Per Muhammad Mahmood Bhatti, J.(a) Constitution of Pakistan (1973), Articles 260, 45, 129 & 132:
(Interim Constitution of 1972, Articles 290, 262, 102 & 104)
Interim Constitution of Pakistan (1972), Arts. 290, 102, 104, & 260 Criminal Procedure Code (V of 1898), S. 401, and West Pakistan Government Rules of Business 1962, r. 5 — Authority to grant remission — Word “Government” Minister an officer subordinate to Governor, — Governor being competent to award remissions, held, could act through minister — Minister being responsible for policy matters concerning his Department and also being in charge of his Department, held further, competent to award remission by virtue of Business Rules and presumption arises of such having been done on behalf of Governor — Power exercised by Central Minister in granting remission also not open to any exception on similar grounds. [Sentence].
In order top appreciate the contention of the learned counsel I have to refer to the Interim Constitution which applicable for the three entries (1_), (2) and (6). Remission at (1) and (2) above were granted by the Provincial Minister at (6) by the Central Minister. The word “Government” has been defined in the General Clauses Act, 1897. Under Section 3(21), “Government” shall include both the Central Government and the Provincial Government. “Provincial Government” is defined in Article 290 of the Interim Constitution (Article 260 of 1973). According to this definition it shall mean Executive Government of a Province and under Article 102 of the Interim Constitution (Article 129 of 1973) such authority vests in the Governor. On the basis of this interpretation it is only the Governor who is competent to award remission, but according to Article 102 of the Interim Constitution (129 of 1973), the executive authority of the Province shall be exercised either by the Governor directly or through Officers subordinate to him. Now, it is to be ascertained whether a Minister is an Officer subordinate to the Governor. Under Article 104 (Article 132 of 1973) of the said Constitution, Ministers are appointed and removed from office by the Governor on the advice of the Chief Minister. Since the Governor is the
appointing and removing authority, the Ministers will have to be considered as Officers subordinate to the Governor. Reliance is placed on Emperor v. Sibnath Banerji etc. (1), wherein in a corresponding provision of Section 49(1) of Act of 1935 received interpretation and the sole question for determination was whether the Home Minister was an Officer subordinate to the Governor. On the basis of these two authorities it becomes clear
that the Governor who in exercise of the powers conferred upon him under Section 401, Cr.P.C. is competent to award remission can act through the Ministers. Under Article 106(3) and (4) (Article 139 of 1973) the Governor is competent to frame rules of business of the Provincial Government for allocation amongst Ministers of the said business. In the West Pakistan Government Rules of Business, 1962, “Minister” is defined as Minister incharge of the Department to which a particular case pertains and under rule 5, the “Minister” is responsible for policy matters concerning his Department. So in view of these two provisions by which a Minister is responsible for policy matters concerning his Department and he is also incharge of his Department and by virtue of business rules he is competent to award remission under Section 401, Cr.P.C. and it will be presumed that he has done it on behalf of the Governor. Similarly corresponding provision is Article 54 of Interim Constitution, wherein the executive authority of the Federation is to be exercised by the President either directly or through Officers subordinate to him. Under Article 63, Ministers are to be chosen by the President and they are to hold office during the pleasure of the President. As a result of it a Central Minister will be considered as a subordinate Officer of the President. Under Article 66 of the Constitution the President shall make rules for the transaction of business of the Central Government and for the allocation amongst Ministers and Ministers of State of the Federal Government. By virtue of rules of business framed by the President, a Minister can exercise the power of granting remission under Article 262 of the Interim Constitution (Article 45 of 1973) read with Section 401 (5), Cr.P.C. and as such the power exercised by the Central Minister in granting remission is also not open to any exception.