P L D 1993 Supreme Court 14 (PLP)

SHAFIUR RAHMAN, J.‑‑‑The question of law requiring an authoritative pronouncement in a large number of matters instituted or revived in this Court is as to what is the true scope and effect of clause (a) of the Commutation Order dated 7‑12‑1988 which issued from the Ministry or Interior on 8‑12‑1988. That clause is reproduced alongwith its relevant context as hereunder:‑‑ "Sub: GRANT OF RELIEF TO POLITICAL PRISONERS AND OTHER PERSONS CONVICTED BY MILITARY COURTS No.8/15/88‑Ptns, ISLAMABAD, The 8th Dec. 1988. The President has been pleased to order‑‑ (a) to commute all death sentences awarded by the Military or other Courts up to the sixth of December, 1988, to imprisonment for life;" Following the assumption of office of the Prime Minister of Pakistan by Mohtarama Benazir Bhutto, on the 3rd of December, 1988, the Secretary Interior submitted a Summary for the Prime Minister, the most relevant and necessary portions of which are reproduced hereunder:‑‑ "SUMMARY FOR THE PRIME MINISTER Subject Grant of relief to political prisoners and other persons convicted by Military Courts. In order to redeem the pledge given by the Pakistan People's Party to the people of Pakistan, it is necessary to provide relief to the political prisoners and others convicted by Military Courts during the Martial Law period.

2. It is, therefore, requested that the Prime Minister may be pleased to advise the President to‑‑ (a) commute all death sentences to imprisonment for life; The Prime Minister approved the Summary observing as hereunder:‑‑ "I advise the President as in paragraph 2 above."

3. The President returned the Summary with certain suggestions to the Prime Minister requiring reconsideration by her. 4 She reconsidered the matter and concluded her note as hereunder: ,7. 1, therefore, advise the President to‑, (a) commute all death sentences awarded by the Military or other Courts up to the sixth of December, 1988, to imprisonment for life; The President approved the advice as contained in para. 7 having clauses (a) to (h).

5. The immediate effect of this commutation order was that the jail authorities in all the four Provinces in consultation with their Home Departments extended the benefit of clause (a) to all convicts in death cells, irrespective of the fact whether the question of sentence of death of such convicts was the subject‑matter of confirmation proceedings, or under examination in appeal etc., or were awaiting the disposal of their mercy petitions. This the Interior Division noticed when its Secretary submitted a Summary dated 8‑12‑1988 on the subject of "Relief granted to various categories of prisoners". On this category of cases the Secretary Interior observed in the Summary as hereunder:‑‑ "The Provincial Governments have informed that they have shifted out of the death cells all the convicts, awarded death sentences by the Courts by 6th December, 1988. The Interior Division proposes that this benefit may be granted to only those prisoners whose cases are not in judicial process i.e. their appeals have finally been rejected by the Supreme Court."

6. The Prime Minister marked it to Interior Minister same day who in turn recorded the following note the same day:‑‑ "The original directive is not ambiguous. No one has the right to withhold benefits permissible under it. If any one was not included in a category, how can he be denied the benefit. Orders of the Prime Minister and President cannot be subverted or avoided by back references. They must be7 carried out immediately." 7.On 29‑12‑1988 the Deputy Secretary, Ministry of Interior put up a note the relevant portions of it being as hereunder:‑ "With reference to the recent relief granted to the prisoners, N.W.F.P./Punjab Governments have asked for the following clarifications:‑‑ (iii) Whether or not those condemened prisoners who have been awarded death sentence by Sessions Courts up to 6‑12‑1988 but confirmation of their death sentences by the High Courts are yet awaited will be covered under this clause. (Refers to para. (a) of the Regarding the third point the convict awarded death sentence by the Trial Court on or before 6‑12‑1988 will get the benefit of the relief even if the confirmation of the death sentence by the High Court is awaited. Before we advise the Punjab Government on the above lines, the Interior Minister may be requested to approve/confirm the above clarifications." 8.The Interior Minister answered these questions on 28‑2‑1989 and with regard to item (iii) his note was as hereunder:‑ "No. But this matter is now before the High Court of Lahore and Peshawar. The Courts will decide this issue. Decision will be accordingly." Clarification to Provincial Governments issued accordingly on 12‑3‑1989.

9. The Government of the Punjab reported benefit of commutation having been extended to 1893 persons, Sindh to 51 persons, Balochistan to 12 persons and N.W.F.P. to 67 persons.

10. The Government of Sindh brought to the notice of Ministry of Interior the case of one Shaukat convicted and sentenced to death by Special Court for Speedy Trial on 17‑10‑1988, taken out of death cell following Presidential Order dated 7‑12‑1988 and put back again in death cell on 29‑3‑1989. He challenged by a Constitution Petition this act of putting him back in death cell. His petition was rejected. As the complete certified judgment is not before us it is not possible to comment more on it.

11. This question of law came up pointedly for consideration before the Lahore High Court in the case of Ahmad alias Ahmun and 3 others v. The State (1991 Pakistan Criminal Law Journal 1445) heard on 16‑3‑1991. The following decision on this specific question was given by the Lahore High Court:‑‑ "We have been told by the learned Additional Advocate‑General that on their own interpretation of the notification of amnesty dated 7‑12‑1988 by the President of Pakistan, the Jail Authorities have treated the condemned prisoners as life prisoners and the appellants are no more in the death cells. This will show that the appellants win virtually suffer imprisonment for 25 years in one murder which after remissions etc. may be reduced to 15 years, although they have been convicted and sentenced for nine murders. The plain reading of the order of amnesty/commutation dated 7‑12‑1988 in the light of the observations made by the Supreme Court in Rashid's case PLD 1977 SC 39 that 'capital sentence imposed by Court of Session remains inchoate until it is confirmed under section 374 of the Code of Criminal Procedure' will show that unless death sentence is confirmed by the High Court, it cannot be said that the accused/prisoner was awarded death sentence for the purpose of granting amnesty of commutation of death to imprisonment for fife under sections 402 and 402‑A of the Code of Criminal Procedure. Therefore, we are of the view that the general amnesty granted by the President of Pakistan on 7‑12‑1988 was available only to prisoners whose sentences have been confirmed by that day and the* interpretation of the relevant notification dated 7‑12‑1988, by the Jail Authorities extending its benefits to the cases of prisoners awaiting confirmation of their death sentence was/is erroneous. Furthermore; the sentence of death passed by a Court of Session is never final and executable till it is confirmed by the High Court, which while considering propriety of the confirmation of sentence recorded/passed by the Sessions Judge may either maintain it or modify/set aside the same. In other words, the occasion for the grant of amnesty will arise I only if the sentence of death attains finality after its confirmation by the High Court. In all other cases, the commutation of death sentence to life will ‑be premature." . ' The result of these decisions, one from the High Court of Sindh in the ,12. case of Shaukat and the other from the Lahore High Court in the case of Ahmad alias Ahmun was that the benefit of commutation of death sentences awarded by the Sessions Judges and not confirmed till then by the High Courts was denied to the convicts with the result that they were all put back in the death cell. This act of putting them back in the death cell led to these Petitions mostly from Jail and some through the counsel challenging the denial of the benefit of amnesty to such convicts whose sentences were not confirmed by the High Court.

13. During the course of argument and the hearing of these matters a number of legal questions have arisen. Firstly, what is the scope of the power possessed by the President under Article 45 of the Constitution. Secondly, what is the scope and effect of the power actually exercised by the amnesty order reproduced above. Thirdly, whether the benfit does accrue under the ' amnesty order to those whose sentence was awaiting confirmation either under section 374 Cr.P.C. or as a result of decision pending appeals etc.

14. With regard to the amplitude of the Presidential power possessed under Article 45 of the Constitution, reliance has been placed on a decision of the Madras High Court reported as Maddela Yerra Chennugadu and others In re: Referred Trial No.126 of 1953 (1955 ILR 92) where it was held that the ..power to grant pardon is in essence an executive function to be exercised by the Head of the State after taking into consideration various matters which may not be germane for consideration before a Court of law inquiring into the offence". It was further held that such a power can be exercised even where conviction has not been recorded but the case has been registered and such a power can be exercised any time after the commission of offence either before legal proceedings are begun or during their pendency, and either or after conviction. But then, in the case of Madras High Court, the specific question examined was whether such an exercise of power by the President or the Governor has the effect of interference with the judicial power of the Courts. It was found to be not so.

15. Each amnesty order has to be interpreted and given effect to on its own words and not by reference to any earlier or a different amnesty order. In the case cited in support of the judgment of the High Court we find that amnesty order of 1971 was referred to/heavily relied upon in support of the High Court judgment. That amnesty order had the following text as discussed in Muhammad Aslam v. Superintendent, District Jail and others (PLD 1977 SC 39):‑‑ "The petitioners' learned counsel were not able to distinguish the instant cases from the precedent case. It is plain that declaration of amnesty was intended to those condemned prisoners who were 'awaiting the execution' of their death sentences. It is not controverted that capital sentence imposed by a Court of Session remains inchoate until it is confirmed under section 374 of the Code of Criminal Procedure. It reads:‑‑ 'When the Court of Session passes sentence of death, the proceedings shall be submitted to the High Court and the sentence shall not be executed unless it is confirmed by the High Court.' The language could not have been clearer and in the absence of confirmation by the High Court, it is idle to contend that on 21‑12‑1971, the petitioners herein were 'awaiting' execution of their death sentences which was a condition precedent for the grant of ‑ concession." The expression "awaiting the execution of death sentences" would restrict the categories to those 'whose cases had completed the stages of confirmation, appeal and remedies by way of mercy petitions etc. The expression "awarded the sentence of death" will have certainly a different connotation than "awaiting, the execution of death sentence".

16. Section 31 of the Criminal Procedure Code empowers by its subsection (2) a Sessions Judge or an Additional Sessions Judge to pass any sentence authorized by law including the sentence of death with the condition that the sentence of death so pronounced shall be subject to confirmation by the High Court. Under section 374 of the Criminal Procedure Code, when the Court of Session passes sentence of death the proceedings are required to be submitted to the High Court and the sentence not to be executed unless it is confirmed by the High Court. When a sentence of death is passed by the Sessions Judge/Additional Sessions Judge, he issues a "warrant of commitment under sentence of death" in Form XXXIV appearing in Fifth Schedule of the Criminal Procedure Code and it mentions that the prisoners were duly convicted of the offence of culpable homicide amounting to murder and sentenced to suffer death subject to the confirmation of the said sentence.

17. Section. 30 of the Prisons Act, 1894 (Act IX of 1894) provides as heteunder:‑‑ "

30. Prisone s under sentence of death,‑‑ (1) Every prisoner under sentence of death shall, immediately on his arrival in the prison after sentence, be searched by, or by order of, the Deputy Superintendent, and all articles shall be taken from him which the Deputy Superintendent deems it dangerous or inexpedient to leave in his possession. (2) Every 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."

18. Rule 327 of the Rules for the Superintendence and Management of the Jails framed under the Prisons Act in Chapter 14 of the Punjab Jail Manual deals with the treatment of those so sentenced. Under Rule 327 the prisoner is to be searched and confined in a cell and properly guarded. .

19. The question whether the sentence of death is imposed by the Sessions Judge or by the High Court came up directly for consideration in the case of Muhammad Rafique v. The State (PLD 1963 SC 226) wherein the expression go used in Article 58(2) of the Constitution of 1962 was required to be interpreted. By reference to section 31 of the Criminal Procedure Code it was held that "we do not imagine, that by using that expression the effect was produced of reducing a sentence duly passed by the Sessions Judge under the Criminal Procedure Code to a mere expression of opinion."

20. It is clear from the departmental construction of the order, the language in which it was couched and the liberal content of it, that the amnesty benefited all, those who had been convicted and sentenced to death even by the Sessions Court while their sentence of death was awaiting confirmation by the High Court , in appeal, further appeal or by way of mercy petition. The view taken by the High Court in the case of Ahmad alias Ahmun and 3 others (1991 PCr.LJ 1445) is not correct. , An argument was also addressed that this relief or amnesty covered 21. only those who were convicted by the Military Courts during the Martial Law period and were political prisoners and the benefit did not extend to the convicts sentenced by other Courts. The summary submitted by the Secretary Interior and title of subject do so suggest but the Prime Minister in her recommendation/advice to the President sought approval of commutation of all death sentences awarded by the Military or other Courts up to 6th of December 1988 to imprisonment for life. This dispensation was without qualification or condition and benefited the others who were not political prisoners or cases of conviction by Military Courts. The very expression "Military or other Courts" would suggest that the words "other Courts" were used in contradiction and exclusion of Military Courts.

22. In view of the discussion above we are of the view that the department's initial construction of the Amnesty Order of 1988 was in accordance with law, legal and proper. In the circumstances, we accept the various petitions on the subject under discussion and set aside the view taken in the case of Ahmad alias Ahmun (1991 PCr.LJ 1445) and restore the benefit of amnesty to all those who had been sentenced to death by Courts up to 6‑12‑1988, irrespective of the confirmation of the sentence of death by the higher Courts in appeal or otherwise. M.BA./E‑31/S Petitions accepted.