' M. SOHAIL IQBAL BHATTI, J.---This appeal is directed against the judgment dated 20-2-2012 passed in W.P. No,789 of 2001 through which the learned Single Judge in Chamber relying upon Muhammad Arif v. Superintendent Central Jail, Lahore and 2 others (PLD 2006 Lahore 561) upheld the remissions granted to respondent No,8 and dismissed W.P..No,789 of 2001 and W.P. No,929 of 2001.
2, Learned counsel for the appellant has hinged his arguments on Section 402-C. Cr.P.C, submitting that the illegal remissions were allowed to respondent No,8 in violation to section 402-C, Cr.P,C.
Learned counsel for the appellant has further relied upon Mumtaz All Khan Rajban and others v.
Federation of Pakistan and others (PLD 2001 Supreme Court 169), Tanveer Hussain v. Divisional Superintendent, Pakistan Railways and 2 others (PLD 2006 Supreme Court 249) and Ahmad Khan Niazi v. Town Municipal Administration Lahore through Town Municipal Officer and 2 others (PLD 2009 Lahore 657) wherein the principle of implied repeal has been discussed.
3. Learned counsel for respondent No,8 has relied upon Nazar Hussain and another v. The State (PLD 2010 Supreme Court 1021), Hakim Khan and 3 others v. Government of Pakistan through Secretary Interior and others (PLD 1992 Supreme Court 595), Abdul Malik and others v. The State and others (PLD 2006 Supreme 365) while arguing that Article 45 of the Constitution of the Islamic Republic of Pakistan, 1973 cannot be circumscribed by a subordinate legislation. He has further been argued that in view of law laid down in Pakistan through the Secretary, Ministry of Finance v.
Muhammad Himayatullah Farukhi (PLD 1969 Supreme Court 407) the principle of locus poenitentia is fully applicable in this case. He has further relied upon Chairman, Section Committee/Principal, King Edward Medical College, Lahore and 2 others v. Wasif Zamir Ahmad and another (1997 SCM R 15), as according to him the remissions have taken legal effect and cannot be withdrawn.
4. Heard. Record perused.
5. We are inclined to dilate upon the legal proposition as to whether Section 402-C, Cr.P.C, which is subordinate legislation, can circumvent the powers of the President under Article 45 of the Constitution of the Islamic Republic of Pakistan, 1997.
6. The Hon'ble Supreme Court of Pakistan in a judgment reported as Pir Sabir Shah v. Shad Muhammad Khan, Member Provincial Assembly, N.-W.F.P and another (PLD 1995 Supreme Court 66) has held that "when the Parliament makes a sub-constitutional law, it does so in the exercise of its delegated legislative power given by the Constitution, and in the case of subordinate legislation, also, the maker exercises delegated authority. In each case, there is a law higher in authority, and the test to determine the vires is whether the subordinate law conflicts with the higher law. If it does, then it must be treated as of no legal validity."
7. Article 45 of the Constitution of the Islamic Republic of Pakistan, 1997 reads as under:- "The President shall have powers to grant pardon, reprieve and respite and to remit, suspend or commute any sentence passed by any court, tribunal or other authority."
8. The Hon'ble Supreme Court of Pakistan in a judgment reported as Mian Muhammad Nawaz Sharif v. President of Pakistan and others (PLD 1993 Supreme Court 473) has interpreted the significance of the word "shall" in. The constitutional scheme in the following terms:-- "The word 'shall' is generally imperative or mandatory. It is a word of command, and one which has always or which must be given a compulsory meaning; as denoting obligation."
9. It is a settled principle of constitutional interpretation that a provision enshrined in the Constitution shall prevail notwithstanding anything contrary contained in a piece of subordinate legislation. This brings us to the conclusion 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. Similarly the Provincial Government and other authorities competent under the law can grant remissions to the prisoners in accordance with the law and rules framed therein. It might not be out of place to mention that the Hon'ble Supreme Court in a case reported as Hakim Khan and 3 others v. Government of Pakistan through Secretary Interior and others (PLD 1992 Supreme Court 595) discussed the effect of Article 2-A of the Constitution of the Islamic Republic of Pakistan, 1973, which had been made an integral part of the Constitution. It was held that powers under Article 45 of the Constitution cannot be tested at the touchstone of Article 2-A of the Constitution of the Islamic Republic of Pakistan, 1973. The Hon'ble Supreme Court went on to observe that if the powers of the President under Article 45 of the Constitution are determined at the touchstone of Article 2-A then most of the Articles of the Constitution will become questionable on the ground of their inconsistency with the provisions of Article 2-A. If Article 2-A is held to be a supra Constitutional provision then it would require the framing of an entire new Constitution.
9. It is significant to mention here that basically Section 402-C of the Cr.P.0 has been incorporated in the subordinate legislation in exercise of powers conferred by the Constitution i,e, Article 2-A or Article 227 of the Constitution of the Islamic Republic of Pakistan, 1973. It does not appeal to reason that where the Supreme Court has refused to test the vires of Article 45 of the Constitution at the touchstone of Article 2-A how this Court would test the vires of Article 45 at the touchstone of subordinate legislation i,e, Section 402-C of the Cr.P.C.
10. It has been held by the Hon'ble Supreme Court of Pakistan in a judgment reported as Nazar Hussain and another v. The State (PLD 2010 Supreme Court 1021) that the powers of the President under Article 45 of the Constitution are part of the Constitutional scheme and cannot be circumscribed by any subordinate legislation. In the event of conflict between the two, the former has to prevail and thus, reaffirmed the law laid down in Abdul Malik'and others v. The State and others (PLD 2006 Supreme Court 365) 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.
12. Even if the argument of the petitioner, is accepted that section 402-C, Cr.P.0 has impliedly repealed Pakistan Prison Rules it would be of no help to the appellant in view of our discussion relating to Article 45 of the Constitution of the Islamic of Pakistan, 1973. In this view of the matter, we are not convinced with the arguments of the learned counsel for the appellant that in view of section 402-C, Cr.P.0 remissions cannot be allowed by the President under Article 45 of the Constitution.
13. For what has been discussion above, we are not inclined to interfere with the judgment passed by the learned Single Judge in C Chamber and dismiss the same.
I.C.A. Dismissed.