FAZAL-UR-REHMAN, J.---This Constitutional petition under Article 199 of the Constitution of Islamic Republic of Pakistan has been filed by the petitioner with the following prayers:- "(a) That the action of the official respondents, whereby remissions have been granted to the private respondents, is illegal, void, without lawful authority and of no legal effect.
(b) That the private respondents are not entitled to any remissions under any provision of law and the remissions given to them by the Jail Authorities may be declared as of no legal effect.
(c) That the official respondents be directed to apprehend respondents Abdul Zahir and Gul Baran and remanded them to jail custody for serving out the remaining sentence.
(d) The respondent No,4 be directed to serve entire sentence.
(e) That the Jail Authorities may be directed to exclude the remssions from the ticket of the private respondent and they may be directed to serve the remaining sentence imprisonment for life. ,
(f) Any other relief as may be deemed fit and proper in the circumstances of the case may also be awarded."
2. Briefly stated, the facts of the case are that the petitioner lodged a report with Police Station, Chaman under sections 302/324/148/149/365/ 511, P.P.C. Read with section 17(3) of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979 on 7th May, 1994 at about 8-15 a.m.
Wherein; it was alleged that at 7-30 a.m., he left his house in his vehicle alongwith his four brothers namely; Dawood Shah, Muhammad Raza, Ahmed Shah and Ubaidullah towards College Colony to see off Hajjis. At about 8-00 a.m., when they reached Telephone Exchange, Abdul Ali, Muhammad Khan, Musa, Waris, Abdul Hakeem, Zahir alongwith six other persons, whose names were not known to him, however, he could recognize them, on seeing, signalled them to stop and on stopping, Abdul Ali alongwith other companions tried to kidnap them by force and Abdul Ali, who was holding a Kalashnikov and other companions were armed with pistols, started firing at them, due to which, Dawood Shah received injuries on his chest and died on the spot. Muhammad Raza was injured, he succumbed to injuries in the hospital and Ahmed Shah received injuries on his leg and accused persons while leaving the place after incident, took away the Land Cruiser of the petitioner. The motive stated for the occurrence was, that last year deceased Dawood Shah had fought with Muhammad Shah, nephew of Abdul Ali and had injured him. To take revenge of the said incident, the accused persons attacked the complainant party on the day of incident. It is stated that the accused persons could not be arrested. Only Abdul Zahir, Gul Baran and Haji Allah Dad were arrested and sent up to face their trial and on conclusion of the trial, Abdul Zahir and Gul Baran were convicted and sentenced to suffer R.I. For fourteen years by the learned Sessions Judge, Pishin, while Allah Dad was acquitted of the charge, vide judgment dated 22nd June, 1996.
It is stated that this Court on 24th April, 1997 upheld the judgment of the trial Court while disposing of Criminal Reivision No,38 of 1996 for enhancement of sentence of Abdul Zahir and Gul Baran, Criminal Acquittal Appeal No,161 of 1996 against acquittal of Allah Dad, Criminal Appeal No,131 of 1996 filed by Abdul Zahir and Gul Baran. It is stated that the aforesaid parties filed criminal petitions for leave to appeal, before the Hon'ble Supreme Court in which, leave was granted on 19th November, 1997. It is maintained that during the pendency of the appeal before the Hon'ble Supreme Court, accused/respondent Abdul Ali was arrested and challaned before the learned Sessions Judge, Pishin, who was acquitted of the charge by the trial Court on 19th October, 1998.
This Court, however, reversed the judgment and convicted Abdul Ali under section 302(b), P.P.C.
And sentenced to suffer R.I. For life. The benefit of section 382-B, Cr.P.C., was also extended to him vide judgment dated 5th October, 1999. It is stated that the appeal filed by Abdul Zahir and Gul Baran, came up for hearing before the Hon'ble Supreme Court on 15th October, 1999 and the same were disposed of in the manner, whereby; the order of acquittal of Haji Allah Dad was upheld whereas; the convictions of Abdul Zahir and Gul Baran recorded by the trial Court under section 302(c). P.P.C. Were set aside and they were convicted under section 302(b). P.P.C. And sentenced them for life imprisonment. The sentence of fine of Rs,1,00,000 was also maintained and in default whereof, they have to further undergo for one year. The conviction under section 324, P.P.C. Was maintained and their sentences to seven years' rigorous imprisonment and a fine of Rs,5,000 each and in default thereof, to further undergo six months' simple imprisonment. It is stated that the benefit of section 382 B, Cr.P.C. Was not extended in the judgment reported in 2000 SCM R 406. It is stated that the Hon'ble Supreme Court dismissed the appeal, which was filed by Abdul Ali and also criminal petition filed by the petitioner regarding enhancement of sentence from life imprisonment to death, was dismissed. The Hon'ble Supreme Court was, however, pleased to direct Abdul Ali to pay Rs,1,00,000 as compensation in terms of section 544-A, Cr.P.C. To the legal heirs of Dawood Shah deceased or to suffer in default R.I. For a period of six months. It is stated that Abdul Zahir and Gul Baran have since been released from jail on or about 13th August, 2001 by giving them remissions of 6753 days and 6700 days respectively as per their tickets. Respondent Abdul Ali is stated to have earned remission of 5747 days as per his ticket allowed by the Jail Authorities on the basis of relevant notifications. It is the case of the petitioner that the private respondent have been convicted under section 302(b), P.P.C. (Qisas and Diyat), therefore, the respondents Nos. 1 to 3 could not grant any remission under the provisions of Article 45 of the Constitution, section 401, Cr.P.C. Or under the Prisons Rules without the consent of legal heirs of the deceased. It is also stated that even otherwise, the notifications on the basis whereof, remissions have been granted to the private respondents are unlawful being beyond the scope of such notifications. According to petitioner, he has no other alternate efficacious and speedy remedy available to him except by filing this petition, which he has filed under Article 199 of the Constitution of Islamic Republic of Pakistan. Parawise comments have been filed on behalf of respondents Nos. 1, 2 and 3.
3. We have heard Messrs H. Shakeel Ahmed and Muhammad Ayaz Khan. Sawati, learned counsel for the petitioner and Messrs Ghulam Mustafa Mengal, learned Additional Advocate-General and Zahid Malik, Advocate for official respondents, Shaikh Ghulam Ahmed, Advocate for respondent No,4, while; Mr. Muhammad Aslam Chishti, Advocate for respondents Nos. 5 and 6.
4. The main contentions put forth on behalf of petitioners are as under:-- "(A) That the remissions granted to the respondents Nos. 4 to 6 are patently illegal, in excess of authority and violation of law.
(B) That in respect of cases, registered under Qisas and Diyat Ordinance, the Government or any other authority does not enjoy any power to reduce the sentence in any manner without the consent of the legal heirs of the deceased persons, therefore, the remissions counted in favour of the accused person on the basis of various notifications, are, illegal, void and devoid of lawful authority and liable to be declared as of no legal effect.
(C) That benefit of section 382-B, Cr.P.C. Was not extended to Abdul Zahir and Gul Baran by the Hon'ble Supreme Court while converting the sentence.
(D) That since the Courts have awarded life imprisonment to the accused persons, therefore, as a necessary consequence, they have to be imprisoned for their lifetime and no remissions or exemptions can be given to them in any manner whatsoever. The action of the official respondents to grant remissions to the accused persons is contrary to the spirit of law as well as Injunction of Islam, therefore, the impugned action being in violation of law is liable to be declared as of no legal effect.
(E) That the Jail Authorities by totally misinterpreting the various notifications have counted remissions in their favour, which is not permissible under the law and even under the said notifications, no remission can be granted.
(F) That a person, who has been sentenced for life is not entitled to any remission.
(G) That the provisions of Cr.P.C. As well as Prisons Rules are unConstitutional inasmuch as, it affects the rights of the legal heirs of the deceased persons, where a case has been registered under Qisas and Diyat Ordinance, therefore, the notifications issued by the official respondents from time to time are liable to be declared as of no legal effect.
(H) That the exercise of authority under Article 45 of the Constitution is not unbridled, but would, be subject to the rights of the legal heirs of the deceased persons. Any remission granted in exercise of such authority would be subject to such rights and the notifications on account of which any accused person is granted remission in Qisas and Diyat matter is unlawful. The remissions awarded to private respondents were prayed to be declared as illegal, void and ab initio.
5. Learned counsel for the respondents have contended that the President while exercising his powers under Article 45 of the Constitution of Islamic Republic of Pakistan, 1973, can grant remission in cases punishable by way of `Tazie, and the same could not be made a subject-matter of challenge in writ jurisdiction. It has been argued that the powers of President of Pakistan under Article 45 of the. Constitution of the Islamic Republic of Pakistan could not be questioned, because as Head of the State, he had been invested with such powers and exercise thereof could not be questioned in any manner whatsoever.
6. There is no cavil with the proposition that the President in exercise of his powers under Article 45 of the Islamic Republic of Pakistan can grant remissions or pardon to any prisoner, who has been convicted and sentenced under any offence contained in general law or in special law. The said Article of the Constitution overrides the provisions of Pakistan Penal Code or the Code of Criminal Procedure. The Hon'ble Supreme Court in the case of Hakim Khan and 3 others v. Government of Pakistan and others PLD 1992 SC 593, has held that Article 2A was not a supra-Constitutional measure. 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 PLD 1992 SC 14.
7. A Full Bench of this Court in a case reported in 1999 YLR 1596, relying on the aforesaid authority hasalso held that the scope and powers of the President under Article 45 of the Constitution, is discretionary in view of the provisions as contained under Article 48(2) of the Constitution and no embargo whatsoever, has been imposed on it. It was further held that exercise of such discretion cannot be assailed before any forum including a Court of law. Reference was made to the authority reported in 1979 SCM R 302. In the aforesaid case, Full Bench of this Court also held that the remissions granted under Article 45 of the Constitution can neither be curtailed or effected by Prisons Rules read with Remission Rules, 1965.
8. Learned counsel for the private respondents Nos. 5 and 6 has raised a preliminary objection that this petition is not competent as the same has not been filed by the legal heirs and petitioner Haji Bismillah is not an aggrieved person. Reliance has been placed on the authority reported in 1999 PCr.LJ 1507 (Quetta). We see no force in the contention and the authority relied upon is not helpful to him, as in the instant case even the Criminal Acquittal Appeal No,320 of 1998 filed by Haji Bismillah, and; the acquittal order in respect of respondent Abdul Ali was set aside by this Court and the said respondent was convicted under section 302(b), P.P.C. The objection is accordingly overruled.
9. The questions, as to whether respondents were or were not entitled for the remission granted by the Inspector-General and Superintendent Jail for their good conduct, donation of blood, education, observing regular prayers Ramazan, protecting a prison officer, special assistance etc. In the absence of any material and amendments in the rules, being question of fact, could not be examined by the High Court in its Constitutional jurisdiction. Even otherwise, these jail remissions granted by the jail authorities other than the notification, hereinbelow mentioned, were neither seriously pressed, nor material brought on record, nor the same can be made subject-matter of the writ petition. The concerned authorities are, however, required to suitably amend the relevant provisions of the Prisons Rules in respect of prisoners, convicted under Chapter XVI of Pakistan Penal Code.
10. As far the objection of learned counsel for the petitioner that the Jail Authorities by misinterpreting the various notifications, have counted remissions in favour of respondents, which were not permissible and even under the said notification, no remissions can be granted, is not without substance.
11. Respondents Abdul Zahir and Gul. Baran are stated to have been arrested on 24th November, 1994 and 7th May, 1994, respectively. Both of them were convicted on 3rd June, 1996 under section 302(c), P.P.C. And sentenced to suffer R.I. For fourteen years each with fine of Rs,1,00,000 each, they ware also convicted under section 324, P.P.C. And sentenced to suffer R.I. For seven years each with fine amounting to Rs,50,000 each. The Hon'ble Supreme Court on 15th October, 1999, set aside the convictions and sentences awarded to respondents and convicted them under section 302(b), P.P.C. And sentenced to imprisonment for life. The sentence of fine was, however, maintained, the convictions and sentences of fine under section 324, P.P.C. Were also maintained. The details of remissions awarded to the prisoners/respondents on different occasions through notifications are as under:-- Remissions awarded to respondents Abdul Zahir and Gul Baran S.No. DATE DAYS AUTHORITY UNDER REMARKS 01 1-3-1995 60 Government of Balochistan (Eid-ul-Fitr)216, PPR (i) Awarded without lawful authority.
(ii) Not admissible as U.T.P.
02 15-2-1996 30 Government of Balochistan (Eid-ul-Fitr)216, PPR (i) Awarded without lawful authority.
(ii) Wrongly extended to prisoner, convicted under Chapter 16, P.P.C.
03 20-2-1996 90 President of Pakistan (Eid-ul- Fitr)Article 45 of ConstitutionWrongly extended to U.T.P.
04 15-8-1996 90 Government of Pakistan Ministry of Interior Not clear as to whether under section 401, Cr.P.C. or otherwise?
05 20-8-1996 30 Government of Pakistan (Independence day)216, PPR Awarded without lawful authority 06 6-2-1997 30 Government of Balochistan (Eid-ul-Fitr)216, PPR Awarded without lawful authority 07 24-2-1997 30 Government of Balochistan (installation of New Provincial Government)401, Cr.P.C. Wrongly extended to prisoner convicted under Chapter XVI, P.P.C.
08 15-4-1997 15 Government of Balochistan (Eid-ul-Azha)216, PPR Awarded without lawful authority 09 30-5-1997 15 Government of Balochistan216, PPR Awarded without lawful authority 10 14-8-1997 1/5 of whole sentencePresident of Pakistan (Golden Jubilee, (Independence day)Article 45 of Constitution 11 4-2-1998 90 President of Pakistan (Eid-ul- Fitr)Article 45 of Constitution 12 23-3-1998 60 President of Pakistan (Pakistan Day)Article 45 of Constitution 13 16-1-1999 30 Government of Balochistan401, Cr.P.C. Wrongly extended to convict prisoners under Chapter XVI, P.P.C.
14 16-1-1999 360 days for lifer and 180 for othersPresident of Pakistan (Eid-ul- Fitr)Article 45 of Constitution 15 1-4-1999 360 days for lifer and 180 for othersPresident of Pakistan (Eid-ul- Azha)Article 45 of Constitution 16 29-5-1999 180 for lifer and 90 for othersPresident of Pakistan (Yaum- e-Takbir)Article 45 of Constitution 17 5-1-2000 60 Government of Balochistan401, Cr.P.C. Wrongly extended to convict prisoners under Chapter XVI, P.P.C.
18 6-1-2000 360 days for lifer and 180 for othersPresident of Pakistan (Eid-ul- Fitr)Article 45 of ConstitutionJail Authorities wrongly extended remission of Federal Government under Rule 216 for 60 days to prisoners under Chapter 16.
19 15-3-2000 360 days for lifer and 180 for othersPresident of Pakistan (Eid-ul- Azha)Article 45 of Constitution 20 24-6-2000 180 for lifer and 90 for othersPresident of Pakistan (Eid-e- Milad-un-Nabi)Article 45 of Constitution 21 14-8-2000 360 days for lifer and 180 for othersPresident of Pakistan (Independence day)Article 45 of Constitution 22 24-12-2000 360 days for lifer and 180 for othersPresident of Pakistan (Eid-ul- Fitr)Article 45 of Constitution 23 3-3-2001 360 days for lifer and 180 for othersPresident of Pakistan (Eid-ul- Azha)Article 45 of Constitution 24 2-6-2001 360 days for lifer and 180 for othersPresident of Pakistan (Eid-e- Milad-un-Nabi)Article 45 of Constitution Remissions awarded to respondent Abdul All S.No. DATE DAYS AUTHORITY UNDER REMARKS 01 14-8-1997 1/5 of whole sentencePresident of Pakistan (Golden Jubilee, (Independence day)Article 45 of ConstitutionNot admissible as U.T.P.
02 4-2-1998 90 President of Pakistan (Eid-ul- Fitr)Article 45 of ConstitutionNot admissible as U.T.P.
03 23-3-1998 60 President of Pakistan (Pakistan Day)Article 45 of ConstitutionNot admissible as U.T.P.
04 16-1-1999 30 Government of Balochistan401, Cr.P.C. Wrongly extended to convict prisoners under Chapter XVI, P.P.C.
05 16-1-1999 360 days for lifer and 180 for othersPresident of Pakistan (Eid-ul- Fitr)Article 45 of ConstitutionNot admissible as U.T.P.
06 1-4-1999 360 days for lifer and 180 for othersPresident of Pakistan (Eid-ul- Azha)Article 45 of ConstitutionNot admissible as U.T.P.
07 2-5-1999 180 for lifer and 90 for othersPresident of Pakistan (Yaum- e-Takbir)Article 45 of ConstitutionNot admissible as U.T.P.
08 5-1-2000 60 Government of Balochistan401, Cr.P.C. Wrongly extended to convict prisoners under Chapter XVI, P.P.C.
09 6-1-2000 360 days for lifer and 180 for othersPresident of Pakistan (Eid-ul- Fitr)Article 45 of ConstitutionJail Authorities wrongly extended remission of Federal Government under Rule 216th for 60 days to prisoners under Chapter 16.
10 15-3-2000 360 days for lifer and 180 for othersPresident of Pakistan (Eid-ul- Azha)Article 45 of Constitution 11 24-6-2000 180 for lifer and 90 for othersPresident of Pakistan (Eid-e- Milad-un-Nabi)Article 45 of Constitution 12 14-8-2000 360 days for lifer and 180 for othersPresident of Pakistan (Independence day)Article 45 of Constitution 13 24-12-2000 360 days for lifer and 180 for othersPresident of Pakistan (Eid-ul- Fitr)Article 45 of Constitution 14 3-3-2001 360 days for lifer and 180 for othersPresident of Pakistan (Eid-ul- Azha)Article 45 of Constitution 15 2-6-2001 360 days for lifer and 180 for othersPresident of Pakistan (Eid-e- Milad-un-Nabi)Article 45 of Constitution
12. Respondent Abdul Ali son of Muhammad Ramazan is stated to have been arrested on 24th July, 1997, he was tried by the learned Sessions Judge, Pishin and after conclusion of the trial, he was acquitted of the charge on 19th October, 1998. This Court has, however, by accepting the appeals, which were filed against his acquittal, convicted him under section 302(b), P.P.C. And sentenced to suffer R.I. For life, vide judgment dated 5th October, 1999. The benefit of section 382-B, Cr.P.C. Was also extended to him. The appeal, which was filed by respondent against his conviction, was dismissed by the Hon'ble Supreme Court. The Hon'ble Supreme Court also directed the respondent Abdul Ali to pay Rs,1,00,000, as compensation to the legal heirs of deceased or to suffer in default, six months' R.I.
13. In view of above position, the remissions granted through notifications issued on 14th August, 1997, 4th February, 1998, 23rd March, 1998, 16th January, 1999, 1st April, 1999, 29th May, 1999, were not 'admissible to respondent, as he was not convicted and undergoing D. Sentence on the days, when the notifications were issued. As stated above, the respondent was convicted on 5th October, 1999, therefore, the benefit of notifications cannot be extended to him by way of reduction from his term of imprisonment. The sentence is always preceded by conviction.
14. We also concur with the views, expressed in the authority relied upon by the learned counsel for the petitioner and reported in 2001 PCr.LJ 1453 (Lahore), relevant portion of which is reproduced below, for the sake of facility:-- "8. ... ... ....The universal rule in construing is that the grammatical and ordinary sense of the words is to be adhered to unless that would lead to some absurdity, or some repugnancy or inconsistency with the rest of the enactment. Where the meaning of an enactment is clear, to apply that meaning is to give it a literal construction. If the language of a provision is clear and unambiguous, it should be accepted as such without hesitation or demur. Words themselves alone in such a case best declare intention of the Legislature. Importing any remissions granted, by any authority competent under the law to do so, to the provisions of section 382-B, Cr.P.C. Would be doing violence to the said provisions. Permission granted by the President derives its origin under Article 45 of the Constitution whereas counting the period of detention before conviction is contained in section 382-B, Cr.P.C. There is no clash whatsoever between two provisions of law, each are independent provisions, conferring powers on independent authority to grant benefit to convicts in the matter of their sentences, therefore, the argument that since the substantive sentence commenced from the date of arrest as such benefit of the remission through the Notification dated 28-8-1997 be extended to respondents Nos.1 and 2, is devoid of force, as provision of section 382-B, Cr.P.C. Only comes into being once conviction takes place followed by sentence to be awarded.
Same discussion applies to the remission of three months granted by the President vide Notification, dated 14-8-1996.
9. As regards the remission granted by the Provincial Government on 28-4-1996 for two months and again on 27-2-1997 for two, months, this is clearly violative of the provisions of sections 54 and 55 of the Pakistan Penal Code and sections 410, 402, 402-A and 402-B of the Code of Criminal Procedure alongwith relevant parts of its Schedule and have to be struck down being repugnant to the amendments made in the referred to provisions of law on 13-8-1990. Reference is made to the case of Muhammad Ameer and another (supra).
15. Similarly, the benefit of remissions extended to respondents Abdul Zahir and Gul Baran through notifications issued during the period they remained as undertrial prisoner, were also not admissible, as they E were not convicted persons and undergoing sentences. Even otherwise, they were convicted for imprisonment for life by the Hon'ble Supreme Court. The benefit of notification issued on 1st March 1995, 15th February, 1996 and 20th February, 1996 cannot be extended to them by way of reduction from their terms of imprisonments for the reasons hereinabove mentioned.
There is, however, nothing in the judgment, which can indicate that the benefit of section 382-B, Cr.P.C. Has been declined.
16. The sentences of convicts, who were convicted under Chapter XVI of the Pakistan Penal Code could not be remitted under the orders of Provincial and Federal Government, issued either under Rule 216 of Prisons Rules or 401, Criminal Procedure Code on occasions of public rejoicing. Certain notifications had been issued by Provincial Government under Rule 216 of Prisons Rules on the occasions of Eid etc. Without lawful authority and against the relevant provisions of Prisons Rules.
According to Rule 218, special remission is awarded by the Government on occasion of public rejoicing. It is granted unconditionally under section 401 of the Criminal Procedure Code and has not covered by these Rules. The amendments brought about in Chapter XVI, section 55 of Pakistan Penal Code and section 402-C, Cr.P.0 put a bar regarding grant of remission without the consent of victim or as the case may be of his heirs. The amendments had been brought about through Ordinances and thereafter, through Criminal Law (Amendment) Act, 1997, which Act received the assent of the President on 10th April, 1997.
17.. According to section 55, in every case, in which sentence of imprisonment for life shall have been passed, the Provincial Government of the Province within which, offender shall have been sentenced, may, without the consent of the offender, commute the punishment for imprisonment of either description for a term not exceeding fourteen years. According to proviso added to the said section in a case, which sentence of imprisonment for life shall have been passed against an offender, convicted for an offence punishable under Chapter XVI, such punishment shall not be commuted without the consent of the victim, or, as the case may be, of his heirs. According to section, 57 P.P.C., in calculating fractions of terms of punishment, imprisonment for life shall be reckoned as equivalent to imprisonment for twenty-five years.
18. According to Rule 198(b) of Prisons Rules, life means a prisoner sentenced to imprisonment for life, such sentence means twenty-five years' rigorous imprisonment. According to Rule 217 (i), total remissions, both ordinary and special awarded to a prisoner under this rule (other than remission for donating blood, awarded under Rule 212, surgical sterilization under Rule 213 and for passing examination Rule 215, shall not exceed 1/3rd of his sentence. According to sub-rule (ii), remissions, both ordinary and special, earned by a lifer shall be so much that a sentence of imprisonment for life is not shortened to a period of imprisonment, less than fifteen years.
19. As discussed above, remissions granted under Article 45 of the Constitution, can neither be curtailed or effected by Prisons Rules.
20. Section 402-C, Cr.P.C., also bars remission or commutation of any sentence passed under any of the sections under Chapter XVI of the Pakistan Penal Code, without the consent of the victim or, as the case may be, of his heirs.
21. A Division Bench of this Court in 1998 PCr.LJ 921 has held that the Provincial Government has no authority to exercise its powers under section 401, Cr.P.C. In view of section 402-C, Cr.P.C. Relevant paras. Of the said authority are reproduced hereinbelow: "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 persuade 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 crucial 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 sentences not to be without 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 consulted 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 Honorable 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 above said Provisions of sections 401, 402, 402-A, 402-B, 494 and 495, Cr.P.0 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 affecting 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."
22. Keeping in view the aforesaid legal position, it can be concluded firstly; that the benefit of notifications enumerated at paras. Nos.13 and 15, shall not be extended to the respondents, who were convicted on 23rd June, 1996 and 5th October, 1999 respectively under Chapter XVI of the Pakistan Penal Code, secondly; the issuance of notifications under Rule-216 of the Pakistan Prisons Rules on the eve of Eid etc. Were without lawful authority and the sentences of the respondents, who were convicted under Chapter XVI of the Pakistan Penal Code should not have been remitted on the basis of these notifications, therefore, those ere declared to be without jurisdiction and of no legal effect, and thirdly; the grant of remissions to the respondents, who were convicted under Chapter XVI of Pakistan Penal Code, by the Government under section 401, Cr.P.C. Without the consent of victim or, legal heirs of deceased are declared to be contrary to law and without lawful authority.
23. The Constitutional petition stands disposed of, in the above terms with no order as to costs.