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Writ Petition No. 5709 of 1981, decided on 7th December, 1981.

Per David Iqbal, J.‑

(a) Pakistan Army Act (XXXIX of 1952)‑

S. 131 read with Constitution of Pakistan (1973), Art. 45‑Mercy petition‑Petitioners convicted by Military Court and their sentences confirmed by Chief Martial Law Administrator‑Petitioners' petition under S. 131, Army. Act, also dismissed by Chief Martial Law Administrator‑Mercy petition subsequently filed under Art. 45 of Constitution though not decided yet dismissal of petition under S. 131, Army Act, held, amounts to dismissal of mercy petition also High Court, held further, devoid of jurisdiction to go into matter in circumstances‑Constitution of Pakistan (1973), Art. 199.

Per Rustam S. Sidhwa, J. (eontra)‑

(b) Pakistan Army Act (XXXIX of 1952)‑

‑.‑‑ S. 131 read with Constitution of Pakistan (1973), Art. 45‑Mercy petitioner‑Convict's petitions under S. 131, Army Act dismissed by Chief Martial Law Administrator but mercy petition under Art. 45 of Constitution not yet decided‑Prescribed officer under S. 131, Army Act, though President of Pakistan himself yet be exercised his appellate power under such section as Chief Martial Law Administrator Exercise of power by him under Art. 45 of Constitution, on other hand to be done in his capacity as President of country‑Power granted to President under Art. 45 of Constitution‑Held : Supersedes power granted to him acting in his capacity as Chief Martial Law Ad ministrator under Army Act‑Complainant. party having compromised matter with convicts/petitioners as alleged, such consideration may prevail with President of Pakistan to commute death sentence of petitioners‑Para. 2 of Provisional Constitution Order, 1981, having preserved Art. 45 of Constitution and no order having been made by President or Chief Martial Law Administrator to abridge such power in any way, Provincial Home Secretary and Superintendent of Jail, in circumstances, duty bound to ensure death sentence being not executed till mercy petition finally decided by President of Pakistan Constitution of Pakistan (1973), Art. 199.

Zaffar Pasha Chaudhary for Petitioners.

DAVID IQBAL, J.‑The petitioners have been convicted and sentenced by a Military Court. The sentence was subsequently confined by C. M. L. A. It is contended that thereafter a petition under section 131 of the Army Act was preferred which has been dismissed by the C. M. L. A. ','till later another petition under Article 45 of the Constitution was moved which according to learned counsel has not yet been decided. In my view C. DA. L.. A. bas already dismissed the petition under section 131 of the Army Act, and this would amount to dismissing of the mercy petition preferred to the C. M. L. A. Consequently, no interference is called for as this Court has no jurisdiction to go into the matter. Dismissed to limine.

RUSTAM

S. SIDHHW A, J.‑I agree with the view of my learned brothel Javid Iqbal, J. that this Court has no jurisdiction to entertain this petition; as the matter relates to the execution of sentence passed by a Military Court However, it is the contention of the learned counsel for the petitioners that the representation made by the petitioner under section 131 of the Pakistan Army Act, which basically is first appeal preferred by the convicts against their conviction and sentence was rejected by the Chief Martial Lam Administrator, but that the mercy petition filed thereafter by the convict:.' under Article 45 of the Constitution of Pakistan is still pending and that till the same is decided by the President of Pakistan, the sentence of death imposed on the petitioners cannot be executed by 'the Provincial Home Secretary or the Superintendent of the Jail concerned. I agree with the contention of the learned counsel for the petitioners. Basically, the right of representation given to convict under section 131 of the Pakistan Army Act is by way of appeal and the considerations which should weigh with the superior officer who decides such a petition should be the same as is expected to be a person who deals with an appeal. Legal and factual matters are expected to be considered by the prescribed officer dealing with the petition under section 131 of the Pakistan Army Act, 1952, even though the judgment may be short and not disclose such an appraisal.. However, the right given to any convict under Article 45 of the Constitution of Pakistan (1973) to pray for mercy is a right which supersede that given to him under section 131 of the Pakistan Army Act. It may be that the person who is the prescribed officer under section 131 of the Pakistan Army Act is the President of Pakistan himself, but it cannot be forgotten that the exercised his powers under section 131 of the Pakistan Army Act as the Chief Martial Law Administrator, whereas the exercise of powers by hi under Article 45 of the Constitution of Pakistan, 1973 are in his capacity as the President of the Country. The latter power granted to the President under the Constitution supersedes the power granted to him acting in his capacity as the Chief Martial Law Administrator under the Army Act. In this case, it cannot be forgotten that the complainant party bas compromised the matter with the convicts/petitioners, as alleged and this another consideration may prevail with the President of Pakistan to commute death sentences of the petitioners. Para. 2 of the Provisional Constitu tion Order, 1981 has preserved Article 45 of the Constitution of Pakistan, 1973 and there is no Order made by the President or the Chief Martial Law Administrator, which has in any way abridged the said power. In these circumstances, it is the duty of the Provincial Home Secretary and the Superintendent Jail, Kot Lakhpat, Lahore, respondents Nos. I and 2 to ensure that the death sentences are not executed till the mercy petition filed by the convicts under Article 45 of the Constitution of Pakistan, 1973 are finally decided by the ,President of Pakistan. If they fail in this duty they would be culpably liable.

2. The above observation has been communicated to Mr. Tanvir Ahmad Khan, Assistant Advocate‑General, with the direction that he should intimate the contents of this order to the Home Secretary, Punjab Government, Lahore and the Superintendent Jail, Kot Lakhpat, Lahore, respondents No. 1 and 2 for information.

s. A.H. Order accordingly.

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