President's power: LHC declares CrPC Section 402-C unconstitutional

“Section 402-C CrPC insofar as it clogs that authority is ultra vires the Constitution and has no force,” reads verdict

By
Shahid Hussain
The Lahore High Court. — LHC/File
The Lahore High Court. — LHC/File 

  • Under Section 402-C, president does not have the power to reduce sentence.
  • "The government's hands are tied, it cannot provide relief," says prosecutor.
  • Govt can send appeal of Ali to president under Article 45, states court.


LAHORE: The Lahore High Court (LHC) on Tuesday declared Section 402-C of the Pakistan Criminal Procedure Code (CrPC) against the Constitution.

LHC’s Justice Tariq Saleem Sheikh issued the ruling on a petition filed by Mubarik Ali in a murder case filed against him. 

After finding him guilty, the court sentenced the petitioner to life imprisonment in 2006. 

The convict pleaded with the Punjab government to suspend his sentence on medical grounds but the authority concerned dismissed his request. The convict, later, moved the LHC against the dismissal of his plea.

“Section 402-C Cr.P.C. insofar as it clogs that authority is ultra vires the Constitution and has no force,” read the verdict.

Section 402-C of the CrPC stipulates that the provincial government, the federal government, or the president shall not, without the consent of the victim, or as the case may be of his heirs suspend remit or commute any sentence passed under any of the sections in Chapter XVI of the Pakistan Penal Code.

“The authority granted to the president by Article 45 of the Constitution is on a high pedestal. It is separate from the Code of Criminal Procedure, Writ Petition No. 27557/2021-16-1898, and is not subject to its syncopation or that of the other subsidiary statutory or executive provision,” the judgement added.  

The prosecutor said that under CrPC Section 402-C, the president or the government does not have the power to reduce or terminate the sentence of a person convicted without the will of the heir.

"As the government's hands are tied, it cannot provide relief," he said. The amicus curiae also noted the president cannot be stopped to exercise his powers under Article 45 due to the clause in Section 402-C.

The court then decided that the government can send the appeal of Ali to the president under Article 45.