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Civil Petition for Special Leave to Appeal No. 182 of 1978, decided on 7th December 1978.

(Appeal against the judgment and order dated 8th April 1978 of the Lahore High Court in Writ Petition 1752 of 1978).

(a) Constitution of Pakistan (1973)‑

‑‑ Art. 48 read with Laws (Continuance in Force) Order, 1977 [C. M. L. A's No. 1 of 1977], Art. 3(l)‑‑Mercy petitions‑‑Power to deal with‑President to act in accordance with advice of Chief Martial Law Administrator‑Chief Martial Law Administrator, held, competent authority, in place of Prime Minister, to deal with mercy petitions and to give his advice to President‑Contention that power envisaged by Art. 48 of Constitution could only be exercised by Prime Minister, even when office of Prime Minister no longer existed, held, fallacious.

Begum Nusrat Bhutto's case P L D 1977 S C 657 ref.

Art. 48‑Mercy petition‑President's powers‑Decision of President rejecting or accepting a mercy petition‑Matter of President's discre tion‑High Court, held, would not normally interfere in a discretionary matter‑Constitution of Pakistan (1973),

(c) Constitution of Pakistan (1973)‑

----Art. 48‑Mercy petition‑Disposal of‑Each mercy petition before its being placed before competent authority for decision undergoes a certain process including thorough scrutiny particularly in cases of death penalty‑Petitioners not stating with exactitude if their mercy petition also included in 70 mercy petitions stated by Chief Martial Law Administrator to have been rejected by him since his taking oath as Chief Martial Law Administrator‑Strong data in such regard being absent, not possible, held, to agree with petitioners regarding there being an element of bias in disposal of their mercy petitions.

Asghar Ali, Advocate Supreme Court and Sh. Masood Akhtar, Advocate- on‑Record for Petitioners.

Asif Jan, Assistant Advocate‑General (Punjab) with Sh. Riaz Ahmad for the State.

Date of hearing : 7th December 1978.

NASIM HASAN SHAH, J.

‑‑This petition is for leave to appeal against the Order dated 8‑4‑1978 passed in Writ Petition No. 1752 of 1978 dismissing the writ petition urging interference in the matter of mercy Petition moved by the petitioners after their conviction and sentence of death in a murder case had been maintained up to this Court.

In the High Court the petitioners' contention was that the dismissal by the Chief Martial Law Administrator of their mercy petitions was without lawful authority and sought interference in its constitutional jurisdic tion for a direction to the respondent No. 1 to decide the mercy petition in accordance with law. The High Court has declined to interfere on the footing that its jurisdiction under Article 199 of the Constitution does not extend to control the exercise or non‑exercise of mercy powers by the President under Article 45 of the Constitution.

In the petition for leave to appeal, the petitioners have reiterated the grounds mentioned in their writ petition. On the basis of a certain press report of the Chief Martial Law Administrator it is submitted that he was inclined towards a wholesale rejection in the disposal of mercy petitions coming to him, and the petitioners have an apprehension that their mercy petitions have been rejected without proper application of mind which, according to their learned counsel, is necessary as a number of factors are required to be considered before a mercy petition maintained under the Constitution or the law can be rejected. It is further submitted that the Chief Martial Law Administrator did not figure in the matter of disposal of a mercy petition because in Article 45 of the Constitution it is the function of the President and he has to act on the advice of the Prime Minister which is binding on him. In other words, it is urged that the C. M. L. A. is not the Prime Minister, and, therefore, cannot intermeddle in the disposal of the mercy petitions filed by the petitioners. Alternatively, it is submitted with reference to this Court's decision in Begum Nusrat Bhutto's case (P L D 1977 S C 651) that the primary function of the respondent No. 1 was to hold elections and as such during the interim period of his administration he could not exercise such powers as are given to the President under the Constitution.

We may take up the last mentioned contention first. To contend that the C. M. L. A. has no powers under Article 48 of the Constitution, and that the power envisaged therein could only be exercised by the Prime Minister even at a time when the office of the Prime Minister no longer exists is, in our opinion, fallacious. The Laws (Continuance in Force) Order, 1977 expressly provides in its Article 3(1) that the President shall act on and in accordance with the advice of the Chief Martial Law Administrator. Article 48 of the Constitution remained in operation by virtue of the Laws (Continuance in Force) Order, 1977, and in place of the Prime Minister the C. M. L. A. became the competent authority to deal with the mercy petitions and to give his advice to the President. The decision of the President rejecting or accepting a merc petition is a matter of his discretion, and normally in a discretionary matter the High Court would not interfere under Article 199 of the' Constitution. The petitioners, however, tried to argue that the exercise. of discretionary power in their mercy petitions was color able inasmuch as respondent No. 1 issued statement in the press that he had rejected about seventy mercy petitions since his taking oath as C. M. L. A. The petitioners concede that it is not possible for them to state with exactitude that this number includes also their mercy petitions. In the absence of strong data in this respect it is not possible to agree with the petitioners that there is an element of bias in the disposal of their mercy petitions. In this connection it would not be out of place to mention that each mercy petition, before it is placed before the competent authority for decision, undergoes a certain process including a thorough scrutiny particularly where death penalty has been awarded. This not withstanding a mercy petition invariably follows after the case has been determined by the Courts of law and all judicial remedies have been exhausted.

There is no force in this petition, which is accordingly dismissed.

Petition dismissed.

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