ISLAMABAD, Feb 5: A PPP leader and constitutional expert has questioned President General Pervez Musharraf's power to pardon Dr Abdul Qadeer Khan, saying that powers to pardon an accused are only available to the Head of the State when a sentence has been passed by any court, tribunal or other authority.
"The Article 45 of the Constitution comes into effect only after a court has convicted a man," senior PPP leader and constitutional expert barrister Aitzaz Ahsan said.
He said the language of the Article was very clear which read as: "The President shall have power to grant pardon, reprieve and respite, and to remit, suspend or commute any sentence passed by any court, tribunal and other authority."
Mr Ahsan said the president had no powers to grant pardon to an accused who had not been tried by any court of the country. He said that by making confession Dr Khan had made himself liable to be tried but could not be pardoned as no sentence had been passed by any court, tribunal or authority against him.
Mr Ahsan said the only provision for pre-trial pardon related to an approver on the condition that he would make a statement against his co-accused. "This obviously is not the manner in which the present pardon has been granted as it appears to be unconditional."
Mr Ahsan said the plea bargaining process introduced under the National Accountability Ordinance was not applicable to the present case.
"A person who enters into a plea bargain is deemed to have been convicted, under Section 15 of NAB. Therefore, there is no law or precedent for the pre-trial pardon," Mr Ahsan said.
A government official, however, said that the President had the powers but said there was no precedent.
The official, who chose anonymity, said that if Article 45 is read in two parts, then it becomes clear that the president has the powers to grant pardon before prosecution starts.
The official referred to the Article 72 of the Indian Constitution which empowers the Indian president to grant pardon to an accused before the start of proceedings.
Similarly, he said, the Unites States Constitution also empowered the president under Clause 2 to grant pardon to an accused, and said that President Ford had granted similar pardon to Richard Nixon and Senior George Bush had pardoned his defence secretary in Iran-Contra affair.