1999 P Cr (PLP)

RAJA FAYYAZ AHMED, J.

The following relief has been prayed in the instant Constitutional petition:‑‑ "It is accordingly respectfully prayed that direction may kindly be given to the respondents for counting of the remission awarded to the other convicts during this period and any other relief as may deem fit and appropriate in the circumstances of the case may also be awarded in the interest of justice. "

2. The precise facts of the case relevant for the disposal of the instant petition are that on 28‑11‑1996 two separate cases were registered against the petitioner on the report of Adam Khan Levies Hawaldar Gandhawa with the levies Thana Mirpur Jhal Magsi under section 13‑B of the Arms Ordinance and under section 324/337, P.P.C. It has been alleged in the report that on the aforementioned date at about 9‑00 p.m. the informant alongwith the Assistant Commissioner and the other levies personnels were on their way to Mouza Makhan while the petitioner was going on a bullock‑cart armed with kalashnikove who opened fire on the Government vehicle, as a result whereof Levies Hawaldar Muhammad Ramzan and Sepoy Dhani Bakhsh sustained injuries, whereas; Ghulam Haider and Mir Hasan received minor injuries, and a klashnikove with two magazines recovered from the possession of the petitioner. The accused‑petitioner was tried by the learned Special Judge (S.T.A.) Court Jaffarabad at Dera Allah Yar, separately for the aforementioned offences. On the basis of compromise the petitioner was acquitted of the charge under section 324/337, P.P.C. by the learned (S.T.A.) Court Jaffarabad at Dera Allah Yar. Whereas; on trial for the offence under section 13‑B of the Pakistan Arms Ordinance, 1965 (Arms Case No.34 of 1997) the petitioner was convicted and sentenced to five years' R.I. with a fine of Rs. 5,000 and in default of payment of fine to further suffer imprisonment for a period of three months, with benefit of section 382‑B, Cr.P.C. extended to the petitioner vide judgment, dated 6‑2‑1998, assailed in Appeal No.57 of 1998 before this Court, and finally by means of judgment passed by this Court on 1‑4‑1998 by maintaining the conviction of the petitioner the appeal was dismissed, however; the sentence of imprisonment awarded by the learned trial Court was reduced to three years' R.I. with a fine of Rs.3,000 and in default of payment of fine to further suffer two months imprisonment with benefit of section 382‑B, Cr.P.C. already extended to the appellant/petitioner.

3. It is the case of the petitioner that with effect from 28‑11‑1996 he is in custody and from time to time remissions have been granted to the convicts by the Government but such benefits have been denied to him, despite being entitled to the remissions, and; such request was also reitereated by means of legal notice sent to the respondent No.2 i.e. Superintendent Central Jail, Machh. The notice was responded in the terms that the matter has been referred to the Law Department, Government of Balochistan for legal opinion, which; if expressed in affirmative, the remissions allowed so far would be countable. The petitioner has claimed that he is entitled to earn the remissions granted by the Government and President of Pakistan because he is not under going imprisonment for any act of terrorism rather; is undergoing sentence only for having been found in possession of klashnikove.

4. The learned counsel for the petitioner Mr. Kamran Murtaza and Mr. Noor Muhammad Achakzai, the learned Additional Advocate‑General have been heard at length. Mr. Kamran Murtaza contended that the remissions have been denied to the petitioner mainly‑on the ground that the petitioner was convicted on a trial held by the Special Judge (S.T.A.) Court irrespective of the nature offence. According to the learned counsel, the petitioner is undergoing sentence of imprisonment only for the offence under section 13‑B of the Pakistan Arms Ordinance, 1965 and not for any act of terrorism, therefore, the petitioner is entitled to the permissible remissions but such entitlement has been denied to him, with the result that for no legal justification the petitioner remains confined in jail.

5. The learned Additional Advocate‑General with reference to the Parawise comments filed by the respondent No.2 contended that remissions have not been allowed to the petitioner because he was convicted by the Special Judge (S.T.A.) Court, specially constituted for the trial of heinous offences i.e. acts of sabotage, subversion and terrorism. The learned Additional Advocate‑General, however on Court question submitted that an act of being found in possession of a revolver/pistol, gun or klashnikove simpliciter will not amount to an act of "terrorism" hence the petitioner would be entitled to earn the remissions as may have been granted by the Government and; that specially allowed by the President of Pakistan on Pakistan Day, 1998 and Eid‑ul‑Fiter.

6. We, have considered the contentions put forth on behalf of the parties in the light of the record of the case and the special remissions granted by the President of Pakistan, in exercise of the powers conferred upon him under Article 45 of the Constitution of Islamic Republic of Pakistan. Perusal of the available record reveals that some remissions have been counted in favour of the petitioner, emanating from the letter, dated 17‑4‑1998 issued by the respondent No.2 addressed to the learned counsel for the petitioner, in response to his legal notice, dated 16‑4‑1998. Particulars of remissions allowed in favour of the petitioner as contained in the above quoted reply are given below:‑‑ (i) Government remission. 90 days. (ii) Golden Jubilee remission. 216 days. (iii) Ordinary remission. 35 days. . From the above table of remissions calculated in favour of the petitioner, it transpires that remission granted by the Government from time to time has been allowed in favour of the petitioner, who as such; has no grievance in respect thereto.

7. Parawise comments filed by the respondent No.2 i.e. Superintendent Central Jail, Machh in this Court with reference to the Presidential remissions reveal that such benefit has been denied to the petitioner because he has been convicted and sentenced by the Special Judge, S.T.A. Court. The operating para of the comments for convenience and reference is reproduced below:‑‑ "According to the above conditional remissions those convicts who are sentenced by the Special Court S.T.A. are not eligible the above special remissions." In the above context it would be appropriate to note that the President of Pakistan granted Special remission on the eve of Eid‑ul‑Fitr and Pakistan Day, 1998 to the prisoners subject to the specific conditions mentioned therein, and; such special remissions have not been allowed to the petitioner as he has been sentenced to by the Special Judge, S.T.A. Court.

8. Before dilating upon the question of entitlement of the petitioner to the Presidential (special) remissions, it would be appropriate to reproduce the same hereinbelow for convenience, as contained in the wireless message sent by the I‑G. Prisons, Balochistan to the respondent No.2, dated 4‑2‑1998 and in the letter, dated 30‑3‑1998 of the Government of Balochistan Home and Tribal Affairs Department (Prisons Department) addressed to I‑G. Prisons, Balochistan respectively. "Special Presidential remission on the eve of Eid‑ul‑Fitr, 1998. In exercise of the powers under Article 45 of the Constitution, the President is pleased to grant special remission to the prisoners on the occasion of Eid‑ul‑Fitr: (a) Special remission of three months to all prisoners. (b) Total remission to male prisoners who are of 70 years of age and above and have undergone imprisonment for 10 years and above. (c) Total remission to female prisoners who are 65 years of age and above and have undergone 10 years and above. (d) Additional remission of three months to female convicts who are not covered under categories ' B' and ' C' above. (e) Remission of one year to female prisoners serving sentence for crimes excepting culpable homiside who have infant children. (2) The above special remission will not be admissible to condemned prisoners and to those convicted of Espionage, Subversion, Anti‑State Activities, Gangrape, Terrorism and under Foreigners Act, 1946." "Special Presidential remission to the convicts on Pakistan Day, 1998 The President of Pakistan, in exercise of the powers under Article 45 of the Constitution, has been pleased to grant remission in the sentences on the occasion of Pakistan Day, 1998 as under:‑‑ (i) Special remission of two months to all prisoners. (ii) Total remission to male prisoners who are of 70 years of age and above and have undergone imprisonment for 10 years and above. (iii) Total remission to female prisoners who are 65, years of age and above and have undergone imprisonment for 10 years and above. (iv) Additional remission of three months to female convicts who are not covered under category (iii) above. (v) Remission of one year to female prisoners who have infant children and are serving sentences for crimes other than culpable homicide. (2) The above special remission will not be admissible to condemned prisoners and to those convicted of Espionage, Subversion, Anti‑State Activities, Gangrape, Terrorism and under Foreigners Act, 1946."

9. Plain reading of the Special Remissions allowed by the President of Pakistan to convicts undergoing imprisonment, on the eve of Eid‑ul‑Fitr and Pakistan Day, 1998 provide that a prisoner shall be entitled to earn the remission specified in the Presidential Order if his case falls under any of the categories specified in the remission order, who shall not be so entitled if he/she is a condemned prisoner nor shall such remission be admissible to any prisoner who has been convicted for an act of Espionage, Subversion, Anti‑State Activities, Gangrape, Terrorism and under Foreigners Act, 1946. Meaning thereby that a prisoner convicted for any of the abovenoted Act by a Court of law shall not be entitled to earn the remission specified in the Presidential Special Remission Order mentioned hereinfore. Such remission order does not debar a prisoner to earn the benefit of remission, who has been convicted for an act constituting an offence, not falling under any of the specified Acts i.e. condemned prisoner, Espionage, Subversion, Anti‑State Activities, Gang‑rape, Terrorism and for an offence under the Foreigner Act, 1946 irrespective of the fact, whether such conviction has been recorded by a Special Judge (S.T.A.) Court or by any other competent Court of law; provided that the case of a prisoner undergoing imprisonment falls under any of the categories specified in the remission order.

10. It may be seen that the offences specified in the schedule to the Suppression of Terrorist Activities (Special Courts) Act, 1975 (Act XV of 1975) are exclusively triable by a Special Court but some of the specified offences as per schedule to the Act do not fall under either of the acts of Espionage, Subversion, Anti‑State Activities, Gang‑rape, Terrorism or an act punishable under the Foreigners Act, 1946 as such; an accused convicted for an offence by the Special Court constituted under Act, XV of 1975 for an offence other than those specified in the Presidential order hereinfore mentioned, shall be entitled to the specified remission in his sentence period.

11. For instance there may be a number of cases where an accused committed multiple murders or murder in the course of same transaction, in which an offence specified in paragraphs (b) and (c) schedule to Act XV of 1975 has no application or an offence committed, which is gruesome in nature or amounts to an act of terrorism but being not a scheduled offence, the accused tried and convicted by a Court other than the Special Court, would not be entitled to earn the remission, simply because of his having not been convicted by a Special Court, irrespective of his having been found guilty for an act of terrorism. Therefore, with all wisdom the concession of remission has not been extended to the convicts i.e. condemned prisoners or to those undergoing imprisonment for an offence of Espionage, Subversion, Anti‑State Activities, Gang‑rape, Terrorism or for an offence under the Foreigners Act, 1946 and but the convicts other than the condemned prisoners, undergoing imprisonment for any other offence whether convicted by a Special Court constituted under Act XV of 1975 or by some other competent Court of law, shall be entitled to earn the benefit of the remission order. As the respondent No.2 has refused to extend the benefit of Presidential remissions referred to above, to the petitioner solely on the ground of his having been sentenced to by the. Special Court, therefore, the denial of the benefit for such reason alone, to the petitioner is not susceptible to the remission granting orders. Thus, we are of the considered view that remissions granted by the President of Pakistan on the eve of Eid‑ul‑Fiter and Pakistan Day, 1998 extends to the convicts, other than the condemned pfisoners undergoing imprisonment, irrespective of the fact whether the sentence has been passed by a Special Court constituted under Act XV of 1975 or by any other competent Court of law; subject to the qualifications and conditions specified in the Presidential Special remission order. 11‑A. Admittedly, special remissions granted to the prisoners under the above‑quoted Presidential Orders are not admissible to a convict who has been found guilty for an act of Espionage, Subversion, Gang‑rape, Terrorism or is guilty of an offence under the Foreigners Act, 1946 and to a condemned prisoner

12. The use of the words in the Presidential Special Remission Orders, 1998 'to grant special remission to the prisoners' are not without any significance. The import and extent of the above noted sentence in the 'Orders' is manifest of object and admissibility of the remissions being extendable only to the prisoners who at the time of grant of such remissions were already undergoing sentence of imprisonment on having been found guilty by a Court of law for an offence, other than those specified in the Presidential Orders and a condemned prisoner. Thus, a convict undergoing sentence of imprisonment for an offence of Espionage, Subversion, Anti‑State Activities, Gang‑rape, Terrorism or for any of the offence under the Foreigners Act, 1946 or condemned prisoners would not be entitled to avail the concession of remissions in terms of the Presidential Orders.

13. Adverting to the case of the petitioner, it may be noted that he was charged for the offence under section 324/334, P.P.C. for having resorted to firing on the Government vehicle with a klashnikove (recovered from his possession) as a result whereof occupants of vehicle namely Muhammad Ramzan Levies Hawaldar and Dhani Bakhsh Levies Sepoy sustained injuries, however; during the course of trial of the offence against the accused/petitioner, the matter was compromised between the parties, as a consequence whereof the petitioner was acquitted of the charge, as such; it is to be seen only as to whether the petitioner is undergoing imprisonment for an act of 'Terrorism' or otherwise in order to determine about the admissibility of the remissions to the petitioner. Undoubtedly, the petitioner has been sentenced to imprisonment on having been found guilty for an offence under section 13‑B of the Pakistan Arms Ordinance, 1965 on account of having been found in possession of an unlicensed klashnikove with two magazine thereof. Mere possession of the fire‑arm without licence for which offence the petitioner has been sentenced to imprisonment, in absence of any other evidence, suggesting such retention of fire‑arm amounting to a Terrorist act or 'Terrorism' would not be enough per se to deprive the petitioner from the benefit of Presidential Special Remissions, made admissible to a prisoner provided that the case of the prisoner does not fall within any of the specified categories of prisoners debarred to earn the benefit of remissions mentioned in the above referred orders.

14. Thus, for the foregoing reasons, the objected decision/conclusion taken by the respondent No.2 finding the petitioner to be not entitled to the remission in his period of imprisonment on account of having been convicted and sentenced to by the Special Court is set aside and declared to be of no legal effect. It is further declared that the petitioner is entitled to earn the benefit of Presidential Special Remissions granted on the eve of Eid‑ul‑Fitr and Pakistan Day, 1998. Order accordingly. N.H.Q./722/Q Petition accepted.