' WAQAR HASSAN MIR, J.---Through this petition, the petitioner has prayed for as under:-
(a) That the respondent Superintendent Jail be directed to grant remissions to the petitioner available under the Prison Act, 1984 or ordinary and special remissions for which other accused are entitled.
(b) It is further prayed that direction be issued to the respondent to grant remissions to the petitioner which is being granted by the President of Pakistan under Article 45 of Constitution of Islamic Republic of Pakistan, 1973 on special eves.
(c) It is further prayed that section 21-F of Anti-Terrorism Act may be struck down as is violative of the fundamental rights.
2. The petitioner in this case, who was involved in a case F.I.R. No,381 dated 10-7-2004 registered under sections 302, 109, 148, 149, 120-B read with section 7 ATA, Police. Station R.A. Bazar Rawalpindi, was sentenced and convicted by the learned Judge, Anti Terrorism Court-I, Rawapindi as under:- ' Offence under section 7(a)/21-(i) ATA read with section 302/ 149 P.P.C.
' Life Imprisonment on two counts with fine of Rs,1,00,000 failing to pay the same, to suffer six months' SI and imposed compensation of Rs,50,000 payable to legal heirs of each deceased under section 544-A Cr.P.C., failing which to suffer SI of .Three months.
' Offence under section 7 (d) 21-(i) ATA ' Ten years with fine of Rs,50,000 failing to pay the fine to suffer SI for 3 months.
' Offence 148/149 P.P.C. Three years.
3. Learned counsel for the petitioner submits that under the Jail Manual, remission system is mentioned in chapter-8, which starts from rule 198 up to rule 223-A, that there are two types of remissions under jail Manual; one is ordinary and other is special remission; the special remissions are those, which are being granted by the President of Pakistan under Article 45 of Constitution of Islamic Republic of Pakistan, 1973 (hereinafter be referred as the Constitution), that special remissions are defined in Rule 214; he has pointed out that ordinary remission is not earnable if a prisoner is convicted for offence committed after admission in prison or for an assault committed after admission to prison, on a warder or other officer, the remission awarded by Government under section 401 Cr.P.C. Awarded for blood donation surgical sterilization and for passing examinations. He further submits that this provision is contained in Rule 202; he has further referred to Rule 215 wherein it is provided that "a convict prisoner may appear in any of the examinations specified in the rules and shall on passing such examinations be entitled to earn remission." It is further stated that as per Rule 220, when a prisoner has earned such remission as entitled him to release, the. Superintendent shall release him unconditionally. He further submitted that the convicts other than the ATA convicts with similar sentence have been released much earlier, after serving out their sentence, after earning the remission but the petitioner is still rotting in jail; he further submits that previously, remissions were not granted for the period as under trial prisoners and now, the Apex Court, after revisiting the earlier judgments, observed that remissions will, be granted even for the period of under trial prisoners. Learned counsel further submits that the petitioner has passed certain examinations, particulars thereof are mentioned in Paragraph 8 of the petition; that no such remissions were granted although the petitioner is entitled to such remissions as being provided under Prison Act, 1984; that the petitioner has also been deprived of the remissions given by the President of Pakistan under Article 45 of the Constitution; that the order passed by the President of Pakistan for not granting remissions to the accused involved in terrorist activities is hit by the Articles 25 and 9 of, the Constitution; that educational remissions, good conduct and other remissions for which accused are entitled, are not being granted to the petitioner, which is violation of law; that the petitioner is entitled to all remissions, which are being available under Prison Act, 1984 as these are under the law. Learned counsel further submitted that the provisions of section 21-F of the Anti-Terrorism Act, 1997 (hereinafter be called as the Act, 1997) are ultra vires of the Constitution as these are violative of the fundamental rights enshrined in the Constitution, particularly in Articles 12 and 25 thereof. It is lastly submitted that refusal to allow remission to a convict whom the court has granted the benefit of section 382-B, Cr.P.C. Would tantamount to deprivation of his liberty within the contemplation of Article 9 of the Constitution. In support of his contentions, learned counsel has relied upon the judgments reported as Shah Hussain v. The State (PLD 2009 SC 460), Adbul Malik and others. v. The State (PLD 2006 SC 365)
Saleem Raza and others v. The State (PLD 2007 Kai achi 139), and Abdul Rashid v. Government of Punjab and others (2006 MLD 1683).
4. Vide order dated 3-2-2010, report was sought from the Superintendent Central Adiala Jail, Rawalpindi, who submitted the same. It is stated in the report that "the petitioner has been convicted and sentenced under Anti Terrorism Act, 1997, therefore, he is not entitled to any kind of remission vide section 21-F of ATA, 1997. After insertion of section 21-F, ATA, 1997, the Inspectorate of Prisons, Punjab, Lahore restricted all kinds of remissions after 27-1-2006 to prisoners sentenced under Anti-Terrorism Act, 1997 vide No,JB/2006/3707-3740 dated 27-1-2006. Moreover, the august Supreme Court of Pakistan has also restricted all remissions to prisoners sentenced under Anti Terrorism Act, 1997 vide judgment dated 11-5-2009 titled as Shah Hussain v. The State" During the course of hearing, learned AAG has also placed on record the copy of the letter which shows that the petitioner has been shifted from the Central Jail, Rawalpindi to Central Jail, Multan for confinement in High Security Barrak on 24-5-2010 under orders of Government of Punjab, Home Department, Lahore vide No,SO(MP) 4-8-C/2010 dated 21-5-2010.
5. On the other hand, learned Assistant Advocate-General Punjab states that section 21-F of the Act, 1997 is not violative of the provisions as contained in Articles 12 and 25 of the Constitution; he further submits that remission to a convict is a concession only under the Prison Rules and is not a right, therefore, the petitioner cannot claim it and has no right to call in question the validity and vires of section 21-F of the Act, 1997 and the object of enacting the Anti Terrorism Act was not to incarcerate the convicts for longer period but the object was to provide effective measures for speedy disposal of the cases of such nature. He further submits that under Article 45 of the Constitution the power of the President of Pakistan is two folds i,e, he can give remissions/pardons generally and/or on a case to case basis; the power of the President is based on the injunction of Islam pertaining to "Addl and Ehsan" i,e, justice tempered with mercy and hence is not open to judicial review until there is a case of gross illegality. Lastly he has submitted that the petitioner being sectarian convict is not entitled to any remissions.
6. I have carefully considered the contentions raised by the learned counsel for the petitioner as well as the learned AAG and the case law cited above.
7. Before dilating upon section 21-F of the Act ibid, it would be expedient to narrate the principles governing the issues relating to the validity and vires of law qua Articles 8 (1) (2), 12 and 25 of the Constitution. The said Articles provides as under:- ' Article 8 (1) (2) of the Constitution:
(8) Law inconsistent with or in derogation of Fundamental Rights to be void.-- (1) Any law, or any custom or usage having the force of law, insofar as it is inconsistent with the rights conferred by this Chapter, shall, to the extent of such inconsistency, be void.
(2) The State shall not make any law which takes away or abridges the rights so conferred and any law made in contravention of this clause shall, to the extent of such contravention, be void.
(12) Protection against retrospective punishment.-(1) No law shall authorize the punishment of a person:--
(a) for an act or omission that was not punishable by law at the time of the act or omission; or
(b) for an offence by a penalty greater than, or of a kind different from, the penalty prescribed by law for that offence at the time the offence was committed. \
(2) Nothing in clause (1) or in Article 270 shall apply to any law making acts of abrogation, or subversion of a Constitution in force in Pakistan at any time since the twenty-third day of March, one thousand nine hundred and fifty-six, an offence.
' Article 25(1) Equality of citizens.-- All citizens are equal before law and are entitled to equal protection of law.
(2) There shall be no discrimination on the basis of sex alone.
(3) Nothing in this Article shall prevent the State from making any special protection of women and children.
8. The word "discrimination" appearing in Article 25(2) of the Constitution is defined to mean "making a distinction or difference between things; a distinction or difference between things; a distinction; a difference; a distinguishing mark or characteristic; the power of observing differences accurately, or of making exact distinctions; discernment.". Thus discrimination involves an element of unfavourable bias and it is in that sense that the expression has to be understood in this context.
If such bias is disclosed and is based on any of the grounds mentioned in the Articles it may well be that the statute will, without more, incure condemnation as violating a specific constitutional prohibition unless it is saved by one or other of the provisos to those Articles.
9. Moreover, Article 25 of the Constitution provides that all the citizens living in this country are equal before law and are entitled to equal protection of law i,e, all persons subjected to law should be treated of similar nature and alike under all circumstances and conditions both in privileges conferred and in the liabilities imposed. It must be amongst equals. The equality has to be between persons, who are placed in the same set of circumstances. Similarly, there should be one set of rules for every convict under any law and that the forum of trial and the procedure may be different and the punishments under some laws may be more stringent, as compared to the other enactments but after conviction the convict should be governed under the Prison rules and not under the law pertaining to conviction. In this case, the petitioner, who has been sentenced and convicted by the ATA Court, is not being granted special and ordinary remissions under the Jail Manual. The special remission is defined in Rule 214 as under:-- ' Rule 214. Special remission may be given to any prisoner, whether entitled to ordinary remission or not, for special services such as:--
(i) marked diligence in teaching other prisoners to read and write;
(ii) special proficiency in learning to read and write or passing an examination;
(iii) marked success in teaching a handicraft;
(iv) special excellence in work or greatly increased out-turn of work of good quality;
(v) protecting a prison officer or a prisoner from attack;
(vi) special assistance to an officer of the prison in case of an outbreak of fire or similar emergency;
(vii) special economy in the use of clothes;
(viii) assisting in detecting or preventing breaches of prison discipline or regulations; and
(ix) regular prayer and observance of fasts during Ramzan.
' However, under Rule 214-A thereof, both ordinary and special remissions have been banned. Rule 214-A reads as under:- "214-A. No person who is convicted for espionage or anti-State activities shall be entitled to ordinary or special remission unless otherwise directed by the Provincial Government."
' Under subsection (1) of section 401, Cr.P.C. Which has been inserted through section 15 of Act No, 1 of 2005, it has been provided as under:--
401. Power to suspend or remit sentence.--(1) When any person has been sentenced to punishment of an offence, the Provincial Government may at any time without conditions or upon any conditions which the person sentenced accepts, suspend the execution of his sentence or remit the whole or any part of the punishment to which he has been sentenced: Provided that the Provincial Government shall have no power to suspend or remit any sentence awarded to an offender under Chapter XVI of the Pakistan Penal Code if an offence has been committed by him in the name or on the pretext of karo kari, siyah kari or similar other customs or practices."
' Under section 21-F of the Anti Terrorism Act, 1997 a clog has been placed upon the remissions to be granted to a convict of such type. Section 21-F provides as under:-- 21-F. Remission.---Notwithstanding anything contained in any law or prison rules for the time being in force, no remission in any sentence shall be allowed to a person, other than a child , who is convicted and sentenced for any offence under this Act, unless granted by the Government. "
' Likewise, In the NAB Ordinance, a similar section 10 (d) has been inserted which provides as under:- "10(d). Notwithstanding anything to the contrary contained in any other law for the time being in force an accused, convicted by the Courts of an offence under this Ordinance, shall not be entitled to any remission in his sentence."
10. The above inserted provision of section 10(d) of the NAB Ordinance has been challenged before the Sindh High Court and Hon'ble Full Bench of the Sindh High Court in the case reported as Saleem Raza and 31 others v. The State PLD 2007 Karachi 139, have declared such section i,e, section 10(d) of the NAB Ordinance as ultra vires of the Constitution. The relevant portions of the said judgment are as under:-- "Protection against punishment---Remissions---Denial of remission to convicts under National Accountability Ordinance, 1999 by virtue of S.10(d) of the said Ordinance, amounts to enhancement of sentence and thus is violative of provisions contained in fundamental rights guaranteed under Article 12 of the Constitution."
"Reasonable classification---Principle of intelligible differentia-- Applicability---Classification of persons or a class which is permissible and is not hit by the mandate of Article 25 of the Constitution, must be founded on reasonable distinction or reasonable basis, based on intelligible differentia and must not be arbitrary---Test for permissible classification is that differentia must have rational nexus to the object sought to be achieved by such classification."
"Fundamental rights---Inconsistency of laws---Discrimination--- ' Scope---Where the State itself does not make any classification of persons or things and leaves it to the discretion of the Government or any authority to select and classify persons or things, without laying down any principle or policy to guide the government or authority in exercise of discretion, or a law is made by the State, whereby certain persons or group of persons are discriminated without any rational and reasonable classification and leaving the other groups of the same class, the denial of benefit, privileges or right to one group of persons and allowing same to the other group of persons would certainly be a discrimination between the persons or things similarly situated and consequently would be void on account of the provisions contained in Article 25(1) of the Constitution read with Article 8 thereof."
" Remiss ion---Types---Grant and denial---Principles--- ' Classification of convicts---Remissions under Pakistan Prison Rules 1978 are of two kinds; ordinary and special; it is provided in R.218 of Pakistan Prison Rules, 1978, that special remission is awarded by Government on occasions of public rejoicing and is granted unconditionally under S.401(1)
Cr.P.C. And is not governed by Pakistan Prison Rules, 1978 and under the proviso to S.401, Cr.P.0 there is no total denial of remission---Denial is only in respect of remission granted by Provincial Government under S.401, Cr.P.C. In respect of sentences awarded under Chapter XVI of Penal Code, 1860 and in respect of a class of criminals, who committed offence in the name or on the pretext of Karo Kari, Siah Kari or similar other customs and practices; in addition to the fact that under proviso to S.401, Cr.P.C. There is no total denial of remission, a reasonable classification based on intelligible differentia is available. "
11. The reasoning which prevailed upon the learned Full Bench of Sindh High Court 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 convict similarly placed.
12. In the light of what has been discussed above, and on the same principle, it is held that the denial of remissions to ATA convicts and allowing the same qua those who were convicted under the Anti-Corruption Laws by the Provincial Government would again be discriminatory, besides, once the benefit of section 382-B, Cr.P.C. Is granted to a convict, then how the benefit of remission can be withheld to that convict, thus the refusal of remission to such convict would tantamount to deprive the liberty of that convict within the contemplation of Article 9 of the Constitution, which provides that "No person shall be deprived of life or liberty save in accordance with law.
13. For the foregoing reasons this petition is allowed with the result that section 21-F of the Anti- Terrorism, Act, 1997 is declared as ultra vires of the Constitution and is liable to be struck down and the Jail Authorities are directed to include all the remissions, which have been denied to petitioner per section 21-F of the Anti Terrorism Act 1997.