Remission in ATA Cases

Citation Name : 2018 PCrLJ 148 QUETTA-HIGH-COURT-BALOCHISTAN

Side Appellant : MUHAMMAD alias KHUDA BAKHSH

Side Opponent : ATC MAKRAN AT TURBAT

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---Constitutional 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 discharge of public functions, common intention---
remission s, 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 was 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 the Federal and Provincial Government from time to time
and such remission s 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 remission s 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 remission s by Jail Authorities 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,
denial of remission s 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 remission s could not be
withheld---Refusal of remission s to such a convict would tantamount to deprive the
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.

Citation Name : 2016 PLD 509 LAHORE-HIGH-COURT-LAHORE

Side Appellant : Ex.-Brigadier ALI KHAN

Side Opponent : SECRETARY, HOME DEPARTMENT, GOVERNMENT OF PUNJAB

Ss. 21-F & 11-F (2)---Penal Code (XLV of 1860), Ss. 302 & 120-B---Pakistan Army Act (XXXIX
of 1952), Ss. 59 & 31 (d)---Pakistan Prison Rules, 1978, Rr.199 & 214-A---Grant
of remission to prisoner---Scope-- Accused was convicted and sentenced by Field General
Court Martial---Representation for seeking remission was moved by the accused but same
was declined---Validity---If remission s were refused on account of conviction under Anti-
terrorism Act. 1997 then effect of such refusal must not be taken beyond the period of
 maximum conviction provided for such offence---Principle of refusal of remission even if
applied in the present case then same must not be extended for remaining period of
conviction after exclusion of the period of maximum sentence of six months as provided
under S.11-F(2) of Anti-terrorism Act, 1997---Accused was never convicted for espionage
or anti-state activities resulting into refusal of remission ---To grant remission was an extra
judicial power of prison managers to shorten the sentence in a judicial manner to make
the criminal minds sane citizen---Such powers should have been in the exclusive domain
of prison authorities to deal with the matters in post-conviction period---No unjustified
restrictions could be imposed upon the prison authorities either in order to pre-empt
their such jurisdiction or to overawe their such statutory right---Only prison authorities
had power in view of the conduct of the prisoner in post-conviction period either to grant
or refuse remission and no other authority was competent to even comment upon the
conduct of the prisoner--Impugned refusal to grant remission to the accused was violative
of the Pakistan Prison Rules, 1978---Jail authorities were directed to grant remission to the
accused available under Pakistan Prison Rules, 1978 by excluding the period of conviction
of six months provided under S.11-F(1) of Anti-terrorism Act, 1997---Constitutional
petition was allowed in circumstances.

Citation Name : 2011 PLD 323 LAHORE-HIGH-COURT-LAHORE

Side Appellant : M. ASLAM MOUVIA

Side Opponent : HOME SECRETARY

S. 21-F---Pakistan Prison Rules, 1978, Rr.214 & 215---Constitution of Pakistan, Art.199---

Constitutional petition---remission s---Entitlement of convicts---Scope---Petitioner was
arrested and his trial commenced under Anti-terrorism Act, 1997, prior to insertion of
S.21-F in the Anti-terrorism Act, 1997, and after conviction he was denied
benefit/remission s under Pakistan Prison Rules, 1978---Plea raised by petitioner was that
according to Pakistan Prison Rules, 1978, the types of remission s were ordinary,
special remission s, remission s for rendering special services and educational services,
such remission s were akin to the earning of a convict and the same could not be
withdrawn without express sanction of law---Validity---remission under Pakistan Prison
Rules, 1978, were granted under special circumstances and were in fact earned by the
convict on the basis of some acts specified in rules 214 and 215 of Pakistan Prison Rules,
1978---Such remission s were in the nature of earning and could not be withdrawn
arbitrarily unless provided in relevant law---Provisions of section 21-F of the Anti-
terrorism Act, 1997, were not attached to such remission s---Denial of remission s under
Pakistan Prison Rules, 1978, could have been justified in view of the words
"notwithstanding anything contained in any law or Prison Rules"---Provisions of S.21-F of
Anti-terrorism Act, 1997, had not retrospective effect and were not applicable to the case
of petitioner---Petitioner was entitled to remission s available to him under the provisions
of Pakistan Prison Rules, 1978-High Court directed the authorities to grant
such remission s to petitioner as he was entitled to under the provisions of Pakistan Prison
Rules, 1978---Petition was allowed in circumstances
Citation Name : 2016 PLD 1 ISLAMABAD

Side Appellant : SHAFQAT HUSSAIN

Side Opponent : PRESIDENT OF THE ISLAMIC REPUBLIC OF PAKISTAN

Art. 45---Grant of pardon---Power of the President-Judicial review---Scope--Powers of the President

under Art.45 of the Constitution are unfettered and subject to limited power of judicial review by
courts---Writ cannot be issued compelling the President to exercise discretion under Art.45 of the
Constitution---Such discretion has been exclusively vested in the President by the framers of the
Constitution.

Citation Name : 2015 PLD 391 LAHORE-HIGH-COURT-LAHORE

Side Appellant : JAMSHED NAWAZ

Side Opponent : SESSIONS JUDGE, RAWALPINDI

Art. 45---President's power to grant pardon etc.---Words 'any', 'sentence' and 'court'---Omnibus
order---Scope---Word used 'any' prior to 'sentence' and 'court' denotes to particular sentence
awarded by particular Court or Tribunal---President is competent to grant any stated relief to a
deserving person with reference to any particular sentence passed by any Court or Tribunal or other
authority by exercising such constitutional domain---Omnibus order granting such relief to whole of
the class of condemned prisoners without any specification is not intention of the Constitution.

Citation Name : 2008 PLD 71 SUPREME-COURT

Side Appellant : HUMAN RIGHTS CASE NO. 4115 OF 2007

Side Opponent :

S. 382-B---Prisons Act (IX of 1894), S.3---Constitution of Pakistan (1973), Art.45---Remission in

sentence pronounced from time to time by Federal or Provincial Government---Under-trial prisoner
getting benefit of S.382-B, Cr.P.C. from court after his conviction---Entitlement to such remission---
Scope---Under-trial prisoner for not being a convict would not be entitled to such remission---Such
remission pronounced after passing of conviction/sentence by competent court would be available to'
prisoner except those specifically excluded from benefit of such remission by competent Authority---
Principles.

Citation Name : 2006 PLD 365 SUPREME-COURT

Side Appellant : ABDUL MALIK

Side Opponent : State

 ---Arts. 45, 48(2) & 2-A---Criminal Procedure Code (V of 1898), 5.402---Power of President of
Pakistan to grant remissions in terms of Art.45 of the Constitution---Nature and scope---President
enjoys unfettered powers to grant remissions in respect of offences and no clog stipulated in a piece
of subordinate legislation could abridge such powers of the President---Such powers of the President
were not violative of the spirit of Art.2-A of the Constitution---Power of the President to grant pardon,
reprieve, respite, remit or suspend, or commute any sentence was not subject to S.402, Cr.P.C.---
Principles.

Citation Name : 2005 PLD 163 SUPREME-COURT

Side Appellant : Haji ABDUL ALI

Side Opponent : Haji BISMILLAH

-Ss. 382-B & 401---Constitution of Pakistan (1973), Art.45--Remission--- Entitlement---Sentencing

Court is required to take into consideration the period during which an accused is detained in custody
for an offence but such accused under the provisions of 382-B, Cr.P.C. cannot be treated as a convict
from 'the very inception---Remissions granted by President under Art.45 of the Constitution or the
Provincial Government are not available to a convict for the period during which he had not been
convicted of any offence nor was he undergoing any sentence.

Citation Name : 1992 PLD 595 SUPREME-COURT

Side Appellant : HAKIM KHAN

Side Opponent : GOVT. OF PAKISTAN

Arts. 45 & 2A---Court has no power to apply the test of repugnancy by invoking Art.2A of the
Constitution for striking down Art.45 of the Constitution of Pakistan.

Citation Name : 1992 PLD 14 SUPREME-COURT

Side Appellant : BHAI KHA

Side Opponent : THE STATE

Art. 45---Commutation of sentence---Power of President under Art. 45--Nature---Such power of the

President was not subject to any limitations or conditions that may be found in the Pakistan Penal
Code, 1860 or the Code of Criminal Procedure, 1898.--[Sentence].

Citation Name : 1979 SCMR 292 SUPREME-COURT

Side Appellant : BHAG SULTAN

Side Opponent : SUPERINTENDENT DISTRICT JAIL RAWALPINDI ETC.

 ----Art. 45-Mercy petition Mercy and justice---cannot be entirely divorced from each other While
exercising; mercy power question whether justice done to parties held also a relevant factor.---
[Mercy petition]

Citation Name : 1976 PLD 291 SUPREME-COURT

Side Appellant : SAEED HASSAN

Side Opponent : PYAR ALI

Art. 45?Pardon?General amnesty?Indulgence or mercy shown to 4 convict or group of convicts by

reason of an executive fiat under some special circumstances?Cannot influence judicial decision in a
subsequent case.