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).