' This writ petition arises in the background of facts that the Governor of N.-W.F.P. In exercise of powers under section 401, Cr.P.C. Granted special remission to all convict prisoners in the Province of North-West Frontier by his order dated 17-12-1984 on account of the auspicious occasion of Referendum to be held on December 19, 1984. Convict prisoners undergoing 14 years' sentences and above were granted remission to the extent of one year. After the Referendum held on 19th December, 1984, in which General Muhammad Ziaul Haq, President of Pakistan was declared successful, the President was also pleased to announce the grant of special remission to the prisoners undergoing various terms of imprisonment throughout the country and prisoners serving 14 years or more were granted one year special remission. The Secretary Central Interior Government of Pakistan, Islamabad conveyed decision/orders of the President by telex dated 25- 12-1984 addressed to all Home Secretaries in the Provinces with directions for compliance.
Prisoners convicted for terrorist activities were, however, excluded from the said special remission.
Since in this Province there has been earlier granted a special remission by the Governor in exercise of his powers under section 401, Cr.P.C., accordingly Home Secretary, N.-W.F.P., submitted a summary to the Governor stating therein that the two sets of remissions, one granted by the Governor and the other announced by the President, were identical and hence it was presumed that only one set of special remission is to be granted to the prisoners in the N.-W.F.P. And the said presumption was acknowledged and approved by the Governor as correct. The prisoners in the N.- W.F.P. Were accordingly made to avail the first set of special remission granted by the Governor on 17-12-1984 and were deprived of the second special remission granted by the President of Pakistan on 25-12-1984.
2. Writ petitioners mostly undergoing life imprisonment sentences were to invoke the Constitutional jurisdiction of this Court on grounds inter alia that the Provincial Government has independent powers under section 401, Cr.P.C. To remit the whole or any part of the sentence of the prisoners without condition. Further the special remission so granted by the Governor on 17-12-1984 was given effect to by the jail authorities. It was contended that the subsequent grant of special remission by the President to the convict prisoners throughout the country was independent remission and also to be given effect to independently. One shall, however, fail to appreciate the grant of special remission by the Governor, N.-W.F.P. On 17-12-1984 in anticipation of the Referendum to be held on 19-12-1984 with a foregone conclusion of its success. Anyhow this Court is least concerned with the said aspect of the Referendum and remission granted by the Governor being competent under section 401, Cr.P.C. Which has also been given effect to by the jail authorities, would be, therefore, acknowledged as a valid remission granted to the prisoners.
Moreover, the said special remission is not in dispute. Herein the question for resolution is that as and when the President grants remission in exercise of the powers conferred by Article 45 of the Constitution of Islamic Republic of Pakistan, 1973 to all prisoners in the country and that also subsequently and independently of the special remission order earlier made by the Governor, whether the Governor has the power to withhold such special remission of the President to be given effect to. We understand and the learned Advocate-General has also graciously conceded the legal position that the President's power to grant pardon etc. Under Article 45 of the Constitution is independent, A overwhelming in effect and operation and not subject to the approval of any other authority including the Governor of the Province. Further the two remissions one granted by the Governor prior to the Referendum and the other granted by the President after success in the Referendum shall be acknowledged as independent of each other and also to be given effect to independently and thus an act on the part of the Governor or the Provincial Government or the jail authorities not to implement the President's remission order under Article 45 of the Constitution shall be an act without lawful authority on their part and accordingly declared to be of no legal effect. The President remission order has only excepted the prisoners convicted for terrorist activities. Besides it is also ordained therein that due compliance be ensured by the Secretaries, Home Department of the Provinces.
3. Consequently, we shall accept this writ petition and issue a direction to the Provincial Government, the Inspector-General, Prisons and the Superintendents of the Prisons to give effect to and ensure the compliance of the remission orders of the President of Pakistan made in exercise of the powers under Article 45 of the Constitution contained in the telex dated 25-12-1984. There is made no order as to costs.