The President’s Power to Commute Death Sentences

Before Sh. Riaz Ahmad, Raja Afrasiab Khan and Malik Muhammad Qayyum, JJ

This case, decided on January 14, 1992 , addresses the powers of the President of Pakistan to commute death sentences, particularly in light of the insertion of Article 2-A into the Constitution of Pakistan (1973). The central issue revolves around whether the President’s power under Article 45 to grant pardon, reprieves, or remissions of punishment extends to sentences awarded in matters of Hudood, Qisas, and Diyat, given that Article 2-A incorporates the Objectives Resolution as a substantive part of the Constitution. The court examined the legislative history and significance of the Objectives Resolution, emphasizing its role as the “grund norm of Pakistan”. It was argued that the Objectives Resolution, now Article 2-A, places the law of Allah in an “overwhelming position”, making man-made law subordinate to it. The court also considered the functions of the Federal Shariat Court and the Council of Islamic Ideology in the Islamization of laws.

The High Court ultimately held that the President of Pakistan does not have the power to commute death sentences awarded in matters of Hudood, Qisas, and Diyat. The power of pardon in such cases only vests with the heirs of the deceased. However, the President does retain the power to pardon the offender in cases where punishment is by way of Tazir, and that too in public interest. The court asserted that Article 2-A is an “effective and operative part of the Constitution” that no court can refuse to enforce. Consequently, the High Courts shall exercise their jurisdiction with regard to all laws other than those to which the jurisdiction of the Federal Shariat Court extends, and may declare them repugnant to the Injunctions of Islam, as contained in Qur’an and Sunnah of the Holy Prophet (p.b.u.h.), and may also grant relief as called for in the circumstances of the case.

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