PLJ 2013
----R. 216--Control of Narcotic Substances Act, 1997--Ss. 9(c) & 15--Constitution of
Ch. Imran Raza Chadhar, Advocate for Petitioner.
Mrs. Salma, Addl. Advocate General for State.
Date of hearing: 15.11.2012.
PLJ 2013 Lahore
Present: Abdus Sattar Asghar and Sagheer Ahmad Qadri, JJ.
Rai MUHAMMAD ASIF NAWAZ--Petitioner
STATE, etc.--Respondents
W.P. No. 13591 of 2011, decided on 15.11.2012.
Order
Abdus Sattar Asghar, J.--Petitioner a convict/prisoner in case FIR No. 2/2003 under Sections 9(c) & 15 of the Control of Narcotic Substances Act, 1997 Police Station A.N.F. Faisalabad has invoked the constitutional jurisdiction of this Court to impugn the order dated 04.5.2011 issued by Government of the Punjab Home Department whereby he has been declined special remissions under Rule 216 of the Pakistan Prisons Rules, 1978.
2. Parawise comments/report obtained from the Superintendent Central Jail Faisalabad (Respondent No. 4) reveals that petitioner was admitted in jail on 22.2.2003 in the above referred case and bailed out on 13.10.2004. He was re-admitted in the jail on 02.11.2004 as under trial prisoner and thereafter learned trial Court vide order dated 15.11.2005 convicted and sentenced him to imprisonment for life with fine of Rupees One Million and in default thereof to further undergo four years R.I. Benefit of Section 382-B, Cr.P.C. was also given to him. Report further reveals that petitioner has been awarded following remissions:-
Y M D
(i) Ordinary Remissions. 01 04 10
(ii) Annual Good Conduct Remission 00 05 15
(iii) Presidential Special Remission 06 07 00
(iv) Education Special Remission 02 10 00
Total Earned Remission 11 02 25
Probable date of release 14.12.2016 if fine paid
Report also explains that under Section 382-B, Cr.P.C, 600 days spent in jail as under trial prisoner has been included in substantive sentence of the said convict and ordinary remission at the rate of five days per month (and 100 days in total) were granted to the petitioner. It explains that petitioner is not legally entitled to the grant of special remissions awarded by Government w.e.f. 22.2.2003 to 13.10.2004 during his under trial period and that he has been granted ordinarily remissions annual good conduct remissions, education remissions and Presidential remissions under the Rules.
3. It is argued by learned counsel for the petitioner that he is entitled to the special remissions under Rule 216 of the Pakistan Prisons Rules 1978 and that the impugned order dated 04.5.2011 is against law and facts, void, ineffective against his rights and liable to set aside. He has taken reliance upon Shah Hussain Vs. The State (PLD 2009 Supreme Court 460).
4. It is resisted by learned Law Officer on behalf of the respondents with the contentions that petitioner being a convict under Section 9(c) & 15 of Control of Narcotic Substances Act 1997 is not entitled to the special remissions under Rule 216 of Pakistan Prisons Rules 1978 in the light of the Government Policy Letter No. 14/1/93/MP dated 27.1.1993 issued by Government of the Punjab Home Department Lahore and Letter bearing Memo No. Legal/RM-27/2012/51361 dated 04.9.2012 issued by the Inspector General of Prisons Punjab Lahore; that observations in Shah Hussain's case have been declared as per incuriam in the latest dictum of Hon'ble Supreme Court of Pakistan in the case titled Nazar Hussain and another Vs. The State (PLD 2010 Supreme Court 1021); that the Hon'ble Supreme Court has further laid down that Policy of Remissions formulated by the Government is neither arbitrary nor discriminatory rather based on an intelligible differentia qua accusations/nature of offences or on the basis of law or rules reflecting the same which is permissible and not violative to Article 25 of the Constitution and law laid down by the Hon'ble Supreme Court in Shah Hussain's case.
5. Arguments heard. Record perused.
6. Perusal of the record transpires that petitioner's earlier Writ Petition No. 3130/2011 was disposed of by this Court vide order dated 13.4.2011 with the following observation:
"However, the petitioner may approach the Home Secretary, Government of the Punjab,
7. Pursuant to the aforesaid direction of this Court, Respondent No. 2 passed the impugned order on the basis of policy Letter No. 14/1/93/MP dated 27.1.1993 issued by Government of the Punjab Home Department Lahore. It may be expedient to reproduce the said letter for ready reference which reads below:--
"Copy of Letter No. 14/1/93/MP dated 27th January, 1993 from the Government of the
Subject:-- SPECIAL REMISSION/PAROLE IN RESPECT OF THE PRISONERS CONVICTED FOR THE OFFENCE OF DRUGS/NARCOTICS.
Punjab Cabinet in its meeting held on 26.1.93 decided that the convicts undergoing imprisonment for the offences of Drugs/Narcotics will not be allowed Special Remission henceforth-with. It has further been decided that parole release will also not been allowed to the convicts sentenced under the Drugs/Narcotics offences. In case, such order of remission is conveyed advertantly, the same may be referred back to the issuing authority for rectification. You are requested to have these instructions passed on to all concerned for compliance.
TOP PRIORITY.
OFFICE OF THE INSPECTOR GENERAL OF PRISONS, PUNJAB,
Endst:No. JB/G-III/3287-3315/Dated
1. A copy of above is forwarded to all the superintendents of Jails in the
2. Please acknowledge receipt.
3. Copy to the Secretary to Government of the Punjab Home Department Lahore for information with reference to Government Memo. Referred to above.
Sd/-
A.I.G. (Industry)
Inspectorate General of Prisons,
Punjab
8. At this juncture it may be expedient to reproduce a relevant extract from Shah Hussain's case:--
"----41. In view of the above discussion, our conclusions and directions are as under:--
(1) After the use of word "shall" for the word "may" in Section 382-B, Cr.P.C, at the time of passing the sentence, it is mandatory for the trial Court to take into consideration the pre-sentence custody period in the light of the principles discussed above;
(2) The refusal to take into consideration the pre-sentence custody period at the time of passing the sentence is illegal inasmuch as if the Court sentences a convict to imprisonment for life, which is the alternate but maximum sentence for the offence of murder, but does not make allowance for the pre-sentence custody period, it would be punishing the convict prisoner with imprisonment for life plus the pre-sentence custody period, that is to say, more than the maximum legal punishment;
(3) The convict-prisoners who are granted the benefit of Section 382-B, Cr.P.C., shall be entitled to remissions granted by any authority in their post-sentence detention or during their pre-sentence detention in connection with such offence. However, the same shall not be available to the convicts of offences under the National Accountability Bureau Ordinance, 1999, Anti-terrorism Act, 1997, the offence of karo kari, etc, where the law itself prohibits the same;
(4) The law laid down in Abdul Malik's case that under Article 45 of the Constitution, the President enjoys unfettered powers to grant remissions in respect of offences and no clog stipulated in a piece of subordinate legislation can abridge this power of the President, is hereby reaffirmed."
9. However, the fact remains that Presidents powers to grant remissions in terms of Article 45 and manner to exercise the powers in terms of Article 48 of the Constitution of Islamic Republic of Pakistan 1973 read with policy of remissions formulated by the Government as well as classifications made by Competent Authority on the basis of accusations/nature of offences or on the basis of law or rules reflecting the same have been considered in detail by the Hon'ble Supreme Court in Nazar Hussain's case. The
"--41. It has been a consistent view of this Court that classification is permissible provided the same is backed by law, rules or is based on reasonable differentia. For the exercise of authority under Article 45 of the Constitution, classification of convicts on the basis of accusation is permissible as the President may, inter alia, like to grant remissions to those who are not accused of heinous offences and may refused it to those accused of serious or terrorism related offences. In the remission policy under consideration (see Para. 24 above), a class of convicts involved in "heinous crimes" have been excluded from the benefit of remissions. As explained in Paragraphs 24 and 25, most of these exclusions are backed by law, rule or an intelligible differentia. The classification is reasonable and applies equally to convicts/prisoners similarly placed. This differentia is not hit by equality clause of the Constitution.
42. In Government of A.P. and others v. M.T. Khan [(2004) J Supreme Court Cases 616], the Indian Supreme Court was called upon to consider the question of classification of accused for purposes of remissions under similar provisions of its Constitution. The Court held that:
"It was considered expedient that the power is to be exercised in respect to a particular category of prisoners. The Government had full freedom in doing that and even excluding a category of persons which it thinks expedient to exclude. To extend the benefit of elemency to a given case or class of cases is a matter of policy and to do it for one or some, they need not do it for all, as long as there is no insidious discrimination involved. In the case at hand it was not only due to lack of power but also because of conscious decision to exclude in the background of what it considered to be lack of authority, and in our view no exception could be taken to the same, legitimately."
43. A classification made by the competent authority on the basis of intelligible differentia qua accusations/nature of offences or on the basis of law or rules reflecting the same, is permissible and would not be derogatory to the Constitution."
10. In the light of the latest dictum laid down by the Hon'ble Supreme Court referred to above it is obvious that policy of remissions formulated and issued by Government of the Punjab Home Department Lahore vide Letter No. 14/1/93/MP dated 27.1.1993 does not offend any clause of the Constitution or any provision of law. Therefore the impugned order dated 04.5.2011 declining special remissions to the petitioner being convict/prisoner under Narcotics offences does not suffer from any legal infirmity.
11. For the above discussion and reasons, the petitioner has no case to invoke the constitutional jurisdiction of this Court. This petition having no merit is dismissed.
(R.A.) Petition dismissed
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