President has authority to grant pardon, rules SC

* Court rules president may grant remission to those who are not accused of heinous offences and may refuse it to those accused of serious or terrorism-related offences

ISLAMABAD: The Supreme Court on Wednesday held that for exercising authority under Article 45 of the constitution, classification of convicts on the basis of accusation was permissible, as the president might grant remissions to those who were not accused of heinous offences and refuse it to those accused of serious or terrorism-related offences.

The court declared Article 10-D of NAB ordinance “ultra vires” of the constitution and struck it down, after which the convicts in NAB case will be equally entitled to receive reduction or amnesty in their sentences under Article 45 of the constitution. A seven-member bench of the Supreme Court, consisting of Chief Justice Iftikhar Muhammad Chaudhry, Justice Mian Shakirullah Jan, Justice Tassaduq Hussain Jillani, Justice Chaudhry Ijaz Ahmed, Justice Tariq Parvez, Justice Asif Saeed Khan Khosa and Justice Khalilur Rehman Ramday, was conducting hearing on a number of questions regarding powers of the president under Article 45 of the constitution, especially the grant of pardon and reprieve and the policy framed by the government to grant remissions under the law.

In its verdict, the SC held that in the remission policy, a class of convicts involved in “heinous crimes” was excluded from the benefit of remissions, which was legitimate. The judgment authored by Justice Tassaduq Hussain Jillani said that most of these exclusions were backed by law, rule or an intelligible differentia, thus the classification was reasonable and applied equally to convicts and prisoners and this differentia was not hit by equality clause of the constitution.

It said no one would be entitled to ordinary and special remission unless the federal government, provincial government or a competent authority made specific order in writing in this behalf.

It said Rule 214-A of the Prisons’ Rules only deprived those “convicts of special remission or on premature release on parole, if they are sentenced for drug and narcotics offences”.

The court found that the remissions were not being denied on account of mere forum of trial, but on account of commission of offences pertaining to drugs and narcotics. It said it has been a consistent view of the apex court that the classification was permissible, provided the same was backed by law, rules or was based on reasonable differentia. However, the court declared following provisions as intra vires:

I) Sub-section 1 of Section 401 CrPC, which stipulates that the provincial government shall have no power to suspend or remit any sentence awarded to an offender under Chapter XVI of the PPC, if an offence has been committed by him in the name or on the pretext of Karo Kari, Siah Kari or similar other customs or practices.

II) Rule 201(a) of the Prisons’ Rules as intra vires, because there is a reasonable and rationale classification specifying a class of persons and still leaving the discretion for the federal or provincial government and competent authority in the said provision.

The SC verdict maintained that under Article 45, the president had the powers to curtail the sentence of prisoners. Earlier, the court had reserved the judgment in this case after a detailed hearing last year. Article 45 of the constitution states, “The president shall have the power to grant pardon, reprieve and respite, and to remit, suspend or commute any sentence passed by any court, tribunal or other authority”. Daily time Source

Chief Justice’s Decisions

IN THE SUPREME COURT OF PAKISTAN
(APPELLATE JURISDICTION)

PRESENT:

MR. JUSTICE IFTIKHAR MUHAMMAD CHAUDHRY, CJ
MR. JUSTICE MIAN SHAKIRULLAH JAN
MR. JUSTICE TASSADUQ HUSSAIN JILLANI
MR. JUSTICE CH. IJAZ AHMED
MR. JUSTICE TARIQ PARVEZ
MR. JUSTICE ASIF SAEED KHAN KHOSA
MR. JUSTICE KHALIL-UR-REHMAN RAMDAY

Crl. Petition No. 426 of 2009 along with
Crl. Appeal No. 383 of 2009 &
Human Right Case No. 3200-G of 2009
Human Right Case No. 3742-P of 2009
Human Right Case No. 3928-P of 2009
Human Right Case No. 3887-P of 2009
Human Right Case No. 9778-P of 2009
Nazar Hussain (in Crl. P. 426 of 2009)
Lal Muhammad (in Crl. A. 383 of 2009)

… Petitioner/Appellant
VERSUS

The State
… Respondent
For the Petitioner: Ch. Afrasiab Khan, ASC.
(in Crl.P. 426 of 2009)
For the Appellant: Mr. Arshad Ali Chaudhry, AOR
(in Crl.A. 383 of 2009)

Amicus Curiae: Syed Iftikhar Hussain Gillani, Sr. ASC.
Mr. Zulfiqar Khalid Maluka, ASC.
For the State: Mr. Shah Khawar, D.A.G.
Raja Abdul Ghafoor, ASC/AOR
(on behalf of A.G. Sindh).
Mr. Naveed Akhtar, Addl. A.G. NWFP.
Mr. Muhammad Raza, Addl. A.G. Balochistan.
Mr. Saeed Yousaf, Addl. A.G. Punjab.
Raja Shahid Mehmood, D.P.G Punjab.
Date of Hearing: 01 & 02.04.2010 (Announced in

Open Court on 11.08.2010)
*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*
Crl.P.No. 426 of 2009 &
Crl. A. No. 383 of 2009 etc. 2

JUDGMENT
TASSADUQ HUSSAIN JILLANI, J.- While hearing Crl. Petition No. 426 of 2009, a number of questions with regard to powers of the President under Article 45 of the Constitution to grant pardon and reprieve and the policy framed by the Government of Pakistan to grant remissions under the law came up for consideration. Vide order dated 10.09.2009, the Court framed following issues and notices were issued to the Deputy Attorney General and to the Advocate Generals of the four provinces:-

i) Whether under Article 45 of the Constitution of Islamic Republic of Pakistan, the President enjoys unfettered powers to grant remissions in respect of offences and no clog stipulated in a piece of subordinate legislation can abridge this power of the President as held by this Court in Abdul Malik & others v. The State & others (PLD 2006 Supreme Court 365);

ii) whether the policy formulated by the Government of Pakistan, Ministry of
Interior, dated August, 2009 is in consonance with the judgment delivered by larger bench of this Court in case Shah Hussain v. The State (PLD 2009 Supreme Court 460);

iii) whether the Prison Rules as enumerated are subservient to Article 45 and in case of any conflict between Prison Rules and above-referred judgments as well as special remissions under Article 45 of the Constitution and what would be the legal position of the said Rules; and

iv) whether any classification would be permissible in view of the nature of Crl.P.No. 426 of 2009 & Crl. A. No. 383 of 2009 etc. 3 accusation in case special remission is granted by the President of Pakistan, in view of the provisions as enumerated in Article 25 of the Constitution. 2. Detailed arguments were addressed by Ch. Afrasiab Khan, ASC, learned counsel for the petitioner, Mr. Arshad Ali Chaudhry, AOR, learned Amicus curie M/s Syed Iftikhar Hussain Gillani, Sr. ASC and Zulfiqar Khalid Maluka, ASC as also by Mr. Shah Khawar, Deputy Attorney General, Raja Abdul Ghafoor, ASC/AOR appearing on behalf of A.G.  Sindh, Mr. Naveed Akhtar, Addl. A.G. NWFP, Mr. Muhammad Raza, Addl. A.G. Balochistan, Mr. Saeed Yousaf, Addl. A.G. Punjab and Raja Shahid Mehmood, D.P.G. Punjab. 3. The first issue revolves round Article 45 and has been framed in terms as under:-

Whether under Article 45 of the Constitution of Islamic Republic of Pakistan, the President enjoys unfettered powers to grant remissions in respect of offences and no clog stipulated in a piece of subordinate legislation can abridge this power of the President as held by this Court in Abdul Malik & others v. The State & others (PLD 2006 Supreme Court 365).

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