' Through this Constitutional petition the petitioner, who has been convicted and sentenced by the Court of competent jurisdiction under section 10(2) of the Offence of Zina (Enforcement of Hudood)
Ordinance VII of 1979, has challenged the action of respondent No,2 whereby he had refused special remissions granted to the various convicts on Eid-ul-Fitar, Eid-ul-Azha on 3-3-2001 and Eid- Milad-un-Nabi on 5-6-2001 on the basis of notification, dated 26-12-2000 issued by I.-G. Prisons Punjab, Lahore.
2. Report called for has been submitted. I shall treat the same as written statement and with the consent of the parties decide this petition as Pacca matter.
3. The learned counsel for the petitioner submits that no doubt the petitioner was accused of case F.I.R. 126 of 1994, dated 20-8-1994 registered with Police Station Bohar Gate Multan under sections 467/468/471, P.P.C. Read with sections 16/10 of the Offence of Zina (Enforcement of Hudood)
Ordinance VII of 1979 but petitioner's conviction in this case has been recorded under section 10(2) of the Offence of Zina (Enforcement of Hudood) Ordinance VII of 1979 which has been upheld by Federal Shariat Court in appeal vide judgment, dated 20-4-2001; hence the petitioner, being a convict of Zina-Bil-Raza under section 10(2) of the said Ordinance; is entitled to the special remissions granted under Article 45 of the Constitution of the Islamic Republic of Pakistan, 1973 on various occasions. Further submits that under the instructions issued by I.-G. Prisons on 26-12-2000 in this respect to the respondent No,2 special remissions to a person convicted under section 10(2) of the said Ordinance has not been denied, while special remission has been denied only to the convict---rape and also convict of under section 377, P.P.C.; hence refusal by the respondent No,2/Jail Superintendent Multan to allow special remissions to the petitioner is illegal and in violation of the instructions issued by the I.-G. Prisons, Punjab, Lahore.
4. On the other hand learned A.A.-G. Submits that the petitioner has been found to be guilty of offence of Zina; hence she is not entitled to the special remissions; further submits that word rape has been used in the memo. Dated 26-12-2000 by the I.-G. Prisons, Punjab, Lahore but this has to be given a wide scope and meaning as defined in section 4 of the said Ordinance.
5. Heard.
I am afraid the definition given in section 4 of the said Ordinance is that of Zina and not that of rape. Rape has been defined in section 375, P.P.C. And in the Ordinance VII of 1979, it has been substituted by section 6 of the afore-said Ordinance. Thus, word rape has been substituted by the word Zina Bil-Jabr, which is punishable under subsection (3) of section 10, Zina (Enforcement of Hudood) Ordinance, 1979. The petitioner has not been convicted for rape (Zina-Bil-Jabr) i,e, under section 10(3) but has only been convicted under section 10(2) of the said Ordinance. Therefore, the respondent No,2 acted illegally by refusing special remissions to the petitioner.
' In the circumstances, this Constitutional petition is allowed. The respondent No,2 is hereby directed to grant special remissions to petitioner.