2016 P Cr (PLP)

Through the instant, constitutional petition filed in terms of Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, read with Section 561-A, Cr.P.C. the petitioners have prayed for direction to respondent No.2 to make arrangements for their shifting from death cell to the ordinary prison where other convicts serving out sentence of life imprisonment have been locked up.

2. Facts of the case succinctly required for determination of the petition in hand are that having been booked in case FIR No.338, dated 23 May 1998, offence under sections 302, 324, 452, 460, 109, 148, 149, P.P.C., read with section 7 of the Anti-Terrorism Act, 1997, registered at Police Station Kunja, District Gujrat, the petitioners were tried by learned Judge, Anti-Terrorism, Gujranwala, who vide judgment dated 20.05.2000 convicted the petitioners and other accused under section 302 read with section 149, P.P.C., and sentenced each of them to death on six counts. Under section 460, P.P.C., the petitioners were sentenced to ten years R.I. each. They were also convicted under section 148, P.P.C., and each of them was sentenced to three years R.I. Under section 7 of the Anti-Terrorism Act, 1997, the petitioners were sentenced to death. Sentences recorded under sections 460, 148, P.P.C., were directed to run concurrently and benefit of section 382-B, Cr.P.C. was also extended in favour of the petitioners. The conviction and sentences recorded by the learned trial court were challenged before this Court through filing Crl. Appeal No.792/2000, whereas, the learned trial court forwarded Murder Reference No.460-T/2000 and vide judgment dated 13.09.2002, learned Division Bench of this Court converted the sentence of death inflicted upon the petitioners into imprisonment for life under section 302, P.P.C., with direction to pay compensation to the tune of Rs.1,00,000/- each to the legal heirs of deceased in terms of section 544-A, Cr.P.C. however, with regard to conviction and sentenced recorded under section 7 of the Anti-Terrorism Act, 1997, no specific order was passed. Relevant portion of the judgment reads as under:- "We, therefore, while upholding the orders of conviction on the six counts pertaining to the six murders and while taking all care, reduce the sentence on these counts from death to life imprisonment while also directing the appellants to pay compensation of Rs.1,00,000/- each to the legal heirs of the deceased in fulfillment of the requirement of section 544A, of the Cr.P.C. or in lieu thereof to suffer simple imprisonment for six months each. We, however, maintain rest of the order of the trial court pertaining to the convictions and sentences. Benefit under section 382-B of the Cr.P.C. is extended to the appellants. The criminal appeal bearing No.792/2000 as well as Murder Reference No.460-T/2000 are decided accordingly." The judgment of this Court was assailed by the petitioners before august Supreme Court of Pakistan through Crl. Appeal No.39/2005, and vide order dated 26.07.2010 the sentence recorded by this Court was upheld/maintained, however, it was directed that all the sentences would run concurrently. Even in the order passed by august Supreme Court of Pakistan conviction and sentence recorded by the learned trial court under section 7 of the Anti-Terrorism Act, 1997, was not taken into consideration and the same remained unattended. It is, however, pertinent to mention here that murder performas available on record disclose that while deciding the appeal by learned Division Bench of this Court the Murder Reference was answered IN NEGATIVE.

3. Learned counsel for the petitioners while addressing the Court contends that as far as conviction and sentence recorded under section 302, P.P.C., and other provisions of Pakistan Penal Code, is concerned, respondent No.2 is acting upon the order of august Supreme Court of Pakistan, however, by wrong interpretation of sentence relating to section 7 of the Anti-Terrorism Act, 1997, respondent No.2 has still locked the petitioners in the death cell. Learned counsel for the petitioners while drawing attention of the Court to the judgment dated 13.09.2000 passed by learned Division Bench of this Court in Crl. Appeal No.792/2000 and Murder Reference No.460-T/2000 contends that in that very judgment it stands mentioned that criminal appeal and murder reference are decided accordingly and as Murder Reference was answered IN NEGATIVE, therefore, it would be presumed that the sentence of death in all offences was converted into life imprisonment. Adds that even in the order dated 26.07.2012 handed down by august Supreme Court of Pakistan in Crl. Appeal 39/2005, no specific direction was passed with regard to conviction and sentence recorded under section 7 of the Anti-Terrorism Act, 1997. It is next argued that consequent upon judgment of learned Division Bench of this Court two co-convicts of the petitioners serving out their sentence at Adyala Jail, Rawalpindi, have been shifted from death cell to ordinary imprisonment, therefore, the petitioners are also entitled to the same relief and the act of respondent No.2 is discriminatory in violation of Article 25 of the Constitution of Islamic Republic of Pakistan, 1973. Learned counsel for the petitioners prays for indulgence of the Court in the circumstances.

4. Learned Assistant Advocate General after going through the record supports the prayer made by learned counsel for the petitioners.

5. We have heard the arguments advanced by learned counsel for the petitioners, as well as, learned Assistant Advocate General and gone through the record available on file.

6. There is no cavil to this proposition that after having been convicted by the learned Judge, Anti‑Terrorism Court, Gujranwala, the petitioners and other co-convicts challenged their conviction before this Court; wherein vide judgment dated 13.09.2000 passed in Crl. Appeal No.792/2000 nevertheless specific order was passed with regard to sentences recorded under the provisions of Pakistan Penal Code, however, there is no clarity in the judgment with regard to sentence recorded under section 7 of the Anti-Terrorism Act, 1997. Hence, in this backdrop it would be presumed that as this Court while deciding Crl. Appeal No.792/2000 and Murder Reference No.460-T/ 2000 had converted death sentence recorded under the provisions of Pakistan Penal Code, into imprisonment for life, therefore, the same shall be read in the case of offence under section 7 of the Anti-Terrorism Act, 1997, especially when it finds mention in the judgment that the criminal appeal and murder reference are decided accordingly and the fact that in the murder performa it stands clearly mentioned that Death Sentence is NOT CONFIRMED. Similarly, in Crl. Appeal No.39/2005, the august Supreme Court of Pakistan by virtue of order dated 26.07.2012 had only directed for running the sentence of life imprisonment on six counts concurrently and no specific order with regard to sentence recorded by learned trial court under section 7 of the Anti-Terrorism Act, 1997, was passed. Moreover, learned counsel for the petitioners had emphasized that two other co-convicts serving out their sentence at Adyala Jail, Rawalpindi, pursuant to judgment of learned Division Bench of this Court, were shifted from death cell to ordinary imprisonment. When co-convicts of the petitioners at Adyala Jail, Rawalpindi, by virtue of judgment of learned Division Bench of this Court have already been shifted from death cell, we are of the considered view that the act of respondent No.2 is in violation to explicit provisions of Article 25 of the Constitution of Islamic Republic of Pakistan, 1973, which reads as under:- "

25. Equality of citizens. (1) All citizens are equal before law and are entitled to equal protection of law." The concept embodied in Article 25 of the Constitution is analogous to Article 7 of the Universal Declaration of Human Rights which stipulates that "all persons are equal before the law and are entitled without any discrimination to the equal protection of law". Article 20 of the Covenant of Human Rights, 1950 conveys the same message and this right is also reflected in fourteenth Amendment in United States Constitution and Article 14 of the Indian Constitution.

7. Moreover, concept of equal protection of law envisages that a person or class of persons should not be denied the rights, which are enjoyed by other persons in the same situation. Respectful reliance in this regard is placed on the ratio decidendi of august Supreme Court of Pakistan in the case of Miss Shazia Batool v. Government of Balochistan and others (2007 SCMR 410).

8. For the foregoing reasons the instant petition is allowed as a consequence whereof respondent No.2 is directed to shift both the petitioners from death cell to ordinary prisons where other convicts serving out life imprisonment have been locked up, to serve out their remaining sentence. ZC/M-91/L Petition accepted.