2001 PLP 2858 (YLR)

Ch. Muhammad Jahangir Wahla, A. A. G, Through this writ petition, the petitioners seek setting aside of order of Government of Punjab, dated 16‑6‑1991 by which the sentence passed to respondent No. l was remitted and his fine was also remitted under section 401, Cr.P.C.

2. Brief facts of the case are that the occurrence took place on 10‑9‑1988 at 2‑15 p.m. within the area of Police Station, Civil Lines, Gujrat in which Israr‑ul‑Haq nephew of the petitioner No. 3 was murdered by respondent No. 1, who was armed with pistol near Faisal Market, G.T. Road, Gujrat. Case under section 302, P.P.C. was registered against the respondent and after the investigation challan was submitted in the trial Court. Accused/respondent was tried by the learned Sessions Judge, who vide his order, dated 20‑4‑1989 convicted respondent. No. 1 under section 302, P.P.C. and sentenced him to imprisonment for life with a fine of Rs. 2,000 or in default whereof to further undergo R.I. for 2 years. The respondent was further directed to deposit Rs. 10,000 to be paid to the legal heirs of the deceased as compensation failing which he was ordered to undergo further R.I. for six months. Respondent No. l filed appeal against the judgment passed by the learned Sessions Judge in this Court, bearing No. 401 of 1989. Petitioner also filed a Revision Petition, bearing Criminal Revision No. 7 of 1990 in this Court for enhancement of sentence. Both the appeal and revision were heard together. Vide judgment dated 13‑11‑1990 the appeal was partly accepted and the sentence of life was reduced to 7 years' R.I. under section 304(11), P.P.C. The amount of fine was, however, maintained. Benefit of section 382‑B, Cr.P.C. was also given to the accused/respondent No.

1. Feeling aggrieved of the judgment passed by this Court, the petitioner filed a Cr. P.S.L.A. bearing No. 181/L of 1991 in the Hon'ble Supreme Court of Pakistan, which is still pending and was nut fixed for hearing. Notices to the respondents and Advocate‑General were issued. Mst. Wazeer Begum, respondent No. 2 submitted an application to the Chief Minister, Punjab for remission of the remaining sentence of her son Tariq Naveed respondent No. 1 whereupon the respondent No. 3 under the influence of local M.N.A. and M.P.A. remitted sentence of the respondent No. 1 and directed his immediate release from jail vide his order, dated 19‑6‑1991. Subsequently the respondent No.1 was released from jail. Hence this writ petition.

3. Learned counsel for the petitioner contends that the impugned order passed by respondent No. 3 is without lawful authority and is liable to be quashed on the ground that section 402, Cr.P.C. does not give powers to the Government to remit the sentence as section 402(c), Cr.P.C. provides 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 legal heirs, suspend, remit or commute any sentence passed. He further contends that the order passed is without obtaining consent of the legal heirs of the deceased, without lawful authority and is liable to be set aside. He further contends that the order has been passed under the political pressure by the respondent No. 3, without following procedure and while ignoring the factum of filing of Cr.P.S.L.A. in the Hon'ble Supreme Court. He further contends that respondent No. 1 had committed cold -blooded murder of Israr‑ul‑Haq in the broad daylight at G.T. Road, Gujrat. The deceased was a young boy and there was no reason for showing any mercy to respondent No.

1. The respondent No. 1 had acted in a brutal manner. Hence the order of the Government is without any lawful authority.

4. On the other hand learned counsel for respondent No. 2 Mr. S.M. Masood, opposed this writ petition on the grounds that the offence was committed in 1988 and the amendment came in July, 1991, hence the amendment will not apply in section 402, Cr.P.C. and the order has been passed with lawful authority by the then Chief Minister of the Province. It cannot be set aside in writ jurisdiction and order cannot be said to be without lawful authority. He further contends that there is no ground urged for setting aside of the impugned order. It is further contended that the respondent No. 1 has already served sentence and sending in jail to him will not be in the interest of justice and fair play. He also contends that the pendency of the criminal appeal before the Hon'ble Supreme Court is not a bar in the exercise of powers by the Chief Minister. Hence the writ petition merits dismissal.

5. I have heard learned counsel for the parties and perused the record. The amendment came into force on 27‑4‑1991 prohibiting the remission of sentence without permission of the heirs of the victim. Section 402(c), Cr.P.C. does not give power to Provincial Government, Federal Government o; the President to remit or suspend the sentence under sections 401, 402 and 402‑B, Cr.P.C. without consent of the victim or as the case may be, heirs, passed under any section of Chapter 16 of the P.P.C. Section 402(c), Cr.P.C. is reproduced as under:‑‑‑ "402‑C. Remission or commutation of certain sentences not to be without consent.‑‑‑Notwithstanding anything contained in section 401, section 402, section 402‑A or section 402‑B, 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 P.P.C."

6. It seems that the impugned order has been passed by the respondent No.1 under some political pressure and the procedure has not been adopted. Had the report been obtained from the concerned authorities, the impugned order might not have been passed. Moreover, the respondent No. 1 was tried by the learned trial Judge and was convicted and sentenced being guilty. Evidence of the witnesses was recorded and arguments of both the sides were heard. After due weightment of the evidence produced in the case, the accused/respondent was held guilty for the murder of Israr‑ul‑Haq. Appeal filed in this Court was also decided and sentence of seven years was awarded to the respondent. Cr.P.S.L.A. was also pending in the Hon'ble Supreme Court. Hence the order of Chief Minister‑respondent No. 3 was not justified in any manner and was passed without considering the factum of Cr. P.S.L.A. in the Hon'ble Supreme Court. The same has been passed without lawful authority which is set aside by accepting this writ petition.

7. Copy of this order shall be sent to the learned Sessions Judge, Gujrat for I issuance of warrants for taking necessary steps for sending respondent No.1 to jail to serve the remaining sentence. Order accordingly. H.B.T./N‑120/L Petition accepted/Order accordingly.