Sarmad Jalal Osmany, J.--Briefly stated the facts in all these three petitions are identical to the extent that the petitioners in C.P. No.992/2006 and C.P. No. 163/2004 and the father of the petitioner in C.P. No.242/2005 were convicted in various references filed against them before the learned NAB Courts and sentenced to various terms of imprisonment. In the case of petitioner Syed Hassan Raza In C.P. No. 992/2006 he was sentenced in Reference No. 39/2001 to undergo R.I. for five years and pay a fine of Rs.3 millions and in default of which he was to suffer RI. for 2 years and six months.
Petitioner Iqbal Ahmed Turabi in C.P. No. 163/2004 was sentenced in the same reference to undergo R.I. for 10 years and to pay a fine of Rs. 95 millions along failing which he was to suffer further R.I. for 3 more years. Finally, the petitioner's father in C.P. No. 242/2005 viz. Munawar Hussain Sandhu was sentenced to undergo R.I. for 6 years each in two References being Nos. 5/2000 and 6/2000 and to pay a fine of Rs. 40 millions and 55 millions respectively in default of which he was to undergo one more year each R.I. in both references. He was also disqualified in terms of Section 15 of the NAB Ordinance. However, the benefit of Section 382-B Cr.P.C. was given to him. The appeals filed by the petitioners failed before this Court a well as the Hon'ble Supreme Court of Pakistan. Now, the petitioners have approached this Court in writ jurisdiction praying that if the remissions in their sentences are given to them as per the Prison Rules,' Cr.P.C. and the Constitution of Pakistan they would have earned their freedom, and hence it be directed that they should be set free having completed their respective sentences.
2. During the course of arguments the following legal issues were identified by us vide order dated 30-8-2006:--
(a) "Whether Section 10(d) of the NAB Ordinance which was promulgated on 23-11-2002 is retrospective in nature so as to deny the remissions to all those accused persons convicted before such section was promulgated?
(b) Whether the failure of the Jail Superintendent and I.G. Prisons to grant remissions to those accused person's convicted under the NAB Ordinance was lawful in the circumstances of the case?
(c) Whether the amendment itself viz. Section 10(d) is ultra vires the Constitution?"
3. After we had heard the arguments of all the learned Counsel as well as learned DPG NAB, a joint statement was made that since the issue whether or not Section 10(d) of the NAB Ordinance is ultra vires the Constitution is sub judice before a Full Bench of this Court, therefore, the same not be decided and only the first two issues be considered. Accordingly, such order was passed on 21-9- 2006 when these petitions were reserved for orders. However, thereafter these petitions were again fixed for rehearing on 17-11-2006 as during the course of writing of the order certain issues needed to be clarified viz. the power of the President of Pakistan under Article 45 of the Constitution and the powers of the Provincial Government under Section 401 of the Cr.P.C. vis-a-vis remissions.
4. We have heard all the learned Counsel as well as the learned Addl. Advocate-General and learned DPG NAB and our conclusions are as follows.
5. Insofar as the first issue is concerned, viz. the retrospective applicability of Section 10(d) of the NAB Ordinance which prohibits remissions to those persons convicted under the NAB Ordinance, Mr. Faisal Siddiqui appearing for the petitioner in C.P.No. 163/2004 has firstly submitted that remissions are to be granted upon conviction and per well-settled law criminal statutes are prospective in nature unless specifically mentioned therein. According to Learned Counsel as, the language of Section 10(d) does not suggest anything to the contrary, hence ordinary remissions under the Jail Rules cannot be withheld in the case of those accused who were convicted under the NAB Ordinance before 23-11-200 when Section 10(d) was added to the said Ordinance. Learned counsel has further submitted that where remissions were withheld to NAB convicts before the promulgation of Section 10(d) and granted to those similarly placed viz. convicted under the Anti- Corruption Laws etc., again such practice should be struck down as being discriminatory.. In support of his submission, he has relied upon C.P. No. 320/2005 entitled Abdul Sattar Lasi v. The Superintendent District Jail Quetta decided by the learned Baluchistan High Court on 31-10-2005 and upheld by the Supreme Court in Cr. Petition No. 59-Q of 2005 entitled State v. Abdul Sattar Lasi vide order dated 1-2-2006, Shahzad Abid v. State (2003 P.Cr.L.J. 661), and Qaim Khan and 4 others v.
State (2002 MLD 715). Insofar as the power of the President of Pakistan to grant remissions under Article 45 of the Constitution is concerned, learned Counsel has submitted that the same is privileged being constitutional in nature and hence not subject to judicial review. In this regard he has relied upon Bhai Khan v. State (PLD 1992 SC 14), Abdul Malik v. The State (PLD 2006 SC 365) and Hakim Khan v. Government of Pakistan (PLD 1992 SC 595). However, where the exercise of such power under Article 45 is either shocking or capricious etc., then perhaps the same would be open to judicial review. In this regard reamed Counsel has referred to a case from the Indian jurisdiction entitled Maru Ram v. Union of India (AIR 1980 SC 2147) wherein was held by the Hon'ble Supreme Court of India that capricious exercise of constitutional power by any functionary be it the President of the Union or the, Governor of a province would give rise to judicial review of the same. Finally, per learned Counsel, insofar as the Provincial Government's power under Section 401 of the C.P.C. is concerned to grant remissions, these too would have to be exercised in accordance with law and hence where the same were withheld in the case of NAB convicts prior to the addition of Section 10(d) or for that matter'denied to such convicts who were convicted before such addition, this would not be justified. Consequently, learned Counsel has prayed that all remissions denied to NAB convicts who were convicted prior to the imposition of Section 10(d) or for that matter denied to them prior to the same, be granted to them including the Petitioner in C.P. No. 163/2004.
6. Mr. Ghulam Sarwar Chandio appearing for the petitioner in C.P. No. 992/2006 has supported the arguments of Mr. Faisal Siddiqui and has additionally cited two more judgments on the issue of retrospective operation i.e. Pakistan Steel. Mills Corporation u. Muhammad Azam Katpar (2002 SCMR 1023) and Haji Abdul Ali v. Haji Bismillah (PLD 2005 S. C. 163).
7. Mr. Aamir Mansoob Qureshi, appearing for the petitioner in C.P. No. 242/2005 has also supported the arguments of Mr. Faisal Siddiqui. He has relied upon Abdul Ali v. Bismillah (PLD 2005 SC 163). He has further submitted that remissions once entered on the history ticket of a convict cannot be taken back. Hence the failure; if any, by the Jail Authorities to do so is again unlawful. For this proposition he has cited Muhammad Arif v. Superintendent Central Jail Lahore and 2 others (PLD 2006 Lahore 561).
8. Mr. Habib Ahmed learned A.A.G. has supported the arguments of other learned counsel insofar as the issues of retrospective operation of Section 10(d) is concerned. Additionally on the other issue viz. failure of the Jail Authorities to grant remissions to NAB convicts, he has submitted that the I.G. Prisons and the Superintendent Jail have sometimes failed to give remissions under the Prison Rules during the past six years even to those convicts who were not convicted under the NAB Ordinance. In this regard he has submitted that for the years 2001 to 2003, the I.-G. Prisons gave remissions to all convicts under the Prison Rules as earned by them. Strangely in 2004 he did not give any remissions to any convict and in 2005 and 2006 he gave remissions to all convicts except those convicted under the NAB- Ordinance. The Superintendent Jail gave remissions to all convicts in 2001 but failed to do so in 2002 and 2004 whereas in 2003, 2005 and 2006 he gave remissions to all except NAB convicts. Per the learned A.A.G. neither the I.-G. Prisons nor the Superintendent of Jails have been following a uniform policy in this respect as sanctioned under the law. According to him, if at all remissions could be curtailed only in the case of those convicts who were convicted under the NAB Ordinance after the addition of Section 10(d).
9. Mr. Shafaat Nabi K. Sherwani, learned DPG NAB, has supported the arguments of the other Learned Counsel and Learned A.A.-G. regarding the non-retrospective operation of Section 10(d) of the NAB Ordinance. He has further submitted that under Article 45 of the Constitution the power of the President of Pakistan is two fold i.e. he can give remissions/pardons generally and/or on a case to case basis. According to Mr. Sherwani, the power of the President is based on the Injunction of Islam pertaining to "Adl and Ehsan" i.e. justice tampered with mercy and hence is not open to judicial review until there is a case of gross illegality. Hence denial of remissions to NAB Convicts by the President of Pakistan is neither discriminatory nor does it suffer from any other illegality since the objects of the NAB Ordinance are many fold viz. to recover money looted by , the Government functionaries, to eradicate corruption and corrupt practices and to recover bank loans from the defaulters etc. On the other hand, the Prevention of Corruption Act, 1947 has been enacted only for a limited propose i.e. for the prevention of bribery for which punishments of a penal nature are provided. According to Mr. Sherwani, therefore, the NAB Ordinance .stands on a higher pedestal than the Prevention of Corruption Act as it has been enacted not only for the purpose of recovering looted money but for eradication of corruption and corrupt practices for which exemplary punishments have been provided. However, he has supported the other learned counsel as well as learned A.A.-G. insofar as the failure of the Provincial Government and Jail Authorities to give remissions to those NAB Convicts who were convicted before the promulgation of Section 10(d) of the NAB Ordinance.
10.We have heard all the Learned Counsel as well as the learned D.P.G. NAB.
11. It would be seen that per the fundamental rule of interpretation of Statutes, there cannot be any retrospective operation of the same so as to impair an existing right or obligation unless the same is manifest from the very wording itself or can be gathered by necessary intendment. This, however, would not apply to procedural laws since no person has a vested right in the course of procedure unless the same can be demonstrated and clearly spelled out from the Statute itself.
Consequently, a statute which impairs vested rights acquired through past and closed transactions cannot be held to be retrospective only by virtue of mere implication. (Asif Ali Zardari v. The State 1993 PCr.LJ 781). This principle of interpretation has been upheld by the Hon'ble Supreme Court of Pakistan in a number of cases viz. Pakistan Steel Mills Corp. v. Muhammad Azam Katpar (2002 SCMR 1023), CIT v. EFU Insurance Company (PLD 1982 SC 247), Hassan and others, v.
Fancy Foundation (PLD 1995 SC 1) etc. In the case of Abdul Sattar Lasi v. The Superintendent Jail Quetta (supra), a Division Bench of the Balochistan High Court has held that the operation of Section 10(d) would not be retrospective in nature and hence all those who were convicted under the NAB Ordinance prior to 10-11-2002 would be entitled to ordinary remissions under the Jail Rules which has been upheld by the Hon,ble Supreme Court (supra). We are also of the opinion that upon a plain reading of Section 10(d) of the NAB Ordinance, it is not retrospective in nature and hence cannot take away the vested rights of the petitioners who were convicted prior to addition of the same to earn remissions.
12. A corollary to the first question is the nature of the remissions which are to be granted to those NAB Accused convicted prior to the addition of Section 10(d) of the NAB Ordinance. In this regard, it would be seen that remissions are of two types viz. general and special, the former of which are earned by convicts under the Jail Rules whereas the latter consist of remissions granted by the President of Pakistan under Article 45 of the Constitution and by the Provincial Government under Section 401 of the Cr. P.C. Remissions earned under the Jail Rules are as of right and since we have come to the conclusion that Section 10(d) of the NAB Ordinance is not retrospective in nature hence those remissions earned by NAB convicts who were convicted prior to the imposition of Section 10(d) are to be given to them under the Jail Rules. Insofar as remissions given by the Provincial Government under Section 401 of the Cr. P.C. are concerned, it may be seen that these are normally given on festive occasions viz. Eid, Eid-e-Miladun Nabi, Independence Day, etc., and hence are not as of right and consequently cannot be claimed as such by any convict. However, it may also be seen that under the relevant notification the Provincial Government has granted such remissions to all prisoners generally except those convicted under certain laws viz. NAB Ordinance, Anti-Terrorism Act, Foreigners Act, Zina (Enforcement of Hudood) Ordinance, 1979 etc. A Full Bench of this Court in C.P. No. 1258 of 2006 entitled Saleem Raza and others v. The State, has declared that Section 10(d) of the NAB Ordinance is ultra wires the Constitution on the touchstone of Article 25 which guarantees equal protection of law to all citizens, since it unfairly discriminates between those accused convicted under such Ordinance and other accused convicted under the ordinary Anti-Corruption Laws although the offences in both sets of laws are more or less of the same nature. The reasoning which prevailed upon the learned Full Bench was that no reasonable classification could be attributed per Section 10(d) which singles out a particular class of convicts which are denied remissions whereas other convicts similarly placed i.e. convicted under the Anti- Corruption Laws have the benefit of remission. On the same principle, we would also hold that the denial of remissions to NAB convicts and allowing the same in respect of those convicted under the Anti-Corruption Laws by the Provincial Government would again be discriminatory. Hence, in our opinion, the petitioners would be entitled to those remissions which have been granted by the Provincial Government under Section 401, Cr.P.C. to other prisoners. However, insofar as the power of the President of Pakistan under Article 45 of the Constitution to grant or withhold remissions is concerned, the same is not subject to judicial review. In this regard reference can be made to Bhai Khan v. The State and Abdul Malik v. The State (supra). Consequently, we would answer the first question in the negative in terms of the foregoing observations.
13.Insofar as the next question is concerned, viz. the failure of the I.-G. Prisons and the Jail Authorities to grant remissions during some years to all convicts and in some years to those convicted under the NAB Ordinance, we are of the opinion that such a policy cannot be endorsed at all under the law. In this regard, it would be noted that Section 24-A of the General Clauses Act enjoins all State functionaries to exercise power reasonably, justly, fairly and for the advancement of the law under which said power is given. Hence, where the I.G. Prisons and the Superintendent of Jails have denied remissions to ordinary convicts as earned by them under the Prison Rules the same cannot be upheld. Similarly, the denial of the remissions due to the petitioners and other NAB convicts who were convicted prior to 22-11-2002 would again be an exercise without any legal sanction as we have come to the conclusion that Section 10(d) of the NAB Ordinance would not apply retrospectively. In the circumstances, we would answer the second question framed by us also in the negative.
14. For the foregoing reasons we would, therefore, allow these petitions to the extent of the Questions Nos. 1 and 2 formulated by us and answered herein in terms of our observations.
Consequently, the Jail Authorities are directed to prepare fresh jail rolls of the petitioners and release them from jail, if they have completed their sentences taking into account all the remissions etc., which have been denied to them per Section 10(d) of the NAB Ordinance excluding those denied by the President of Pakistan.
Petitions stand disposed of.