“TITLE”

HAKIM KHAN VERSUS GOVERNMENT

1
OF PAKISTAN

Compendium

 Chapter 1
 Introduction
 Facts and Figures
 Juristic point
 Relevant Articles
 Chapter 2
 Illustration & Juristic Views of Case
 Chapter 3
 Judgment & Exception To Judgment
 Conclusion

1
(PLD 1992, sec 595)
Introduction:
On 7th or 8th December, 1988, very soon after mohtarma Benazir Bhutto assumed the office of
Prime Minister, the President of Pakistan, acting on the advice of the Prime minister issued
the following order(hereinafter referred to as the “commutation order”) in purported
exercise of the powers vested in him, under article 45 of the constitution:

 To commute all death sentences awarded by the military or other courts

up to the 6th of December, to imprisonment for life.
 To grant pardon to all women prisoners except those convicted for
murder who are undergoing imprisonment under sentences awarded by
the military or the other courts;
 To remit the sentences of all persons who have been convicted and
sentenced under MLR 31 in absentia; such person will, however, have to
face trial for the substantive offences for which they may be charged.
 To remit the sentences of convicts who are above 6o years of age and
have under gone Imprisonment for 5 years or more under sentences
awarded by the military or other courts;
 To remit the sentences of all persons other then the members of the
Armed Forces convicted and sentenced by military courts for offences
not involving Drugs,smuggling, corruption, Embezzlement, bank fraud,
Robbery, dacoity, Murder, Rape or unnatural offence;
 The cases of the members of the Armed Forces will be reviewed by the
competent authorities of the armed forces;
 To grant remissions from the dates of their imprisonments, to all persons
convicted and sentenced by military courts to whom remission have so
far been denied;
 To direct that in computing the total period of imprisonment to be under
gone by prisoners convicted and sentenced by Military courts, the period
served as under-trial prisoners be included.”
 Because of the commutation order Hakim khan and 3others filed a case
against government of Pakistan. (civil appeal number 28 of 1992)
  PARTIES
 Plaintiff: Hakim Khan
 Defendant: Government of Pakistan

Facts and Figures:

Hakim Khan filed a case against the Government of Pakistan. In 1988 commutation order was
given by the President of Pakistan. In this order president commuted all death sentences
given by military courts in the era of general Zia-ul-Haq. And this commutation order was
against the article 2A of the constitution of Pakistan. Because article 2A stated that only Allah
is the supreme authority to pardon or commute death sentences. while article 45 stated that
the president of Pakistan has the right to pardon, alter and commute sentences. Hakim khan
said that there is a conflict between article 2A and 45 of constitution.

Juristic point:
The point raised by Hakim khan was that according to article 2A of the constitution of
Pakistan, only Allah almighty is the supreme authority. Whereas article 45 is giving authority
to the President of Pakistan to pardon, reprieve, respite, remit, suspend or commute the
sentences awarded to the offender’s whether by military courts or civil courts. He also
discussed the status of article 2A, as before it was the preamble of constitution of Pakistan
afterwards it became the part of constitution. The main point of this case was that what the
status of article 2A is. Is it the preamble of constitution of Pakistan? Or is it the supra part of
the constitution? Or is it overriding other articles especially article 45? Now the 2nd question
is that this point raised by Hakim khan had some validity or not? Is article 45 completely
ineffective?

Relevant Articles of 1973 Constitution

1. Article 2A of the constitution of Pakistan
2. Article 45 of the constitution of Pakistan
3. Article 239 of the constitution of Pakistan
4. Article 268 of the constitution of Pakistan
5. Article 270 of the constitution of Pakistan

ARTICLE 2A:
“The principles and provisions set out in the objectives resolution reproduced in the annex1
are hereby made substantive part of the constitution and shall have effect accordingly”

ARTICLE 45:
“The president shall have power to grant pardon, reprieve, respite, and to remit, suspend or
commute any sentence passed by any court tribunal or other authority.”

ARTICLE 239(5),(6):
(5) “No amendment of the constitution shall be called in question in any court on any ground
whatsoever.”

(6). “For the removal of doubt, it is here by declared that there is no limitation on the power
of the majlis-e-shoora (parliament) to amend any of the provisions of the constitution.”

ARTICLE 268:
“Except as provided by this Article, all existing laws shall, subject to the Constitution, continue
in force, so far as applicable and with the necessary adaptations, until altered, repealed or
amended by the appropriate Legislature.”

ARTICLE 270:
“It equalize all the articles of the constitution, as regards their existence and enforceability
and insists that they all being valid will co-exist with each other but with their own weight
and importance.”

Illustration & Explanation

Constitution has to be read as a whole. Court is bound to have recourse to whole instrument
in order to ascertain the true intent and meaning of any particular provision, where any
apparent repugnancy appears to exist between its different provisions, the court has to
harmonies them, if possible.

All three limbs of the state namely Executive, Legislature, Judiciary in Islamic polity can
exercise the delegated functions of the sovereignty within their respective spheres and the
reference in the Quran to the obedience of (ullu-ul-alamar minkum) is equally applicable to
members of judiciary .If the court considered that the existing provisions of the constitution
contravened the injunction of Islam in some respects it should have brought transgression to
the notice of the parliament which alone was competent to amend the constitution. And
could initiate remedial legislation to bring the impugned provision in conformity with the
injunction of Islam .

Juristic Views of The Case

The President of Pakistan had no such power to commute the death sentence awarded in
matters of Hudood, Qisas and Diyat Ordinance. In this view of the matter the power of
pardon in such cases only vests with the heirs of the deceased. Therefore, the cases in which
death sentences have been awarded, the President had no power to commute, remit or
pardon such sentences.

However, the cases would be on different footings, if a person has been punished by way of
Tazir as in such cases, the Head of the State has the power to pardon the offender and that
too in public interest. In the present case the president had commuted the sentences of
death to imprisonment for life which were imposed not as Qisas but as Tazir Ordinance.
Therefore, there was no occasion per the formulation to annual the President’s Order.

Article 2A- --if any article of the constitution is in conflict with article 2A, the appropriate
procedure is to have it amended in accordance with the prescribed provision of the
constitution for the purpose. If any article of the constitution is in conflict with article 2A the
appropriate procedure is to have it amended in accordance with the prescribed provision for
the purpose. However, it does not absolve the courts of their duty to give effects to the
provisions of article 2A as it has been made “substantive part of the constitution.” A
constitution is an organic whole. All its articles have to be interpreted in a manner that its
sole or spirit is given effect to by harmonizing various provisions.

Helding & Judgment

It was held that the president of Pakistan has no such power to commute death sentence
awarded in matters of hudood ,qisas and diyat ordinance. The power of pardon in such cases
only vest with the heirs of the deceased. Therefore the cases in which death sentences have
been awarded the president has no power to commute, remit or pardon such sentences.

Exception to Judgment
However the cases would be on different footings ,if a person has been punished by way of
Tazir as in such cases , the head of the state has the power to pardon the offender and that
too in public interests.
Conclusion
 From the above case it can be concluded that The power of president under article 45
cannot override the effect of Art 2A and the conditions mentioned like Tazir.
 While the interpreters of constitution have to clarify the status of every article of
constitution and their overriding effects on related articles so no one would use it for
their instances in future.
 While at the same time the Article of High treason must be interlinked with whole
constitution and legislature must adopt precautionary measures with respect to the
supremacy of constitution.