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C. P. S. L. A. No. 622 of 1976

RASHID -Petitioner

versus

THE STATE AHD OTHERS-Respondents

AND

C. P. S. L. A. No. 570 of 1976 MUHAMMAD AMIN-Petitioner Versus

THE STATE AND others-Respondents

Civil Petitions for Special Leave to Appeal Nos. 539, 622 and 570 of 1976, decided on 14th September 1976.

(On appeal from the judgment and order of the Lahore High Court, Lahore, dated 25th May, 23rd June 1976 and 1st December 1975 in Writ Petition No. 1354 of 1976, Writ Petition No. 1617 of 1975 and Writ Petition No. 219 of 1975, respectively).

Penal Code (XLV of 1860)-

-. - S. 302 read with Criminal Procedure Code (V of 1898), S. 374 Murder-Sentence of death-General amnesty declared by President of Pakistan on 21-12-1971 intended for those condemned prisoners, who were "awaiting execution" of their death sentences-Such amnesty, held, not applicable to condemned prisoners whose death sentences not confirmed by High Court prior to 21-12-71.--[Sentence].

Falak Sher v. The State P L D 1975 S C 179 fol.

C. P. S. LL.A. 539 of 1976

Asghar Ali, Advocate, Supreme Court instructed by Sh. Masud Akhtar, Advocate on Record for Petitioners.

C. P. S. L. A. No. 622 and 570 of 1976

Ch. Muhammad Hussain, Advocate, Supreme Court instructed by Sh. Abdul Karim, Advocate-on-Record for Petitioners.

C. P. S. L. A. No. 539 of 1976

Nemo for Respondents.

C. P. S. L. A. Nos. 622 and 570 of 1976

Iftikharul Hay Khan, Advocate, Supreme Court instructed by Ijaz Ali.

Advocate-on-Record for Respondents.

Dates of hearing : 30th June to 2nd July 1976.

MUHAMMAD GUL, J

.-These three petitioners proceed on similar facts and involve a common question of law and therefore, were heard together and are disposed of by this order.

The petitioners in these cases were separately tried and convicted of capital offences and sentenced to death on various dates prior to the 21^st December 1971. Their convictions and sentences however, were Pending for confirmation before the High Court under section 374, Cr. P. C. when on the aforesaid date, the President by a general order described as order of "general amnesty" commuted the sentences of all condemned prisoners whose death sentences were "awaiting execution". the petitioners, capital sentences were confirmed by the High Court after that date. The petitioners in Civil Petitions Nos, 539 and 570 forwarded petitions for special leave through jail .against their convictions and sentences which were dismissed by this Court. The petitioner in Civil Petition No. 539 also petitioned for mercy which too was refused.

After confirmation of their sentences the petitioners separately moved Writ Petitions in the High Court for directions that because of the "general amnesty", their capital sentences be converted to life imprisonment. All the Wee Writ Petitions were dismissed. The petitioners now seek leave to appeal in each case.

At one stage there was some divergence in the High Courts as to the true import or scope of "general amnesty" declared by the President as aforesaid. But the controversy has since been set at rest by this Court in Falak Sher v. The State PLD1975SC179. Like the petitioners herein, the appellants in the precedent case who hard been sentenced to death by the Court of Session prior to 21-12-1971 but those sentences were confirmed by the High Court later, also pleaded for commutation of their sentences because of the amnesty declared by the President. Their claim was rejected by this Court by the following observation:

"The submission is not well founded for the reason that on the date of the amnesty, the sentences of death had not yet been confirmed by the High Court, which order was made on 25-9-1972 and accordingly amnesty was not applicable to the appellants . . . . ."

The petitioners learned counsel were not able to distinguish the instant eases 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 A 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 matter could also be viewed in a slightly different context. Assume that the petitioners instead of being convicted were acquitted by the Sessions Court on 21-12-1971; and the State's appeal against their acquittal was pending, which was later accepted and they were sentenced to death each. It cannot be controverted that their acquittal by the Sessions Court was subject to the result of appeal, if any, by the State. Could they in these circumstances be permitted to invoke the amnesty, on the ;round that they were under a potential threat of being condemned to death The answer is definitely in the negative. This demonstrates the fallacy of the petitioners' claim in these cases. Their petitions are therefore, dismissed.

Petition dismissed.

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