' NASIR-UL-MULK, C J.--The subject matter of all these cases is the grant or refusal of remissions in computing sentence of imprisonment of prisoners convicted under the National Accountability Ordinance, 1999 (hereinafter referred to "the Ordinance"), Section 10(d) whereof expressly prohibits the grant of remissions. The same reads:- "(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."
' This question has been the subject of four judgments, Saleem Raza v. The State (PLD 2007 Karachi 139), a judgment of the Full Bench of the High Court of Sindh, Shah Hussain v. The State (PLD 2009 SC 460), Nazar Hussain v. The State (PLD 2010 SC 1021) and an unreported brief judgment dated 29- 3-2012 in S.M. Case No, 24 of 2007. A Division Bench of the Lahore High Court by the impugned judgment delivered in Writ Petition No,27470 of 2013 held that the remissions were admissible A to those convicted under the Ordinance. Leave to appeal was granted in Civil Petition No,914 of 2014 on 19-6-2014 in the following terms:- "Heard the learned Advocate Supreme Court for the petitioner. In an attempt to challenge the legality and propriety of the impugned order dated 7-5-2014, learned Advocate Supreme Court for the petitioner has placed reliance upon the judgment in the case of Nazar Hussain v. The State (PLD 2010 SC 1021), contending that the ratio of this judgment by virtue of Article 189 of the Constitution was to be followed by the learned High Court, while passing the impugned judgment, thus, it is a fit case to grant leave to appeal to resolve the legal point, as regards the grant of remission or otherwise to an accused convicted under the ATC Act. Contention raised needs consideration.
Leave to appeal is, therefore, granted."
2. In Saleem Raza v. The State (supra), the High Court of Sindh had declared section 10(d) of the Ordinance as ultra vires of Article 25 of the Constitution as the same was discriminatory and was thus struck down being void under Article 8(1) of the Constitution. In Shah Hussain v. The State (supra) the question before a six Members Bench of this Court was whether a convict undergoing sentence of imprisonment was entitled to remissions for pre-sentence custody period. The Court held that the remissions were permissible. While holding so the Court went on to add in paragraph 41(3) of the judgment as under:- "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;"
' However, later in Nazar Hussain v. The State (supra) a, seven Members Bench of this Court again took note of the grant of remissions to convict under the Ordinance and in paragraph 25 of the judgment held:-- "25. The moot point in Shah Hussain's case (supra) was the judgment of the High Court wherein certain convicts/prisoners though granted the benefit of section 382-B, Cr. P.C., but were refused remissions for the period preceding their date of conviction. [The High Court had relied on a judgment of this Court in Haji Abdul Ali v. Haji Bismillah (PLD 2005 SC 163)]. This Court in Shah Hussain (supra) case partly endorsed the policy and the classification made therein insofar as it was backed by law by observing, "However the same (remissions) 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 that." It was not brought to the notice of this Court in Shah Hussain's case (PLD 2009 SC 460) that section 10(d) of the NAB Ordinance had been declared ultra vires by a full Bench of the Karachi High Court (PLD 2007 Kar.
139). So the observation made qua inclusion of convicts under the NAB Ordinance be treated as per incuriam."
' Subsequently in Suo Motu Case No,24 of 2007, the following order was passed by this Court on 29- 3-2012;-- "The question raised in this petition with regard to extending remissions to the convicts under National Accountability Ordinance, 1999 has already been dealt with in the judgment reported as Nazar Hussain v. State (PLD 2010 Supreme Court 1021) and according to which, they have been held disentitled for such remissions. Therefore, no relief, as it has been prayed for, can be granted.
Dismissed accordingly."
3. Mr. K.K.Agha, the learned Prosecutor General NAB submitted that the six member Bench of this Court had in Shah Hussain's case with clarity stated that remissions would not be admissible to those convicted in offences under the NAB Ordinance or any other law that prohibits the grant of remissions. As regards the later judgment in Nazar Hussain's case it was contended that there was no clear departure from the view taken in Shah Hussain's case, nor was there any finding given or declaration made that remissions would not be granted to convicts under the NAB Ordinance, He referred to the later view in Suo Motu Case No,24 of 2007 and pointed out that in very clear terms it was held that remissions to such convicts cannot be granted. The learned Prosecutor General pointed out that all the three said cases were decided by Bench headed by the then Chief Justice.
It was thus argued that the Suo Motu Case No,24 of 2007, was also decided by a Bench headed by the Chief Justice which refused remissions keeping in view the previous judgments on the subject.
4. Sardar Muhammad Latif Khan Khosa, learned Senior Advocate Supreme Court appearing for respondent Shahbaz Latif in Civil Appeal Nos.861 and 939 of 2014 submitted that seven member Bench of this Court in Nazar Hussain's case had maintained the judgment of the High Court of Sindh in Saleem Raza's case, which thus had attained finality. Referring to paragraph 25 of the judgment in Nazar Hussain's case the learned counsel pointed out that while drawing a chart of heinous offences where remissions can be declined, the Court consciously did not include the convicts under the NAB Ordinance in view of its earlier observations. It was further argued that Nazar Hussain's case by a seven member Bench took precedence over all other judgments on the issue.
5. As pointed out earlier the High Court of Sindh in Saleem Raza's case had in the year 2007 struck down section 10(d) of the Ordinance as being violative of the fundamental rights. This judgment had not been assailed so far. It has thus attained finality. It was on this account that in Nazar Hussain's case in the passage reproduced above it was pointed out that such judgment was not brought to the notice of this Court while hearing Shah Hussain's case and perhaps for this reason the observation regarding non-entitlement of NAB convicts to remissions was made and was thus held to be as per incuriam. This declaration by the seven member Bench thus overruled the observations made earlier in Shah Hussain's case. The said observations even otherwise were obiter in nature as the question before the Court was whether the convicts were entitled to remissions for the period they had spent in prison as under-trial prisoners. In paragraph 38 of Nazar Hussain's case the Court held that remissions to certain convicts can be barred by statutory provisions provided it is shown that the same is based on intelligible differentia distinguishing persons or things from similar groups. The Court then referred to Saleem Raza's case and observed that section 10(d) of the Ordinance had been struck down on the ground that whereas those convicted under the Prevention of Corruption Act, 1947 were entitled to remissions, however, a bar was imposed for similar offences under section 9 of the NAB Ordinance. Nazar Hussain's case had thus clearly endorsed Saleem Raza's case. As a result section 10(d) of the Ordinance remains void under Article 8(1) of the Constitution. Adverting to the order in Suo Motu Case No,24 of 2007 which has been reproduced above in entirety, while making reference to Nazar Hussain's case it was held that convicts under NAB Ordinance were not entitled to remissions. With respect, as discussed above, Nazar Hussain's case had decided the reverse. It appears that three members Bench was not properly assisted as only the Additional Prosecutor General NAB appeared before the Court. In our view Nazar Hussain's case holds the field.
' As a result the impugned judgment of the High Court it is maintained and all the appeals are dismissed.