' MUHAMMAD NAWAZ ABBASI, J.---This petition under Article 199 (1)(1) of the Constitution of Islamic Republic of Pakistan, 1973 has been moved by Abid Ali for the release of Amir Sher Ali his elder brother who is lodged in Central Jail, Audila, Rawalpindi as convict.
2. Amir Sher Ali, the alleged detenu on conviction for the charges under section 9(a)(v) read with section 10 (a) of the National Accountability Bureau Ordinance, 1999 by the Accountability Court, Rawalpindi vide judgment dated 10-5-2001 was sentenced to two years' R.I with a fine of rupees five million and in case of default in the payment of fine was directed to undergo R.I for a period of two years. The convict was, however, given benefit of section 382-B, Cr.P.C. Additionally, the convict under section 15 (a) of the NAB Ordinance, 1979 was also disqualified from being elected for a Public Office for a period of 10 years and under section 15 (b) of the said Ordinance, he was debarred from getting financial facility in the form of loan or advance from any Bank or financial institution for a period of 10 years. The property in the name of the detenu was forfeited in favour of the Federal Government.
3. Learned counsel for the petitioner has contended that the convict with the inclusion of remissions available to him under law having completed his full term of substantive sentence was due for release on 10-5-2001 which was being withheld by the Superintendent Jail without any legal justification. Muhammad Ayyub, Assistant Superintendent Jail while appearing before this Court on 12-6-2001 stated that while counting the remissions in question, the convict would be due for release on 10-5-2001 but his release was withheld on the basis of letter No, SO.(MP) 2-8/99-2001, dated 4-5-2001 issued by the Home Department, Government of Pmjab in compliance of the judgment given by a learned Single Judge of this Court at the Principal Seat in Writ Petition No,23185 of 1999. In the above writ petition, the remissions/commutations given to Amjad Ali and Amir Jamshed respondents therein, the life convicts without the permission of the legal heirs of the deceased were challaned. The abovenamed convicts were tried for the murder charge in a case registered against them on 13-6-1995 at Police station Civil Lines, Gujrat and upon conviction were sentenced to imprisonment for life vide judgment, dated 31-8-1998. The 'benefit of remissions granted by the President of Pakistan and the Provincial Government and the special remissions given to them was challenged being in violation to the law laid down by the apex Court in Hakim Khan and 3 others v. Government of Pakistan through Secretary Interior and others (PLD 1992 SC 595) and by this Court in Muhammad Ameer and anothers v. Abdul Qadir and 2 others (1998 PCr.LJ 921) and Federal Shariat Court Habib-ul Wahab-ul-Khairi and others v. Federation of Pakistan (PLD 1991 FSC 236). The learned Single Judge while disposing of the above titled writ petition observed that the concession of remissions relating to the preconvention period was not available to be extended to the said convicts on the basis of grant of benefit of section 382-B, Cr.P.C. Which would be confined only to the extent of reduction in the period of substantive sentence. In consequence thereto, the learned Single Judge held as under:--- "The upshot of the discussion is that the grant of remission to respondents Nos. I and 2 vide Notification, dated 28-8-1997 to the extent of 1/5th of the total sentence, three months vide Notification, dated 14-8-1996 by the President of Pakistan and Notification, dated 28-4-1996 followed by another Notification, dated 27-2-1997 granting two months' remission each by the Provincial Government is declared to be inapplicable and contrary to law, therefore, the same are set aside by partly accepting the writ petition. The benefit of these notifications shall not be extended or awarded by way of remissions to the imprisonment to which respondents Nos. 1 and 2 were sentenced on 31-8-1998 by a competent Court of law. There shall be no order as to costs."
4. Learned counsel for the petitioner while placing reliance on the case of Hakim Khan and others (supra) and the judgment, dated 3-2-1999 in the case of Amir Fida Paracha v. Government of Punjab etc. In Writ Petition No, 127 of 1997 delivered by this Court at this Bench contended that if a convict is extended benefit of section 382-B, Cr.P.C., his substantive sentence would definitely commence from the date of his arrest and the concession of remission would also be available to him from the said date as of right as such person for all practical purposes would be deemed to be a convict from the date of his arrest and not from the date of judgment. In Hakim Ali Khan's case, the apex Court has made the following observation:--- "The President of Pakistan had no such power to commute the death sentences awarded in the matters of Hudood, Qisas and Diyat Ordinance. In this view of the matter, we are of the view that the power of pardon in such cases only vests with the heirs of the deceased. Therefore, the case in which death sentences have been awarded, the President had no power to commute, remit or pardon such sentences. However, the cases would be no different footings, if a person has been punished by way of Ta'zir as in such cases, the Head of the State has the power to pardon the offender and that too in public interest."
5. In Writ Petition No,1267 of 1997 decided on 3-2-1999 in the light of Hakim Ali Khan's case cited supra, the following observations were made: "The provision of section 55-A, P.P.C. Read with section 402-C, Cr.P.C. Being subordinate to Constitution will definitely be given effect in conforming with the individual right of a person as envisaged under Chapter XIV, P.P.C. Consequently, the Provincial Government or any of its functionaries does not enjoy any power even in case of Ta'zir to grant remission without the consent of victim or legal heirs of the victim. This power of grant of remission, if is given to the authorities in their discretion, it will negate the concept of right of individual granted by Islam as provided under Chapter XIV, P.P.C. And as well as reduce the term of sentence, in conflict to the judicial verdict. Thus, subject to law and the Constitution as well as the right of an individual recognized by Islam, the remission in general in the discretion of the authorities cannot be granted to a convict. There can be different types of remissions, such as remissions under some provisions of law to be given in public interest as a special case and remissions to be given purely in the discretion of the authorities. The reduction in sentence through remission in the cases under Chapter XVI, P.P.C. Relating to human body in the matter of Qisas and Diyat as well as Ta'zir involving the rights of individual cannot be extended by the authorities either under any law or in their discretion without the consent of victim or the legal heirs of the victim as the case may be.
The remission in cases other than Chapter XVI, P.P.C. Except the category of the cases specifically excluded from this concession no doubt can be granted on the basis of certain consideration at special occasions. However, the authorities are not empowered to exercise this power in cases of Qisas and Diyat as in the matter of Ta'zir except in the public interest without the consent of the victim or his legal heirs.
' The Presidential power under Article 45 of the Constitution being not available to the Provincial Government or any of its functionary, the exercise of the powers by the President for the grant of pardon in public interest is not in consonance with the provisions of section 55-A, P.P.C. And Chapter XXIX of the Cr.P.C. Consequently, the authorities other President having no Constitutional power cannot grant remission without the consent of victim or legal heirs in any case."
6. The question regarding the grant of remission to a convict for the period before the date of conviction by virtue of section 382-B, Cr.P.0 was not as such dealt with in the abovesaid cases and for the first time, it was taken in Writ Petition No,23185 of 1999 in which Notification, dated 28-8-1997 relating to such remissions was challenged and the learned Single Judge held that the benefit of remissions would not be extended for the pre-conviction period by virtue of section 382-B. Cr.P.C.
To the convicts in the said case.
7. Learned counsel for the petitioner has argued that the judgment in the above-referred writ petition on the basis of which letter dated 4-5-2001 was issued, was judgment in personam and not a judgment in rem, therefore, the same would confine only to the extent of the convict of the said case and that in any case the judgment in the above-referred writ petition being applicable only to the cases falling under Chanter XVI, P.P.C. Would not cover the remaining cases and consequently the operation of letter, dated 4-5-2001 would be restricted to the cases under Chapter XVI, P_P.C. And not to any other case and thus withholding of benefit of remissions of the convicts in other cases such as the petitioner by the Jail Authorities was not legal.
8. The learned A.A.-G. On instructions from the Deputy Superintendent Jail contended that although the letter was issued in the light of the observations made by the learned Single Judge in the judgment in Writ Petition No,23185 of 1999 but the same being general in character would not be restricted to a limited class of cases. The learned A.A.-G. Contended that the letter in question would be deemed to have also been issued in compliance of the judgment ' in Hakim Ali Khan's case and in Writ Petition No,1267 of 1997 and thus in addition to the cases falling under Chapter XVI, P.P.C., it would also be applicable to all other cases.
9. Having attended the propositions in the light of the law laid down by the apex Court and the judgment in the above-referred writ petition, we find that the contention of learned counsel is not without force. The legal position emerged is that the letter dated 4-5-2001 under discussion was issued in compliance of the judgment in Writ Petition No, 23185 of 1999 in which the grant of remission in the case falling under Chapter XXI, P.P.C. Was discussed and, therefore, the observation made in the said judgment would be confined only to the extent of offences relating to the human body falling under Chapter XVI of the P.P.C. And not to any other case and, therefore, the contention of the learned A.A.-G. That the circular in question would be applicable to all cases without any distinction was without any force as the remission made available to such convicts under the law cannot be taken through administrative instructions. In the present case, the letter under discussion was issued in the light of the judgment relating to a case falling under Chapter XXI, P.P.C. Therefore, the same would remain to the said Chapter and would not he ipso facto made applicable to the remaining cases without proper legislation. We, in the light of the law laid down by the apex Court in Pir Bakhsh's case PLD 1987 Supreme Court 145) are of the view that the judgment given by the learned Single Judge in Writ Petition No,23125 of 1999 is not a judgment in rem to be made applicable to the offence other than the offences falling under Chapter XVI, P.P.C.
And, therefore, the circular in question being restricted to the offences falling under Chapter XVI, P.P.C. Would be deemed to be issued in compliance of the law laid down by the apex Court and this Court. We with the above observation dispose of this petition.