Ghulam Dastagir alias Dodo vs The State and another

ROZI KHAN BARRECH, J.---The petitioner has invoked the Constitutional jurisdiction of this Court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 with the following prayer:- "It is, therefore, respectfully prayed that under the above mentioned submission the respondent No.2, may kindly be directed to grant the remission/special remission to the petitioner as granted by the Federal as well as Provincial Government during the period of conviction, in the interest of justice and equity .

Any other relief deem fit and appropriate may also be awarded to the petitioner",

2. Facts of the case are that the present petitioner Ghulam Dastagir alias Dodo son of Muhammad Azam was charged for the murder of Muhammad Asif alias Baqir and was awarded death sentence by the trial Court.

However , in appeal before this Court the death sentence was converted into Life imprisonment and the said judgment/conviction was upheld by the august Supreme Court of Pakistan thus tle same has attained finality . In the present petition, the petitioner seeks remission in his sentence on account of his requiring qualification on account of education examination in jail. Remission granted by the different authorities under the law and remission granted by the worthy President of Pakistan under Article 45 of the Constitution of Islamic Republic of Pakistan, 1973 ("the Constitution ").

3. The respondent No.2 submitted parawise comments and has controverted the plea of the petitioner and submitted that the other remission has already been availed by the petitioner except the one granted by the worthy President of Pakistan under Article 45 of the Constitution as essentially the petitioner is not entitled to the same being convicted for the murder .

4. We have heard the learned counsel for the parties and have minutely gone through the available record with their able assistance.

5. It may be observed that the issue regarding grant of general remission is not in dispute and same have already been availed by the petitioner . The only point for determination before this Court is the applicability of remissions granted by the President of Pakistan under Article 45 of the Constitution, which excludes its application to those prisoners who were convicted for murder .

6. The respondent No.2 submitted list of notifications regarding special remissio ns which were granted by the President of Pakistan under Article 45 of the Constitution on different occasions. For ready reference, relevant portion of one of the notification dated 14.08.2019 issued by the President of Pakistan under Article 45 of the Constitution is reproduced as under:- "Special remission of 90 days to the prisoners convicted for life imprisonment except those convicted for murder espionage, anti-state activities, sectarianism, Zina (Section 10, Offence of Zina Enforcement of Hudood)

Ordinance, 1979 (also under section 377, P.P.C.) robbery (section 394, P.P.C.), dacoity (sections 395-396, P.P.C.), kidnapping/abduction (Sections 364-A and 365-A), and terrorist acts (as defined in the Anti-T errorism (Second Amendment) Ordinance, 1999 (No. XIII of 1999)".

7. The notification through which special remissions have been granted, itself categorize the applicability of the remissions to a A particular class 'of prisoners.

8. The question of refusing to extend the benefit of special remissions granted by the President of Pakistan under Article 45 of the Constitution to a particu lar class of convicts i.e. (convicted for murder , espionage etc) is justified and has been finally laid to rest by the seven member Bench of the august Supreme Court of Pakistan in Nazar Hussain's case reported as PLD 2010 Supreme Court 1021 in the following words:- "It has been a consistent view of this Court that classification is permissible provided that the same is backed by law, rules or is based on reasonable differentia. For the exercise of authority in Article-45 of the Constitution, classification of convicts on the basis of accusation is permissible as the President may, inter alia, like to grant remissions to those who are not accused of heinous offences and may refuse it to those accused of serious or terrorism related offences. In the remission policy under consideration (See Para-24 above), a class of convicts involved in "heinous crimes" have been excluded from the benefit of remissions. As explained in Paragraphs 24 and 25, most of these exclusions are backed by law, rule or an intelligible differentia. The classification is reasonable and applies equally to convicts/prisoners similarly placed. This differentia is not hit by equality clause of the Constitution."

In concluding paragraph-43, the august Supreme Court of Pakistan has observed that:-- "A classification made by the competent authority on the basis of intelligible differentia qua accusation/ nature of offences or on the basis of law or rules reflecting the same, is permissible and would not be derogatory to the Constitution."

9. Since, there is an intelligible differentia and substantial distinction between the two classes of convicted prisoners, as the worthy President of Pakistan has excluded the applicability of remissions to those convicted prisoners who were involved in heinous crimes, therefore, they are not at par with the ordinary prisoners. Thus, we hold that the Presidential remission unde r Article 45 of the Constitution will not be applicable to the prisoners who have been specifically excluded by the Notifications granting remissions.

In view of the above, the writ petition filed by the petitioner has no merit and the same is dismissed.