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Petitioner: Gul Zameen VS Respondent: Government of Khyber Pakhtunkhwa through Secretary Home and Tribal Affair, Peshawar etc
Court Name: Peshawar High Court Judge(s): Lal Jan Khattak, Ishtiaq Ibrahim, Ijaz Anwar Title:Gul Zameen vs Government of Khyber Pakhtunkhwa through Secretary
Home and Tribal Affair, Peshawar etc Case No.: W.P No.477-A/2018 Date of Judgment:2020-05-07 Reported As: PLD 2021 Peshawar 68, 2020 PHC 234 Result: Petition disposed off Judgment ISHTIAQ IBRAHIM, J.- Since there were divergent views of different benches of this court regarding interpretation of grant of remissions to the convicts by the President of Pakistan under Article 45 of the Constitution of the Islamic Republic of Pakistan, 1973, Anti-T errorism Act, 1997 and under the Prisons Rules, the Hon'ble Chief Justice was pleased to constitute the Larger Bench to decide the issue and to streamline the matter once for all. 2. This consolidated judgment is aimed to dispose of all connected writ petitions filed by the convicted prisoners presently confined in different jails of the Province, as in all the writ petitions a common question relating to interpretation of afore referred law gove rning the grant of remissions in sentences of imprisonment has been raised. The particulars of the writ petitions are:- 1. W.P.No.477-A/2018. (Gul Zameen -Vs- Government of Khyber Pakhtunkhwa through Secretary Home and Tribal Affairs, Peshawar and others ). 2. W.P.No.2463-P/2018. (Said-ul-W ahab -Vs- Government of Khyber Pakhtunkhwa through Home Secretary , Civil Secretariat, Peshawar etc ). 3. W.P.No.1097-A/2019. (Muhammad Riaz -Vs- Government of Khyber Pakhtunkhwa through Secretary Home and Tribal Affairs, Peshawar and others ). 4. W.P.No.1 118-A/2019. (Ijaz Hassan -Vs- Government of Khyber Pakhtunkhwa through Secretary Home and Tribal Affairs, Peshawar and others ). 5. W.P.No.4783-P/2019.
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(Muhammad Shafiq -Vs- The State through Advocate General Khyber Pakhtunkhwa, Peshawar and others ). 6. W.P.No.5178-P/2019 . (Ahmad Ali -Vs- Assistant Political Agent Mohmand Agency and others ). 7. W.P.No.5717-P/2019 . (Shafiq-ur-Rehman -Vs- Government of Khyber Pakhtunkhwa through Secretary Home, Peshawar and others ). 8. W.P.No.6048-P/2019 . (Shah W ali -Vs- Inspector General, Prison Khyber Pakhtunkhwa, Peshawar and others ). 9. W.P.No.6150-P/2019. (Muhammad Umar -Vs- The State and others ). 10. W.P.No.6529-P/2019 . (Ehsan Ullah alias Khabary -Vs- Superintendent Central Prison, Peshawar and others ). 11. W.P.No.1371-P/2020 . (Saeed Khan -Vs- Superintendent Central Prison, Mardan and others ). 12. W.P.No.2723-P/2019 . (Imran and another -Vs- Government of Pakistan through Home Secretary , Peshawar and others ). 13. W.P.No.3029-P/2018 . (Malay Khan -Vs- The State through Advocate General, Khyber Pakhtunkhwa and others ). 14. W.P.No.331 1-P/2019 . (Abdul Ahad -Vs- Superintendent Central Prison, Mardan and others ). Brief of facts of each petition are stated as under; 3. W.P No.477-A/2018. The petitioner was charged in a criminal case vide FIR No.142 of 2000, Police Station Saddar Karachi under sections 364-A/365-A/34 PPC read with 6(d) ATA, 1997 and after conclusion of trial accused was convicted vide judgment dated 11.12.2000; that the petitioner filed appeal before Honorable Sindh High Court at Karachi which was partially allowed and modified and death sentence awarded to the petitioner-accused was converted into life imprisonment; that the petitioner filed jail appeal before the apex Court which was also dismissed; that the petitioner was unde rgoing imprisonment for life on the charge of murder (qatl-i-amd ) and confined in Central Jail Haripur; but feeling aggrieved of non grant of remissions to which he claimed, he was entitled under the relevant law, he invoked the constitutional jurisdiction of this Court under Article199 of the Constitution of Islamic Republic of Pakist an, 1973, inter alia, in light of judgments of the superior Courts, including this Court as well as august apex Court and also general and special remissions under the prison rules. 4. W.P No.2463-P/2018 . Petitioner , Said-ul Wahab, who was convicted and sentenced under section 7 of the Anti- Terrorism Act, 1997, seeks remission on the grounds of education qualification, good conduct in the jail and also remissions granted by various authorities including the President, Chief Minister Khyber Pakhtunkhwa, Minister Jailkhanajat, Khyber Pakhtunkhwa and Inspector General Prisons, Khyber Pakhtunkhwa under the Prisons Rules on dif ferent occasions in his history ticket by the jail authorities. 5. W.P No.1097-A/2019 . As per writ petition, petitioner , Muhammad Riaz, was charged in case vide FIR No.96 dated 05.02.2005 under section 17(2)(3) and (4) Harabah offences against property (enforcement of Hudood) Ordinance, 1979 read with section 6/7 of the Anti-T errorism Act, 1997, and was awarded 07 years imprisonment with Rs.50,000/-fine payable to the legal heirs of the deceased and was also convicted under section 148/149 PPC read with section 6/7 ATA, 1997, and was awarded two years R.I, vide judgment dated 21.05.2005 by the learned Judge Anti-T errorism Court, Hazara Division, Abbottabad. Being aggrieved, the petitioner preferred appeal against the same before the Hon'ble High Court which was modified and the sentences awarded by the learned trial Court against the petitioner was enhanced to life imprisonment. The petitioner-convict filed appeal before the apex Court which was dismissed. Hence, he seeks appropriate directions to the respondents to grant ordinary , special remission, remissions provided under the Prison Act, 1984 and remissions granted by the President of Pakistan. 6. W.P No.1 118-A/2019 . Ijaz Hassan, petitioner , was convicted under section 376 PPC read with 7 ATA to imprisonment for 10 years and also fined Rs.10,000/- or in-default to undergo 01 month further imprisonment for
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committing Zina-bil-Jabar with the minor girl by the learned trial Court/Judge ATC-V Daggar at Buner on 15.06.2012. Petitioner filed appeal before Hon'ble Peshawar High Court, Mingora Swat Bench which was dismissed being time barred, therefore, petitioner seeks direction to the respondents for grant of remission on the grounds of ordinary as well as Special Remissions provided by the Pakistan Prison Rules, 1994, grant of all types of remissions announced by the Federal and Provincial Government as well as the jail authorities and remission granted by the President of Islamic Republic of Pakistan under Article 45 of the Constitution. 7. W.P No.4783-A/2019 . Petitioner , Muhammad Shafiq was convi cted under sections 121-A, 122 PPC/1 1 FCR and under sections 3 and 5 of the Explosive Substances Act, 1908 and sentenced to undergo 14 years R.I each and fine of Rs.1 lac or in default to further undergo 03 years S.I by the Assistant Political Agent Lower Orakzai Agency on 02.05.2013. The petitioner filed appeal before Commissioner FCR, Kohat Division Kohat which was dismissed vide order dated 20.03.2014, therefore, petitioner seeks direction to the responden ts for remission on the grounds of grant of ordinary as well as Special Remissions provided by the Pakistan Prison Rules, 1994, grant of all types of remissions announced by the Federal and Provincial Government as well as the jail authorities and remission granted by the President of Islamic Republic of Pakistan under Article 45 of the Constitution. 8. W.P No.5178-P/2019 . Ahmad Ali, petitioner , was convicted under section 121 of Pakistan Penal Code, 1868 read with section 11 of Frontier Crimes Regulation, 1901 as amended in 2011 and sentenced to 14 years R.I including the period of detention which he has already undergone by the Assistant Political Agent, Mohmand Agency on 22.02.2017. The petitioner filed criminal revision which was partially allowed by learned Fata Tribunal Peshawar on 27.09.2017 and his sentence was reduced from 14 years to 10 years, therefore, petitioner seeks direction to the respondents for grant of remissions on the grounds of ordinary as well as special remissions provided by the Pakistan Prison Rules, 1994 and also grant of remission on the ground of NAZIRA QURAN. 9. W.P No.5717-P/2019 . According to writ petition, petitioner , Shafiq-ur-Rehman was convicted by the learned trial Court for life imprisonment and serving his sentence while confined in Central Jail Kohat, seeks remission on the grounds of education qualification, good conduct in the jail and also remissions granted by various authorities and the President of Islamic Republic of Pakistan. 10. W.P No.6048-P/2019 According to writ petition, petitioner , Shah Wali, was charged in case FIR No.683 dated 26.08.2010 under section 5 Explosive Act, Police Station Risalpur and was convicted and sentenced to 14 years R.I with fine of Rs.50,000/- or in-default of payment of fine to further undergo for 06 months S.I by learned trial Court/ASJ-III/JSC, Nowshera vide judgment dated 26.04.2012 and in case FIR No.51/2010 under section 9-C CNSA, he was also convicted and sentenced for life imprisonment with a fine of Rs.100,000/-or in default to further suffer one year S.I. The sentence of life imprisonment was reduced to 04 years in appeal by this Hon'ble Court while the fine amount was maintained. The petitioner averred in the petition that he has served 09 years in the jail and approached the learned trial Court through his brother for requisitioning the record for just and proper decision. Respondent No.2 has filed report/letter No.7779 dated 27.09.2019 before the learn ed trial Court stating therein that the petitioner-convict had been sentenced under section 5 Explosive Act, therefore he is not entitled for any remission as per rules. The learned trail Court turned down the application of the petitioner-convict in the light of report/letter that the whole sentence is not served out. Being aggrieved, the petitioner invoked the constitutional jurisdiction of this Hon'ble Court under Article 199 of the Constitution of Islamic Republic of Pakistani, 1973, seeking directions to the respondents to grant remission on the grounds of ordinary as well as special remissions provided by the Pakistan Prison Rules, 1994, all types of remissions announced by the Federal and Provincial Government as well as the jail authorities and remission granted by the President of Islamic Republic of Pakistan. 11. W.P No.6150-P/2019 Petitioner , Muhammad Umar , as per writ petition, was arrested by the local Political Agent Kurram on 05.03.2001 and was charge sheeted under section 302, 307, 148, 149 PPC read with OOC 11 FCR. After receiving recommendations of council of elders, the Political Administration convicted the petitioner-convict alongwith other accused under the above sections of law. The petitioner filed appeal which was rejected by the Commissioner Peshawar while maintain ing the convictions. Hence, the petitioner seeks remission through the instant writ petition on the grounds of good conduct in the jail and also remissions granted by various authorities including the President, Chief Minister Khyber Pakhtunkhwa, Minister Jailkhanajat, Khyber Pakhtunkhwa and
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Inspector General Prisons, Khyber Pakhtunkhwa under the Prisons Rules on different occasions in his history ticket by the jail authorities. 12. W.P No.6529-P/2019 . The petitioner was convicted under 121-A PPC/1 1 FCR to 12 years R.I with fine of Rs.2 lacs or in default of payment of fine to 02 years S.I with benefit of section 382-B Cr.P.C by Assistant Political Agent, Jamrud vide order dated 11.05.2017. The petitioner filed appeal before Commissioner FCR, Peshawar which was partially allowed and sentenced of 12 years reduced to 09 years while the remaining sentence of fine remained intact vide order dated 21.09.2017. Being aggrieved, petitioner-convict filed appeal before Fata Tribunal, Peshawar which was also partially allowed and sentence of 09 years was reduced to 05 years. Therefore, the petitioner seeks remission through the instant writ petition on the grounds of educational qualification, good conduct in the jail and also remissions granted by various authorities including the President, Chief Minister Khyber Pakhtunkhwa, Minister Jailkhanajat, Khyber Pakhtunkhwa and Inspector General Prisons, Khyber Pakhtunkhwa under the Prisons Rules on dif ferent occasions in his history ticket by the jail authorities. 13. W.P No.1371-P/2020 . The petitioner was convicted under section 121/121-A PPC/1 1 FCR and sentence d to 10 years R.I with fine of Rs.20,000/- or in-de fault 06 months S.I with benefit of sectio n 382 (b) Cr.P.C. The petitioner- convict challenged his conviction in appeal which was dismissed by Commissio ner FCR, Peshawar vide order dated 30.03.2017. Being aggrieved, the petitioner-convict filed appeal before Fata Tribunal, Peshawar which was partially allowed and the sentence of 10 years reduced to 07 years R.I. Hence, through the instant writ petition, the petitioner seeks grant of ordinary as well as special remissions provided in Chapter-8 of the Pakistan Prison Rules, 1894, all types of remission announced by the Federal Government, Provincial Government as well as by the Jail Authority , remission announced and conferred by President of Islamic Republic of Pakistan under Article 45 of the Constitution. 14. W.P No.2723-P/2019 . As per writ petition, petitioners, namely , Imran and Amin Asghar were arrested by the ANF authorities on 10.09.2014 and later on referred case to the Council of Elders and after submission of their award, learned trial Court convicted under section 9-C CNSA, 1997 read with 11 FCR, 1901 and sentenced to undergo 10 years R.I each and a fine of Rs.100,000/-or in default of payment of fine to further undergo one year S.I. The petitioner convict filed an appeal before Commissioner FCR, Peshawar which was dismissed vide order dated 29.04.2016. Being aggrieved, the petitioner-convict filed criminal revision before learned Fata Tribunal FCR which was also dismissed vide order dated 04.10.2016. The petitioner also filed a review petition which was also dismissed. Therefore, the petitioner seeks remissions granted by various authorities including the President, Chief Minister Khyber Pakhtunkhwa, Minister Jailkhanajat, Khyber Pakhtunkhwa and Inspector General Prisons, Khyber Pakhtunkhwa under the Prisons Rules on dif ferent occasions in his history ticket by the jail authorities. 15. W.P No.3029-P/2018 . Petitioner , Malay Khan, was convicted under section 7-C of Anti Terrorism Act, 1997, by the learned Judge Anti Terrorism Cour t-II Gujranwala and sentenced to life imprisonment and forfeiture of properties alongwith benefit of section 382-B Cr.P.C. The petitioner filed appeal against his conviction before the Hon'ble Lahore High Court, Lahore which was dismissed. Being aggrieved, the petitioner-convict preferred appeal before Hon'ble Supreme Court of Pakistan which was also dismissed and now the petitioner is serving his sentence in Central Jail, Peshawar . The petitioner was informed by the jail authorities that since he has convicted by the Anti Terrorism Court, therefore, he was not entitled to any ordinary or specia l remission granted and allowed to other prisoners due to the bar under section 21-F of Anti Terrorism Act, 1997, hence, the petitioner seeks ordinary/general/special remissions granted by various authorities including the President, the Federal Government and the Provincial Government on dif ferent occasions. 16. W.P No.331 1-P/2019 . According to the writ petition, Abdul Ahad, petitioner , was convicted under section 302 PPC and sentenced by the learned trial Court to death which was partially allowed and death sentence was converted to life imprisonment by this Court; that the petitioner alongwith 13 other convicted prisoners filed a writ petition No.1151-P/2018 seeking directions therein to direct the jail authority for grant of all the permissible special, general and educational remissions; that after issuance of notice to the respond ents, respondent No.1 filed his para-wise comments wherein plea of the convicted prisoners was admitted; that the petitioner has passed his two examinations Tarjuma Quran-ul-Karim and HSSC for which 02 years and 01 years remission respectively are
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permissible under the jail manual but no remission has been granted, hence the petitioner seeks grant of permissible 02 years remissions to the petitioner for passing his Tarjuma Quran-ul-Karim, 01 years remission to the petitioner for passing HSSC examination, all types of general and special remissions granted by the Federal Government, Provincial Government as well as by the Jail Authority . 17. 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 vs Haji Bismillah and 3 others (PLD 2005 Supreme Court 163) and Haji Abdul Malik and others vs 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. 18. The learned Additional Advocate General while controverting the arguments of learned counsel for the petitioners has argued that as evident from the comments of the respondents No. 1, 2 & 3, the remissions granted under Article 45 of the Constitution are not applicable to the prisoners who have been convicted for murder . 19. Arguments heard and record of the case was perused with the valuable assistance of learned counsel for the petitioners and learned Additional Advocate General for the respondents. 20. According to section 2 (5) of the Prisons Act, 1894 " Remission system" means the Rules for the time being in force regulating the award of marks to, and the consequent shortening of sentences of prisoner in jails. However , the grant or refusal of remission in sentence is provided either under the Prisoner Rules or various statutes, whereas article 45 of the Constitution of Islamic Republic of Pakistan empowers the President of Pakistan to grant remission to the convicted prisoners. Thus the grant of remission can be classified as remission under the Constitution, Act of Parliament and the Prisoners rules. We take up each class of remission for our discourse as following:- Presidential remissions 21. Adverting to the writ petitions wherein the petitioners convicted under different provisions of law have sought the indulgence of this court for the grant of presidential remissions by the Worthy President of Pakistan under Article 45 of the Constitution. Two Notifications were produced before us regarding the remissions granted by the Worthy President of Pakistan under Article 45 of the Constitution. For reference the relevant notifications are reproduced here as under:- (a) 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 Pakhtunkhwa (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 activitie s, sectarianism, Zina (Sec. 10 Offence of Zina (Enforcement of Hudood), Ordinance, 1979 (also under sec. 377 PPC), robbery (Sec. 394 PPC), dacoity (Sec. 395-396 PPC), kidnapping/ abduction (Sec. 364-A & 365-A PPC) and terrorist acts (as defined in the Anti-T errorism (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
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(Enforcement of Hudood), Ordinance, 1979 (also under sec. 377 PPC), kidnap ping/abduction (Sec. 364-A & 365-A PPC), 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 & ii above will be admissible provided that the convicts have undergone 2/3'd of their substantive sentence of imprisonment. (b) COPY OF MINISTR Y OF INTERIOR, GOV ERNMENT OF PAKIST AN 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 activitie s, sectarianism, Zina (Sec. 10 Offence of Zina (Enforcement of Hudood), Ordinance, 1979 (also under sec. 377 PPC), robbery (Sec. 394 PPC), dacoity (Sec. 395-396 PPC), kidnapping/ abduction (Sec. 364-A & 365-A PPC) and terrorist acts (as defined in the Anti-T errorism (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 PPC), kidnap ping/abduction (Sec. 364-A & 365-A PPC), 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 & ii above will be admissible provided that the convicts have undergone 2/3 of their substantive sentence of imprisonment. 22. Under Article 45 of the Constitution of the President of Pakistan enjoys unfettere d 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 when the notification by itself has categorized the availability of remission to a particular class of prisoners and withheld its application to another class then this Court cannot add or omit to the said notification unless the same is contrary to law and discriminatory . 23. The question of refusal of remission granted by the President of Pakistan under Article 45 of the Constitution of the Islamic Republic of Pakistan, 1973, to particular class of convicts is justified and has been adjudicated 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 perm issible 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 Paragraph-24 & 25, most of these exclusions are backed by law, rule or an intelligible differentia. The classificatio n is reasonable and applies equally to convicts/prisoners similarly placed. This dif ferentia is not hit by equality clause of the Constitution." In paragraph-43, the august Supreme Court of Pakistan has observed that:- "A classification made by the compet ent 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."rd
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24. There is an intelligible differentia and considerable distinction between the two categories of convicted prisoners, the Worthy President of Pakistan can exclude…
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