JUDGMENT - Lahore High Court

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Stereo. H C J D A. 38
JUDGMENT SHEET
IN THE LAHORE HIGH COURT, LAHORE.
JUDICIAL DEPARTMENT
Writ Petition No.27470 of 2013
SHEHBAZ LATIF
V
SUPERINTENDENT, CENTRAL JAIL, KOT LAKHPAT,
LAHORE, ETC.
Date of Hearing
14, 16 17 & 21.04.2014.
Petitioner (Shehbaz Latif) by Mr. Sardar Muhammad Latif Khan Khosa,
Advocate.
Respondents by
Mr. Muhammad Shan Gull, Additioinal AdvocateGeneral, Punjab, with Mubasher Ahmad Khan, DIG
(Prisons), Asad Javed, Superintendent, Central Jail, Raja
Abdul Qayyum, Law Officer, o/o I.G. (Prisons), Lahore
and Malik Feroze, Deputy Superintendent, Central Jail,
Mianwali.
Mr. Haroon-ur-Rasheed Cheema, Additional Deputy Prosecutor General for
NAB.
Mr. Asjad Saeed-uz-Zafar, Advocate for the Complainant.
JUDGMENT
MEHMOOD MAQBOOL BAJWA, J.:- Since common question of
law is involved, therefore, the following Criminal Original and writ
petitions shall also be dispose of through this consolidated judgment:
1. CR. ORG. NO.1249-W OF 2013 titled SYED SIBTUL HASSAN
GILLANI V MUHAMMAD SHAHID KHAN, HOME SECRETARY
ETC.”
2. W.P. No. 664 of 2014 titled “AZHAR ZIA MIAN V THE STATE
ETC.”
3. W.P. No.6619 of 2014 titled “DR. HAROON AHMED V NAB
ETC.”
4. W.P. No.10825 of 2014 titled “ABDUL KHALIQ ETC. V
SUPERINTENDENT DISTRICT (CAMP) JAIL, LAHORE ETC.”
2.
Grievance of all the petitioners in the writ petitions and
criminal original came in light when the respective Superintendents
W.P. # 27470-13
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of different Jails refused to grant remissions to them being convicts
in different references decided by the learned Accountability courts.
3.
Shahbaz Latif (petitioner in W.P. No.27470 of 2013) was
convicted by learned Judge, Accountability Court No.IV, Lahore, on
24th of July, 2013, after conclusion of trial in Reference No.13 of 2006
and was sentenced to ten years R.I. with fine of Rs.14,99,98,500/and in default thereof to further undergo one year simple
imprisonment.
According to the petitioner, he was not granted all permissible
remissions which if calculated, petitioner has undergone his whole
sentence and as such through writ petition in the nature of Habeas
Corpus direction has been sought to the Superintendent, Central Jail,
Lahore, to release him as he is in illegal custody.
4.
Azhar Zia Mian, (Petitioner in W.P. No.664 of 2014) faced trial
in Reference No.08 of 2007 and was convicted and sentence of 14
years R.I. was awarded to him besides payment of fine to the tune of
Twenty Six Crore Seventy Eight lac and Forty Four thousand rupees
through judgment dated 1st of November, 2012, handed down by
learned Accountability Court No.V, Lahore.
5.
Dr. Haroon Ahmed who filed W.P. No.6619 of 2014 was
convicted in Reference No.26 of 2004 by learned Judge,
Accountability Court No.I, Lahore, on 01.11.2013 and was awarded
sentence of fourteen years R.I. with fine of Rs.1,77,51,00,000/- (US
W.P. # 27470-13
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29.1 Million dollars at the rate of Rs.61 per dollar at that time)
subject to adjustment of amount already recovered.
He was also convicted in Reference No.32 of 2004 by the same
court and was sentenced 14 years R.I. with fine of Rs.28,67,00,000/(US4.7 Million dollars keeping in view the prevalent market rate at
that time) and in default of payment of fine to further undergo six
months, S.I.
6.
In W.P. No.10825 of 2014, there are five petitioners i.e. Abdul
Khaliq, Ali Muhammad Akhtar, Gulzar Hussain, Imran Saeed and
Baber
Saeed.
Petitioner
No.1
was
convicted
by
learned
Accountability Court No.I, Lahore, in Reference No.6 of 2009 and was
awarded sentence of nine years R.I. besides payment of fine and in
default to further undergo six months S.I.
Petitioner No.2, Ali Muhammad Akhtar was convicted in
Reference No.69 of 2008 by learned Accountability Court No.II,
Lahore, on 2nd of April, 2013 and sentence of seven years R.I. was
awarded alongwith imposition of fine of Rs.10 Million.
Petitioners No.3 to 5 were convicted in Reference No.43 of
2008 by the learned Accountability Court No.IV, Lahore, and each
petitioner was awarded sentence of ten years R.I. alongwith fine of
Rs.1,21,61,750/- and in default thereof to suffer imprisonment of one
year S.I. through judgment dated 16th of April, 2012.
W.P. # 27470-13
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6.
Syed Sibtul Hassan Gillani filed Cr. Org. No.1249-W of 2013
against the Home Secretary, Government of Punjab and others with
the plea that he was convicted in Reference No.50 of 2007 through
judgment dated 7th of January, 2012 and remission were declined
upon which he filed W.P. No.15930 of 2012 which was allowed on 5th
of September, 2012, by a learned Division Bench of this Court but
even then the respondents are reluctant to grant premium. With this
background, prayer was also made for initiating contempt
proceedings against the respondents.
7.
Heard the adversaries at length.
8.
Learned counsel for all the petitioners submitted that question
of grant of remissions to the convicts in References made under The
National Accountability Ordinance(No.XVIII of
1999) (Hereinafter
called Ordinance XVIII of 1999), has been finally settled by the
Honourable Supreme Court of Pakistan in “NAZAR HUSSAIN and
another V THE STATE” (PLD 2010 SC 1021).
Argued that while dealing with the moot point, the Apex Court
while making reference to the dictum laid down in “SHAH HUSSAIN V
THE STATE” (PLD 2009 SC 460) held that judgment of learned Karachi
High Court in “SALEEM RAZA and 31 others V THE STATE” (PLD 2007
Karachi 139) was not brought to the notice of Honourable Judges,
therefore, judgment delivered in the case of “SHAH HUSSAIN” (supra)
with reference to observations made regarding inclusion of convicts
W.P. # 27470-13
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under The NAB Ordinance not entitled to remissions shall be treated
as “per incuriam”
Contended that with this background refusal on the part of
respondents to grant remissions to all the petitioners being convicts
under The Ordinance XVIII of 1999 is against the mandate of
Honourable Supreme Court of Pakistan.
Referring to the order of Apex Court in Suo-Motu case No.24
of 2007, it was argued that said order is “per incuriam” as the
judgment delivered in the case of “NAZAR HUSSAIN” (PLD 2010 SC
1021) was not brought to notice of Honourable Judges who decided
the said Suo-Motu case. Help was sought from the Rule of law laid
down in Constitutional Petition No.127 of 2012 (regarding
pensionary benefits of the Judges of Superior Courts) (PLD 2013 SC
829).
9.
Learned counsel for Shehbaz Latif petitioner alternatively
submitted that judgment in the case of “NAZAR HUSSAN”
was
rendered by seven Honourable Judges of the Apex Court and as such
has to be followed and given preference over the order dated 29th of
March, 2012 recorded by three Honourable Judges of Supreme Court
of Pakistan.
Reliance was placed upon the Rule of law enunciated in
“HASSAN and others V THE STATE and others” (PLD 2013 SC 793),
W.P. # 27470-13
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Mattulal V Rodhe Lal” (AIR 1974 SC 1596) (V 61 C 291) and “The State
of U.P. V Ram Chandra Trivedi” (AIR 1976 SC 2547).
10.
Continuing the arguments, learned counsel for Abdul Khalique
etc. (petitioners in W.P. No.10825 of 2014) submitted that similar
proposition was moot point before a learned Division Bench of this
Court at Rawalpindi and while deciding writ petition NO.1066 of 2013
on 31.03.2014, remissions were granted to the persons convicted
under The Ordinance XVIII of 1999.
11.
Submitting arguments in Cr. Org. No.1249-W of 2013, learned
counsel for the petitioner submitted that petitioner filed W.P.
No.15930 of 2012 which was decided by a learned Division Bench of
this Court on 5th of September, 2012, which order was assailed by the
respondents by filing Civil Petition No.1513-L of 2013, which was
dismissed on 19th of December, 2013, and as such, submitted, order
dated 5th of September, 2012, has attained finality and the
respondents with mala fide intention have refused remissions.
12.
Learned counsel representing the complainant in reference in
which petitioner of writ petition No.27470 of 2013 was convicted was
heard by granting special permission though he was not made party in the
said petition.
He while submitting argument contended that order of Honourable
Supreme Court of Pakistan in Suo-Motu case No.24 of 2007 is binding
upon this Court-categorically holding that convicts under The Ordinance
W.P. # 27470-13
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XVIII of 1999 are not entitled to any remissions. Further submitted that
while disposing Suo-Motu reference, the Apex Court also made reference
to the dictum laid down in the case of “NAZAR HUSSAIN V THE STATE”
(PLD 2010 SC 1021).
Referring to the provisions of Article 188 of The Constitution of
the Islamic Republic of Pakistan, 1973 (Hereinafter called The
Constitution), it was contended that Supreme Court has the power to
review any judgment and in the opinion of learned counsel through
order dated 29th of March, 2012, the Apex Court reviewed the
judgment of “NAZAR HUSSAIN” (supra).
Relying upon the provisions of Article 189 of The Constitution,
it was submitted that the order dated 29th of March, 2012, is not only
binding upon this Court but also upon all the institutions and as such
the respondents rightly declined remissions to which no exceptions
can be taken.
13.
The learned Additional Advocate-General did not dispute the
proposition of law advanced by the learned counsel for the
petitioners.
14.
However, learned law officer for the NAB as well as law officer
of the Prison Department adopted the arguments canvassed by
learned counsel for the complainant in W.P. No.27470 of 2013.
15.
In order to settle the moot point, survey of law and precedents
is required.
W.P. # 27470-13
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16.
Section 10 of The Ordinance XVIII of 1999 deals with
punishment for corruption and corrupt practices. Clause (d) of the
said Section (As it then was) envisages that accused convicted by the
courts for an offence under The Ordinance shall not be entitled to
any remission in their sentences.
17.
Legality of Section 10 (d) of The Ordinance XVIII of 1999 was
challenged before the learned Karachi High Court on the touchstone of
Articles 8 and 25 of The Constitution in “SALEEM RAZA and 31 others V
THE STATE” (PLD 2007 Karachi 139).
Dealing with the provisions of Article 25 of The Constitution
explaining “Equality of citizens before law” being a fundamental
right, reasonable classification, if made, was held not to be ultra vires
but yardstick was highlighted for its determination .
Examining different statutes and making comparison with
Ordinance XVIII of 1999, the court reached to the conclusion that
provisions of Section 10 (d)
disentitling the NAB convicts is
discriminatory because classification of convicts due to change of
forum of trial is against the mandate of The Constitution.
18.
Chapter 8 of The Pakistan Prison Rules, 1978 deals with
remission system.
Rule 200 suggests that Remissions under the rules may be
ordinary or special. Rules 201 to 233-A deal with grant or otherwise
of remissions, scale of remissions.
W.P. # 27470-13
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Dealing with provisions of Section 401 of The Code of Criminal
Procedure (V of 1898), and Rule 218 of the Prison Rules, 1978, the
learned Karachi High Court held that special remission is awarded by
Government on occasion of public rejoicing and is granted
unconditionally under Section 401 (1) of The Code of Criminal
Procedure, 1898, and is not governed by Pakistan Prison Rules, 1978.
It was finally held that all persons convicted under The
National Accountability Ordinance, 1999, are entitled for such
remissions in the same manner as persons convicted under other
ordinary and special laws.
19.
In the case of “SHAH HUSSAIN V THE STATE” (PLD 2009 SC
460), while deciding jail petition though conviction of Shah Hussain
was maintained by the Apex Court but it was noticed that sentences
awarded to the petitioner on two counts were directed to run
consecutively and that too without extension of benefit under
Section 382-B of The Code of Criminal Procedure, 1898, (Hereinafter
called The Code).
With this background, the Honourable Supreme court dealt with
the extension of benefit of Section 382-B of The Code and while granting
benefit of said Section held in para (41) (3) of the judgment that
convict-prisoners who are granted benefit of Section 382-B of The
Code shall also be entitled to remissions granted by any authority in
their post-sentence detention or during their pre-sentence detention
W.P. # 27470-13
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with such offence. However, it was held that such benefit
(remissions) shall not be available to the convicts of offences under
The National Accountability Ordinance, 1999, Anti-Terrorism Act,
1997, the offence of Karokari, where the law itself prohibits the
same.
It is to be noted that the expression “where the law itself
prohibits the same” used is of significance. With reference to
convicts of NAB, reference was made to Section 10 (d) of The
Ordinance XVIII of 1999.
20.
In the case of “NAZAR HUSSAIN and another V THE STATE”
(PLD 2010 SC 1021), moot point which emerged while hearing
Criminal Petition No.426 of 2009 was 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 and four points were formulated for determination.
One of the points formulated was whether the policy framed
by the Government of Pakistan, Ministry of Interior in August, 2009,
is in consonance with the judgment of “SHAH HUSSAIN’S case”.
21.
Dealing with the aforesaid point, it was noted in para (25) of
the judgment which reads as follow:
“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 Karachi 139). So the observation
W.P. # 27470-13
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made qua inclusion of convicts under the NAB Ordinance be
treated as per incuriam”. (underlining is our).
It is to be noted that in the guideline prepared by Ministry of
Interior, Government of Pakistan, there was sub-para (viii) to the
effect that convicts under The NAB Ordinance shall not be entitled to
any remission.
However, in view of Ratio enunciated by learned Karachi High
Court said sub-para was deleted from the policy.
In para (38) of the Judgment, again dealing with the dictum
laid down in the case of “SALEEM RAZA” (PLD 2007 Karachi 139),
view of learned Full Bench was endorsed.
Dealing with the classification of convicts, it was held in para
(43) of the judgment as follow:
“A classification made by the competent authority on the
basis of intelligible differentia qua accusation/nature of
the offences or on the basis of law or rules reflecting the
same, is permissible and would not be derogatory to the
constitution”.
22.
Dealing with the powers of President, it was held in para (33)
of the judgment at page 1043 as follow:
“The power granted to the President of Pakistan under
Article 45 of The Constitution is un-fettered 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 with this court’s judgment in Abdul Malik’s case
W.P. # 27470-13
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which stands reiterated by this court in Shah Hussain v
The State (PLD 2009 SC 460)”.
23.
Examination of the case-law clearly reveals that provision of
Section 10 (d) of The Ordinance XVIII of 1999 are ultra vires and
against the fundamental right enshrined in Article 25 of The
Constitution.
Ratio expounded in the case of “SHAH HUSSAIN” regarding
inclusion of convict under The NAB Ordinance to that extent shall be
treated as judgment per incuriam.
Convicts as such under The Ordinance XVIII of 1999 shall also
be entitled to such remissions like other convicts under ordinary or
special law unless and until there is a clog in any order issued by
President of Pakistan under Article 45 of The Constitution because
powers of The President are not subject to any restriction. (Emphasis
supplied)
24.
We have noticed and examined many notifications (issued by
the President of Pakistan placed on record by the Prison Department)
in which no such restriction has been imposed as the said pardon has
been allowed according to the guideline prepared by Ministry of
Interior, Government of Pakistan in August, 2009, re-produced in
para (24) of the judgment and sub-para (viii) was deleted in the light
of judgment of learned Karachi High Court.
W.P. # 27470-13
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25.
Denial as such by the prison department to the convicts under
The NAB Ordinance at its own without any basis is without any legal
sanctity.
26.
Lastly, we examine the contentions of adversaries with
reference to order dated 29th of March, 2012, disposing the SuoMotu case No.24 of 2007.
The order is re-produced for ready reference:
“The question raised in this petition with regard to extending
remissions to the convicts under The National Accountability
Ordinance, 1999, has already been dealt with in the judgment
reported as “Nazar Hussain v State” (PLD 2010 SC 1021) and
according to which they have been held disentitled for such
remissions. Therefore no relief, as it has been prayed can be
granted. Dismissed accordingly”.
27.
Contention of learned counsel for the complainant in writ
petition No.27470 of 2013 regarding review of judgment delivered in
the case of “NAZAR HUSSAIN” is without any force.
No doubt under Article 188 of The Constitution, the Supreme
Court got the power to review any judgment pronounced or order
made but the provision itself controls the power by using the
expression “subject to the provision of any Act of Majlis-e-Shoora
(Parliament) and of any rules made by the Supreme Court.
In the circumstances, question of review was not an issue
before the Honourable Supreme Court of Pakistan and that too in
Suo-Motu case.
W.P. # 27470-13
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28.
It would be beneficial to make reference to the background of
Suo-Motu notice.
One Syed Javaid Ahmed son of Muzaffar Hussain was
convicted by the learned Accountability Court, Rawalpindi, on 2nd of
December, 2005. His wife Tahira Javed made an application to the
Honourable Chief Justice of Pakistan on 6th of August, 2007, seeking
“all types of remissions” and in pursuance of that request matter was
taken up and decided. In view of the relief claimed by wife of the
convict, it cannot be said that by making order dated 29th of March,
2012, Ratio expounded in the case of “NAZAR HUSSAIN” (supra) was
reviewed. Facts contained in the application reveals that wife of said
convict claimed all type of remissions and order was made keeping in
view the relief denied.
Keeping in view the prayer made in the application, order
dated 29th of March, 2012 was made which by no stretch of
imagination suggests that convicts under Ordinance XVIII of 1999
were held disentitled to “all remissions”. (Emphasis supplied).
29.
Even if it is presumed that the persons convicted by the
Accountability Courts were held disentitled (though in fact it is not
so) the judgment delivered in the case of “NAZAR HUSSAIN” (PLD
2010 SC 1021) has to be followed in view of Rule of law expounded in
“HASSAN and others V THE STATE and others” (PLD 2013 SC 793),
W.P. # 27470-13
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“Mattulal V Rodhe Lal” (AIR 1974 SC 1596) and “The State of U.P. V
Ram Chandra Trivedi” (AIR 1976 SC 2547).
30.
Case of petitioner in criminal original No.1249-W of 2013
keeping in view its facts is on much better footing.
His writ petition seeking remissions was allowed by learned
Division Bench of this Court on 5th of September, 2012 while allowing
W.P. No.15930 of 2012. Department of prison filed Civil Petition
No.1513-L of 2013 against said order which was dismissed on 19th of
December, 2013 being barred by time.
In the circumstances, order dated 5th of September, 2012
attained finality for all intents and purposes.
Refusal on the part of the respondents as such to grant
remissions is against the mandate of order dated 5th of September,
2012. However, we are of the view that any penal action against the
respondents in the circumstances discussed particularly in paras (27
to 29) would be improper.
31.
Pursuant to discussion made, we allow all the petitions and
hold as follows.
The petitioners before us being convicts under The National
Accountability Ordinance, 1999, shall be entitled to such remissions
in the same manner and mode as persons convicted under the
ordinary and special laws unless and until there is clog in the orders
W.P. # 27470-13
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issued by President of Pakistan under Article 45 of The Constitution
of the Islamic Republic of Pakistan, 1973 (with reference to special
remissions).
(Aalia Neelum)
Judge.
(Mehmood Maqbool Bajwa)
Judge.
Announced in Open Court on 07.05.2014.
JUDGE
APPROVED FOR REPORTING.
A.D. Mian*
W.P. # 27470-13
JUDGE.

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