' JAVED IQBAL, J.--- This is a Constitutional Petition preferred on behalf of Ghulam Hussain son of Naik Muhammad presently confined at Central Jail Mach, with the prayer that remission granted at eve of Golden Jubilee by the President of Pakistan on 27-8-1997 vide Notification No,SO(PRS)
14(1)/86, dated 1-9-1997 has not been given by the Jail Authorities in view of judgment passed by this Court in Constitutional Petition titled Muhammad ,Jan and 3 others v. Federation of Pakistan and 4 others (C.P. No,427 of 1997) decided on 20-1-1999 read with clarification made on 2-11-1998. It is pertinent to mention here that various application were given by the Prisoners which were decided to be treated as Constitutional Petition by the Hon'ble Chief Justice, on the same subject and same prayer which are being disposed of by this order. (C.P. Nos.559 to 621 of 1999).
2. Briefly stated the facts of the case are that the Ministry of Interior Division, Government of Pakistan has issued a Notification whereby general remission has been granted under Article 45 of the Constitution of Islamic Republic of Pakistan (hereinafter referred to as the Constitution) in the following terms:-- "(a) Remission at 1/5th of the total sentence.
(b) Total remission of the remaining sentence for the male prisoners who are 65 years of age or above and have undergone imprisonment for 10 years and above. This concession would not apply to the condemned prisoners and;
(c) Total remission of the remaining sentence for female prisoners who are 60 years of age or above and have undergone imprisonment for 10 years and above. This concession would not apply to the condemned prisoners."
' The learned Advocate-General remained present along with Superintendent Central Jail Mach and contended that in view of the judgment as passed in C.P. No,427 of 1997, read with Rules 216 and 217 of Prison Rules, the benefit of remission cannot be extended in favour of petitioner but simultaneously conceded that the President of Pakistan has unfettered powers under Article 45 of the Constitution to grant pardon, reprieve and respite, and to remit, suspend or commute any sentence passed by any Court.
3. The said remission has not been awarded in view of the dictum as laid down in C.P. No,427 of 1997, which cannot be made applicable to the cases under consideration for the simple reason that Notification whereby remission has been-granted by the President of Pakistan at the eve of Golden Jubilee was neither dilated upon nor considered as it was not pressed in C.P. No,427 of 1997 and while discussing the said aspect of the matter it was mentioned in a categoric manner as follows:-- "Let me make it clear here at this juncture that the legality of remission as granted by President of Pakistan under Article 45 of the Constitution has not been pressed or objected, therefore, this aspect of the matter would not be dealt with in depth. Now the pivotal question to be decided appears to be as follows:--
(a) Whether Muhammad. Naseem is entitled to get benefit as envisaged under section 382-B, Cr.P.C.
(b) How much period is required to be spent in Jail by a prisoner sentenced to undergo life imprisonment in view of the Provisions as contained in Rules 216, 217 and 218.
4. A bare perusal of the above reproduced portion would make it abundantly clear. That the Notification issued by the President of Pakistan granting remission at the eve of Golden Jubilee was never considered/discussed and accordingly 'the question of depriving the prisoners from remission as granted by the President of Pakistan does not arise. This Court remained confined to the extent of interpreting remission under Rules 217 and 218 of the Prison Rules, and the findings given related to the particular case and its general application to all the prisoners was neither meant nor mentioned.
5. We have dilated upon the Notification No, SO(PRS)/14(1)/86, dated 1-9-1997. The said Notification is indicative of the fact that remission has been granted by the President of Pakistan in exercise of powers as conferred upon him under Article 45 of the Constitution which is reproduced herein below for ready reference:-- "45. President's Power to Grant Pardon. Etc.-- The President shall have power to grant pardon, reprieve and respite, and to remit, suspend or commute any sentence passed by any Court, tribunal or other authority."
' A bare perusal would reveal that the language as employed in the said Article is free from any ambiguity and, thus, to scholarly interpretation is called for. It appears that president has been given powers to grant pardon, reprieve, and to remit, suspend or commute any sentence and no restriction whatsoever has been imposed under Article 45 of the Constitution. The said Article of the Constitution and its implication have been discussed by the higher judicial forums including Hon'ble Supreme Court of Pakistan. For example Article 45 of the Constitution has been discussed in case titled Amir Baldish v. Secretary General, Ministry of Interior, reported in 1984 PCr.11 1741 and the relevant portion whereof is reproduced herein below for ready reference:-- "The power, on the other hand enjoyed by the President under Article 45 is totally independent and discretionary without any procedural trappings and is exercisable without any fetters. It is the nature of 'prerogative of the sovereign which is incorporated in all Constitutional instruments of moderan States where monarchies have yielded place to symbolic Sovereign as Head of States.
The power of the Head of State has, however, been preserved even under most advanced democracies where the grant of such powers by the people to the Constitutional heads is most reluctantly conceded and exercise of the power is most jealously guarded."
' Article 45 of the Constitution was also discussed in case titled Bhai Khan and others v. The State, reported in PLD 1992 SC 14, wherein it was held as under:-- "The power under Article 45 of the Constitution being a Constitutional power, is not subject to any limitations or conditions that may be found in the Pakistan Penal Code or the Code of Criminal Procedure. The exercise of the discretion by the President under Article 45 is to meet at the highest level the requirements of justice and clemency, to afford relief against undue harshness, or serious mistake or miscarriage in the judicial process, apart from specific or special cases where relief is by way of grace alone, as for instance to celebrate an event or when a new President or Prime Minister is installed where relief or clemency is for the honour of the State. In the former case, the discretion has to be exercised with care, keeping in mind the duty to maintain justice, so as to prevent the erosion of the deterrent effect that judicial punishment must retain. The scope of the power of the President under Article 45 is basically discretionary, 'in view of Article 48(2) of the Constitution. The power under Article 45 being at the apex 'and unfettered, the President whilst commuting a sentence (on a number of counts) or different sentences, can order the commuted sentences to run concurrently inter se and/or concurrently with any other or others imposed by the Court.
' The commutation of a sentence is nothing more than the substitution of the punishment imposed by the Court by that awarded by the President, the Federal Government or the Provincial Government. In short, it is the substitution of a sentence imposed by the Court by a judicial act, by a sentence proposed by a stated executive functionary by an executive act. The exercise of this power, whether statutory or Constitutional, does not alter the judgment of the Court or the conviction recorded in the case, nor does it interfere with or prevent the further disposal of the case, with the result that if any appeal, or revision is still pending after commutation has been ordered, the Courts are free to adjudicate upon the guilt or otherwise of the person concerned and the appropriateness of the sentence or sentences imposed (including any commuted)."
6. The powers of President as conferred upon him under Article 45 of the Constitution were also discussed in case titled Obyar v. Federation of Pakistan, Rawalpindi, reported in PLD 1984 Lahore 162, the operative portion whereof is reproduced herein below for ready reference:- "Having given anxious consideration to the submissions of learned counsel for the petitioners and on closer examination of the precedents cited by him at the Bar, the same were not found to be helpful in the facts of the present case. The mere fact that Federal Shariat Court in Muhammad Riaz v. Federal Government PLD 1980 FSC 1 has declared section 302, P.P.C. Repugnant to the injunctions of Islam for not providing compensation and compound-ability and had fixed 1-4-1984 as the date for amendment of the Penal Code would not make it the law of the land, in that, an appeal is pending against this judgment before the Shariat Bench of the Supreme Court and operation of the aforesaid judgment has been suspended by order, dated 25-1-1981, passed in Startat Appeal No,13 of 1981. We are, therefore, inclined to hold that no direction can be issued to the President for exercising his power under Article 45 of the Constitution. Such a direction would tantamount to making an encroachment on the powers vested in the Shariat Bench of the Supreme Court under Article 203-F of the Constitution. The jurisdiction of this Court to examine this matter is also expressly barred under Article 203-0 of the Constitution which provides that 'save as provided in Article 203-F, no Court or Tribunal, including the Supreme Court and a High Court, shall entertain any proceedings or exercise any power or jurisdiction in respect of any matter within the power of jurisdiction of the Court' . The term 'Court' has been defined in clause (b) of Article 203-B of the Constitution. It means the Federal Shariat Court constituted in pursuance of Article 203-C.
The reference made to the various Constitutional Provisions by Mr. S.M. Zafar, do not advance his case under the Scheme of the Constitution, which specifically provides the procedure and methodology for the Islamization of the law. The declaration sought by the petitioner in pith and substance, purports to seek a declaration that the Provisions of section 302, P.P.C., are repugnant to the injunctions of Qur'an and Sunnah on the basis of judgment of the Federal Shariat Court. Such a declaration cannot be granted by this Court and the petitioner is, therefore, not entitled to the relief claimed in the writ petition. Our view is fortified by the dictum of the Supreme Court in B.Z. Kaikaus v. President of Pakistan PLD 1980 SC 160, wherein it was held that enforcement of laws including the Islamisation of laws is the function of the State and the Court cannot take over such job of enacting laws.
' This Court in the exercise of its Constitutional jurisdiction is not at liberty to declare an act of the President void merely because in its opinion it is opposed to the principles of Qur'an and Sunnah or is otherwise unjust unless it can be shown that such injustice or repugnancy is. Prohibited by a final order of the Federal Shariat Court or Shariat Bench of the Supreme Court, as the case may be, and such a right is guaranteed or protected by the Constitution. The declaration given by the Federal Shariat Court has not yet attained fmality, as its operation has been suspended. It is, therefore, not the law of the land. Clearly the relief claimed by the petitioners is not justicable, particularly, when the matter is sub judice before the Shariat Bench of the Supreme Court, as to whether or not the provisions of section 302, P.P.C., are against the injunctions of Islam."
7. It is pertinent to mention here that "the powers conferred by Article 45 and by section 401, Cr.P.C., are in each case stated in affirmative terms, so that none of these provisions has the effect of operating as an implied repeal of the order of these Provisions." (PLD 1964 SC 503 + 16 DLR (SC)
422). The scope of the powers of President under Article 45 of the Constitution has also been discussed in case titled Eid Muhammad and another v. The State, reported in PLD 1993 SC 14, which is reproduced herein below for ready reference:-- "With regard to the amplitude of the Presidential power possessed under Article 45 of the Constitution reliance has been placed on a decision of the Madras High Court reported as Maddela Yerra Chennugadu and others. In re: Referred Trial No,126 of 1953 (1955 ILR 92) where it was held that the 'power to grant pardon is in essence an executive function to be exercised by the Head of the State after taking into consideration various matters which may not be germane for consideration before a Court of law inquiring into the offence'. It was further held that such a power can be exercised 'even where conviction has not been recorded but the case has been registered and such a power can be exercised any time after the commission of offence either before legal proceedings are begun or during their pendency, and either or after conviction. But then, in the case of Madras High Court, the specific question examined was, whether such an exercise of power by the President or the Governor has the effect of interference with the judicial power of the Courts, It was found to be not so."
8. In the light of what has been stated above, it can be inferred safely that the scope and powers of the President under Article 45 of the Constitution is discretionary in view of the provisions as contained in Article 48 (2) of the Constitution and no embargo whatsoever has been imposed on it.
In this regard reference can also be made to PLD 1992 SC 14. It is pertinent to mention here that the exercise of such discretion cannot be assailed before any forum including a Court of law. In this regard if any reference is "needed the dictum as laid down in 1979 SCMR 302 can be referred.
9. In so far as the remission under Article 45 is concerned, that is special kind of remission and the provisions as contained in Rules 216 and 217 of Prison Rules, cannot be made applicable to it. It is to be noted that the provisions as contained in Rule 218 of the Prison Rules provides itself that the special remission would not be affected by any of the Prison Rules. On the similar anology it can be inferred that the remission granted under Article 45 of the Constitution being a special remission, cannot be affected or curtailed either by the Rule 216 and 217 of the Prison Rules or Rule 2(c) and Rule 19(2) of the Remission Rules, 1965. It may be kept in view that Rule 20 of the Remission Rules, 1965 makes it abundantly clear that special remission would not be governed by these Rnics. We have to draw a distinction in between ordinary remission and that of special remission granted by Article 45 of the Constitution. The upshot of the above discussion would be that the judgment given in C.P. No,427 of 1997, cannot be made applicable to all the prisoners as it has been given in a particular case and, thus, it shall not affect the remission as granted by the President of Pakistan vide Notification of even number, dated 1-9-1997, being a special remission as the powers of President of Pakistan under Article 45 of the Constitution could not be questioned because as Head of the State he had been vested with such powers and the exercise thereof could not be questioned in any manner whatsoever. The notification of even number, dated 1-9-1997 is free from any ambiguity and accordingly remission be granted to all the prisoners in accordance with details as mentioned in the said Notification and further that the Provisions as contained in Rules 216 and 217 of the Prison Rules would have no application to the special remission as granted under Article 45 of the Constitution being a special remission and accordingly the provisions as contained in Rule 218 of the Prison Rules would be attached. Let us make it clear at the end that the remission granted under Article 45 of the Constitution can neither be curtailed nor affected by Prison Rules read with Remission Rules, 1965.
10. In view of what has been stated above, this Constitutional petition is accepted and the remission shall be granted as provided in the Notification No, SO(PRS)/14(1)/86, dated 1-9-1997, issued under Article 45 of the Constitution to all the bona fide claimants and the dictum as laid down in C.P. No,427 of 1997 shall have no bearing in such cases. We would also like to make it clear that each amnesty order/remission Notification is to be interpreted and given affect in accordance with the language as employed in it and not by making reference to any other amnesty order/remission Notification issued in the past. In this regard we are, fortified by the dictum laid down in PLD 1993 SC 14 + PLD 1997 SC 39.
' The observations made hereinabove pertains only to Notification No, SO(PRS)/ 14(1)/86, dated 1-9- 1997.