' MUHAMMAD JAVED IQBAL, J.--- This is a Constitutional petition preferred on behalf of Muhammad Mir and Fazal Karam (petitioners) under Article 199 of the Constitution of Islamic Republic of Pakistan (hereinafter referred to as the Constitution) with the following prayer:-- "It is, therefore, most humbly and respectfully prayed that the impugned order, dated 26-5-1997 passed by the respondent No,2 remitting the sentence of the respondent No,1 may kindly be set aside as having been passed without lawful authority and as such is of no legal effect with further direction that the respondent No,1 be taken into custody and committed to jail for undergoing his remaining sentence. Any other order deemed fit and proper in the circumstances of the case may also be passed with cost of the petition."
2. Briefly stated the facts of the case are that learned Sessions Judge, Quetta vide his judgment, dated 11-3-1994 convicted Abdul ,Qadir (respondent No,1) under section 323, P.P.C. For causing injury on head of Fazal Karam and sentenced to suffer R.I. For one year and fine of Rs,1,000 and in case of default to undergo R.I. For 1 month. Being aggrieved an appeal was preferred to this Court against the order of conviction which was rejected vide order, dated 16-4-1995. Abdul Qadir (respondent No,1) approached Honourable Supreme Court assailing order of this Court, but leave to appeal was refused vide, order, dated 11-6-1996. It is to be noted that Honourable Supreme.Court granted ad interim bail but after announcement of the said order Abdul Qadir (respondent No,1) and Sultan Muhammad (co-accused) disappeared and could not be arrested. The surety also failed to procure the attendance of said respondent and consequently surety bonds amounting to Rs,25,000 was forfeited on 15-5-1997 by learned Sessions Judge, Quetta. Abdul Qadir (respondent No,1) when visited this Court in connection with Election Petition of his brother, who is Provincial Minister, was arrested and sent to jail to undergo remaining sentence. The Government of Balochistan remitted the remaining sentence of 11 months and 3 days on the same day and Abdul Qadir was released from jail. The petitioners approached concerned functionaries of Government for the redressal of their grievance but in vain, hence this petition.
3. Heard Mr. Ehsan-ul-Haque, Advocate on behalf of petitioner and Syed Ayaz Zahoor, Advocate for Abdul Qadir (respondent No,1). Mr. Ahmed Khan Lashari, learned Advocate-General was also heard.
4. We have carefully examined the respective contentions as adduced on behalf of parties in the light of available record and relevant provisions of law. It seems appropriate to reproduce the order passed by the Provincial Government which runs as follows:-- "Government of Balochistan Home and Tribal Affairs Department (Prisons Section).
Dated Quetta, the 26th May, 1997.
' No, SO(PRS)14(15)/97-PF/421-23 in exercise of powers conferred under section 401 of Code of Criminal Procedure, the Provincial Government is pleased to remit unexpired portion of the sentence (11 months and 3 days) in respect of the convicted prisoner Abdul Qadir son of Haji Sultan Muhammad, undergoing 1 year's imprisonment in District Jail, Quetta, for offence under section 323, P.P.C.
(2) The convict may be released provided that he is not facing trial or undergoing sentence in other cases.
(Sd.) Major (r)
(Muhammad Ashraf) Home Secretary."
A careful scrutiny of the above reproduced order would reveal that Provincial Government has exercised its discretion as conferred upon it under section 401 of Criminal Procedure Code and remitted the unexpired portion of the sentence i,e, 11 months 3 days. Admittedly the powers as conferred upon A Provincial Government under section 401, Cr.P.C. Are discretionary but "discretion" when and wherever is provided in a statute cannot be equated to that of "unfettered or unbridled powers" but such discretion is to be exercised judiciously, with care and caution and after diligent application of mind to all the relevant circumstances including nature of offences committed and ultimate decision of the case. It appears that the discretion as conferred upon Provincial Government has been exercised in an arbitrary manner without taking into consideration that Abdul Qadir (respondent No,1) was convicted by learned Sessions Judge, Quetta, whose appeal was dismissed by this Court and subsequently Honourable Supreme Court had refused to grant leave to appeal, but the said aspect of the matter escaped unnoticed which resulted in serious miscarriage of justice. The mechanical exercise as carried out by the Provincial Government is not sustainable being unwarranted. It is pertinent to note here that no application whatsoever was moved by Abdul Qadir (respondent No,1) as provided in subsection (2) of section 401, Cr.P.C.
Meaning thereby that prescribed procedure was never adhered to. An important question here at this juncture arises as to whether in view of the provisions contained in subsection (1) of section 401, Cr.P.C. The Provincial Government is competent to take suo motu action? Before answering the said question it would be inevitable to examine the legal status of section 401, Cr.P.C. To determine its validity. It would not be out of place to mention here that Federal Shariat Court has held "Validity of sections 402 to 402-B. Federal Shariat Court has held that provisions of sections 401, 402, 402-A and 402-B, Cr.P.C. As framed are repugnant to the Injunctions of Islam being not in consonance with the Holy Qur'an and Sunnah as they are not made subservient to the dictates of Shari'ah.
Federal Court. Therefore, direct the Federal Government as well as Provincial Governments to add a proviso to the relevant sections that such power shall be exercisable only if the offence related to Haq Allah liable to Ta'zir and that too "in the public interest" as guided by Shari'ah, President of Pakistan was also advised to keep in view the Injunctions of Islam, while exercising the powers under Article 45 of the Constitution of Pakistan (1973), even in matter of Ta'zir. Provisions of sections 401, 402-A and 402-B, Cr.P.C. Unless amended and altered so as to bring them inconformity with the Injunctions of Islam, shall be void and cease to be effective as on 1st January, 1992". PLD 1991 FSC 236.
5. It is pertinent to mention here that provisions as contained in sections 401, 402, 402-A and 402-B, Cr.P.C. Were examined in depth by Federal Shariat Court and it was held that "President has power to grant pardon, reprieve and respite, and to remit, suspend or commute any sentence passed by Court, Tribunal or other Authority. This power is exercisable by hith in the light of Shariah, in the matter of any sentence passed by way of Ta'zir. President has no such power in matter of Hadd or Qisas. But the opinion of the Shariat Bench on this matter is that under Shariat the President has no power of remission of sentence in case of offences affecting the human body under section 401.
Neither a Provincial Government nor the Federal Government can remit, reduce or commute any sentence such powers can only be exercised by a Court in accordance with the Injunctions of Islam". PLD 1980 FSC 1, .NLR 1980 C 277, PLD 1980 Pesh. 1 (Sh.B.). A similar proposition was 'discussed in case titled Gul Hassan Khan v. Government of Pakistan and others by the Honourable Shariat Bench reported in PLD 1980 Pesh. 1 and it was held as follows:-- "For the reasons we will hold that sections 54 and 55 of the Pakistan Penal Code as also sections 345(7), 401, 402, 402-A and 402-B of the Code of Criminal Procedure and relevant parts of its Schedule are repugnant to the Injunctions of Islam in so far as offences affecting human body listed under Chapter XVI of the Pakistan Penal Code are concerned. We are not unmindful of the limited scope of the petition wherein the challenge is confined to section 302 of the Pakistan Penal Code but cannot overlook that the Government in its anxiety to expedite Islamization of the Penal Code would appreciate if such amendments are suggested as will cover Chapter XVI of the West Pakistan Penal Code in its entirety. Such a recourse will in any case forestall numerous petitions that are likely to be made before this Bench no sooner our views regarding section 302 of the Pakistan Penal Code are published. We also feel that the Government may like to provide in the legislation to be made in pursuance of this decision that petition for pardon or 'Diyat' in respect of persons awaiting execution or serving terms of imprisonment will have to be disposed off in accordance with the Injunctions of Islam inasmuch as 'Qisas' is not exacted even if one of the heirs pardons or accept 'Diyat' at the last moment of the sentenced persons life. We will add that such petitions shall be disposed of by the High Court if it involves life imprisonment or death and by the Sessions Court in all other cases. This legislation giving effect to this decision as from today shall be made within two months."
6. A bare perusal would reveal that the provisions as contained in section 401, Cr.P.C. Repugnant to Injunction of Islam cannot be exercised by the Provincial Government. We have not been able to pursuade with the main contention of Syed Ayaz Zahoor, Advocate that the date of commission of offence is 13-1-1990 while the Islamic Laws i,e, Qisas and Diyat Ordinance came into being on 13th August, 1990, hence it could not be applied retrospectively for the reasons that crutial date would be the promulgation of Qisas and Diyat Ordinance which admittedly is 13th August, 1990 and thereafter, the Provincial Government had no authority to exercise its power under section 401, Cr.P.C. In this regard if any reference is required section 402-C, Cr.P.C. Could be referred which runs as follows:- "402-C Remission or commutation of certain not to be with constitution.--- Notwithstanding anything contained in section 401, section 402, or section 402-A, the Provincial Government or the President shall not, without the consent of the victim or as the case may be, of his heirs, suspend, remit or commute any sentence passed under any of the sections of the Pakistan Penal Code hereinafter specified that is to say, 302, 303, 304, 304-A, 305, 306, 307, 308, 323, 324, 325, 326, 327, 328, 329, 330, 331, 332, 333, 334, 335, 337 and 338."
7. It is prominent feature of the case that on 13-8-1990 the Provincial Government had absolutely no powers to exercise in view of the provisions as enshrined in new inserted section of 402, Cr.P.C. It reflects from scrutiny of record that the complainant was never considered before granting remission and as such, they said remission by no stretch of imagination can be termed as valid or lawful. Certainly on 26-5-1997 Provincial Government could not have exercised such powers. We would like to refer the dictum of Honourable Federal Shariat Court in case titled Habib-ul-Wahab Alkhairi and others v. Federation of Pakistan reported in PLD 1991 FSC 236 wherein it was observed as follows:-- "The abovesaid provisions of sections 401, 402, 402-A, 402-B, 494 and 495, Cr.P.C. And section 10(4) of Pakistan Criminal Law Amendment Act, 1958 unless amended or altered so as to bring them in conformity , with the Injunctions of Islam as laid down in the Holy Qur'an and Sunnah as discussed above, shall be void and cases to be effective as on 1st of January, 1992."
8. In our view the valuable rights of the parties neither can be curtailed nor infringed on flimsy grounds. No order could have been passed adversely effecting complainant and that too without proper opportunity of hearing. It has not been considered by the Provincial Government that conviction was awarded by learned Sessions Judge and upheld by this Court and Honourable Supreme Court refused to grant Leave to Appeal. In such like cases the mechanical exercise without proper appreciation of factual and legal position is not desirable. In such view of the matter, the order, dated 26-5-1997 passed by Government of Balochistan Home and Tribal Affairs Department granting remission of 11 months and 3 days in favour of convict Abdul Qadir (respondent No,1) is hereby set aside. The convict Abdul Qadir be taken into custody and sent to central Jail, Machh for completion of unexpired period of sentence awarded by learned Sessions Judge, Quetta, vide order, dated 11-3-1994. The petition is accordingly accepted.