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). 
 
 
4. 
The head of the State is vested with similar powers 
in almost all constitutions of the World as provided in Article 
45 of the Constitution of Islamic Republic of Pakistan. The 
issues of the extent of Presidential power under such a 
provision, the manner of its exercise and whether it is 
immune from challenge in a Court has been a subject of 
Crl.P.No. 426 of 2009 &  
Crl. A. No. 383 of 2009 etc. 
 
4 
debate both within the country and in jurisdictions across the 
frontier. Article 45 of the Constitution reads as under: -  
 
“The President shall have power to grant 
pardon, reprieve and respite, and to remit, 
suspend or commute any sentence passed by 
any court, tribunal or other authority.” 
 
 
5. 
Every country recognizes and has, therefore, 
provided for this power to be exercised as an act of grace in 
proper cases. It is by now well recognized that “Without such a 
power of clemency to be exercised by some department or 
functionary of government, a country would be most imperfect 
and deficient in its political morality and in that attribute of 
deity whose judgments are always tempered with mercy.” 
(American Jurisprudence 2nd Edn. Page 5). The philosophy of 
this special dispensation as per Corpus Juris Secundum (Vol. 
67-A) is that, “The pardoning power is founded on 
consideration of the public good and is to be exercised on the 
ground of public welfare, which is the legitimate object of all 
punishments, will be as well promoted by a suspension as by 
an execution of the sentences. It may also be used to the end 
that justice be done by correcting injustice, as where after 
discovered facts convince the official or board invested with the 
power that there was not guilt or that other mistakes were 
made in the operation or enforcement of the criminal law. 
Executive clemency also exists to afford relief from undue 
harshness in the operation or enforcement of criminal law. (1) 
Acts of leniency by pardon are administered by the executive 
Crl.P.No. 426 of 2009 &  
Crl. A. No. 383 of 2009 etc. 
 
5 
branch of the government in the interest of society and the 
discipline, education and reformation of the person convicted. 
(2) A pardon is granted on the theory that the convict has seen 
the error of his ways, that society will gain nothing by his 
further confinement and that he will conduct himself in the 
future as an upright, law-abiding citizen.” 
6. 
The power of pardon enshrined in Article 45 of the 
Constitution has been subject of comment by this Court in 
Bhai Khan v. The State (PLD 1992 SC 14) and the view taken 
was reiterated in a latter judgment in Abdul Malik v. The 
State (PLD 2006 SC 365). In Bhai Khan Supra,, this Court 
was of the view as follows:- 
“…………it may be stated that the power 
under Article 45 of the Constitution being a 
constitutional power, is not subject to any 
limitations or conditions that may be found in 
the Pakistan Penal Code or the Code of 
Criminal Procedure. The exercise of the 
discretion by the President under Article 45 is 
to meet at the highest level the requirements 
of justice and clemency, to afford relief 
against undue harshness, or serious mistake 
or miscarriage in the judicial process, apart 
from specific or special cases where relief is 
by way of grace alone, as for instance to 
celebrate an event or when a new President 
or Prime Minister is installed, where relief or 
clemency 
is 
for 
the 
honour 
of 
the 
State………..(Emphasis is supplied). 
 
 
 
7. 
If a sentence is commuted, it has the effect of 
substituting the sentence imposed by the court with that of 
the President or the Federal Government or the Provincial 
Government as the case may be. It does not, however, wash 
off the guilt or alter the judgment. If commutation order has 
Crl.P.No. 426 of 2009 &  
Crl. A. No. 383 of 2009 etc. 
 
6 
been passed during the pendency of the appeal of the convict, 
the court can still decide about the guilt or innocence of the 
accused.  
8. 
In Abdul Malik’s case (PLD 2006 SC 365), while 
affirming the view already taken in Bhai Khan’s Supra case, 
this Court held that being a constitutional dispensation, this 
cannot be fettered by any legislative Act or instrument. It was 
observed as follows:- 
“The power of the President to grant pardon, 
reprieve or respite and to remit or suspend or 
commute any sentence is a power which is 
given to Heads of the States in most of the 
Constitutions of the world………… 
24. the argument that the power of the 
President to grant pardon, reprieve, respite, 
remit, or suspend, or commute any sentence 
is subject to section 402, Cr.P.C. is not 
tenable and is not only against the 
constitutional mandate but also the scope of 
the afore-referred provision, section 402-C, 
Cr.P.C. reads as under:--- 
“402-C. Remission or commutation of 
certain sentences not to be without 
consent. Notwithstanding anything 
contained in section 401, section 
402, section 402A or section 402B, 
the 
Provincial 
government, 
the 
Federal Government or the President 
shall not, without the consent of the 
victim or, as the case may be, of the 
heirs, suspend remit or commute any 
sentence passed under any section 
in Chapter XVI of the Pakistan Penal 
Code.” 
25. It is a settled principle of constitutional 
interpretation that a provision enshrined in 
the Constitution shall prevail notwithstanding 
anything contrary contained in a piece of 
subordinate legislation.” 
 
 
9. 
In the judgments of this Court to which reference 
has been made in the preceding paragraphs, although it was 
Crl.P.No. 426 of 2009 &  
Crl. A. No. 383 of 2009 etc. 
 
7 
held that the powers of the President in terms of Article 45 of 
the Constitution are unqualified, yet there was no comment 
on the manner in which the President has to exercise the 
power i.e. whether on the advice of the Prime Minister or in 
exercise of his discretionary powers under the Constitution. 
The manner of the exercise of various powers of the President 
is spelt out in Article 48 of the Constitution. Article 48(1) 
provides that in the exercise of his “functions”, the President 
shall act in accordance with advice of the Cabinet (or the 
Prime Minister). But this is qualified by proviso stipulated 
therein and to Sub Article (2). A reference at this stage to 
Article 48 of the Constitution would be in order:- 
“48. President to act on advice, etc. (1) In 
the exercise of his functions, the President 
shall act [on and] in accordance with the 
advice of the Cabinet, (or the Prime Minister) 
 
Provided that [within fifteen days] the 
President may require the Cabinet or, as the 
case may be, the Prime Minister to reconsider 
such advice, either generally or otherwise, 
and the President shall [within ten days] act 
in accordance with the advice tendered after 
such reconsideration. 
(2) Notwithstanding anything contained in 
clause (1), the President shall act in his 
discretion in respect of any matter in respect 
of which he is empowered by the Constitution 
to do so [and the validity of anything done by 
the President in his discretion shall not be 
called in question on any ground whatsoever]. 
(4) The question whether any, and if so what, 
advice was tendered to the President by the 
Cabinet, the Prime Minister, a Minister of 
State shall not be inquired into in, or by, any 
court, tribunal or other authority. 
(5) - - - - - - -  
(6) - - - - - - -  
(7) - - - - - - - ” 
 
Crl.P.No. 426 of 2009 &  
Crl. A. No. 383 of 2009 etc. 
 
8 
10. 
In Al-Jehad Trust v. Federation of Pakistan, (PLD 
1997 SC 84) the issue of exercise of powers by the President 
under various provisions of the Constitution came under 
consideration and this Court held that depending on the 
manner of exercise of the authority, there are five distinct 
kind of powers which the President exercises. Those are:- 
“(i) 
The Articles under which actions are to 
be taken in accordance with the advice 
tendered by the Cabinet or Prime 
Minister; 
(ii) 
The Articles under which the Prime 
Minister’s advice is required but it will 
be binding if it is in accordance with the 
law declared by the Apex Court; 
(iii) 
The Articles which specifically provide 
for 
Prime 
Minister’s 
advice 
or 
consultation independent of clause (1) of 
Article 48, to which Articles, aforesaid 
Article 48(1) would not be attracted to; 
(iv) 
The Articles under which the President 
has been given discretionary power 
and, therefore, he can act without the 
advice of the Prime Minister by virtue of 
clause (2) of Article 48; 
(v) 
The 
nature 
of 
the 
functions/duties/rights 
provided 
in 
certain Articles is such which exclude 
the application of Article 48(1).” 
 
 
11. 
The powers/actions of the President under Article 
45 of the Constitution are part of his “functions” and are to be 
exercised in accordance with the advice of the Cabinet or the 
Prime Minister.  
12. 
Sub Article (2) of Article 48 of the Constitution 
relates to the discretionary powers of President in which he is 
empowered to act, but there is no reference to the discretion 
of the President in Article 45 of the Constitution. Thus in the 
exercise of the powers under the later provision, he has to act 
Crl.P.No. 426 of 2009 &  
Crl. A. No. 383 of 2009 etc. 
 
9 
on the advice of the Prime Minister or the Cabinet. The 
exercise of the power under this provision, therefore, would 
not fall within the ambit of Article 48(2) of the Constitution. 
13. 
The Rules of Business framed under Article 99 of 
the Constitution categorize list of cases requiring orders of the 
President on the advice of the Prime Minister and Item No. 25 
pertains to the powers of the President under Article 45 of the 
Constitution. 
14. 
Even in India, the exercise of the power of the 
President to grant pardon or reprieve is regulated and has to be 
on the advice tendered by the Council of Ministers. The 
analogous provision in the Indian Constitution is Article 72 
which, inter alia, stipulates, “the President shall have the power 
to grant pardons, reprieves, respites or remissions of punishment 
or to suspend, remit or commute the sentence of any person 
convicted of any offence.” 
15. 
In State of Punjab v. Joginder Singh (AIR 1990 SC 
1396), it was held that, “the power under Art. 72 is absolute and 
cannot be fettered by any statutory provision such as Sections 
432, 433 and 433A of Code of Criminal Procedure. This power 
cannot be altered, modified or interfered with in any manner 
whatsoever by any statutory provision and Prison Rules though 
the power has to be exercised on the advice of Council of 
Ministers.”  
16. 
In England the power of pardon is a royal 
prerogative exercised on the advice of Home Secretary. “it is 
an executive act, but the Home Secretary is authorized by the 
Criminal Appeal Act, 1907, to refer a case to the Court of 
Crl.P.No. 426 of 2009 &  
Crl. A. No. 383 of 2009 etc. 
 
10 
Criminal Appeal, either for opinion or for final disposal as if it 
was an appeal. Ordinarily the power is exercised after 
sentence when there is some special reason why a sentence 
shall not be carried out; but a pardon also is available before 
conviction.” (R. V. Boyes (1861) 1 B&S 311). 
17. 
In United States, the President enjoys this power 
in terms of Article II Sec. 2(1) of the Constitution which 
mandates that, “He (the President) shall have the power to 
grant reprieves and pardons for offences against the United 
States except in case of impeachment.” On the extent of this 
power and with reference to precedent case law from U.S., 
Durga Das Basu says, “the pardoning power may be exercised 
by him at any time after the offence has been committed, either 
before or after trial or conviction; and this power may not be 
limited by Congress, either as to persons or as to the effect of 
pardon.  
18. 
The foregoing survey of the powers of clemency 
reposed in the Heads of State indicate that the constitution-
makers deemed it proper to embed this provision in the 
constitution so as to place it at a higher pedestal than any 
other legislative or administrative Act or instrument. However, 
it needs to be emphasized that all public power which 
includes the constitutional power is a public trust and has to 
be exercised bona fidely, for public good and welfare. The 
considerations for public welfare may, inter alia, include 
discipline, education, reformation and equity. As aptly 
Crl.P.No. 426 of 2009 &  
Crl. A. No. 383 of 2009 etc. 
 
11 
commented in ‘Corpus Juris Secundum (Vol. 67-A) as 
follows:- 
“the pardoning power is founded on 
considerations of the public good, and is to be 
exercised on the ground that the public 
welfare, which is the legitimate object of all 
punishment, will be as well promoted by a 
suspension as by an execution of the 
sentence. It may also be used to the end that 
justice be done by correcting injustice, as 
where after-discovered facts convince the 
official or board invested with the power that 
there was no guilt or that other mistakes were 
made in the operation or enforcement of the 
criminal law. Executive clemency also exists 
to afford relief from undue harshness in the 
operation or enforcement of criminal law.” 
 
 
19. 
The question whether being a public power, could it 
be subjected to judicial review, was considered by the Indian 
Supreme Court and it held that it was reviewable though on 
limited grounds. Reference is made to Epuru Sudhakar Vs. 
Government of A.P. (AIR 2006 SC 3385) & State of Bihar Vs. 
Madan Lal Jain (AIR 1982 SC 774). However, since it was not a 
moot point in the instant case, we would not like to dilate upon 
issue at this stage. 
20. 
This brings us to second issue i.e. 
“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).” 
 
21. 
To appreciate the afore-referred issue, it would be 
necessary to keep in mind the ratio of the judgment in Shah 
Hussain’s case (PLD 2009 SC 460). This Court in the said 
case was primarily seized of a matter in which the convict 
Crl.P.No. 426 of 2009 &  
Crl. A. No. 383 of 2009 etc. 
 
12 
having been awarded life imprisonment on two counts was 
though granted the benefit of section 382-B Cr.P.C. by the 
High Court but it was held that he was not entitled to the 
remissions granted by the government for the period of 
detention prior to his conviction (Emphasis is supplied). The 
High Court in view of section 402-C Cr.P.C. also disallowed 
remissions of sixty days granted by a general order dated 
5.1.2000 issued by the Government of Balochistan and 
section 401 Cr.P.C. as well as the remissions of one year 
granted by the President of Pakistan under Article 45 of the 
Constitution on the eve of Eid-ul-Fitr. The said judgment of 
the High Court was based on this Court’s judgment in Abdul 
Ali’s case (PLD 2005 SC 163), wherein it was held as follows:- 
“the conviction and sentence of an accused 
could not be made to run from the date prior 
to the date of conviction by a competent court 
although in certain eventualities the execution 
of sentence of a convict could be postponed. 
Ordinarily, a conviction commences from the 
time it is passed. A criminal Court does not 
possess any power to make a sentence to 
precede the conviction. In other words, the 
conviction and sentence cannot be ante-
dated.” 
 
22. 
This Court re-visited this judgment (Abdul Ali 
Supra) in Shah Hussain’s case (Supra), and while doing so, it 
considered a plethora of precedent case law both of this Court 
and also from abroad and came to the conclusion that refusal 
by the Court to allow remissions of pre-sentence custody 
period to convicts who have been granted benefit of Section 
382-B Cr.P.C. amounted to deprivation of his liberty and was 
violative of the fundamental right of ‘right to life’ enshrined in 
Crl.P.No. 426 of 2009 &  
Crl. A. No. 383 of 2009 etc. 
 
13 
Article 9 of the Constitution. The judgment of the High Court 
refusing the relief (of remissions) in question on the basis of 
the law laid down in Abdul Ali’s case (Supra) was thus set 
aside. It noted with approval the broad principles laid down in 
several judgments of this Court and specific reference was 
made in Paras 20 to 25 of the judgment (Shah Hussain’s 
case, PLD 2009 SC 460). The Court also deprecated the 
denial of remissions to a category of convict / prisoners for 
the pre-sentence period, as arbitrary, devoid of reasonable 
classification and declared it violative of Article 25 of the 
Constitution at page 489 paragraph 39. It observed as 
follows: -  
 
39. The under-trial prisoners, or criminal 
prisoners, particularly those who are later 
convicted of the offence in connection with 
which they were incarcerated, sooner or later 
join the ranks of convicted criminal prisoners. 
It is discriminatory not to treat them at part 
with their co-prisoners living in the same or 
similar premises, may be under the same 
very roof. They are equal before law and are 
entitled to equal protection of law under 
Article 25 of the Constitution. If remissions of 
the pre-sentence period were to be denied to 
the convicts after they were granted the 
benefit of section 382-B Cr.P.C., we would be 
confronted with a situation where remission 
granted on the eve of Eid would be 
admissible to a prisoner who was convicted a 
day before Eid, but not to a person who was 
convicted a day after Eid, though the two 
prisoners were on an equal footing two days 
before Eid, i.e., till then both of them were 
confined as under-trial prisoners and both of 
them also got the benefit of section 382-B, 
Cr.P.C. 
The 
classification 
of 
‘criminal 
prisoners’ and ‘convicted criminal prisoners’ 
qua the admissibility of remissions granted 
by any authority where the Court has passed 
an order granting the benefit of section 382-B 
Crl.P.No. 426 of 2009 &  
Crl. A. No. 383 of 2009 etc. 
 
14 
Cr.P.C., does not meet the test of ‘intelligible 
differentia’ laid down in the case of I.A. 
Sharwani v. Government of Pakistan (1991 
SCMR 1041). The under-trial prisoners getting 
the benefit of section 382-B, Cr.P.C., cannot 
be deprived of remissions accruing during 
their pre-sentence custody period. Article 9 of 
the Constitution guarantees the right to life of 
a person and is very much available to a 
prisoner alongwith certain other fundamental 
rights, such as to acquire, hold and dispose of 
property 
for 
the 
exercise 
of 
which 
incarceration can be no impediment, though 
he is deprived of certain fundamental 
freedoms like the right to move freely 
throughout the country or the right to practice 
a profession, etc., as it was held in the case 
of D.B.M. Patnaik v. State of A.P. (AIR 1974 
SC 
2092). 
Therefore, 
the 
protection 
guaranteed under Article 9 remains available 
to the under-trial prisoners and they are 
entitled to the benefit of section 382-B, 
Cr.P.C., along with remissions if any, granted 
during their pre-sentence custody period, 
inasmuch as on account of denial thereof, 
they would be required to remain in prison for 
a longer time that warranted and deprived of 
their liberty.” 
 
 
23. 
In the light of the observations quoted in the 
preceding paragraphs, the Court concluded and directed as 
follows:- 
“(1) After the use of word “shall” for the word 
“may” in section 382-B Cr.P.C., at the time of 
passing the sentence, it is mandatory for the 
trial Court to take into consideration the pre-
sentence custody period in the light of the 
principles discussed above; 
(2) The refusal to take into consideration the 
pre-sentence custody period at the time of 
passing the sentence is illegal inasmuch as if 
a Court sentences a convict to imprisonment 
for life, which is the alternate but maximum 
sentence for the offence of murder, but does 
not make allowance for the pre-sentence 
custody period, it would be punishing the 
convict prisoner with imprisonment for life 
plus the pre-sentence custody period, that is 
Crl.P.No. 426 of 2009 &  
Crl. A. No. 383 of 2009 etc. 
 
15 
to say, more than the maximum legal 
punishment; 
(3) The convict-prisoners who are granted the 
benefit of section 382-B Cr.P.C., shall be 
entitled to remissions granted by any 
authority in their post-sentence detention or 
during their pre-sentence detention in 
connection with such offence. However, the 
same shall not be available to the convicts of 
offences under the National Accountability 
Bureau Ordinance, 1999, Anti-terrorism Act, 
1997, the offence of karo kari, etc, where the 
law itself prohibits the same; 
(4) the law laid down in Abdul Malik’s case 
that under Article 45 of the Constitution, 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, is 
hereby reaffirmed.” 
 
 
24. 
To determine whether the policy framed by the 
Government of Pakistan, Ministry of Interior in August 2009 
is in consonance with the judgment in Shah Hussain’s case 
(Supra), a reference to the same would be in order:- 
 
 
“MOST IMMEDIATE 
No. D. 2792/2009-DS (Admn) 
Government of Pakistan 
Ministry of Interior 
 
Islamabad, the          August, 2009 
 
From:  
Mehir Malik Khattak, 
 
Deputy Secretary (Law), 
 
To: 
The Registrar, 
 
Supreme Court of Paksitan, 
 
Islamabad. 
 
Subject: 
GRANT OF REMISSION TO CONVICTS. 
 
Dear Sir, 
 
 
Kindly refer to Additional Prosecutor General Punjab letter dated 
28.7.2009 on the subject noted above. 
 
2. 
The President has been, in exercise of his power, under Article 45 of 
the Constitution, granted special remission in sentences on auspicious occasions of 
Eidain and Pakistan and Independence Day. However, in the past special 
remission under Article 45 of the Constitution had been granted at liberal scale. In 
one case, remission of 1/5th sentence was approved in one go which in case of 
lifers meant 5 years remission. The duration of remission in sentences was also 
increased arbitrarily from 2,3 or 6 months to one year. 
 
Crl.P.No. 426 of 2009 &  
Crl. A. No. 383 of 2009 etc. 
 
16 
3. 
In 2002, the then Government keeping in view the fluctuating 
discretionary behaviour during different years directed Ministry of Interior to 
formulate a policy limiting the discretionary. Accordingly, the MOI in consultation 
with Law & Justice Division and Chief Justice of Pakistan and with the approval of 
the President formulated the policy comprising of guidelines and remissions as 
under:- 
Guideline 
 
a. 
The present restrictive policy may continue. Those who 
indulge in heinous crimes should not benefit from these 
remissions. (Emphasis is supplied) 
b. 
Solemn occasions on which this remission may be 
granted should be specified and there should be no 
deviation from that. Such remissions may be awarded 
on four occasions during a year i.e. Eid-ul-Fitr, Eid 
Milad un Nabi, 23rd March and 14th August. 
c. 
Mercy petitions against death sentence may be dealt 
with on individual basis and there should be no general 
clemency. 
d. 
Overcrowding in jails should not be considered a valid 
ground for special remissions. The indiscriminate 
practice in the past has at times encouraged crimes, 
crowding the jails further subsequently. 
e. 
Federal and Provincial Governments may continue to 
exercise their power under the Pakistan Penal Code / 
The Code of Criminal Procedure / Pakistan Prison Rules 
1978 in exercise of their best judgment that genuinely 
repentant and occasional criminals, who are victim of 
circumstances, benefit more from these remissions. 
Remission 
 
i. 
Special remission of 90 days to the prisoners convicted for life 
imprisonment except those convicted for murder, espionage, 
anti-state activities, sectarianism, Zina (Sec10 offence of Zina 
(Enforcement of Hudood) Ordinance, 1979 (also under Sec. 
377 PPC), robbery (Sec. 394 PPC), dacoity (Sec. 395-396 PPC), 
kidnapping/abduction (Sec. 364-A & 365-A), and terrorist acts 
(as defined in the Anti-Terrorism (Second Amendment) 
Ordinance, 1999 (No. XIII of 1999). (Emphasis is supplied). 
ii. 
Special remission for 45 days to all other convicts except the 
condemned prisoners and also except those convicted or 
murder, espionage, subversion, anti-state activities, terrorist 
act (as defined in the Anti-Terrorism (Second Amendment) 
Ordinance, 1999 (No.XIII of 1999), Zina (Sec. 10 offence of 
Zina (Enforcement of Hudood) Ordinance, 1979 (also under 
Sec. 377 PPC), kidnapping/abduction (Sec. 364-A & 365-A), 
robbery (Sec. 394 PPC), dacoity (Sec. 395-396 PPC), and those 
undergoing sentences under the Foreigners Act, 1946. 
iii. 
Special remission at sub-paras i&ii above will be admissible 
provided that the convicts have undergone 2/3rd of their 
substantive sentence of imprisonment. 
iv. 
Total remission to male prisoners who are 65 years of age or 
above and have undergone at least 1/3rd of their substantive 
sentence of imprisonment, except those involved in culpable 
homicide. 
v. 
Total remission to female prisoners who are 60 years of age or 
above and have undergone at least 1/3rd of their sentence of 
imprisonment except those involved in culpable homicide. 
vi. 
Special remission of one year to female prisoners who have 
accompanying children and are serving sentence of 
imprisonment for crimes other than culpable homicide. 
vii. 
Total remission to juvenile convicts (under 18 years of age) 
who have served 1/3rd of their substantive sentence except 
those involved in culpable homicide, terrorist act, as defined in 
the Anti Terrorism (Second Amendment) Ordinance, 1999 (No. 
XIII of 1999), Zina (Sec. 10 offence of Zina (Enforcement of 
Hudood) Ordinance, 1979 (also under section 377 PPC) 
robbery (Sec. 394 PPC), dacoity (Sect. 395-396 PPC), 
kidnapping/abduction (Sec. 364-A & 365-A) and anti-state 
activities. 
viii. 
Those convicted in cases processed by NAB will not be 
entitled to any remission. 
 
4. 
Since then the above policy has been enforced. However, in 2007, on 
the direction of Honourable Sindh High Court provisions regarding remission at 
sub-para viii above were deleted. 
 
Crl.P.No. 426 of 2009 &  
Crl. A. No. 383 of 2009 etc. 
 
17 
 
Yours faithfully, 
 
 
(Mehir Malik Khattak) 
 
Deputy Secretary 
 
Tele:9203851” 
 
 
25. 
The moot point in Shah Hussain’s case (supra) 
was the judgment of the High Court wherein certain 
convicts/prisoners though granted the benefit of section 382-
B Cr.P.C., but were refused remissions for the period 
preceding their date of conviction. [The High Court had relied 
on a judgment of this Court in Haji Abdul Ali v. Haji Bismillah 
(PLD 2005 SC 163)]. This Court in Shah Hussain supra case 
partly endorsed the policy and the classification made therein 
in so far as it was backed by law by observing, “However the 
same (remissions) shall not be available to the convicts of 
offences under the National Accountability Bureau Ordinance, 
1999, Anti-terrorism Act, 1997, the offence of Karo Kari, etc., 
where the law itself prohibits that.” It was not brought to the 
notice of this Court in Shah Hussain’s case (PLD 2009 SC 
460) that section 10(d) of the NAB Ordinance had been 
declared ultra vires by a full Bench of the Karachi High Court 
(PLD 2007 Kar 139). So the observation made qua inclusion 
of convicts under the NAB Ordinance be treated as per 
incuriam. In terms of the policy framed by the Ministry of 
Interior, 
Government 
of 
Pakistan, 
certain 
parameters/guidelines have been laid down for the grant of 
remissions under Article 45 of the Constitution. A class of 
convicts / prisoners have been excluded who are accused of 
“heinous offences” in the paragraph of “remissions” in the 
Crl.P.No. 426 of 2009 &  
Crl. A. No. 383 of 2009 etc. 
 
18 
policy letter reproduced in paragraph 24 above. The 
expression “heinous offences” has further been elaborated in 
the succeeding para i.e. that such remission would be 
available to those prisoners convicted for life imprisonment 
except those convicted for murder, espionage, anti-stage 
activities, 
sectarianism, 
Zina 
(sec10 
offence 
of 
Zina 
(Enforcement of Hudood) Ordinance, 1979 (also under Sec. 
377 PPC), robbery (Sec. 394 PPC), dacoity (Sec. 395-396 PPC), 
kidnapping/abduction (Sec.364-A & 365-A), and terrorist acts 
(as defined in the Anti-Terrorism (Second Amendment) 
Ordinance, 1999 (No. XIII of 1999)). An analysis of the afore-
referred exclusions and the classification would show that the 
same are based on reasonable differentia and it is neither 
individual specific nor arbitrary. The classification made and 
denial of remissions to a class of convicts / prisoners is either 
backed by law or rule or there is an objective criterion. A 
breakup of the classification, the law or rules which may back 
this classification or the nature of heinousness of offence is 
given as follows: - 
 
Sr. No. 
Class of prisoners / 
convicts excluded 
 
 
Reason 
1. 
Murder 
It is a heinous offence 
 
2. 
3. 
 
 
Espionage, 
Anti-State 
activities 
 
Rule 214-A of the Prisons 
Rules mandates as follows: -  
214.A. – No person who is 
convicted for espionage or 
anti-state activities shall be 
entitled to ordinary or special 
remission unless other-wise 
directed by the Provincial 
Government.   
Crl.P.No. 426 of 2009 &  
Crl. A. No. 383 of 2009 etc. 
 
19 
 
 
4. 
 
Secretarianism  
 
21F. 
Remission. 
– 
Notwithstanding 
anything 
contained in any law or prison 
rule for the time being in force, 
no remission in any sentence 
shall be allowed to person who 
is convicted and sentenced for 
any offence under this Act. 
 
5. 
Zina/Rape 
Section 10(3) of Offence of Zina 
(Enforcement 
of 
Hudood) 
Ordinance, 1979. Though this 
provision 
has 
since 
been 
repealed (by Act VI of 2006), 
but a similar provision has 
been inserted through section 
375 and 376 in PPC. It is a 
heinous offence. 
 
 
6. 
 
7. 
 
Dacoity  
(Sec 395-396 PPC) 
Kidnapping/ 
abduction 
 
These are heinous offences.  
 
8. 
 
Anti Terrorism Act 
 
21F. 
Remission. 
– 
Notwithstanding 
anything 
contained in any law or prison 
rule for the time being in force, 
no remission in any sentence 
shall be allowed to person who 
is convicted and sentenced for 
any offence under this Act. 
 
26. 
 The afore-referred chart indicates that the policy 
of remissions under consideration is neither arbitrary or 
discriminatory and is rather based on an intelligible 
differentia which is permissible and is therefore, not violative 
of Article 25 of the Constitution and the law laid down by this 
Court.   
 
27. 
The third issue relates to the nature of the power 
of the competent authority under the Prison Rules for the 
Crl.P.No. 426 of 2009 &  
Crl. A. No. 383 of 2009 etc. 
 
20 
grant of remissions in juxtaposition to the powers of 
remissions under Article 45 and the issue framed is: 
“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”. 
 
 
28. 
As explained in the preceding paragraphs, the 
pardoning powers of President under Article 45 of the 
Constitution are part of constitutional scheme and cannot be 
circumscribed by any subordinate legislation or executive 
instrument. In the event of conflict between the two, the 
former has to prevail. The policy of shortening of sentences 
through remissions is founded on the salutary principle of 
criminal justice i.e. that the purpose of punishment is both 
deterrent and remedial or reformative and that the convict be 
released by granting remission in sentence. Striking a healthy 
balance among these considerations has been one of the 
recurrent themes in the evolution of justice system. In 
‘Salmond on Jurisprudence’ (12th Edition by P.J. Fitzgerald) 
the author in Chapter 15 dealt with the purpose of criminal 
justice/punishment as under:- 
“Deterrence acts on the motives of the offender, 
actual or potential; disablement consists 
primarily in physical restraint. Reformation, by 
contrast, seeks to bring about a change in the 
offender’s character itself so as to reclaim him as 
a useful member of society. Whereas deterrence 
looks primarily at the potential criminal outside 
the dock, reformation aims at the actual offender 
before the bench. In this century increasing 
weight has been attached to this aspect. Less 
frequent use of imprisonment, the abandonment 
Crl.P.No. 426 of 2009 &  
Crl. A. No. 383 of 2009 etc. 
 
21 
of short sentences, the attempt to use prison as 
a training rather than a pure punishment, and 
the greater employment of probation, parole, and 
suspended sentences are evidence of this 
general trend. At the same time, there has been 
growing concern to investigate the causes of 
crime 
and 
the 
effects 
of 
penal 
treatment……….The reformative element must 
not be overlooked but it must not be allowed to 
assume 
undue 
prominence. 
How 
much 
prominence it may be allowed, is a question of 
time, place and circumstance.” 
 
 
29. 
The Remissions Rules framed under the Prisons 
Act are primarily based on the reformative principle. In terms 
of section 59 of the Prison Act 1894, the Provincial 
Government is empowered to make rules consistent with the 
provisions of the Act. Till the break up of the One Unit, the 
grant of remissions was being regulated by the West Pakistan 
Prisons (Remissions and Sentences) Rules 1965. However, 
after the creation of four Provinces, the Government decided 
to issue a Jail Manual to be followed in all the four Provinces. 
As the prisons Department was a Provincial subject, the 
Federal Government in a meeting of the Inspector Generals of 
Prisons/Directors of Prisons of all the provinces held on 12th 
of April, 1976, advised the provincial governments to adopt 
the Draft Manual as Rules to bring about uniformity in this 
domain. With previous sanction of the Federal Government, 
the Jail Manual was adopted to be called the Pakistan Prison 
Rules. Chapter 6 of those Rules pertains to the grant of 
remissions. The Chapter comprises of Rules defining certain 
expressions: explaining the remission system (Rule 199), 
classifies the nature of remissions i.e. ordinary or special 
Crl.P.No. 426 of 2009 &  
Crl. A. No. 383 of 2009 etc. 
 
22 
(Rule 200), cases in which no ordinary remission is earned 
(Rule 201) and exclusion of persons from grant of remissions 
if he/she is convicted of an offence after admission into a 
prison (Rule 202). Rule 140 lays down that imprisonment for 
life will mean 25 years rigorous imprisonment and every life 
prisoner shall undergo a minimum of 15 years of substantive 
sentence of imprisonment. It also stipulates that the cases of 
lifers shall be referred to the Provincial Government after they 
have served out 15 years of substantive imprisonment for 
consideration with reference to section 401 of the Code of 
Criminal Procedure. Rule 215 provides for remissions on 
account of education. Similarly, Rule 216 is relatable to 
special remissions to be granted by the Superintendent of 
Prisons, Inspector General of Police, Provincial Government 
and Federal Government. The law on remissions both in 
Pakistan and India puts a limit on the total remissions that 
can be availed of by a convict undergoing life sentence. Rule 
217 of Pakistan Prison Rules reads as follows: - 
“Rule 217.—(i) The total remission, both ordinary 
and special awarded to a prisoner under these 
Rules (other than remission for donating blood 
awarded under rule 212, surgical sterilization 
under rule 213 and for passing an examination 
under rule 215) shall not exceed one-third of his 
sentence: 
Provided 
that 
Government 
may, 
on 
the 
recommendation of the Inspector-General, grant 
remissions beyond the one-third limit in very 
exceptional and deserving cases. 
(ii) Remission, both ordinary and special, earned 
by a lifer convict shall be so much that a sentence 
of imprisonment for life is not shortened to a 
period of imprisonment less than 15 years.” 
 
 
Crl.P.No. 426 of 2009 &  
Crl. A. No. 383 of 2009 etc. 
 
23 
30. 
Sub-rule (ii) of Rule 217 in Pakistan Prison Rules 
reproduced in the preceding para is almost similar in import 
to section 433-A of the Indian Criminal Procedure Code which 
is as follows:- 
“433-A. 
Restriction 
on 
powers 
of 
remission or commutation in certain 
cases.----Notwithstanding anything contained 
in 
Sec. 
432, 
where 
a 
sentence 
of 
imprisonment for life is imposed on conviction 
of a person for an offence for which death is 
one of the punishments provided by law, or 
where a sentence of death imposed on a 
person has been commuted under Sec. 433 
into one of imprisonment for life, such person 
shall not be released from prison unless he 
had served at least fourteen years of 
imprisonment.” 
 
31. 
In Indian Prisons Rules, there was no provision 
similar to Sub-rule II of Rule 217 reproduced in para 26 
above. The issue of conflict between the Prisons Rules and 
Section 433-A Cr.P.C stipulating that a person undergoing life 
sentence (punishable with capital punishment) should not be 
released until he had served out fourteen years of 
imprisonment, came up for consideration before the Indian 
Supreme Court (1980 Cr.LJ 1440) & it upheld the later 
provision and declared that “the remission rules and like 
provision stand excluded so far as lifers punished for capital 
offense are concerned.” 
32. 
In Maru Ram v. Union of India [(1981) 1 SCC 107], 
the Court refused to read down Section 433-A to give 
overriding effect to the Remission Rules of the State. The 
Court ruled that, 
Crl.P.No. 426 of 2009 &  
Crl. A. No. 383 of 2009 etc. 
 
24 
“Remission Rules and like provisions stand 
excluded so far as ‘lifers’ punished for capital 
offences are concerned. Remissions by way of 
reward or otherwise cannot cut down the 
sentence awarded by the court except under 
Section 432 of the Code or in exercise of 
constitutional power under Article 72/161 of the 
Constitution. Remission cannot detract from the 
quantum and quality of the judicial sentence 
except to the extent permitted by Section 432 of 
the Code, subject of course to Section 433-A, or 
where the clemency power under the Constitution 
is invoked……. 
Section 302, IPC or other like offence fixes the 
sentence to be life imprisonment and 14 years’ 
imprisonment under Section 433-A is never 
heavier than life term. Remission vests no right to 
release when sentence is life imprisonment. No 
greater punishment is inflicted by Section 433-A 
than the law annexed originally to the crime. Nor 
is any vested right to remission cancelled by 
compulsory 14-year jail life, since a life sentence 
is a sentence for life…… 
There 
is 
an 
initial 
presumption 
of 
constitutionality of a legislation. Unless one 
reaches far beyond unwisdom to absurdity, 
irrationality, colourability and the like, the 
court must keep its hands off. 
Deterrence is a valid punitive component of 
sentencing. So a measure of minimum 
incarceration of 14 years envisaged in Section 
433-A for the gravest class of crimes like 
murder 
cannot 
be 
castigated 
as 
so 
outrageous as to be utterly arbitrary and 
violative of rational classification between 
lifers and lifers and as so blatantly barbarous 
as to be irrational enough to be struck down 
as ultra vires. Time has not, perhaps, come to 
exclude 
deterrence 
and 
even 
public 
denunciation altogether. Even the submission 
that no penal alibi justifies a prisoner being 
kept behind the bars if by his conduct, 
attainments and proven normalization, he has 
become fit to be a free citizen, cannot spell 
unconstitutionality. 
Though 
the 
uniform 
infliction of a 14-year minimum on the 
transformed and the unkempt is an unkind 
disregard for redemption inside prison to 
overcome the constitutional hurdle much more 
material, research results and specialist 
reports, are needed. Even for correctional 
therapy a long hospitalization in prison may 
be needed. 
Crl.P.No. 426 of 2009 &  
Crl. A. No. 383 of 2009 etc. 
 
25 
The classification of persons included under 
Section 433-A is not based on an irrational 
differentia unrelated to the punitive end of 
social defence. The classification cannot be 
castigated as one capricious enough to attract 
the lethal consequence of Article 13 read with 
Article 14.” 
 
 
 In State of Punjab and others v. Joginder Singh and others 
[(1990) 2 Supreme Court Cases 661], the afore-referred view 
was reiterated and it was held as under:- 
“Remissions schemes are introduced to ensure 
prison discipline and good behaviour and not to 
upset 
sentences; 
if 
the 
sentence 
is 
of 
imprisonment for life, ordinarily the convict has to 
pass the remainder of his life in prison but 
remissions and commutation are granted in 
exercise of power under Sections 432 and 433, 
CrPC carving out an exception in the category of 
those convicts who have already enjoyed the 
generosity of executive power on the commutation 
of death sentence to one of life imprisonment. 
Even in such cases Section 433-A of the Code or 
the executive instruction of 1976 does not insist 
that the convict pass the remainder of his life in 
prison but merely insists that he shall have 
served time for at least 14 years. In the case of 
other ‘lifers’ the insistence under the 1971 
amendment is that he should have a period of at 
least 8 ½ years of incarceration before release. 
The 1976 amendment was possibly introduced to 
make the remission scheme consistent with 
Section 433-A of the Code. Since Section 433-A is 
prospective, so also would be the 1971 and 1976 
amendments.” 
 
 
33. 
The power granted to the President of Pakistan 
under Article 45 of the Constitution is unfettered by any 
subordinate 
legislation. 
This 
being 
a 
constitutional 
dispensation, the remissions, reprieve or pardon granted 
under this shall prevail in the event of a conflict between the 
rules and an order passed under Article 45. This is in line 
Crl.P.No. 426 of 2009 &  
Crl. A. No. 383 of 2009 etc. 
 
26 
with this Courts judgment in Abdul Malik’s case which stands 
reiterated by this Court in Shah Hussain v. The State (PLD 
2009 SC 460). In the latter judgment, it was held as follows:- 
“(4) The law laid down in Abdul Malik’s case 
that under Article 45 of the Constitution, 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, is 
hereby reaffirmed.” 
 
 
34. 
The fourth point mooted is about the question of 
‘reasonable’ classification for the grant of remissions and the 
precise formulation is  
“Whether any classification would be 
permissible in view of the nature of 
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”. 
 
35. 
The issue of classification with reference to Article 
25 of the Constitution has been a subject of comment of this 
Court. Some of those judgments are:- 
(i) 
Jibendra 
Kishore 
Achharyya 
Chudhry 
v. 
Provincie of East Paksitan (PLD 1957 SC 9). 
 
(ii) 
Waris Meah v. State (PLD 1957 SC 157). 
 
(iii) 
Bazal Ahmed Ayyubi v. The West Pakistan 
Province (PLD 1957 Lah. 388). 
 
(iv) 
Zain Noorani v. Secretary of National Assembly 
of Paksitan (PLD 1957 Kar. 1). 
 
(v) 
Malik M. Usman v. State (PLD 1965 Lah. 229). 
 
(vi) 
East and West Steamship v. Pakistan (PLD 
1958 SC 41). 
 
(vii) F.B. Ali’s case (PLD 1957 SC 506). 
 
(viii) Fauji Foundation’s case (PLD 1983 SC 457). 
Crl.P.No. 426 of 2009 &  
Crl. A. No. 383 of 2009 etc. 
 
27 
 
(ix) 
I.A. Suherwani’s case (1991 SCMR 1041). 
 
(x) 
Abdul Wali Khan’s case (PLD 1976 SC 57). 
 
(xi) 
Aziz Begum’s case (PLD 1999 SC 899) 
 
(xii) Shirin Munir and others v. Government of 
Punajb (PLD 1990 SC 295). 
 
 
36. 
In a rather instructive judgment in the case Govt. 
of Baluchistan v. Azizullh Memon (PLD 1993 SC 341), this 
Court laid down the following guidelines with regard to import 
of Article 25 and permissible classification:- 
(i) 
That equal protection of law does not envisage 
that every citizen is to be treated alike in all 
circumstances, but it contemplates that persons 
similarly situated or similarly placed are to be 
treated alike; 
(ii) 
That reasonable classification is permissible but 
it must be founded on reasonable distinction or 
reasonable basis; 
(iii) 
That different laws can validly be enacted for 
different sexes, persons in different age groups, 
persons having different financial standings, 
and persons accused of heinous crimes; 
(iv) 
That no standard of universal application to test 
reasonableness of a classification can be laid 
down as what may be reasonable classification 
in a particular set of circumstances, may be 
unreasonable in the other set of circumstances; 
(v) 
That a law applying to one person or one class 
of persons may be constitutionally valid if there 
is sufficient basis or reasons for it, but 
classification which is arbitrary and is not 
founded 
on 
any 
rational 
basis 
is 
no 
classification as to warrant its exclusion from the 
mischief of Article 25;  
(vi) 
That equal protection of law means that all 
persons equally placed be treated alike both in 
privileges conferred and liabilities imposed; 
(vii) 
That in order to make a classification 
reasonable, it should be based; 
(a) 
On 
an 
intelligible 
differentia 
which 
distinguishes persons or things that are 
grouped together from those who have been 
left out; 
Crl.P.No. 426 of 2009 &  
Crl. A. No. 383 of 2009 etc. 
 
28 
(b) 
That the differentia must have rational nexus 
to the object sought to be achieved by such 
classification.” 
 
37. 
The Court further observed that, 
“Permissible classification is allowed provided the 
classification is founded on intelligible differentia 
which distinguishes persons or things that are 
grouped together from others who are left out of the 
group and such classification and differentia must be 
on rational relation to the objects sought to be 
achieved by the Act. There should be a nexus between 
the classification and the objects of the Act. This 
principle symbolizes that persons or things similarly 
situated cannot be distinguished or discriminated 
while making or applying the law. It has to be applied 
equally to persons situated similarly and in the same 
situation. Any law made or action taken in violation of 
these principles is liable to be struck down. If the law 
clothes any statutory authority or functionary with 
unguided and arbitrary power enabling it to 
administer in a discriminatory manner, such law will 
violate equality clause. Thus, the substantive and 
procedural law and action taken under it can be 
challenged as violative of Articles 8 and 25.”  
 
 
38. 
In Saleem Raza Vs. The State (PLD 2007 Karachi 
139), convict under the NAB Ordinance had challenged inter 
alia challenged the vires of Section 10(d) of the NAB 
Ordinance which mandated that convict under the NAB 
Ordinance “shall not be entitled to any remission in his 
sentences”. The precise contention was that the said provision 
was discriminatory and violative of Article 25 of the 
Constitution. A Full Bench of the Sindh High Court relying on 
precedent case law of this Court came to the conclusion that 
class legislation was forbidden; that permissible classification 
is allowed provided it is founded on an intelligible differentia 
which distinguishes persons or things that are grouped 
together from others who are left out of the group and such 
classification and differentia must have relation with the 
Crl.P.No. 426 of 2009 &  
Crl. A. No. 383 of 2009 etc. 
 
29 
object sought to be achieved by the Act. Any law made or 
action taken in violation of these principles was liable to be 
struck down. Keeping this principle in mind, the Court held 
that a comparative examination of provisions contained in 
NAB Ordinance and Prevention of Corruption Act, 1947, 
indicated that those provisions were substantially the same 
and there was no difference in the offences of criminal 
misconduct contained in Section 5 of the Prevention of 
Corruption Act, 1947, and corrupt practices defined in 
Section 9 of the NAB Ordinance. Notwithstanding this 
similarity in substantive law, if an accused is convicted by a 
Court other than Accountability Court, the convict is entitled 
to earn remissions while the NAB convict for the commission 
of the same offences under similar set of circumstances was 
deprived of the remission on account of section 10(d) of the 
NAB Ordinance. The Court, therefore, found this provision to 
be ultra vires of the equality clause of the Constitution 
because: - 
(i) There is no intelligible differentia distinguishing one 
group of persons from other group of persons and 
thus 
there 
was 
no 
reasonable 
classification 
permissible under the law merely on the basis of 
change of forum the classification could not be held 
to be permissible as reasonable because such 
classification was not based on any real and 
substantial distinction.  
 
(ii) Where the “State itself does not make any classification 
of persons or things” and leaves it to the discretion of 
the Government or any authority to select and 
classify persons or things without laying down any 
principle or policy to guide the authority in the 
exercise of discretion, or a law is made by the State, 
whereby certain persons or group of persons are 
discriminated without any rational and reasonable 
Crl.P.No. 426 of 2009 &  
Crl. A. No. 383 of 2009 etc. 
 
30 
classification and leaving the other groups of the 
same class, the denial of benefit, privilege or right to 
one group of persons and allowing the other group of 
persons would certainly be a discrimination between 
the 
persons 
or 
things 
similarly 
situated 
and 
consequently shall be void on account of the 
provisions 
contained 
in 
Article 
25(1) 
of 
the 
Constitution read with Article 8 thereof.  (Emphasis is 
supplied). 
 
(iii) 
A test of permissible classification is that the 
differentia must have rational nexus to the object 
sought to be achieved by such classification. The 
object of the law has no nexus with the classification 
under Section 10(d) of the NAB Ordinance. 
 
 
39. 
The Court did not comment on the vires of a 
similar provision in Anti Terrorism Act as the same was not 
under challenge but merely observed as follows:- 
“We will make a tentative observation to the 
effect that the object of enacting Anti Terrorism 
Act, 1997, is entirely different from the object 
sought to be achieved through the enactment of 
NAB ordinance and the provision in every law is 
to be considered on its own merits with 
reference 
to 
the 
particular 
law 
under 
consideration.” 
 
 
40. 
However, the Court declared following provisions 
as intra vires:- 
i) 
“Sub Section 1 of Section 401 Cr.P.C 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. 
It 
is 
provided 
that 
“notwithstanding 
anything contained in these rules, a person convicted 
under the charge of espionage / Anti State activities 
Crl.P.No. 426 of 2009 &  
Crl. A. No. 383 of 2009 etc. 
 
31 
shall not be entitled to ordinary and special remission 
unless Federal Government or Provincial Government 
or competent authority makes a specific order in 
writing in this behalf. 
 
iii) 
Rule 214-A of the Prisons Rules as it only deprived 
those “convicts of special remission or on premature 
release on parole if they are sentenced for drug / 
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.” 
 
 
41. 
It has been a consistent view of this Court that 
classification is permissible provided the same is backed by 
law, rules or is based on reasonable differentia. For the 
exercise of authority under 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 23 above), a class of convicts involved in “heinous 
crimes” have been excluded from the benefit of remissions. As 
explained in paragraphs 24 & 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.  
42. 
In Government of A.P. and others v. M.T. Khan 
[(2004) 1 Supreme Court Cases 616], the Indian Supreme 
Court was called upon to consider the question of 
Crl.P.No. 426 of 2009 &  
Crl. A. No. 383 of 2009 etc. 
 
32 
classification of accused for purposes of remissions under 
similar provisions of its Constitution. The Court held that:- 
“It was considered expedient that the power is to be 
exercised in respect to a particular category of 
prisoners. The Government had full freedom in doing 
that and even excluding a category of persons which it 
thinks expedient to exclude. To extend the benefit of 
clemency to a given case or class of cases is a matter 
of policy and to do it for one or some, they need not do 
it for all, as long as there is no insidious 
discrimination involved. In the case at hand it was not 
only due to lack of power, but also because of 
conscious decision to exclude in the background of 
what it considered to be lack of authority, and in our 
view no exception could be taken to the same, 
legitimately.” 
 
 
43. 
A classification made by the competent authority 
on the basis of intelligible differentia qua accusations/nature 
of offences or on the basis of law or rules reflecting the same, 
is permissible and would not be derogatory to the 
Constitution. 
44. 
The issues framed by this Court having been 
answered, the Human Right Case Nos. 3200-G of 2009, 3742-
P of 2009, 3928-P of 2009, 3887-P of 2009 and 9778-P of 
2009 stand disposed of, whereas the main petition (Crl. 
Petition No. 426 0of 2009) and Crl. Appeal No. 383 of 2009 be 
fixed before appropriate Bench after obtaining orders from the 
Hon’ble Chief Justice. 
 
CHIEF JUSTICE 
 
JUDGE 
 
JUDGE 
Crl.P.No. 426 of 2009 &  
Crl. A. No. 383 of 2009 etc. 
 
33 
 
JUDGE 
(Mr. Justice Ch. Ijaz Ahmed has since been retired. 
 
 
 
JUDGE 
 
JUDGE 
 
JUDGE 
 
Announced in Open Court on  
the       of August, 2010. 
 
 
 
JUDGE 
 
 
ISLAMABAD, THE  
Khurram Anees P.S./* 
APPROVED FOR REPORTING”