P L D 2019 Peshawar 211 (PLP)

SYED ARSHAD ALI, J.--This order shall dispose of the present writ petition as well as the connected W.P No. 105-M/2018 titled as "Inayatullah v. Government of KPK and others", W.P No. 106-M/2018 titled as "Sardar Hafeez-ur-Rehman v. Governement of KPK and others", W.P. No. 107-M/2018 titled as "Farman Ali v. Government of KPK and others" and W.P. No. 108-M/2018 titled as "Khurshid v. Government of KPK and others" since a common question of law is involved in all these petitions.

2. The present petitioner Abdul Wahab was charged for the murder of Rahim Jan and was awarded death sentence by the learned Trial Court. However, in appeal before this Court, the death sentence was converted into life imprisonment and the said judgment/ conviction was upheld by the august Supreme Court of Pakistan thus the same has attained finality. In the present petition, the petitioner seeks remission in his sentence on account of his acquiring higher qualification during his incarceration, remission granted by different authorities under the law and remission granted by the worthy President of Pakistan under Article 45 of the Constitution of Islamic Republic of Pakistan, 1973 (The Constitution). In their comments, respondents Nos. 1, 2 and 3 have not controverted the plea of the petitioner regarding his remission on account of higher qualification but subject to verification of his degrees. Regarding the other remissions, the case of the respondents was that the same has already been availed by the petitioner except the one granted by the worthy President of Pakistan under Article 45 of the Constitution as essentially the petitioner is not entitled to the same being convicted for the murder. As per the language of the Notification, whereby the remission was granted to the prisoners after their conviction clearly excludes those prisoners who have been convicted for murder, espionage etc.

3. The petitioner Inayatullah in W.P. No. 105-M/2018 was charged for the murder of Sarbaz Khan who was awarded life imprisonment by the learned Trial Court. The said imprisonment has remained intact up to the august Supreme Court of Pakistan. Hence, he seeks appropriate directions of this Court that the remission granted by the worthy President of Pakistan be allowed to him. The respondents Nos.1, 2 and 3 in their comments have stated that all the remissions were granted to the petitioner except the one granted by the worthy President of Pakistan under Article 45 of the Constitution on the similar points as narrated above.

4. Sardar Hafeez-ur-Rahman who is petitioner in W.P. No.106-M/2018 was awarded life imprisonment for the murder of Ibad-ur-Rahman. He has also prayed for general remission as well as remission granted under Article 45 of the Constitution. In the comments, the respondents Nos.1, 2 and 3 have taken similar stance that all the remissions were granted to him except the one granted by the worthy President of Pakistan under Article 45 of the Constitution.

5. Farman Ali who is petitioner in W.P. No. 107-M/2018 was awarded life imprisonment by the learned Trial Court for the murder of deceased Muhammad Ajmal Khan. He has also prayed for similar relief as prayed by the other petitioners. Regarding the remission earned by him on acquiring education, the respondents Nos.1, 2 and 3 have not controverted his claim but have stated that the same is awaited for the sanction of the competent authority, whereas regarding the remission under Article 45 of the Constitution, the respondents have similar plea as raised above.

6. Similarly Khurshid who is petitioner in W.P. No. 108-M/2018 was awarded life imprisonment by the learned Trial Court for the murder of Sabir Shah. In this petition, the petitioner seeks for an appropriate direction to the respondents to allow him remissions which he has earned on account of general remissions granted by various authorities. The respondents Nos. 1, 2 and 3 in their comments have stated that keeping in view the conduct of the petitioner, all the available remissions were granted to him except the one granted by the worthy President of Pakistan under Article 45 of the Constitution as he does not qualify the criteria.

7. The learned counsel while appearing on behalf of the petitioners have argued that the petitioners are entitled to all kinds of remissions including the one granted under Article 45 of the Constitution by the worthy President of Pakistan because similar issue has been decided not only by the august Supreme Court of Pakistan in cases titled Haji Abdul Ali v. Haji Bismillah and 3 others (PLD 2005 Supreme Court 163) and Haji Abdul Malik and others v. The State and others (PLD 2006 Supreme Court 365) but the same ratio has also been consistently followed by this Court which is reflected in the judgments of this Court passed in W.P. No.185-B of 2015 dated 04.04.2016, W.P. No.62-B of 2012 dated 25.02.2015, W.P. No. 488-B of 2016 dated 09.05.2017 and W.P. No.763-P/2018 dated 20.06.2018.

8. The learned Assistant Advocate General while controverting the arguments of learned counsel for the petitioners has argued that as evident from the comments of the respondents Nos. 1, 2 and 3, the remissions granted under Article 45 of the Constitution are not applicable to the prisoners who have been convicted for murder.

9. Arguments heard and record of the case was perused with the able assistance of the learned counsel for the petitioners and the learned Assistant Advocate General for the respondents.

10. In the present cases, the issue regarding grant of remission on acquiring higher qualification or other general remissions is not disputed and the only point for determination before this Court is the applicability of remissions granted by the worthy President of Pakistan under Article 45 of the Constitution, which excludes its application to those prisoners who were convicted for murder.

11. We have two Notifications before us on the file regarding the special remissions which were granted by the worthy President of Pakistan under Article 45 of the Constitution. One on the occasion of Eid-ul-Azha, 2013 issued by the Government of Pakistan Ministry of Interior through Notification bearing F.No. 8/6/201 3-Ptns Islamabad, the 07th January, 2014 addressed to the Home Secretaries of the Provinces of Pakistan. For ready reference the relevant portions of the said Notification are reproduced as under:- F. No. 8/6/2013-Ptns Government of Pakistan Ministry of interior Islamabad, the 07th January, 2014 To: The Home Secretaries, Government of Balochistan, Gilgit-Baltistan, Khyber Pakittunkhwa (KPK), Punjab, Sindh, Quetta, Gilgit, Peshawar, Lahore, Karachi. Subject:- SPECIAL REMISSION IN SENTENCES ON THE OCCASION OF EID-UL-AZHA, 2013 I am directed to say that the President, in exercise of powers, under Article 45 of the Constitution of Islamic Republic of Pakistan, 1973, on the advice of the Prime Minister, has been pleased to grant special remission in sentences on the occasion of Eid-ul-Azha, 2013 as under:- I. Special remission of 90 days to the prisoners convicted for life imprisonment except those convicted for murder, espionage, anti-state activities, sectarianism, Zina (Sec. 10 Offence of Zina (Enforcement of Hudood), Ordinance, 1979 (also under sec. 377 P.P.C.), robbery (Sec. 394 P.P.C.), dacoity (Sec. 395-396 P.P.C.), kidnapping/ abduction (Sec. 364-A and 365-A P.P.C.) and terrorist acts (as defined in the Anti-Terrorism (Second Amendment) Ordinance, 1999 (No. XIII of 1999). II. Special remission for 45 days to all other convicts except the condemned prisoners and also except those convicted of murder, espionage, subversion, anti-state activities, terrorist act (as define in the Anti-Terrorism (Second Amendment) Ordinance, 1999 (No. XIII of 1999), Zina (Sec. 10 Offence of Zina (Enforcement of Hudood), Ordinance, 1979 (also under sec. 377 P.P.C.), kidnapping/abduction (Sec. 364-A and 365-A P.P.C.), rubbery (Sec. 394 P.P.C.), dacoity (Sec. 395-396 P.P.C.) and those undergoing sentences under the Foreigners Act, 1946. III. Special remission at sub-paras i and ii above will be admissible provided that the convicts have undergone 2/3rd of their substantive sentence of imprisonment. Similarly, the second notification was issued on the occasion of Independence Day (14th August, 2014). The relevant portions of the said Notification are reproduced as under:- COPY OF MINISTRY OF INTERIOR, GOVERNMENT OF PAKISTAN ISLAMABAD LETTER F.NO. 8/6/13-PTNS DATED 13.08.2014 Subject:- SPECIAL REMISSION IN SENTENCES ON THE OCCASION INDEPENDENCE DAY (14TH AUGUST 2014). I am directed to say that the President, in exercise of powers, under Article 45 of the Constitution of Islamic Republic of Pakistan, 1973, on the advice of the Prime Minister, has been pleased to grant special remission in sentences on the occasion of Independence Day (14th August 2014) as under:- I. Special remission of 90 days to the prisoners convicted for life imprisonment except those convicted for murder, espionage, anti-state activities, sectarianism, Zina (Sec. 10 Offence of Zina (Enforcement of Hudood), Ordinance, 1979 (also under sec. 377 P.P.C.), robbery (See. 394 P.P.C.), dacoity (See. 395-396 P.P.C.), kidnapping/abduction (Sec. 364-A and 365-A P.P.C.) and terrorist acts (as defined in the Anti-Terrorism (Second Amendment) Ordinance, 1999 (No. XIII of 1999). II. Special remission for 45 days to all other convicts except the condemned prisoners and also except those convicted of murder, espionage, subversion, anti-state activities, terrorist act (as defined in the Anti-Terrorism (Second Amendment) Ordinance, 1999 (No. XII of 1999), Zina (Sec. 1 0 Offence of Zina (Enforcement of Hudood), Ordinance, 1979 (also under sec. 377 P.P.C.), kidnapping/abduction (Sec. 364-A and 365-A P.P.C.), robbery (Sec. 394 PPC), dacoity (Sec. 395-396 PPC) and those undergoing sentences under the Foreigners Act, 1946. III. Special remission at sub-paras i and ii above will be admissible provided that the convicts have undergone 2/3rd of their substantive sentence of imprisonment.

12. Indeed, there is no cavil with the proposition that the worthy President of Pakistan has unfettered powers to grant remissions under Article 45 of the Constitution. In Haji Abdul Ali Supra case, the august Supreme Court of Pakistan was dealing with a matter of granting remission to the prisoners on the basis of Notification issued by the worthy President of Pakistan, wherein no distinction was drawn amongst various categories of the prisoners regarding the nature of their convictions. The relevant portion of the law laid down by the august Supreme Court of Pakistan while allowing the benefits of such remission to all the prisoners is as below:- "The order dated 6-1-2000 of the President of Pakistan passed in exercise of constitutional power did not lay down any such limitation or condition that a convict who was sentenced to life imprisonment under section 302(b), P.P.C falling in Chapter XVI of the P.P.C would be disentitled to the remission by virtue of section 402-C of Criminal Procedure Code. Therefore, in our view, the petitioner is entitled to the special remission of one year granted by the President of Pakistan on 6-1-2000 under Article 45 of the Constitutional of Islamic Republic of Pakistan. Needless to mention here that the language of order dated 6.1.2000 is almost similar to the one used in remission orders dated 15-3-2000, 24-6-2000, 14.8.2000, 24-12-2000, 3-3-2001 of the President, the benefit whereof has been given to the petitioner by the High Court". Similarly in Abdul Malik Supra case it was held that:- "Under Article 45 of the Constitution, the worthy President of Pakistan enjoys unfettered powers to grant remissions in respect of offences and no clog stipulated in piece of subordinate legislation can abridge this power of the President". However, the issue at hand is that the said clog which restricts the application of the remission granted by the worthy President of Pakistan under Article 45 of the Constitution is self provided by the worthy President of Pakistan in the Notifications dated 07.01.2014 and 13.08.2014 and not by any subordinate authority. The said issue was not an issue before the august Supreme Court of Pakistan in Abdul Malik Supra case. However, the august Supreme Court of Pakistan in case titled Shah Hussain v. the State reported as (PLD 2009 Supreme Court 460) in the concluding paragraph i.e. Para-41(4) has reaffirmed the law laid down in Abdul Malik case and further held that:- "the said remission shall not be available to the convicts of offences under the National Accountability Bureau Ordinance, 1999, Anti-Terrorism Act, 1997, the offences of karo kari etc where the law itself prohibit the same".

13. In view of the above, when the Notification through which remission was granted has itself categorized the availability of the remissions to a particular class of prisoners and withheld its application to another class, then we are afraid that this Court cannot add or subtract to the said Notification unless it is established that the same is either contrary to law or discriminatory.

14. However, the question of refusing to extend the benefit of remission granted by the President of Pakistan under Article 45 of the Constitution of Islamic Republic of Pakistan, 1973, to a particular class of convicts, i.e. (convicted for murder, espionage etc) is justified and has been finally laid to rest by the seven member Bench of the august Supreme Court of Pakistan in Nazar Hussain's case reported as PLD 2010 Supreme Court 1021 in the following words:- "

41. It has been a consistent view of this Court that classification is permissible provided that the same is backed by law, rules or is based on reasonable differentia. For the exercise of authority in Article-45 of the Constitution, classification of convicts on the basis of accusation is permissible as the President may, inter-alia, like to grant remissions to those who are not accused of heinous offences and may refuse it to those accused of serious or terrorism related offences. In the remission policy under consideration (See Para-24 above), a class of convicts involved in "heinous crimes" have been excluded from the benefit of remissions. As explained in Paragraphs 24 and 25, most of these exclusions are backed by law, rule or an intelligible differentia. The classification is reasonable and applies equally to convicts/prisoners similarly placed. This differentia is not hit by equality clause of the Constitution." In concluding paragraph-43, the august Supreme Court of Pakistan has observed that:-- "A classification made by the competent authority on the basis of intelligible differentia qua accusation/ nature of offences or on the basis of law or rules reflecting the same, is permissible and would not be derogatory to the Constitution."

15. Since, there is an intelligible differentia and substantial distinction between the two classes of convicted prisoners, as the worthy President of Pakistan has excluded the applicability of remissions to those convicted prisoners who were involved in heinous crimes, therefore they are not at par with the ordinary prisoners. Thus, we hold that the Presidential remission under Article 45 of the Constitution will not be applicable to the prisoners who have been specifically excluded by the Notifications granting remissions. Furthermore, the other/general remissions which are available to other prisoners and have not been allowed to the petitioner shall be made applicable by the respondents to the said prisoners within a month from receipt of this Court order.

16. In this view of the matter, this writ petition as well as the connected writ petitions are disposed of accordingly. MWA/179/P Order accordingly.