President Power to Grant Pardon and Its Place in Islam and in Criminal Law
By Riyan Ahmed Dahar
Introduction: The power to grant pardon, remission etc. it is an executive power and Article 45 of the Constitution expressly recognizes it. The pardoning power is founded on consideration of the public good and is to be exercised on the grounds of public welfare. Acts of leniency by pardon are administered by the executive branch of the government in the interest of society and the discipline, education and reformation of the person convicted. A pardon is granted on the theory that the convict has seen the error of his ways, the society will gain nothing by his further confinement and then he will conduct himself in the future as an upright, the law abiding citizen. The head of the state is vested with similar powers in almost all constitutions of world as provided in Article 45 of the constitution of Pakistan 1973.
Article 45 of the constitution of Pakistan: The president shall have power to grant pardon, reprieve and respite, and to remit, suspend or commute any sentence passed by any court, tribunal or other authority. Under article 45 of the constitution of Islamic republic of Pakistan, the President enjoys unfettered powers to grant remissions in respect of offences and no clog stipulated in a piece of subordinate legislation can abridge this power of the President as held by supreme court of Pakistan in Abdul Malik and others V. The State and others (PLD 2006 supreme court 365);.The exercise of the discretion by the President under Article 45 is to meet at the highest level the requirements of justice and clemency, to afford relief against undue harshness, or serious mistake or miscarriage in the judicial process.
It’s Place in Islam & Criminal Law:- Islam also permits the head of state to grant pardon and remission in some cases but not at all, in Qisas and Hadd punishments, only the victim or as the case may be his legal heirs (wali) can grant pardon or remission to accused. Pakistan being an Islamic state is bound to follow the injunctions of Islam as it is mentioned in the preamble of the constitution of Pakistan 1973 that sovereignty over the entire universe belongs to Almighty Allah alone and the authority to be exercised by the people of Pakistan within the limits prescribed by Him is a sacred trust. With regard to Qisas and Hadd which is the right of the individual under God’s Law for that purpose only the victim and as the case may be his legal heirs can grant pardon to accused. The state as it is represented by the president, the president has and continues to have in respect of Tazir Punishment the right of commutation, remission etc. No question of pardon arises if punishment of Qisas has been awarded. However in respect of Tazir, the president continues to enjoy the power to grant pardon.
Provisions in Criminal law & Procedure: Section 55-A of the Pakistan Penal Code and section 401, 402, 402A or Section 402B of Criminal Procedure Code provides that the president, the provincial government and the federal government shall not, without the consent of the victim or as the case may be, his heirs, remit or commute any sentence passed under any sections in Chapter XVI of the Pakistan penal code. In sakina Begum v/s Federation 1 Lahore high court considered the question whether Article 45 of the constitution applied also to cases in which the sentence had been awarded as Hadd or Qisas? It was held that it did not, and that Article 45 was, extent that it conferred the power to grant pardon, reprieve etc. in Hadd cases repugnant to the injunctions of Islam and therefore declared void. No question of pardon arises if punishment of Qisas has been awarded. Article 45 does notapply to Hadd and Qisas punishments. In Hadd and Qisas cases as offender cannot be granted pardon and be allowed to be an approver without the permission of victim or the legal heirs. Even otherwise under the Criminal Law (Amendment) Act 1991 Sections 337 and 338 of the code of criminal procedure, 1998 have been amended since and now by law no offender can be pardoned in hurt and murder cases without the permission of the victim or the legal heirs as the case may be. The power to grant pardon in Qisas and on the cases of Hadd it is un-Islamic and also against dispensation of justice. Article 227 of the constitution of Pakistan 1973 provides that no law in the county shall be made against the Islamic principles. It means any act or law which is inconsistent to Islamic principles shall be considered as null & void. Pakistan being an Islamic state allows Islamic principles to prevail over any law even on constitution. In short the president of Pakistan has no power to commute the death sentences awarded in matters of Hudood, Qisas and Diyat, power of pardon in such cases only vested with the heirs of the deceased, President, however has the power to pardon the offender and that too in public interest if the accused has been punished by way of Tazir. Under the administration of Criminal Justice, as envisaged by Islam it is only legal heirs (walis) of the deceased who can waive their right of Qisas and no the Head of the State.
About Author:- My name is Riyan Ahmed Dahar I am student of government Sindh Law College Hyderabad pursuing my law degree from aforesaid institution and now I am in 4 th year of my bachelor’s degree LLB (Hons).
[^1]: PLD 1992 Lah. 99.