ISLAMABAD, May 6 The Supreme Court rejected on Wednesday an appeal by the federal government challenging a 1991 ruling of the Federal Shariat Court which declared as un-Islamic the president's as well as the provincial government's discretion to remit, suspend or commute sentences, including death, in cases relating to Hadood laws.
The decision was taken by the Shariat Appellate Bench of the Supreme Court on an appeal moved by the federal government against the Dec 1991 judgment of the FSC, which had exercised its powers to review whether existing laws conform to Sharia or not.
The bench comprised Justice M. Javed Buttar, Justice Mohammad Farrukh Mahmud, Justice Mahmood Akhtar Shahid Siddiqui, Justice Dr Allama Khalid Mahmud and Justice Dr Rashid Ahmed Jullundhri.
Advocate Habib Wahabul Khairi, who came into prominence after the 1996 judges case and had originally moved the petition before the FSC, told Dawn that the appeal had been dismissed on non-prosecution by the federal government.
Mr Khairi had also challenged the FSC verdict relating to sections 494, 495 and 10(4) of the Pakistan Criminal Law, saying the FSC had partially accepted his contentions.
Authored by FSC Chief Justice Dr Tanzil-ur-Rehman, the 1991 judgment had held sections 401, 402, 402(A) and 402(B) dealing with the president as well as the provincial government authority to suspend, remit or commute sentences repugnant to injunctions of Islam and directed the federal and provincial governments to suitably amend the sections by clarifying that such power should be exercised only if the offences related to Haquq Allah (duty towards Allah) and that too in the public interest.
It said that in case no amendments were made to bring these sections in conformity with Islamic injunctions as laid down in the Holy Quran and Sunnah, these would cease to be effective from Jan 1, 1992.
There was a restriction on the power of the head of an Islamic state regarding commutation of death sentence if it had been awarded under the law of Qisas (eye for an eye), Diyat (blood money) and the punishment of death, the judgment observed.
It said “Such power, however, vests in the hands of the heirs of the deceased or the victim who suffered bodily injuries. The power of the president to grant pardon, reprieves, remit, suspend or commute any sentence passed by the court, is exercisable by the president in the light of Sharia in matters relating to Tazir. The president has no power in the matter of Hadd or Qisas.”
In response to the ruling, the federal government had moved an appeal pleading that the FSC verdict was liable to be set aside since these sections declared to be against Islam were already in conformity with the injunctions of the religion. Therefore, there is no need of removing these provisions from the Statute Books, the appeal contended.
In its judgment, the FSC had also held that sections 494, 495 and section 10(4) of the Pakistan Criminal Law were repugnant to Islam to the extent that these did not make any exception, as to the government's power to withdraw the prosecution of a person who was tried in an offence liable to Hadd or Qisas.
The Shariat Appellate Bench adjourned for a week the hearing of a petition filed by Mr Khairi against the FSC decision relating to sections 494, 495 and 10(4) of the Pakistan Criminal Law and asked him to prepare his case thoroughly.
