h1

P L D 2004 QUETTA 1

HAJI BISMILLA
V/S
GOVERNMENT OF BALOCHISTAN THROUGH SECRETARY, HOME
Per Fazl-ur-Rehman, J-

Constitution of Pakistan (1973) Art. 45 & 2A-

There is no cavil with the proposition that the President in exercise of his powers under Article 45 of the Islamic Republic of Pakistan can grant remissions or pardon to any prisoner, who has been convicted and sentenced under any offence contained in general law or in special law. The said Article of the Constitution overrides the provisions of Pakistan Penal Code or the Code of Criminal Procedure. The Hon’ble Supreme Court in the case of Hakim Khan and 3 others v. Government of Pakistan and others PLD 1992 SC 593, has held that Article 2A was not a supra-Constitutional measure. The scope of the powers of President under Article 45 of the Constitution has also been discussed in case titled Eid Muhammad and another v. The State PLD 1992 SC 14 [p. 6] A

Constitution of Pakistan (1973) Arts. 45 & 48(2)-

A Full Bench of this Court is a case reported in 1999 YLR 1596, relying on the aforesaid authority has also held that the scope and powers of the President under Article 45 of the Constitution, is discretionary in view of the provisions as contained under Article 48(2) of the Constitution and no embargo whatsoever, has been imposed on it. It was further held that exercise of such discretion cannot be assailed before any forum including a Court of law. Reference was made to the authority reported in 1979 SCMR 302. In the aforesaid case. Full Bench of this Court also held that the remissions granted under Article 45 of the Constitution can neither be curtailed or effected by Prisons Rules red with Remission Rules, 1965. [p. 7] B & C

Constitution of Pakistan (1973) Art. 45, 55,& 199-
R/w Penal Code (XLV of 1860) S. 302(b)-Criminal Procedure Code (V of 1898) Ss. 401 & 402(c)-

In view of above position, the remissions granted through notifications issued on 14th August, 1997, 4th February, 1998, 23rd March, 1998, 16th January, 1999, 1st April, 1999, 29th May, 1999, were not admissible to respondent, as he was not convicted and undergoing sentence on the days, when the notifications were issued. As stated above, the respondent was convicted on 5th October, 1999, therefore, the benefit of notifications cannot be extended to him by way of reduction from his term of imprisonment. The sentence is always preceded by conviction.

Similarly, the benefit of remissions extended to respondents Abdul Zahir and Gul Baran through notifications issued during the period they remained as under trial prisoner, were also not admissible, as they were not convicted persons and undergoing sentences. Even otherwise, they were convicted for imprisonment for life by the Hon’ble Supreme Court.

It is granted unconditionally under section 401 of the Criminal Procedure Code and has not covered by these Rules. The amendments brought about in Chapter XVI, section 55 of Pakistan Penal Code and section 402-C, Cr.P.C put a bare regarding grant of remission without the consent of victim or as the case may be of his heirs. The amendments had been brought about through Ordinances and thereafter, through Criminal Law (Amendment) Act, 1997, which Act received the assent of the President on 10th April, 1997.

A Division Bench of this Court in 1998 PCr.LJ 921 has held that the Provincial Government has no authority to exercise its powers under section 401, Cr. P.C. in view of section 402-C, Cr.P.C. Relevant paras. of the said authority are reproduced hereinbelow :

“A bare perusal would reveal that the provisions as contained in section 401, Cr.P.C., repugnant to Injunction of Islam cannot be exercised by the Provincial Government.

Keeping in view the aforesaid legal position, it can be concluded firstly; that he benefit of notifications enumerated at paras nos. 13 and 15, shall not be extended to the respondents, who were convicted on 23rd June, 1996 and 5th October, 1999 respectively under Chapter XVI of the Pakistan Penal Code, secondly; the issuance of notifications under Rule 216 of the Pakistan Prisons Rules on the eve of Eid etc. were without lawful authority and the sentences of the respondents, who were convicted under Chapter XVI of the Pakistan Penal Code should not have been remitted on the basis of these notifications, therefore, those are declared to be without jurisdiction and of no legal effect, and thirdly; the grant of remissions to the respondents, who were convicted under Chapter XVI of Pakistan Penal Code, by the Government under section 401, Cr. P.C without the consent of victim or, legal heirs of deceased are declared to be contrary to law and without lawful authority.

The Constitutional petition stands disposed of, in the above terms with no order as to costs. [p. 12, 13, 14, 15] D, E, F, G, H & I

Petition accepted.

Shakil Ahmed and Ayaz Zahoor for Petitioner.
Ghulam Mustafa Mengal, Addl. A.G
Zahid Malik for Respondent no. 2
Sh. Ghulam Ahmed for Respondent no. 4
Muhammad Aslam Chisti for Respondent nos. 5 and 6

Date of hearing : 3rd December, 2002

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