PESHAWAR: The Peshawar High Court has ruled that the government can grant remission in sentences to the convicts of espionage and anti-state activities on the basis of their degrees secured in detention.

In a detailed verdict on 14 petitions of convicts, a larger bench consisting of Justice Lal Jan Khattak, Justice Ishtiaq Ibrahim and Justice Ijaz Anwar ruled that the ban imposed under the Prison Rules, 1978, on sentence remission for convicts of espionage and anti-state activities is not applicable to education remission.

Justice Lal Jan Khattak, Justice Ishtiaq Ibrahim and Justice Ijaz Anwar ruled that Rule 201-A and 214-A of the prison rules placed embargo on the grant of ordinary and special remissions to convicts under the charge of espionage/anti-state activities but there was no mention in these rules of educational remission provided to prisoners who acquire different category of education in the prison.

“Education remission is an independent provision of the Prison Rules, which is covered neither by Section 201 (ordinary remissions) nor by Section 214 (special remissions). Section 201-A and 214-A places embargo on the grant of ordinary and special remissions only, while there is nothing in those provisions about the refusal of education remissions and its seems quite logical and reasonable for the reason that those persons who are convicted of the offences referred above can transform themselves into good citizens by getting proper education, so they can lead a respectable and changed life after serving the sentence,” it added.

The court ruled that the refusal of education remissions under prison rules 201-A and 214-A would not be applicable to the prisoners undergoing the sentence for the offences of espionage/anti state activities except in the cases in which the particular law has placed clog on the same in unequivocal terms.”

Court rules that remission different from those banned under prison rules

The bench had reserved judgment in 14 petitions filed by different categories of prisoners, including those convicted under the Anti-Terrorism Act on Mar 13 after the completion of arguments.

It recently released a detailed judgment disposing of petitions with different directions.

The judgment authored by Justice Ishtiaq Ibrahim declared that the presidential remission under Article 45 of the Constitution won’t apply to prisoners, who were specifically excluded by the notifications granting remissions.

It added that the question of refusal of remission granted by the country’s president under Article 45 of the Constitution to particular class of convicts is justified and had been adjudicated by a Supreme Court bench in the Nazar Hussain case.

In different notification issued for granting presidential remission different categories of convicts were excluded including those convicted for murder, espionage, anti-state activities, sectarianism, robbery, kidnapping, abduction and terrorist acts.

Some petitioners, who were convicted under the Anti-Terrorism Act, had challenged their exclusion from the grant of those remissions.

The bench ruled that under Article 45 of the Constitution, the president enjoyed unfettered powers to grant remissions in respect of offences and no clog stipulated in subordinate legislation could abridge the power.

“However when the notification by itself has categorised the availability of remission to a particular class of prisoners and withheld to another class then this Court cannot add or omit to the said notification unless the same is contrary to law and discriminatory,” it added.

The bench accepted one of the petitions filed by prisoner Mohammad Umer, who was arrested in a murder case in Mar 2001 by the then tribal administration of Kurram Agency and was convicted by an assistant political agent and sentenced to 14 years rigorous imprisonment on two counts.

The APA had ruled that the convict’s sentences would run consecutively and not concurrently.

Shabbir Hussain Gigyani, lawyer for the petitioner, had said under Code of Criminal Procedure, the APA was not empowered to order that the sentences should run consecutively.

The bench ruled that the sentences would run concurrently and not consecutively.

It also observed that the provincial government and jail authorities should consider the cases of convicts covered by rules 140(ii) and 143 of the prison rules, which conferred powers on the jail authorities and government for consideration of cases under Section 401 of CrPC.

The said rules relate to sending cases of convicts, who have completed 15 years imprisonment, to the government for suspension or remitting their remaining sentences.

The bench observed that the practice would serve the purpose of the law and would substantially reduce the pressure of overcrowding prisons.

Published in Dawn, May 29th, 2020