IN THE SUPREME COURT OF PAKISTAN
(APPELLATE JURISDICTION)
PRESENT:
MR. JUSTICE IJAZ UL AHSAN
MR. JUSTICE MUNIB AKHTAR
MR. JUSTICE SAYYED MAZAHAR ALl AKBAR NAQVI
(4rñ
CPLA No.287-P of 2016
And
CPLA Nos.290-P to 295-P. 310-P, 110-P & 111-P of 2019
Against judgment dated 04.04.2016, 20-06-2018 11.10.2018, passed in Writ
Petition No. 185-B of 2015 and Writ Petitions No.317-A, 142-A, 424-A, 414-A,
72-A, 186-A, 187-A, 258-A & 468-A of 2018, etc.
Government of KP through Secretary, 
Petitioner(s)
Home Department & others
VERSUS
Wali 
Khan, 
Zahid, 
Ghanimullah, 
Respondent(s)
Aurarigzeb Imran, Gohar Zaman, Saif ur
Rehman, Mir Shaid, Akhtar Au & Kamran
Shah, etc
For the Petitioner(s): 
Malik Akhtar Hussain, AddI.AG, KP
For the Respondent(s) 
Mr. M. Amjad Jqbal Qureshi, ASC
Date of Hearing: 15. 12 .202 1
IJAZ UL ARSAN, J-. Through this single
judgment, we intend to decide Civil Petition Nos. 287-P of
2016, 110-P, 111-P, 291-P-295-P and 310-P of 2019 as they
involve a common question of the law.
2. Through their petitions, the Petitioners have assailed
the judgments of the Peshawar High Court, Peshawar dated 04-04-
2016, 20-06-2018 and 11-10-2018 passed in W.P.Nos.185-B/15
and 317-A, 142-A, 424-A, 414-A, 72-A, 186-A, 187-A, 258-A &
468-A/18, etc whereby the Constitutional Petitions filed by the
Respondents were allowed. Resultantly, they were allowed the
1:1
CPLANos287-Pof2016. 290-pto295-P.310-P. 110-P& 111-P of2OJP 
2
remissions as prayed for and their sentences were either
suspended or the punishments which they were awarded
were remitted.
3. The brief facts giving rise to this Us are that the
Respondents were convicted under Section 302 of the
r Pakistan Penal Code ("PPC") and sentenced to death by the
trial Court for the commission of murder. They filed their
respective appeals, and their sentences were modified to life
imprisonment. Pursuant to various notifications issued by the
Government, special remissions were granted to a class of
prisoners by the President of the Islamic Republic of Pakistan
(hereinafter referred to as "President") under Article 45 of the
Constitution of the Islamic Republic of Pakistan (hereinafter
referred to as "Constitution") on various occasions such as
Eid and Independence Day of Pakistan etc. In light thereof,
the Respondents applied to the Superintendents of their
respective jails for the grant of ordinary and special
remissions. They further requested that they be granted
remissions under Article 45 of the Constitution. The
Respondents were granted special and ordinary remissions.
However, they were not granted the remissions provided in
the notifications by the President under Article 45 of the
Constitution. Aggrieved, they filed their respective writ
petitions. The learned High Court allowed the same. The
Petitioners have filed these Petitions for leave to appeal
against the impugned judgments of High Court.
CPL.4 Nos.287-Pof2016. 290-P to 295-P. 310-P. 110-P& 113-P of 2019
4. The learned Additional Advocate General, Khyber
ía
Pakhtunkhwa ("AG KP") contends that the notifications
granting remissions to a certain class of prisoners excludes
prisoners convicted of murder, espionage, anti-state activities,
sectarianism, zina, robbery, dacoity, kidnapping/ abduction
and terrorist acts. Therefore, the Respondents are not entitled
to the remissions under the Notification since they have
committed the crime of murder under Section 302 of the PPC.
The learned AG KP has further submitted that the remissions
to which the Respondents were entitled have already been
given to them. As such, they cannot claim the said remissions
twice. In this respect, the learned AG KP has relied upon the
remission reports of the Respondents which are placed on the
record.
5.
The learned ASC for the Respondents has
supported the impugned judgments and has stated that the
Respondents were entitled to be granted remissions by the
President under Article 45 of the Constitution and, denial of
the same gave them locus standi to approach the High Court
for enforcement of their fundamental rights.
6.
We have heard the learned AG KP and the learned
ASC for the Respondents. The main questions which require
determination by this Court are as follows: -
(i)
Whether the class of prisoners which the
Respondents belong to could be granted remissions
by the President of Pakistan under the Constitution
through various notifications?
(ii)
Could the Respondents be denied remissions in light
of the judgment in the case of Nazar Hussain and
Another v. The State (PLD 2010 Supreme Court
1021J?
ra'
CPLA Nos.287-Pof 2016. 290-P to 295-P. 310-P. 110-P & 11 1-P of 2OL2 
4
(iii) Were the prisoner convicts in Criminal Petitions 291
and 293-P covered by the impugned judgment dated
04-04-2016?
WHETHER THE CLASS OF PRISONERS WHICH THE
RESPONDENTS BELONG TO COULD BE GRANTED
REMISSIONS BY THE PRESIDENT OF PAKISTAN UNDER
THE CONSTITUTION THROUGH VARIOUS OCCASIONS?
7.
The President issued various notifications through
which remissions were granted to prisoners on occasions
such as Eid and the Independence Day of Pakistan. One such
example of these notifications is the notification dated 13-08-
2011 whereby remissions were granted to a certain class of
prisoners by the President on the advice of the Prime Minister
of Pakistan on the occasion of l4 thAugust 2011. These
notifications nonetheless provided that the said remissions
were unavailable to prisoners convicted of offences such as
murder. For ease of reference, the said portion of the
notification dated 13-08-11 is reproduced hereunder as: -
"Special remissions of 1151h of total sentence awarded by the
Courts to all convict prisoners and have undergone at least
213rd of substantive sentence of imprisonment except those
convicted of murder, espionage, anti-state activities,
sectarianism, Zina (Sec. 10 Offence of Zina (Enforcement of
Hudood) Ordinance 1979 (also under Sec. 377 PPC), robbery
(Sec. 394 PPC), dacoitu (Sec. 395 - 396 PPC),
Kidnapping/ abduction (Sec. 364-A & 365-A) and terrorist
acts (as defined in the Anti-Terrorism (Second Amendment)
Ordinance 1999 M. XIII of 1996 " (Underlining is ours)
8.
The latest notification placed on the record in this
respect is the notification dated 31-05-2019 with the subject
"Special Remissions in sentences on the occasion of Eid-
ul-Fltar, 2019". The said notification has been issued by the
Ministry of Interior, Government of Pakistan and it is clear in
insofar as convicts of murder and other serious crimes such
as robbery and kidnapping are concerned that the said
remissions shall not be granted to them. All the notifications
CPLA Nos.287-P of 2016, 290-P to 295-P, 310-1', 110-P& 221-P of 2019 
5
granting remissions, relied upon by the Respondents clearly
and unequivocally state that convicts involved in serious
crimes including murder, will not be entitled to special
remissions. It is therefore clear that the Respondents could
not have been granted remissions since they fall in the
exceptions provided in the notifications ibid. No doubt, the
power of clemency is a safeguard against possible injustice,
nonetheless, the principles of criminal justice divide each
crime into different categories. It is for this reason that
murder is put at a higher level and attracts a greater
punishment than assault because of the repercussions it has
for the victim's family and for the society at large. This is
perfectly in line with the objectives of the criminal justice
system as well. The criminal justice system aims, inter alia, to
rehabilitate offenders, retribute, punish, deter, and maintain
peace and order in the society. One of the main purposes of a
punitive and retributive system is to socially oust criminals in
an exemplary manner, in the larger interest and protect law
abiding citizens from criminal acts. The Respondents, after
having committed crimes of heinous nature, were denied
remissions by the President while exercising his authority
under Article 45 of the Constitution. This was in line with the
notifications so issued and the learned High Court erred in
law as well as in fact to hold that the Respondents were
entitled to remissions.
r
9. The case law relied upon by the learned High
Court is distinguishable. The relevant paragraph of the
CPLA Nos.287-P of 2016 290-P to 295-P. 310-P. 110-p & 111-P of 2919 
M
judgment reported as Halt Abdul All z'. Haft Bismillah (PLD
2005 Supreme Court 163) is reproduced as under: -
"However, the remission of one year granted by the
President of Pakistan on 6-1-2000, under Article 45 of
the Constitution could not be refused to him on that
ground. The order dated 6-1-2000 of the President of
Pakistan passed in exercise of constitutional power
did not lag down anti such limitation or condition that
a convict who was sentenced to life imprisonment
under section 302(b). P.P.0 fallin g in Chapter XVI of
the P.P.0 would be disentitled to the remission bu
virtue of section 402-C or Criminal Procedure
Code.". (Underlining is ours)
The case law ibid talks specifically about the
notification dated 06-01-2000 in which exceptions such as
those made in the notifications in question in the present Us
have not been mentioned. Therefore, the case cited by the
learned High Court was specific in nature and was restricted
to the facts and circumstances on which the adjudication was
being made at that time. The learned High Court without
appreciating the distinguishing features and circumstances of
the present us has applied the principles of Half Abdul Alt's
case to the present us without adverting to the fact that the
notifications under which the Respondents are asking for
remissions specifically exclude prisoner convicts who are
convicted of murder and, abduction, and terrorist acts etc
under the PPC. Therefore, the learned High Court misdirected
itself and erred in law and in fact in reaching an erroneous
conclusion which is not legally sustainable.
COULD THE RESPONDENTS BE DENIED REMISSIONS IN
LIGHT OF THE JUDGMENT IN THE CASE OF NAZAP
HUSS44IN AND ANOTHER V. THE STATE (PLD 2010
SUPREME COURT 1021)?
10. 
The powers of the President under Article 45 of the
Constitution are no doubt unabridged by any subordinate
CPL.4 Nos.287-2 of 2016. 290-P to 295-P. 310-P. 110-P& 111-P of 2019 
7
legislation as provided in Nazar Hussain and another v.
The State (PLD 2010 Supreme Court 1021. In the case at
hand, Rule 207 of the Pakistan Prison Rules empower the
Superintendents of the respective jail to grant remissions.
Nevertheless, where there is a conflict between the Pakistan
Prison Rules and any provision of the Constitution, it is
settled rule of law that the provisions of the Constitution shall
prevail. There is, however, a fundamental difference in
exercise of powers by the superintendent of the jail and the
President of Pakistan. The Superintendent does not grant
executive clemency. He exercises authority under the relevant
law by allowing only those remissions granted to prisoners
which are provided in the law. The superintendent cannot
therefore issue a notification on his own volition and allow
prisoners remissions on various occasions. His actions must
be backed by the law. The President on the other hand, may
issue such notifications and allow remissions in exercise of
his Constitutional powers. For ease of reference, Article 45 is
reproduced below: -
"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".
The President therefore has a wide range of powers
provided under the Constitution. On the other hand, the
Superintendent exercises limited powers available to him
under the law. He cannot under any circumstances exercise
the powers available to the President. The superintendent can
merely grant remissions specified in the Jail Manual to
prisoners who qualify for the same. The President may,
CPLA Nos.287-Pof2016. 290-P to 295- p. 370-P. 110-P& 111-P of 2019 
8
C
however, grant remissions on any occasion, which is a wide-
ranging power only available to the President under the
Constitution. Executive clemency is exercised to reinforce the
rehabilitative objective of the criminal justice system.
Nonetheless, it does not exist to provide blanket protection to
criminals who have committed serious crimes against society.
11. The learned ASC for the Respondents has
submitted that the Respondents could not have been denied
remissions under Article 45 when they were granted the
benefit of Section 382-B of the Code of Criminal Procedure
(hereinafter referred to as "Cr.P.C") because this amounted to
depriving the Respondents of their liberty. In this respect,
they have relied upon the case of Nazar Hussain (supra). We
are unable to agree with the contention of the learned ASC for
the Respondents. Article 25 of the Constitution provides that
all citizens are equal and are entitled to equal protection of
the law. The state is, however, empowered to create
classifications based on intelligible differentia. This means
classifications on a rational or reasonable basis, having a
nexus with the object sought to be achieved. The President is
fully empowered to make such a classification and exclude
those who have committed serious crimes such as murder,
abduction, terrorism etc. It may be noted that the concept of
classifications is not alien to our criminal jurisprudence. A
class of prisoner convicts has also been denied even
remissions in the Pakistan Prison Rules, 1978. Rule 201-A of
which provides that:
C
CPLA Nos.287-Pof201& 290-P to 295-P. 3)0-P. 11Q-P& iii-? at 2019 
9
"Notwithstanding anything contained in these rules, a
person convicted under the charge of espionage! anti-
state activities shall not be entitled to ordinary and
special remission unless Federal Government or the
Provincial Government or competent authority makes
a specific order in writing in this behalf".
12.
The denial of remissions even in the Prison Rules
to those convicted of espionage/anti-state activities furthers
the argument that if a class is created based on intelligible
differentia, backed by reasonable or rational basis, it does not
violate the Constitutional mandate of Article 25. Even the
discrimination argument is available only in cases of unequal
treatment amongst equals. To suggest that a person convicted
of murder, terrorism, kidnapping or abduction deserves equal
treatment with a person convicted of petty theft or some other
"minor" offence is, to say the least, ex fade, absurd,
preposterous and illogical. Hence, the argument of the
learned ASC for the Respondents in this behalf is found to be
misconceived and is accordingly repelled.
WERE THE PRISONER CONVICTS IN CRIMINAL
PETITIONS 291 AND 293-P COVERED BY THE IMPUGNED
JUDGMENT DATED 04-04-2016?
13.
The learned High Court has held in some of the
impugned judgments that the cases of the Respondents in
Criminal Petitions 291 and 293-P are covered by the
impugned judgment dated 04-04-2016. We are unable to
agree with this conclusion. Firstly, the learned High Court for
reasons best known to it has given no justification as to how
a precedent of a conviction of murder under Section 302 of
the PPC can or may be applied to case of abduction under
Section 365-A of the PPC. The learned High Court has simply
held that the cases of the said Respondents are covered by
4.
fr 
I. 
CPL.# fVos.287-P of 2016. 290-P to 295-P. 370-P. 1 10-P& 211-P of 201  
10
the impugned judgment dated 04-04-2016. It is settled law
that each case must be adjudged on its own facts and
circumstances. The cases of the said Respondents were
entirely different than the case under determination before
the High Court in which the impugned judgment dated 04-
04-2016 was passed. Therefore, we hold that the learned High
Court incorrectly applied the law and the judgment dated 04-
04-2016 and 20-06-2018 to the cases of the Respondents in
Criminal Petitions 291 and 293-P of 2019.
14.
Even otherwise, the notifications issued by the
Government clearly exclude the said Respondents from
getting remissions since they have been convicted for
abduction, which has been specifically named in the
notifications to be excluded from the benefit of remissions. As
such, the learned High Court has erred in law and in fact in
applying the impugned judgments ibid to the case of the said
Respondents which are even otherwise entirely different and
distinguishable.
15.
The impugned judgment of the learned High
Court proceeds on erroneous grounds has jurisdictional
errors and suffers from legal defects discussed above which
warrant interference of this Court. The learned Counsel for
the Respondents has been unable to persuade us to
endorse the view taken by the learned High Court.
16. 
As a result of the above discussion, these Ctv1
Petitions are converted into appeals and allowed. The
- 
V 
- CPLA Nos.287-P of 2016. 290-P to 295-P. 310-P. 110-P& ui-p of 2019 
11
- impugned judgments of the Peshawar High Court dated 04-
04-2016, 20-06-2018 and 11-10-2018 are accordingly set-
aside.
17. We had vide order dated 28-05-2021 directed that
the AG KP may submit a summary of relevant facts of each
case. It has been brought to our notice that the convicts in
C\v\l 
Petitions 111-P. 290-P. 292-P and 295-P Hsve been
released having served their respective sentences. As such,
the said Cvi I 
Petitions are dismissed as having become
infructuous. 
 
ISLAMABAD, THE
15th p1 December, 2021
Hcznflshtiaq/ *
Jj6t Approved For
C)
