HAKEEM KHAN CASE

 

HAKIM KHAN VS GOVERNMENT OF PAKISTAN

PLD 1992 S.C. 595

 

Parties:

Plaintiff: Hakim Khan

Defendant: Government Of Pakistan

 

Facts & 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, the President commuted all death sentences given by military courts in the era of General Zia-ul-Haq. This commutation was challenged by Hakim Khan, on the basis of article 2A of the constitution, in the Supreme Court. According to Hakim Khan, article 2A stated that only Allah has the supreme authority to grant pardon or commute death sentence, while article 45 of the constitution empowers the President to grant pardon, alter or commute sentences. So there is a conflict between article 2A and 45 of the constitution.

 

Question Of Law:

The main point of this case was that what the status of article 2A is ls 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

 

 

 

Observations Of Court:

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.

 

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.