IJAZ-UL-HASSAN, J.---Ex-Hawaldar Atlas Khan has filed instant Constitutional petition against Inspector-General, Prison, N.-W.F.P., Peshawar and other respondents, seeking remission in his conviction/sentence under the rules, as granted to the other convicts-similarly placed.
2: Shortly narrated the facts leading to the filing of this petition are that the petitioner alongwith other co-accused was involved in a case of gang rape on the allegation of having on the night falling between 5-6th May, 1996 subjected Mst. Rukhsha and Mst. Nighat Parveen daughters of Ghulam Haider, to Zina-bil-Jabr. At the conclusion of trial, having been found guilty, the petitioner was convicted and sentenced to suffer 25 years' R.I. Besides dismissal from service vide order, dated 22-12-1996 of the Commanding Officer, Intelligence, Quetta, Baluchistan. Feeling aggrieved appeals were preferred which were partially accepted and the sentence awarded to the petitioner was reduced vide orders, dated 22-10-1997 and 23-9-1998. The petitioner was committed to Central Prison, Peshawar on 30-5-1998 on transfer from Central Jail, Mach, Baluchistan. The request of the petitioner for grant of remission appears to have been declined by the jail authorities. The petitioner has approached this Court by way of filing instant petition and it is submitted by Mr. Shahabuddin Burq, counsel for the petitioner that the Government granted remission in sentences to all convicts but this concession was refused to the petitioner without any good reason. He also contended that proviso (4) was added to section 10 of Offence of Zina (Enforcement of Hudood)
Ordinance, 1979 on 21-4-1997, the crime in question is alleged to have taken place in May, 1996 whereas the conviction order is, dated 22-12-1994 and the penalty clause in section 10 was not in existence at the relevant time.
3. Mr. Akhtar Naveed, Deputy Advocate-General, on the contrary, controverted the arguments addressed on behalf of the petitioner and invited our attention to Letter No.5428/JI/JAG, dated 3- 10-1998 and attempted to argue that as the petitioner has committed the offence of rape alongwith three others, he is not entitled to the grant of Government remission announced on the occasion of Eidul Fitr and Eidul Azha, 1999, as categories of convicted persons were excluded from the scope of both the remissions. He also contended that the petitioner is not entitled for the remission of one year dated 13-1-1999 followed by subsequent order, dated 21-3-1999.
4. We have heard in detail the arguments of learned counsel for the parties in the light of the material on the file.
5. It is not denied that the petitioner was convicted under section 10(3) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 by virtue of judgment, dated 22-12-1996 passed by the Military Authorities and on appeals the sentence was reduced to 10 years. It is also not denied that subsection (4) was incorporated in section 10 of the Ordinance on 21-4-1997 whereas the crime in question is alleged to have taken place in May, 1996 and the conviction order has been passed on 22-12-1996. It is thus clear that at the time of conviction sub--section (4) had not been incorporated in section 10 of the Ordinance. When attention of the learned Deputy Advocate- General was drawn to this aspect of the matter he had no plausible reply to make and conceded that the petitioner was entitled for grant of remissions in his sentence, permissible to other convicts placed in similar situation. An official from the office of I.-G. Prison, N.-W.F.P., Peshawar is' also present and on asking has informed the Court that the petitioner has undergone the major portion of his conviction and sentence and that his sentence is to expire on 24-7-2003.
6. In the result and for the foregoing reasons we accept the writ petition and direct that remissions awarded to other convicts by the Government may also be granted to the petitioner in accordance with law. No order as to costs.