PLJ 2017 Quetta 97 (DB)
Present : MUHAMMAD HASHIM KHAN KAKAR & ABDULLAH BALOCH , JJ.
MUHAMMAD alias KHUDA BAKHSH--Petitioner
versus
ATC MAKRAN AT TURBAT and 2 others --Respondents
C.P. No. (T) 103 & 80 of 2016, decided on 12.6.2017.
Constitution of Pakistan, 1973--
----Arts. 199 & 25(1) --Constitutional petition --Right of equality --It provides equal protection
to the right of all citizens of Pakistan --All citizen living in the country are equal before law
and are entitled to equal protection of law i.e. all citizen subjected to law should be treated of
similar nature and alike under all circumstances.
[P. 99] A & B
PLD 2007 Kar 139, ref .
Remissions--
----Anti -Terrorism Act, 1997, S. 21- F--Criminal Procedure Code, (V of 1898), Ss. 561- A &
382(b) --Constitution of Pakistan, 1973, Art. 199, 25(1) & 9--Remission --Denial --Validity --
Denial of remissions to the petitioner/convict are discriminatory, besides, once the benefit of
Section 382, Cr.P.C. is granted to the convict now the benefit of special or ordi nary
remissions could be withheld to the convict --Further held: The refusal of such concession
tantamount to deprive the liberty to the convict within the contemplation of Article 9 of
constitution. [P. 101] C
Mr. Abdul Hameed Baloch, Advocate for Petitioner.
Mr. Yaya Baloch, D.P.G. for Respondents.
Date of hearing: 23.5.2017.
JUDGMENT
Abdullah Baloch, J: --This common judgment disposes of Constitutional Petition No. (T)103
of 2016 and Constitutional Petition No. (T) 80 of 2016 filed by the petitioner Muha mmad
alias Khuda Bakhsh S/o Jalal resident of Baloch Abad Mand under Article 199 of
Constitution of Islamic Republic of Pakistan read with Section 561- A, Cr.P.C. against the
respondent with the following prayer.
“It is therefore, accordingly respectfully p rayed that on the above explained
circumstances the Respondent No. 2 be directed to grant the benefit of Section 382- B,
Cr.P.C. and include the under trial period of the conviction in his sentence he further
be directed to allow the special remission to th e petitioner granted by the central as
well as Provincial Governments during his period of the convictions, in the interest of justice, equity and fairplay”.
2. Brief facts of the case are that the petitioner was booked in FIR No. 28 of 2006 under Section 365- A, 324, 353, 186 and 34, PPC registered with PS Turbat on 3rd March 2006.
3. After proper investigation, Challan was submitted before the learned Court of ATC
Mekran at Turbat who after completion of trial convicted the petitioner under Section 365- A
read with Section 07 (e) of the Anti Terrorism, Act, 1997 and also ordered that all the
movable and immovable property of the accused be forfeited in favour of the state, vide
judgment dated 27th May, 2006.
4. The said judgment was assailed before this C ourt vide Criminal Appeal No. 118 of 2006
and the same was dismissed vide judgment dated 27th November 2006.
5. Thereafter the petitioner filed appeal before the Honorable Supreme Court of Pakistan,
which was dismissed, however, the benefit of Section 382- B, Cr.P.C. was granted in favour
of the petitioner.
6. The learned counsel for the petitioner contended that as principle of law, the rights of
every prisoner are governed under the Jail Manual and Rules every prisoner is entitled for special remissions granted by the Federal and Provincial Government from time to time; that
such remissions were refused by the jail authorities to the petitioner; that Article 25 of Constitution of Islamic Republic of Pakistan protects the rights of each citizen of Pakistan to
be treated equally, but the appellant was not treated at par rather was discriminated to be extended the benefit of special remissions; that the jail authorities mis -interpreted the law and
mis exercised their authority for not granting the benefit of such remission to the petitioner.
7. On the other hand, the learned DPG appearing on behalf of State has strongly opposed the
arguments so advanced by the learned counsel for the petitioner and contended that the offence committed by the petitioner under the Anti -Terrorism Act, 1997, whereby such
remissions are not extended to such convicts. As envisaged under Section 21- F of the Act
1997 wherein the concession of special remissions were not extended to the accused involved in cases of terrorism, as such, the petitioner is not entitled to claim for such remissions under
the Act. He farther contended that the conviction of the petitioner was upheld up to the Honorable Supreme Court of Pakistan and nowhere the petitioner agitated for c oncession of
such remissions to be extended to him, as such, at this belated stage, he could not claim for such remissions.
8. We have carefully considered the contentions raised by the learned counsel for the
petitioner as well as, the learned DPG and th e case law cited by the learned counsel for
petitioner.
9. It is settled principle of law that the provisions of Article 25 (1) of the Constitution of Islamic Republic of Pakistan provides equal protection to the rights of all citizens of Pakistan. For co nvenience, Article 25 of the Constitution of Islamic Republic of Pakistan is reproduced
herein below: --
Article 25 Equality of Citizens. --(1) All the citizens are equal before law and are
entitled to equal protection of law.
(2) There shall be no discrimination on the basis of sex.
(3) Nothing in this Article shall prevent the State from making any special
provision for the protection of women and children.
10. Bare perusal of Article 25 of Constitution of Islamic Republic of Pakistan shows that all
the ci tizen living in this country are equal before law and are entitled to equal protection of
law i.e all citizens subjected to law should be treated of similar nature and alike under all circumstance. The equality has to be between the persons and are placed in the same set of
circumstances. Similarly, there should be one set of rules for every convict under any law and that the forum of trial and the procedure may be different and the punishment under same laws may be more stringent as compared to the other e nactments, but after conviction should
be governed under prisoner’s rules not under the law operating conviction.
11. The petitioner who has been sentenced and convicted by the ATA Court is not being
granted special and ordinary remissions under the prison rules. The purpose of remission is to
reform the prisoner that it may be incentive to reform towards prisoners and society.
12. Though under the provisions of Section 21- F of ATA wherein no remission in any
sentence was allowed to a person other than a child who is convicted and sentenced for any offence under the said Act only granted by the Government otherwise, Section 10(d) of NAB Ordinance similarly has been inserted in the NAB Ordinance, which also shall not entitle any remissions to the convicted prisoner who is convicted and sentenced for any offence under
such Ordinance.
13. Be that as it may, but keeping in view the provisions of Article 8(1)(2) of Constitution of Islamic Republic of Pakistan wherein, the law inconsistent with or in derogation of fundamental rights declared to be void, moreover, Article 25 of the Constitution of Islamic Republic of Pakistan provided that all the citizens living in this country are equally entitled for protection of law. Reliance is placed on the case of Saleem R aza and 31 others vs. the
Sate PLD 2007 Karachi 139 wherein the Honorable full bench of Sindh High Court held that
no reasonable classification could be attributed as per Section 10(d), which singles out a particular class of convicts which are denied remi ssions, whereas other convicts similarly
placed, the provision of Section 10(d) of NAB Ordinance was declared as ultra vires of
Constitution and liable to be struck down and all prisoners convicted under NAB Ordinance were entitled to such remissions as pe rsons convicted under ordinary law.
14. Accordingly, the provisions of Section 21- F of Anti -Terrorism Act 1997 are declared as
ultra vires of the Constitution in the case of Hammad Abbasi vs. Superintendent Central
Adiala Jail Rawalpindi reported in PLD 2010 Lahore 428 relevant portion whereof
reproduced as under: --
12. In the light of what has been discussed above, and on the same principle, it is held that the denial of remission to ATA convicts and allowing the same qua those who
were convicted under t he Anti -Corruption laws by the Provincial Government would
again be discriminatory, besides, once the benefit of Section 382- B, Cr.P.C. is granted
to a convict, then how the benefit of remission can be withheld to that convict, thus
the refusal of remissio n to such convict would tantamount to deprive the liberty of
that convict within the contemplation of Article 9 of the Constitution, which provides
that” No person shall be deprived of life or liberty save in accordance with law.
13. For the foregoing rea sons this petition is allowed with the result that Section 21 -F
of the Anti -Terrorism, Act 1997 is declared as ultra vires of the Constitution and is
liable to be struck down and the Jail Authorities are directed to include all the remissions, which have been denied to petitioner per Section 21- F of the Anti -
Terrorism Act, 1997”.
15. In view of the aforesaid judgments, we are of the considered opinion that the denial of remissions to the petitioner/ convict are discriminatory, besides, once the benefit of Section 382, Cr.P.C. is granted to the convict then how the benefit of special or ordinary remissions could be withheld to the convict thus the refusal of such concession tantamounts to deprive
the liberty to the convict within the contemplation of Article 9 of Constitution of Islamic
Republic of Pakistan, which provides that “No person shall be deprived of life and liberty
save in accordance with law”.
16. For the foregoing reasons, we are inclined to accept this petition and direct Respondent No. 2 Super intendent Central Jail Gadani, to extend all the benefit of special as well as,
ordinary remissions to the petitioner including with the benefit of Section 382- B, Cr.P.C.
from date of his trial till completion of his sentence.
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