P L D 1969 Lahore 71 (PLP)

QADEEAUDDIN AHMED, A. C. J.‑This petition was brought to the Acting Chief Justice shortly before the tea recess and was sharked by him to be dealt with by Criminal Bench No. 1, but it could not be taken up because of the congestion of work; therefore, it has been taken by this Bench despite heavy work. Counsel has urged upon us that we should hear it today because Muhammad Yaqub, a nephew of the petitioner, is according to counsel, going to be hanged at 4 a.m. tomorrow ‑horning. In deference to the stand taken by counsel and in spite of our view that this petition could have been presented earlier, we have attended to it.

2. Before proceeding to deal with it on merits, we may mention that it neither bears court‑fee stamp nor does counsel know whether the amount of Rs. 100.00 which is required to be deposited has been so deposited or not. We may mention here that the petitioner is not in jail and that this is not a habeas corpus matter.

3. The petitioner's grievance is that the punishment of Muhammad Yaqub has not been commuted under section 402 of the Code of Criminal Procedure from death to transportation. The facts which form the background, according to counsel for the petitioner, are that the petitioner's nephew was tried for murder and was sentenced to death by the District and Sessions Judge on the 11th May 1966. On a reference of that order to this Court, the sentence was confirmed on the 22nd of February, 1967. An application for leave to appeal was made to the Supreme Court which was dismissed on the 4th of May 1967, Counsel says that an application for commutation of the sentence was made on the 29th May 1967, on behalf of the convict under section 402, Cr. P. C. to the Home Secretary. We inquired from counsel as to how the application was made under section 402, in which orders are to be made without the consent of the persons sentenced and suggested that it was most likely to have been made under section 402‑A, which means that it was a Mercy Petition Counsel says that he is not aware of the precise nature but no, reply was received to it. All the information that has been received, according to counsel, is the communication dated the 28th June 1968, by which the Superintendent, District Jail, purports to inform the relatives named in the communication that the condemned person was going to be executed at Kot Lakhpat Jail on the 5th July 1968, at 4 a.m.

4. Counsel says that the above communication proves that the convict's sentence has not been commuted under section 402; Cr. P. C., which, according to counsel, is illegal because the: convict has remained in the condemned cell for the last 26 months. We inquired from counsel if there was any rule under which it was incumbent upon the Provincial Government under section 402, Cr. P. C. to commute death sentence on account of detention of convicted persons in the condemned cell for 26 months. Counsel', replied that there was no such rule but that there was a practice which had the force of law. He said that there were secret instructions on the basis of which any condemned person who remained in a condemned cell for more than 12 months was entitled to have his sentence of death commuted to that of transportation for life. In support of his contention Coat this practice had the force of law, he referred to A I R 1946 Cal. 36, and relied on the following observations which appear at page 40 :‑ " At the same time, we must take into consideration the fact that the prisoners were tried before the Sessions Court as far back as December 1942, and in this Court, a certain. amount of inevitable delay was occasioned by the necessity of making a reference to the Full Bench. It is only on account of this delay that we refrain from passing capital sentence." Counsel says that owing to the detention of condemned prisoners in condemned cells for about twelve months, capital sentences were not passed in that case in view of the secret instructions to which counsel has referred. It was, therefore, according to counsel, incumbent upon the Provincial Government to commute the death sentence to the sentence of transportation for life.

5. He has supplemented the above argument by saying that owing to the practice, on which he relies, an expectancy for commutation was created which the Government was bound to honour and that if it did not honour it, the person aggrieved was entitled to get relief under Article 98 of the Constitution.

6. Counsel says that he invites us to interpret section 402, Cr. P. C. for the first time. We may firstly mention that we are not satisfied that this petition is maintainable under Article 98 of the Constitution because there is nothing to show that the omission or refusal to commute the sentence is without lawful authority and of no legal effect. On the contrary, the instructions which are sought to be enforced have been described as secret. These secret instructions on which the practice is allegedly founded cannot be used as a rule of law. Moreover, in the first part of section 402, it is stated that the consent of the person sentenced is not required. If the application was made under section 402‑A, then, as is well known, it was invocation of the mercy of the Head of the State which cannot be enforced through s Court of Law.

7. In this case, let us recall, this Court as well as the Supreme Court had considered the convict to be fit to be sentenced to death. The judgment of this Court contains the following observations :‑ The appellant appears to have been rightly convicted and properly punished. In the absence of any extenuating circum stances, we confirm the sentence imposed on the appellant and dismiss the appeal." It was of course open to the Provincial Government under section 402, and to the Head of the State under section 402‑A to commute his sentence, but this could be as a matter of grace and not in exercise of judicial discretion. Those considerations are different in nature which cannot be the subject‑matter of scrutiny by Courts in these proceedings Article 98 of the Constitution. We hold that a decision taken under section 402 or 402‑A of the Code of Criminal Procedure is not a subject matter fit for review. The petition is dismissed in limine. K. B. A. Petition dismissed.