "the provisions of this Act shall have effect notwithstanding anything contained in the Code or in any other law for the time being in force". Under Section 2(c) "offence" means an offence specified in the Schedule. Section 302, P.P.C. undoubtedly is a scheduled offence. Under Section 5(4) "A Special Court may convict and sentence an accused for any offence of which he may bc found guilty', and according to Schedule, any other offence committed in the course of the same transaction in which any of the said offences is committed, or in addition to or in combination with, such offence is also a scheduled offence. The petitioner was convicted for kidnapping. The offence of kidnapping was, followed by murder, therefore, for all practical purposes it was committed in the course of the same transaction. The learned counsel has referred to Section 20(l) of the Offence of Zina Ordinance, 1979 which reads as follows : "20(l).‑‑The provisions of the Code of Criminal Procedure, 1898 (Act V of 1898), hereafter in this section referred to as the Code, shall apply, mutatis mutandis in respect of cases under this Ordinance: Provided that, if it appears in evidence that the offender has committed different offence under any other law, he may, if the Court is competent to try that offence and Naward punishment thereof, convicted and punished of that offence: Provided further that an offence punishable under this Ordinance shall be triable by a Court of Session and not by a Magistrate, authorised under section 30 of the said Code and an appeal from an order of the Court of Session shall lie to the Federal Shariat Court: Provided further that a trial by a Court of Session under this Ordinance shall ordinarily be held at the Headquarters of the Tehsil in which the offence is alleged to have been committed, (2) The provisions of the Code relating to the confirmation of the sentence of death shall apply, mutatis mutandis to confirmation of sentence under this Ordinance. (3) The provisions of sections 198, 199, Section 199‑A & Section 199‑B of the Code shall not apply to the cognizance of an offence punishable under Section 15 or Section 16 of this Ordinance. (4) The provisions of subsection (3) of Section 391 or Section 393 of the Code shall not apply in respect of the punishment of whipping awarded under this Ordinance. (5) The provisions of Chapter XXIX of the Code shall not apply in respect of punishment awarded under section 5 or section 6 of this Ordinance. (6) In the Code Section 561 shall stand repealed.

11. The learned counsel made emphasis on the second proviso but this proviso clearly contemplates that the offence under this Ordinance shall be tried by the Court of Session and not by a magistrate and an appeal from an order of the Court of Session shall lie to the Federal Shariat Court. The position is, therefore, quite clear that in case an offence is tried by the Court of Session an appeal shall lie to the Federal Shariat Court. As stated above, in the present case, the petitioner was convicted by a Court which is also Special Court and, therefore, the appeal to the High Court was competently filed. As such the, Special Court had the jurisdiction to try the offence and once it is tried, an appeal shall lie to the High Court under Section 12 of the Special Courts Act. In these circumstances, the High Court had the jurisdiction." A perusal of the above would show that Shoukat Hayat took specific pleas/grounds in his Review Petition. This contention is devoid of force for the above reason. The last contention of Mr.Halepota is that the case was not referred under Section 374, Cr.P.C. This contention is devoid of force for more than one reason Firstly, this contention was not raised before the Appellate Court, secondly, this point was not raised and/or argued before the Honourable Supreme Court, thirdly, this plea was not taken in a review petition. It is well settled now that it will not be open to this Court to go behind or to examine the D final verdict reached by a competent Court convicting and sentencing the condemmned prisoner. In the result, we do not find any force in the contentions raised by Mr.Halepota. For the reasons stated above we dismiss the petition. M.BA/N‑394/K Petition dismissed.