2018 P Cr. L J 148
[Balochistan]
Before Muhammad Hashim Khan Kakar and Abdullah Baloch, JJ
MUHAMMAD alias KHUDA BAKHSH ---Petitioner
Versus
ATC MAKRAN AT TURBAT and 2 others ---Respondents
C.Ps. Nos. (T) 103 and (T) 80 of 2016, decided on 12th June, 2017. Constitution of Pakistan ---
----Arts. 9, 25 & 199---Pakistan Prison Rules, R. 200---Penal Code (XLV of 1860), Ss. 365- A,
324, 353, 186 & 34---Anti -Terrorism Act (XXVII of 1997), Ss. 7(e) & 21- F---Criminal
Procedure Code (V of 1898), S. 561- A---Consti tutional petition ---Act of terrorism, kidnapping or
abduction for extorting property, valuable security etc,. attempt to commit qatl -i-amd, assault or
criminal force to deter public servant from discharge of his duty, obstructing public servant in
discharg e of public functions, common intention---Remissions, grant of ---Accused was
convicted and sentenced under S. 365- A, P.P.C. read with S. 7(e) of the Anti -Terrorism Act,
1997---Said conviction and sentence was assailed through criminal appeal and the same w as
dismissed ---Accused -petitioner filed appeal before Supreme Court which was dismissed,
however, the benefit of S. 382- B, Cr.P.C. was granted to accused ---Accused -petitioner had
contended that every prisoner was entitled for special remission granted by t he Federal and
Provincial Government from time to time and such remissions were refused to the accused-petitioner by the jail authorities ---Prosecution alleged that accused -petitioner committed offence
under the Anti -Terrorism Act, 1997, whereby such remis sions could not be extended---Validity --
-Article 25(1) of the Constitution of Islamic Republic of Pakistan provided equal protection to
the rights of all the citizens ---Forum of trial and the procedure might be different and the
punishment under same laws might be more stringent as compared to the other enactments, but after conviction, convict should be governed under the Pakistan Prison Rules and not under the law operating conviction ---Petitioner had been refused all kinds of remissions by Jail Authoriti es
vide S. 21- F of the Anti -Terrorism Act, 1997---Article 25 of the Constitution had provided that
all the citizens were equally entitled for protection of law ---Provision of S. 21- F of the Anti -
Terrorism Act, 1997 being ultra vires the Constitution, denia l of remissions to the petitioner was
discriminatory ---Once the benefit of S. 382- B, Cr.P.C. was granted to the convict, benefit of
special or ordinary remissions could not be withheld---Refusal of remissions to such a convict would tantamount to deprive t he liberty of the convict within the contemplation of Art. 9 of the
Constitution, which provided that "no person shall be deprived of life and liberty saved in accordance with law ---Constitutional petition was allowed accordingly.
Saleem Raza and 31 others v. The State PLD 2007 Kar. 139 and Hammad Abbasi v.
Superintendent Central Adiala Jail Rawalpindi PLD 2010 Lah. 428 rel.
Abdul Hameed Baloch for Petitioner.
Yahya Baloch, D.P.- G. for Respondents.
Date of hearing: 23rd May, 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
Muhammad alias Khuda Bakhsh son of Jalal resident of Baloch Abad Mand under Article 199 of Constitut ion 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 prayed 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 the petitioner granted by the central as well as provincial Governments during his period of t he 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
sections 365- A, 324, 353, 186 and 34, P.P.C. registered with Police Station 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 7(e) of the Anti -Terrorism, Act, 1997 and also ordered tha t 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 Court vide Criminal Appeal No. 118 of 2006
and the same was dismissed vide judgme nt dated 27th November, 2006.
5. Thereafter the petitioner filed appeal before the honourable 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 appearin g 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
further contended that the conviction of the petitioner was upheld up to the honourable Supreme
Court of Pakistan and nowhere the petitioner agitated for concession 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 the 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 convenience, 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 specia l 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 citizens living in this country are equal before law and are entitled to equal protection of law
i.e. al l citizens subjected to law should be treated of similar nature and alike under all
circumstances. 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 enactments, but after conviction should be governed under prison rules not under the law operating c onviction.
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 ot herwise, 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 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 decl ared as ultra vires of Constitution and liable to be struck down and all
prisoners convicted under NAB Ordinance were 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 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 the Anti Corruption laws by the Provincial Government would again be
discriminatory, besides, once the benefi t 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 a s 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-B, 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 forgoing reasons, we are inclined to accept this petition and direct respondent No.
2 Superintendent 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.
JK.95/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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