P L D 2020 Balochistan 100
Before Muhammad Ejaz Swati and Abdul Hameed Baloch, JJ
ARSALA---Petitioner
Versus
SPECIAL JUDGE, ANTI -TERRORISM COURT and another ---Respondents
Constitutional Petition No. 12 of 2019, decided on 14th March, 2020.
Anti -Terrorism Act (XXVII of 1997) ---
----S. 21 -F---Constitution of Pakistan, Art. 25---Remissions ---Discrimination ---Petitioner
was convicted and sentenced under Anti -Terrorism Act, 1997, and benefit of remissions was
denied to him ---Validity ---All citize ns were entitled to be treated similarly, subject to law ---
"Equality" meant that among equal the law should be equal and equally administered and that
the like should be treated alike ---Principle of "equal treatment" was applicable to prisoners ---
Constitution did not permit unequal treatment among prisoners and there had to be one set of Rule for every convict under law, though the forum of punishment was different and more stringent under different law but after conviction the convicts should be governed under the Prison Rules ---By mere change of forum one set of convict could not be entitled for
remission ---State did not make any classification of prisoners to deprive them from
Fundamental Rights ---Where certain group of persons were denied benefit of priv ilege or
other group was allowed, such was discrimination between the person or things similarly situated and consequently was void on account of provisions of Art. 25(1) of the Constitution ---High Court directed the authorities to include all remissions t o the sentence of
petitioner which had been denied to him ---Constitutional petition was allowed accordingly.
Muhammad alias Khuda Bakhsh v. ATC Mekran at Turbat 2018 PCr.LJ 148;
Hammad Abbasi v. Superintendent Central Adiala Jail Rawalpindi PLD 2010 Lah. 428 and
Saleem Raza v. The State PLD 2007 Kar. 139 rel.
Shams -ur-Rehman Rind for Petitioner.
Muhammad Aslam Jamali and Jameel Akhtar, Additional Prosecution General for
Respondents.
Date of hearing: 27th February, 2020.
ORDER
ABDUL HAMEED BALOCH, J. ---The petitioner filed instant constitutional
petition with the prayer:
"It is, therefore, respectfully prayed that under the lights of above mentioned facts and
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
with further prayer that to direct the respondent No. 1 to allow the special remission to the petitioner granted by the Provincial as well as Federal Governments during his period of conviction, in the interest of justice, equity and fair play."
2. Succinct facts of the case are that the petitioner was booked in case FIR No. 125 of
2002, registered under Sections 302, 34 Pakistan Penal Code (P.P.C.) read with Section 7 Anti Terrorism Act , 1997 (A.T.A. 1997) with Police Station Jaffarabad on 30th May, 2002.
After usual investigation challan of the case was submitted before Special Judge, Anti
Terrorism Court (ATC) Turbat Camp at Dera Murad Jamali, who after completion of trial
convicted the petitioner under Section 302(b), P.P.C. read with Section 7A ATA 1997 and
sentenced to death vide judgment dated 21st September, 2002. The trial court sent Murder Reference to this Court for confirmation of death sentence, while the petitioner/ convict preferred appeal (ATA Criminal Appeal No.(s) 21 of 2002) before this Court. This Court
vide judgment dated 30th March, 2005 dismissed the appeal of petitioner and Murder Reference No.(s) 16 of 2002 was answered in affirmative. The petitioner being aggrieved
filed appeal before Honorable Supreme Court. The Honorable Supreme Court vide judgment
dated 28th July 2010 on the basis of compromise acquitted the petitioner under Section
302(b), P.P.C., whereas under Section 7 ATA, 1997 the sentence of the petitioner was
modified from death to life imprisonment with fine of Rs. 50,000/ -.
3. The learned counsel for the petitioner contended that the Constitution enshrined equal
treatment. The petitioner is entitled for special remission granted by Federal and Provincial Governments. Refusal of remissions is violation of Article 25 of the Constitution which protects the right of every citizen.
4. On the other hand the learned Additional Prosecutor General strongly opposed the
contention of petitioner and contended that the petitioner committed the offence under the Anti Terrorism Act, 1997 and under Section 21- F of the ATA 1997 the concession of special
remission was not extended to the convict involved in the case of terrorism, as such the petitioner is not enti tled to claim for such remission.
5. Heard learned counsel for the petitioner, learned Additional Prosecutor General and
also perused the record. It is well settled law that under Article 25 of the Constitution all the
citizens are equal before the law and are entitled to equal protection of law. The principle of
equality before the law and prohibition of discrimination is the basic rule of human freedom.
The person placed in similar circumstances must be treated alike. It is accepted principle that among e qual the law should be equal. It would be advantageous to reproduced Article 25 of
the Constitution:
"25. (1) All 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) No thing in this Article shall prevent the State from making any special provision
for the protection of women and children."
6. From the above referred Article it became crystal clear that all citizens are entitled to
be treated similarly subjected to law. T he equality means that among equal the law should be
equal and equally administered and that the like should be treated alike. The principle of
equally treated is also be applicable to the prison. The Constitution should not permit unequal treatment among the prison. There should be one set of rule for every convict under
the law. May be the forum of procedure different, punishment may be more stringent under
different law, but after conviction the convicts should be governed under the Prisoner Rules.
7. Though under the provisions of Section 21- F ATA 1997 no remission in any sentence
was allowed to the prisoner other than the child who is convicted under the Act 1997. Where
the law inconsistent with fundamental right the same would be declared void as held in
reported judgment of this court titled Muhammad alias Khuda Hakhsh v. ATC Mekran at Turbat 2018 PCr.LJ 148:
"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. Relian ce is placed on the case
of Saleem Raza and 31 others v. The State PLD 2007 Karachi 139 wherein the honourable 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 remissions, 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 w ere entitled to
such remissions as person 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 v. Superintendent Central Adia la 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 the 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 remission 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 reasons 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".
The same principle was also followed in the case of Hammad Abbasi v.
Superintendent Central Adiala Jail Rawalpindi PLD 2010 Lahore 428.
8. Section 21- F ATA 1997 is inconsistent with the Article 8 of the Constitution. Article
8 of the Constitution is reproduced for ready reference:
"8. Laws inconsistent with or in derogation of fundamental rights to be void.---(1)
Any law, or any custom or usage having the force of law, in so far as it is inconsistent with the rights conferred by this Chapter, shall, to the extent of such inconsistency, be void.
(2) The State shall not make any law which takes away or abridges the rights so conferred and an y law made in contravention of this clause shall, to the extent of such
contravention, be void.
(3) The provisions of this Article shall not apply to-
(a) any law relating to members of the Armed Forces, or of the police or of such other forces as are charged with the maintenance of public order, for the purpose of ensuring the proper discharge of their duties or the maintenance of discipline among them; or
(b) any of the -
(i) laws specified in the First Schedule as in force immediately before the commencing day or as amended by any of the laws specified in that Schedule;
(ii) other laws specified in Part I of the First Schedule;
and no such law nor any provision thereof shall be void on the ground that such law or provision is inconsistent with, or repugnant to, any provision of this Chapter.
(4) Notwithstanding anything contained in paragraph (b) of clause (3), within a period of two years from the commencing day, the appropriate Legislature shall bring the laws specified in Part II of the First Schedule into conformity with the rights conferred by this Chapter:
Provided that the appropriate Legislature may by resolution extend the said period of two years by a period not exceeding six months.
Explanation: -- If in respect of any law Majlis -e - Shoora (Parliament) is the
appropriate Legislature; such resolution shall be a resolution of the National Assembly.
(5) The rights conferred by this Chapter shall not be suspended except as expressly provided by the Constitution."
9. The Constitution should not permit discrimination between the citizens. It would be
appropriate to define the word discrimination:
"Discrimination refers to the treatment or consideration of, or making a distinction in favor of or against, a person or thing based on the group, c lass, or category to which
that person or thing belongs rather than on individual merit."
10. Similarly Section 10 (d) of National Accountability Ordinance, 1999 (NAO 1999) is
identical with Section 21 -F ATA 1997. It would be appropriate to reproduce Section 10(d)
NAO 1999:
"Notwithstanding anything to the contrary contained in any other law for the time
being in force an accused, convicted by the Courts of an offence under this Ordinance, shall not be entitled to any remission in his sentence."
11. Be that it may be mere change of forum one set of convict could not entitle for
remission. The State does not make any classification of a prison to deprive him from the principle of fundamental right. Where certain group of persons denied the benefit of privilege or allowing the other group of persons would certainly be discrimination between the persons or things similarly situated and consequently shall be void on account of the provisions contained in Article 25(1) of the Constitution. The full Bench of Sindh High Court held in
the case of Saleem Raza v. The State PLD 2007 Karachi 139:
"37. The entire discussion above, leads to the conclusion that section 10(d) of the NAB Ordinance denying remission to the NAB convicts has the effect of enhanci ng
the punishment awarded to the NAB convicts and further is discriminatory as it is not based on any reasonable and rational classification. It is arbitrary in nature and as argued by the "learned D.A.- G. is merely based on the basis of forum of trial. We do
not find any force in the contention of learned D.A.- G. that mere forum of trial is a
reasonable and rational classification based on intelligible differentia. The denial of remission to NAB convicts under section 10(d) of the NAB Ordinance has no nexus
with the object of legislation and consequently, we hold that it is violative of and repugnant to the provisions contained in Articles 12 and 25 of the Constitution. We are of the considered opinion that such provision of law is not permissible and cannot be saved being patently violative of the fundamental right guaranteed in the Constitution.
38. We hold that section 10(d) of the NAB Ordinance, is ultra vires the Constitution and is liable to be struck down being void under Article 8(1) of the Constitu tion on
account of being inconsistent with the right conferred by the Constitution. We further hold that all persons convicted under the NAB Ordinance, would be entitled for such remissions in the same manner, as persons convicted under the other ordinary and special laws.
39. After hearing the petitioners and the learned Advocates on 6.11.2006, the petition was allowed by short order, which reads as follows:
"Having heard the Petitioner and the learned counsel we are of the view that section 10(d) of the NAB Ordinance is ultra vires the Constitution and liable to be struck
down and all prisoners convicted under the NAB Ordinance would be entitled to such remission as persons convicted under the ordinary law. At the same time we also find great force in th e petitioner's contention that he was discriminated against inasmuch
as another prisoner Qurban Jatoi convict of a NAB offence was given the benefit of remission. The Superintendent, Central Jail came up with the facile explanation that
he was not aware of the provisions of section 10(d) of the NAB Ordinance till the
same were communicated to him by the Home Department in October, 2005 and,
therefore, benefit of remission was given to the aforesaid Qurban Jatoi. We must express our pain and anguish at such a deplorable state of affairs and would direct that the copy of the orders may be communicated instantly to the Secretary, Home
Department, and the Advocate -General Sindh, for taking appropriate action in
ensuring that law must invariably be complied with. "
For the foregoing reasons the instant constitutional petition is accepted. The
Superintendent Central Jail Mach is directed to include all the remissions which have been denied to the petitioner.
MH/73/Bal. Petition allowed.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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