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Before Muhammad Iqbal Kalhoro, Mohammad Karim Khan Agha and Shamsuddin Abbasi, JJ
JUNAID REHMAN ANSARI and others---Petitioners
Versus
The STATE and others---Respondents
C.Ps. Nos. D-584 of 2009, D-206 of 2010, D-3950 of 2012 and D-2784 of 2014, decided on 16th
September, 2019.
(a) Interpretation of statutes---
----Court, role of---Scope---Legislative intent---If a statute has expressly provided for something without
any ambiguity then there is no question of the Court interpreting the same as legislative intent is clear
and Act / Ordinance must be given effect to unless it is deemed to be contrary to the Constitution---
Judiciary's role of interpretation of statute only arises when statute is to a certain extent either unclear or
ambiguous or is prima facie in violation of the Constitution and in such cases it is for the judiciary to
interpret that piece of legislation by trying to ascertain intent of Parliament in passing such legislation---
Courts have absolutely no authority or power to substitute their views for those intended by legislature
simply because they may disapprove of a particular and the way in which that law is being applied.
Justice Khurshid Anwar Bhinder v. Federation of Pakistan PLD 2010 SC 483 rel.
(b) Anti-Terrorism Act (XXVII of 1997)---
----S. 21F---Constitution of Pakistan, Arts. 4, 12, 13 & 25---Remissions---Amendment in law---
Violation of Constitutional guarantees---Petitioners assailed insertion of S. 21F in Anti-Terrorism Act,
1997, and sought the same to be struck down from the statute as the same was harsh for convicts---
Validity---Rise in terrorist acts in Pakistan from year 1997 up to 15-8-2001 when S.21 F was
incorporated in Anti-Terrorism Act, 1997, prompted the legislature to make the amendment for deterrent
purposes---Whether or not denial of remission was harsh for convicts under Anti-Terrorism Act, 1997,
was not for High Court to pass judgment on such issue and was within the domain of legislature; it was
the legislature in its own wisdom, reasons, aims and objectives in inserting S. 21F in Anti-Terrorism Act,
1997---Despite insertion of S. 21F in Anti-Terrorism Act, 1997, over 18 years ago, none of the three
successive democratically elected legislatures deemed it fit to remove S. 21F from Anti-Terrorism Act,
1997, which was an indication that successive legislature were satisfied that S. 21F was justified in Anti-
Terrorism Act, 1997---Provision of S. 21F of Anti-Terrorism Act, 1997, did not violate Arts. 4, 12, 13 or
25 of the Constitution and High Court upheld the provision of S. 21F of Anti-Terrorism Act, 1997---
High Court, however, directed Anti-Terrorism Courts to exercise great care and caution in determining
whether cases before them fell under Anti-Terrorism Act,1997, based on the requirements of S. 6 of
Anti-Terrorism Act, 1997, as remissions were not applicable in cases under Anti-Terrorism Act, 1997
which concerned heinous offences having a special object and intent aimed at destabilizing the State and
its institutions and cowering it citizens through installing in them a sense of fear and insecurity---In
absence of ingredients of S. 6(1)(b) & (c) of Anti-Terrorism Act, 1997, cases were to be tried under
ordinary criminal law---Provisions of S.6(1)(b) & (c) Anti-Terrorism Act, 1997, were pre-conditions
which needed to be satisfied before S. 6 of Anti-Terrorism Act, 1997, could be attracted by virtue of the
offences set out in S.6(2) of Anti-Terrorism Act, 1997---Constitutional petition was dismissed in
circumstances.
Saleem Raza v. The State PLD 2007 Kar. 216; Nazar Hussain and another v. The State PLD 2010 SC
1021; Mujeebur Rehman v. The State 2014 PCr.LJ 1761; Abdul Aziz Memon and others v. The State
PLD 2013 SC 594; State of Haryana and another v. Jai Singh Supreme Court of India Appeal (Crl.) 661
of 2002; Jameel Ahmed v. State of Rajasthan and others 2007 Cri.LJ 2009; Justice Khurshid Anwar
Bhinder v. Federation of Pakistan PLD 2010 SC 483;Government of Balochistan v. Azzizullah Memon
PLD 1993 SC 341 and Shah Hussain v. State PLD 2009 SC 460 rel.
Hammad Abbasi v. Superintendent, Central Adyala Jail, Rawalpindi PLD 2010 Lah. 428;
Superintendent, Central Adyala Jail, Rawalpindi v. Hammad Abbasi PLD 2013 SC 223; Muhammad
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alias Khuda Bakhsh v. ATC Makran at Turbat and 2 others 2018 PCr.LJ 148; Mazhar Iftikhar v. Shahbaz
Latif PLD 2015 SC 1; Ex. Brigadier Ali Khan v. Secretary, Home Department, Government of Punjab
PLD 2016 Lah.509; Muhammad Ali v. The State 2018 YLR Note 191; Muhammad Nawaz and another v.
The State 1987 SCMR 1399; Habib-ul-Wahab Alkhairi and others v. Federation of Pakistan PLD 1991
Federal Shariat Court 236; Muhammad Ismaeel v. Secretary Home Department, Government of Punjab
PLD 2018 Lah. 114; Ghulam Asghar Gadehi v. Sr. Superintendent of Police, Dadu and 4 others PLD
2018 Sindh 169; I.A. Sherwani v. Government of Pakistan 1991 SCMR 104; National Commission on
Status of Women through Chairperson and others v. Government of Pakistan through Secretary Law and
Justice and others PLD 2019 SC 2018; Baz Muhamamd Kakar and others v. Federation of Pakistan
through Ministry of Law and Justice, Islamabad and others PLD 2012 SC 870; Smith Kline and French
of Pakistan Ltd. Karachi v. A. Rashid Pai and another PLD 1979 Kar. 212; Government of Pakistan
through Director-General, Ministry of Interior, Islamabad and others v. Farheen Rashid 2011 SCMR 1;
Tariq Aziz-ud-Din and others: in re Human Rights Cases Nos.8340, 9504-G, 13936-G, 13635-P and
14306-G to 143309-G of 2009, 2010 SCMR 1301; Abdul Jabbar v. The Chairman NAB through Director
General National Accountability Bureau and 3 others PLD 2016 Pesh. 298; Syed Wajih-ul-Hassan Zaidi
v. Government of Punjab through D.C. Jhelum and 2 others 1996 SCMR 558; Javed Jabbar and 14 others
v. Federation of Pakistan and others PLD 2003 SC 955; Dr. Mobashir Hassan and others v. Federation of
Pakistan and others PLD 2010 SC 265 and State of Haryana and others v. Mohinder Sindh (2000) (3
SCC 394) ref.
(c) Anti-Terrorism Act (XXVII of 1997)---
----S. 21F---Constitution of Pakistan, Art.4---Remissions---Right to be dealt with in accordance with
law---Applicability---Every one convicted under Anti-Terrorism Act, 1997, is dealt in the same way in
accordance with the law as provided in Anti-Terrorism Act, 1997, including its S.21-F---Provision of
S.21F of Anti-Terrorism Act, 1997, is not violative of Art. 4 of the Constitution.
(d) Anti-Terrorism Act (XXVII of 1997)---
----S. 21F---Constitution of Pakistan, Art.12 (b)---Remissions---Protection against punishment---
Applicability---Provision of Art.12(b) of the Constitution has no relevance in cases where a person is
given a sentence prescribed under the law at the time when he committed the offence and whether
remission was available or not under the statute for the offence which he committed---Provision of
S.21F of Anti-Terrorism Act, 1997, is not violative of Art.12 of the Constitution.
(e) Anti-Terrorism Act (XXVII of 1997)---
----S. 21F---Constitution of Pakistan, Art.13---Remissions---Protection against double punishment---
Applicability---Act of refusing remission to an accused does not amount to punish him for the same
offence more than once---Such accused is only punished for one offence and question of availability of
remission is governed by law and is a matter of concession not as of right---Issue of self-incrimination is
not relevant in circumstances.
(f) Anti-Terrorism Act (XXVII of 1997)---
----S. 21F---Constitution of Pakistan, Art.25---Remissions---Discrimination---Applicability---Only Anti-
Terrorism Act, 1997 deals with offences of "terrorism"---Unlike offences of corruption where there are
numerous laws dealing with offences of corruption, it cannot be said that persons are treated differently
in terms of remission if they are convicted for offences of terrorism since there is only one act namely
Anti-Terrorism Act, 1997, for which an accused can be proceeded with if his offence meets the
definition of "terrorism"---Persons who are convicted of acts of terrorism are of the same class and are
treated the same in terms of remission---No remission is allowed to such accused and there is no
question of any person who is convicted for an offence of terrorism under Anti-Terrorism Act, 1997, and
is treated differently.
(g) Convention on the Prevention and Punishment of Crime of Genocide---
----Art. II---United Nations General Assembly Resolution 260A (III), dated 9-12-1948---Genocide---
Scope---Murdering a large number of people does not amount to offence of genocide (although it may
amount to extermination or mass murder) unless any of the following acts are committed with intent to
destroy, in whole or in part, a national, ethnical, racial or religious group, as such: (a) killing members of
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the group; (b) causing serious bodily or mental harm to members of the group; (c) deliberately inflicting
on the group conditions of life calculated to bring about its physical destruction in whole or in part; (d)
imposing measures intended to prevent births with the group; and (e) forcibly transferring children of the
group to another group.
Raj Ali Wahid Kunwar, Ravi Pinjani and Haq Nawaz Talpur for Petitioners.
Ali Haider, Additional P.G. Sindh for the State.
Salman Talibuddin, Advocate General Sindh on Court Notice.
Kashif Paracha, Deputy Attorney General and Mukesh Kumar Khatri, Assistant Attorney General on
Court Notice.
Dates of hearing: 10th, 17th December, 2018, 8th April, 6th, 20th May, 24th, 26th, August and 2nd
September, 2019.
JUDGMENT
MOHAMMAD KARIM KHAN AGHA, J.---All the petitioners have been convicted for various
offenses under the Anti Terrorism Act 1997(ATA) and have been awarded various sentences on
conviction. These petitions involve the same single question of law and as such we intend to dispose of
the same through this one common judgment.
2. The question of law is whether Section 21F of the ATA which in essence provides that no person
convicted and sentenced under the ATA shall be entitled to remission is in violation of Articles 4 ,12, 13
and 25 of the Constitution and as such it should be struck down as having no legal effect.
3. It has already been held by this court in C.P. D-5724,2006 that Section 21 F of the ATA which was
incorporated as an amendment in the ATA on 15-08-2001 shall not have retrospective effect.
4. Since the petitions in hand questioned the validity of a section of a piece of legislation in terms of
its constitutionality the Advocate General of Sindh and Attorney General of Pakistan were put on notice
to assist this court under Order XXVII-A, C.P.C.
5. Learned counsel for the petitioners firstly submitted that some offenses under the ATA were also
covered under the P.P.C. especially in terms of those offenses listed in Section 6(2) of the ATA.
6. The petitioner's argument was that there was a two limb test for the offense to fall under the ATA.
Firstly, that before an act could be deemed to be an act of terrorism for the purposes of the ATA it had to
be an act which fell within the purview of Section 6(2)(a) to (g) for instance at (a) involves the doing of
anything that causes death which was equivalent to the offense of murder under section 302 P.P.C. and
that in both cases of an offense under Section 6(2)(a) to (g) being committed both the actus reus and
mens rea of the offense had to be proved. However for the act under section Section 6(2)(a) of doing of
anything that causes death to amount to an offense under the ATA there was an additional mens rea
requirement. Namely either Section 6(1)(b) or (c) also had to be proven. He also pointed out that for
similar offenses purely under the P.P.C. such as murder under Section 302 remission was allowed but if
the offense also satisfied Section 6(1)(b) or (c) and fell within the ATA then no remission was
permissible. He submitted that in many cases convictions under Section 6(2)(a) to (g) of the ATA lead to
higher sentences than the base sentence under the P.P.C.;, for example under section 6(2) (b) ATA which
was the offense of causing grievous bodily injury to a person under Section 7(c) ATA the conviction was
higher than the similar offense under Section 337-L(a) P.P.C. and that to some extent this enhanced
sentence was justified as a double mens rea had to be proved under the ATA which lead to an enhanced
sentence but could not justify the exclusion of remission under the ATA, bearing in mind that an
enhanced sentence had already been given under the ATA as compared with some offenses under the
P.P.C. which would lead to a further enhancement of the sentence which was unjustified and was a
violation of Articles 4, 12, 13 and 25 of the Constitution.
7. In this respect the petitioners produced the following table of offenses under the ATA and P.P.C.
setting out the sentences in respect of each for similar offenses.
SCHEDULE/COMPARISON BETWEEN SENTENCES
PROVIDED UNDER ATA 1997 AND P.P.C. 1860

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Sr. ATC SECTION PUNISHMENT PPC SECTION PUNISHMENT

No
1. 7(1) (a) Death of Death or with S.302 Qatl-e-Amd Death, imprisonment of
any person is imprisonment of life S.315 Act done life or Imprisonment up
caused and with fine with intent to to 25 years [but shall
prevent a child not less than 10 years]
being alive, or to Imprisonment of either
cause it to die after description for 10
its birth years, or fine, or
2. (b) Does Conviction with S.324 Attempt to Imprisonment of either
anything likely imprisonment shall be Qatl-e-Amd description for 10 years
to cause death or not less than 10 years and fine
endangers life, but extend to
but death or hurt imprisonment of life
is not caused and with fine.
3. (c) Grievous Conviction with S.337 L (a) Daman and
bodily harm or imprisonment shall Imprisonment either
injury is caused not be less than 10 description for 7 years.
years but extend to
imprisonment of life
and liable to fine or
4. (d) Grievous Conviction with S.427 Mischief Imprisonment of either
damage to imprisonment not less and thereby description for 2 years
property is than 10 years but causing damage to or fine or both.
caused extend to the amount to 50
imprisonment of life rupees or upwards
and with fine or
5. (d) Kidnapping Conviction with death S.365-A Imprisonment of life
for ransom or or imprisonment of Kidnapping or and forfeiture of
hostage-taking life and shall also abduction for property.
has been liable to forfeiture of extorting any
committed property property or
valuable security,
6. (f) Hijacking Conviction with death Not Applicable Not Applicable
or imprisonment of
life and fine
7. (ff) Terrorism Shall not be less than S.285 Dealing with Imprisonment of either
falls under 14 years but extend to fire of any description for 3 years
section 6(2)(ee) imprisonment of life. combustible matter and fine, ' Ditto
The Use of so as to endanger
Explosives human life, etc.
S.286 So dealing
with any explosive
substance
8. (g) Terrorism Conviction with S.295 Destroying, Imprisonment of either
falls under imprisonment Not less damaging or description for 2 years,
section 6(2)(f than 2 years and not defiling a place of or fine, or both.
and g) Inciting more than 5 years and worship or sacred Imprisonment of either
Hatred, with fine or. object with intent description for 2 years,
Religious to insult the or fine, or both.
Contempt, etc./ religion of any
Vigilantism class of person
S.295 Malicious
insulting the
religion or the
religious beliefs of
any class.
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9. (h) Terrorism Conviction to (h)=S.296 Causing Imprisonment of either

falls under imprisonment of not a disturbance to an description for 1 year,
sectin (h) to (n) less than 5 years but
assembly engaged or fine, or both.
sub-section (2) may extend to in religious Imprisonment of either
of Section 6 imprisonment of lifeworship. (i)=S.148 description for 3 years,
and with fine or Rioting, armed or fine, or both.
with a deadly Imprisonment of either
weapon. (j)=S.437. description for 10 years
Mischief with and fine.
intent to
destroy or make Imprisonment of either
unsafe a decked description for 3 years
vessel or a vessel or fine or both.
of 20 tons burden Imprisonment of either
or a vessel of description for 2 years
(k)=S.384 or fine a both.
Extortion (i)= N/A Imprisonment of either
(m)=S. 353 description for 3 years
Assault or use of or fine, or both
criminal force to
deter a public
servant from
discharge of duty.
(n)=S.152 Assault
or obstructing
public servant
when suppressing
riot, etc.
10. (i) Act of Conviction to Example S.120-C Imprisonment of either
terrorism not imprisonment of not Any other criminal description for six
falling under less than 5 years and conspiracy. S. 124- months and fine or
section (a) to (h) not more than 10 years A Section S.144 both. Transportation for
above. with fine or both. Joining an or for any term and fine
unlawful assembly imprisonment of either
armed with any description for 3 years
deadly weapon. and fine, or fine.
S.189. S.385. Imprisonment of either
Putting or attempt description for 2 years
to put in fear of or fine, or both.
injury, in order to Threatening a public
commit extortion. servant with injury to
him, or one of whom he
is interested to induce
him to do any official
act. Imprisonment of
either description for 2
years or both.,
11. 7(2) Convicted Shall be punishable Not Applicable Not applicable
under this Act with imprisonment of
10 years or more,
including offences of
kidnapping for ransom
and hijacking shall
also be liable to
forfeiture of Property
8. The petitioners next submitted that the purpose of someone being imprisoned was essentially
reformation whereby after completing his prison term the convict would come out of jail as a reformed
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person who would no longer engage in criminal conduct and would be an asset to society and if a
convict was denied remission this would just make the convict more bitter and resentful to the State and
turn him into a hardened criminal who on release would commit more crimes and thus as a matter of
policy all convicts should be entitled to remission.
9. The petitioners main argument however was that not allowing remission to persons convicted under
the ATA was contrary to Article 25 of the Constitution where all persons were entitled to equal treatment
under the law. In that in all other laws in Pakistan (whether general or special) the convict was entitled to
remission on his sentence.
10. In this regard, in particular the petitioners placed reliance on the fact that both this court and the
Supreme Court had held that the denial of remissions to convicts under the National Accountability
Ordinance 1999 (NAO) by virtue of Section 10(d) NAO was unconstitutional being in violation of
Article 25 of the Constitution and drew a comparison with Section 21F ATA which by the same
reasoning was also in violation of Article 25 of the constitution.
11. In this respect the petitioners relied heavily on the fact that there was no reasonable classification
in excluding ATA convicts from remission as there was no intelligible differentia which distinguishes
persons or things that are grouped together from those who have been left out.
12. The petitioners even submitted that Section 6(1)(b) and (c) ATA could not co-exist with S.21F as
in essence Section 6(1)(b) and (c) ATA were different mens rea requirements and as such under Section
21F remission should be allowed depending on whether the mens rea was proved in either Section 6(1)
(b) or (c) ATA.
13. The petitioners stressed that in respect of the subject issue no intelligible differentia existed which
distinguishes persons or things that are grouped together (ATA convicts) from those who have been left
out so as provide a reasonable classification for treating people in the same class differently which was
evident from the fact that when the ATA was amended in 2001 by amongst other things inserting Section
21F which denied remission to ATA convicts no reason was given in so doing and as such the
amendment was without intelligible differentia criteria and was absolutely arbitrary and as such the
addition of Section 21F in the ATA through the amendment Act in 2001 was also violative of Article 4 of
the Constitution. The petitioners further contended that Nazar Hussain's case (Supra) was not applicable
as it did not consider the issue of the constitutionality of Section 21F ATA on merits but merely referred
to it in passing.
14. In the alternate the petitioners submitted that if this court were to find Section 21F ATA not to be
in violation of Article 25 of the Constitution then remissions may be allowed in convictions for those
offenses under the ATA which imposed greater sentences than under the P.P.C. Another alternate
submission was that if this court were to find Section 21F ATA not to be in violation of the Constitution
then at least the convicts under the ATA should be entitled to the earned remissions. In this regard they
drew this court's attention to the fact that some remissions were regarded as general remissions whilst
others were regarded as special remissions under the Prison Rules and some remissions were earned by
the convict for example, by giving blood, completing the fast during the holy month of Ramazan,
passing examinations as laid down in the Pakistan Prison Rules 1978 as amended from time to time and
at least convicts under the ATA should be given the benefit of earned remissions and that in any event
remissions were a right and not a privilege.
15. In support of their contentions the petitioners placed reliance on Saleem Raza v. The State (PLD
2007 Karachi 216), Hammad Abbasi v. Superintendent, Central Adyala Jail, Rawalpindi (PLD 2013
Lahore 428), Superintendent, Central Adyala Jail, Rawalpindi v. Hammad Abbasi (PLD 2013 SC 223)
Muhammad alias Khuda Bakhsh v. ATC Makran at Turbat and 2 others (2018 PCr.LJ 148) Mazhar
Iftikhar v Shahbaz Latif (PLD 2015 SC 1), Nazar Hussain and another v. The State (PLD 2010 SC
1021), Mujeebur Rehman v. The State (2014 PCr.LJ 1761), Ex. Brigadier Ali Khan v. Secretary, Home
Department, Government of Punjab (PLD 2016 Lahore 509), Muhammad Ali v. The State (2018 YLR
Note 191), Muhammad Nawaz and another v. The State (1987 SCMR 1399), Habib-ul-Wahab Alkhairi
and others v. Federation of Pakistan (PLD 1991 Federal Shariat Court 236), Muhammad Ismaeel v.
Secretary Home Department, Government of Punjab (PLD 2018 Lahore 114), Abdul Aziz Memon and
others v. The State (PLD 2013 SC 594),Ghulam Asghar - Gadehi v. Sr. Superintendent of Police, Dadu
and 4 others (PLD 2018 Sindh 169), I.A. Sherwani v. Government of Pakistan (1991 SCMR 1041)
1047), National Commission on Status of Women through Chairperson and others v. Government of
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Pakistan through Secretary Law and Justice and others (PLD 2019 SC 2018), Baz Muhamamd Kakar and
others v. Federation of Paldstan through Ministry of Law and Justice, Islamabad and others (PLD 2012
SC 870), Smith Kline and French of Pakistan Ltd. Karachi v. A. Rashid Pai and another (PLD 1979
Karachi 212), Government of Pakistan through Director-General, Ministry of Interior, Islamabad and
others v. Farheen Rashid (2011 SCMR 1), Tariq Aziz-ud-Din and others: in re Human Rights Cases
Nos.8340, 9504-G, 13936-G, 13635-P and 14306-G to 143309-G of 2009, (2010 SCMR 1301), Abdul
Jabbar v. The Chairman NAB through Director General National Accountability Bureau and 3 others
(PLD 2016 Peshawar 298), Syed Wajih-ul-Hassan Zaidi v. Government of Punjab through D.C. Jhelum
and 2 others (1996 SCMR 558), Javed Jabbar and 14 others v. Federation of Pakistan and others (PLD
2003 SC 955), Dr. Mobashir Hassan and others v. Federation of Pakistan and others (PLD 2010 SC 265)
and Ordinance XXXIX of 2001 Anti-Terrorism (Amendment) Ordinance, 2001.
16. Learned Deputy and Assistant Attorney Generals submitted that the cases cited by the petitioner
had no relevance to the instant petition in that Saleem Raza's case (supra) concerned the striking down
the exclusion of remission under Section 10 (d) in the NAO as was upheld by the Supreme Court in
Mazhar Iftikhar's case (Supra) and not Section 21F ATA which also excluded remission for those
convicts who were convicted under the ATA which was a distinct piece of legislation dealing with
heinous crimes as opposed to corruption and that both statutes had distinct objectives; that although the
Balochistan case of Muhammad alias Khuda Bakhsh (supra) had upheld the striking down of Section
21F ATA and had reached finality as it had not been appealed to the Supreme court that case was not
binding on this court and was only of persuasive value and in addition it appeared that the Court may not
have been properly assisted as the Supreme Court case of Nazar Hussain (PLD 2010 SC 1021) which
had dealt with the issue of the constitutionality of Section 21F ATA had not been brought to the courts
attention. Likewise the case from Lahore being Hammad Abbasi (supra) which was decided by a single
judge again did not have the benefit of Nazar Hussain's case (Supra) and in any event was remanded
back by the Supreme Court in the case of Superintendent, Central Adyala Jail, Rawalpindi v. Hammad
Abbasi (Supra) to be decided afresh by the Lahore High Court and the case still remained pending before
the Lahore High Court. In conclusion he contended that the Federal Government had already issued
guidelines of remission and in these there was an intelligible differentia which ensured that Section 21F
ATA was not discriminatory in terms of Article 25 of the Constitution and since Section 21F ATA did
not violate any provision of the Constitution it should be upheld and the petitions dismissed. In support
of his contentions he placed reliance on Nazar Hussain's case (Supra) and the remission policy of the
President of 2002 which remained unchanged to date and had been relied upon and reproduced in Nazar
Hussain's case (Supra)
17. Learned Advocate General, Sindh submitted that firstly the issue had been settled by the Supreme
Court in Nazar Hussain's case (Supra) that there was an intelligible differentia and sufficient distinction
had been made for different classes of person to not receive remission under the ATA. He secondly
submitted that in any event remission was not a right but rather a privilege extended by Statute and thus
it could not be claimed as such as of right. That Section 21 F ATA did not violate any Article of the
Constitution and that these appeals should be dismissed. In support of his contentions he placed reliance
on the Indian authorities of State of Haryana and others v. Mohinder Singh (2000) (3 Supreme Court
Cases 394), State of Haryana and another v. Jai Singh (Supreme Court of India Appeal (Crl.) 661 of
2002) and Jameel Ahmed v. State of Rajasthan and others (2007 Cri.LJ 2009) and a summary approved
by the Chief Minister of Sindh dated 09-08-2019 allowing special remission to prisoners on the occasion
of Eid-Ul-Azha and Independence day 2019 except for, amongst others, those convicted under the ATA .
18. Learned Additional PG submitted that there had been no violation of Article 12(b) of the
Constitution as it was perfectly legal for different laws to impose different sentences; that there had been
no violation of Article 13 of the Constitution as it was not a case of double jeopardy ; that there had been
no violation of Article 25 as the exclusion of remission was not discriminatory as the ATA dealt with
heinous offenses against society whereas the NAO where Section 10(d) of the NAO had been struck
down as being discriminatory only dealt with financial crimes which were not heinous crimes which
were intended to frighten and intimidate society whereas offenses under the ATA were heinous crimes
the intention of which was to frighten and intimidate society and ordinary citizens whether men , women
or children and as such the ATA was not on the same footing as the NAO and was a distinct statute
which had a different objective to the NAO and as such the two could not be compared for purposes of
discrimination under Article 25 of the Constitution in terms of whether remission should be allowed or
not and as such since there had been no violation of any of the Articles of the Constitution Section 21F
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ATA should remain in the field and the petitions be dismissed. In support of his contentions he placed
reliance on Nazar Hussain's case (PLD 2010 SC 1021).
19. We have heard the arguments of the learned counsel for the parties, gone through the record and
have considered the relevant law including that cited at the bar with their able assistance.
The trichotomy powers.
20. Our Constitution is based on the trichotomy of powers shared between the legislature, the
excutive and the judiciary each of whom has its distinct and separate role to play in our system of
governance and each of which is supposed to act as a check and balance on the other organs of state
operating within its own defined sphere of power as provided in the law and the Constitution.
21. Within the trichotomy of powers it is the role of the legislature to make laws and the role of the
judiciary to interpret those laws if such interpretation is necessary. It is well settled law that if a statute
has expressly provided for something without any ambiguity then there is no question of the courts
interpreting the same as the legislative intent is clear and the Act/Ordinance must be given effect to
unless it is deemed to be contrary to the constitution. The judiciary's role of interpretation of the statute
only arises when the statute is to a certain extent either unclear or ambiguous or is prima facie in
violation of the Constitution and in such cases it is for the judiciary to interpret that piece of legislation
by trying to ascertain the intent of Parliament in passing that legislation. The Courts have absolutely no
authority or power to substitute their views for those intended by the legislature simply because they
may disapprove of a particular law and the way in which that law is being applied.
22. In this respect reliance is placed on the case of Justice Khurshid Anwar Bhinder v. Federation of
Pakistan (2010 PLD SC 483.P.493) whereby a larger Bench of the Supreme Court held as follows:
"A fundamental principle of Constitutional construction has always been to give effect to the intent of
the framers of the organic law and of the people adopting it. The pole star in the construction of a
Constitution is the intention of its makers and adopters. When the language of the statute is not
only plain but admits of but one meaning the task of interpretation can hardly be said to arise. It
is not allowable to interpret what has no need of interpretation. Such language beside declares,
without more, the intention of the law givers and is decisive on it. The rule of construction is "to
intend the Legislature to have meant what they have actually expressed". It matters not, in such a
case, what the consequences may be. Therefore if the meaning of the language used in a statute is
unambiguous and is in accord with justice and convenience, the courts cannot busy themselves
with supposed intentions, however admirable the same may be because, in that event they would
be travelling beyond their province and legislating for themselves. But if the context of the
provision itself shows that the meaning intended was somewhat less than the words plainly seem
to mean then the court must interpret that language in accordance with the indication of the
intention of the Legislature so plainly given. The first and primary rule of construction is that the
intention of the Legislature must be found in the words used by the Legislature itself. If the
words used are capable of one construction only then it would not be open to the court to adopt
any other hypothetical construction on the ground that such hypothetical construction is more
consistent with the alleged object and policy of the Act." (bold added)
23. Section 21F of the ATA is set out as under:
" 21F. Remissions.- (1) Notwithstanding anything contained in any law or prison rules for the time
being in force, no remission in any sentence shall be allowed to a person, who is convicted and
sentenced for any offence under this Act,
Provided that in case of a child convicted and sentenced for an offence under this Act, on satisfaction
of government, may be granted remission, as deemed appropriate" (bold added).
24. In our view the wording used in Section 21F of the ATA on a plain reading is absolutely clear and
requires no interpretation by the courts. Namely, that that the legislature intended that no remission
would be applicable to persons convicted for offenses under the ATA. The legislature would have known
the effect of such a section and would have provided it in the ATA after much thought and consideration
especially as it was added by way of an amendment to the ATA four years after the ATA was
promulgated by Ordinance No.XXXIX of 2001 dated 15.08.2001. The fact that the amendment was

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made four years after the promulgation of the ATA in our view suggests that the legislature after
debating the issue must have had good reasons for inserting Section 21F into the ATA since as a general
rule the legislature does not pass legislation or amend existing legislation for the sake of it. In most such
cases new legislation and proposed amendments to existing legislation before being passed into law by
the legislature are very often sent for discussion and debate before the concerned standing parliamentary
committee in this case , law, for debate and considering the reasons, pros and cons for passing new
legislation or amending existing legislation. Perhaps in this case a rise in terrorist acts in Pakistan from
1997 up to 15.08.2001 when S.21F was incorporated in the ATA prompted the legislature to make this
amendment for deterrent purposes. Whether or not the denial of remission is harsh for convicts under the
ATA is not for us to pass judgment on as this issue lies within the domain of the legislature which as we
discussed above would have had in its wisdom its own reasons, aims and objectives in inserting Section
21F in the ATA in 2001.lt is also significant to note that despite the insertion of Section 21F in the ATA
over 18 years ago none of the three successive democratically elected legislatures have deemed it fit to
remove Section 21F from the ATA which is an indication that successive legislatures are satisfied that
Section 21F is justified in ATA case.
25. We would, at this stage, like to make it clear that in our view policy and the purpose behind
sentences which the legislature deems appropriate for certain offenses under the law whether
reformative/deterrent/punitive or otherwise and the time convicts spend in jail on their conviction as
provided under the law for a certain offense is outside our domain to consider/determine as judges. This
is for the legislature to consider and decide upon in its wisdom being the chosen representatives of the
people as a matter of policy. Whether we agree or disagree with this policy as judges whose role is to
interpret law or test its constitutionality is outside our domain. If the legislature is of the view that the
people whom it represents no longer agree with its policy to deny remissions to persons convicted under
the ATA then it has the ability to repeal Section 21F ATA. We, as judges since the language of Section
21F is clear and unambiguous are only concerned with the issue whether Section 21F ATA is in violation
of the Constitution or not.
26. As such most of the authorities cited by the petitioners which concern the rationale of allowing
remissions are of little, if any, assistance to them. Likewise the authorities cited by the petitioners
concerning the release of a convict on parole/license or probation prior to the expiration of his sentence
since such release on parole/license or probation is specifically permitted under the relevant legislation
dealing with the same unlike remission under the ATA which is specifically excluded under the ATA.
27. The ATA is a special law and it is well settled by now that it will take preference over a general
law and even other special laws such as the Prison Act since the ATA has been passed later in time with
the legislature being well aware of the system of remissions provided in the Prison Rules and yet
deliberately chose to exclude them by specific intent by inserting Section 21F into the ATA. Section 21F
as noted above also contains a non obstante clause which specifically states that," Notwithstanding
anything contained in any law or prison rules for the time being in force .."and as such will also override
the sections in The Pakistan Prison Rules (Jail Manual) under section 59 of the Prisons Act 1894 in so
far as they relate to remission.
28. In our view, therefore, the only question that needs to be answered in this case is whether Section
21F ATA as contended by the petitioners is in contravention/violation of the Constitution and in
particular Articles 4, 12, 13 and 25 as would justify the aforesaid section being struck down by this
court.
29. We have already set out Section 21F and since the petitioners have contended that the aforesaid
provision is in violation of Articles 4, 12, 13 and 25 of the Constitution we by way of assistance set out
Articles 4, 12, 13 and 25 of the Constitution below and shall consider the petitioner's arguments in
respect of the same.
The Article 4 of the Constitution Argument.
30. Article 4 of the Constitution reads as under;
"4. Right of individuals to be dealt with in accordance with law, etc.
(1) To enjoy the protection of law and to be treated in accordance with law is the inalienable right of
every citizen, wherever he may be, and of every other person for the time being within Pakistan.
(2) In particular -
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(a) no action detrimental to the life, liberty, body, reputation or property of any person shall be taken
except in accordance with law;
(b) no person shall be prevented from or be hindered in doing that which is not prohibited by law; and
(c) no person shall be compelled to do that which the law does not require him to do."
31. We do not consider Article 4 to be of particular relevance to these petitions on a stand alone basis
as in our view Section 21F ATA is in accordance with law, no person is prevented from or being
hindered in doing that which is not prohibited by law and nor does it compel any person to do something
which the law does not require. In short every one convicted under the ATA will be dealt in the same
way in accordance with the law as provided in the ATA including Section 21F and as such Section 21F is
not in violation of Article 4 of the Constitution.
The Article 12 of the Constitution Argument.
32. Article 12 of the Constitution reads as under;
"12. Protection against retrospective punishment.- (1) No law shall authorize the punishment of a
person -
(a) For an act or omission that was not punishable by law at the time of the act or omission; or
(b) for an offence by a penalty greater than, or of a kind different from, the penalty prescribed by law
for that offence at the time the offence was committed.
(2) Nothing in clause (1) or in Article 270 shall apply to any law making acts of abrogation or
subversion of a Constitution in force in Pakistan at any time since the twenty-third day of March,
one thousand nine hundred and fifty-six, an offence".
33. In our view Article 12 (b) is the only part of Article 12 which may be of some relevance. We are
of the view however, that Article 12(b) is meant to apply to situations where someone had committed a
crime and at the time of committing the crime the sentence was 5 years but after he committed the crime
the law is amended to enhance the sentence for that same crime to 7 years and as such under Article
12(b) it is ensured that the accused's maximum sentence on conviction is only 5 years which was the
only sentence which was available when he committed the crime and not 7 years which was the sentence
which was imposed for the same offense after he committed the crime which would prevent a blatant
unfairness befalling the accused and would shield him from such eventuality. In our view Article 12(b)
has no relevance in cases where a person is given a sentence prescribed under the law at the time when
he commits the offense and whether remission is available or not under the statute for the offense which
he committed. As such we do not find Section 21F ATA to be in violation of Article 12 of the
Constitution
The Article 13 of the Constitution argument.
34. Article 13 of the Constitution reads as under;
Article 13. Protection against double punishment and self-incrimination. - No person -
(a) shall be prosecuted or punished for the same offence more than once; or
(b) shall, when accused of an offence, be compelled to be a witness against himself.
35. In our view we find this argument to be without substance. A plain reading of Article 13 of the
Constitution clearly shows that it only (a) excludes prosecution and punishment for the same offense
more than once and (b) excludes self incrimination. Article 13 has in our view nothing to do with
remissions. This is because under the ATA the accused on conviction for an offense under the ATA is
only sentenced/ punished as provided for under the law. The act of refusing him remission in our view
does not amount to him being punished for the same offense more than once. He is only punished for
one offense and the question of availability of remissions is governed by the law and is a matter of
concession not as of right. Similarly the issue of self incrimination is not relevant to the issue in hand.
36. The fact that a convict can be given a higher sentence if convicted under the ATA for a similar
offense committed under the P.P.C. is in our view fully justified by the heinousness of the offense
namely terrorism and the additional mens rea/other aspects of the offense which need to be proved. For
example, in a simple murder case under Section 302 P.P.C. the actus reus and mens rea will need to be
proved. In some cases the murder is on account of enmity or disputes over property or other grievances
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between two parties. This cannot be equated with an offense the motivation, design and intention of
which is to cause terror to the public and destabilize state institutions and governments which elevates
the offense to a different level. It is perhaps this distinction being the sheer heinousness of the crime
which is motivated to terrorize the general public that has led to the legislature deliberately and
consciously excluding remission as a deterrent.
The Article 25 of the Constitution Argument.
37. Article 25 of the Constitution reads as under:
25. Equality of citizens. - (1) All citizens are equal before law and are entitled to equal protection of
law.
(2) There shall be no discrimination on the basis of sex [**]
(3) Nothing in this Article shall prevent the State from making any special provision for the
protection of women and children.
38. We note that learned counsel for the petitioners in respect of their arguments in respect of Article
25 have relied on the cases of Hammad Abbasi (Supra) and Muhammad alias Khuda Bakhsh (Supra)
decided by the Lahore High Court and Balochistan High Court respectively which both struck down
Section 21F ATA on account of it being in violation of Article 25 of the Constitution. The case of
Hammad Abbasi (Supra) however was set aside and remanded back to the Lahore High Court for a fresh
decision by the Supreme Court in the case of Superintendent Central Jail Adyala v. Hammad Abbasi
(PLD 2013 SC 223) since the law officers had not been put on notice to assist the court under Order
XXVII-A R.1 C.P.C. which was a mandatory requirement of the law when the constitutionality of any
provision of a Statute is under challenge and thus it is no longer in the field and so far as we are aware
has yet to be decided a fresh. The case of Muhammad alias Khuda Bakhsh (Supra) decided by the
Balochistan High Court in 2018 relied on the case of Hammad Abbasi (Supra) which was no longer in
the field and the case of Saleem Raza (Supra) which concerned a 3 member Bench of the Sindh High
Court holding as unconstitutional Section 10 (d) of the NAO which also did not permit remissions to
persons convicted under the NAO on account Section 10(d) NAO being in violation of Article 25 of the
Constitution which decision reached finality and was in effect upheld by the Supreme Court in the case
of Mazhar Iftikhar (Supra) on the same reasoning namely that the exclusion of remissions for persons
convicted under Section 10(d) NAO was in violation of Article 25 of the Constitution and was as such
struck down.
39. It would appear that a brief analysis of these cases tends to show that the case of Hamniad Abbasi
(Supra) although remanded by the Supreme Court for re-hearing tended to rely upon Saleem Raza's
(Supra) whereby Section 10(d) NAO which excluded remissions to persons convicted under the NAO
was found in violation of Article 25 of the Constitution without a particularly in depth analysis of how
the Court reached this decision in Saleem Raza's case (Supra) as upheld by the Supreme Court in Nazar
Hussain's case (Supra).Likewise the decision of the Balochistan High Court in the case of Muhammad
alias Khuda Bakhsh (Supra) which also relied upon the case of Hammad Abbasi" (Supra)
40. Thus, for all intents and purposes we need to carefully consider both the cases of Saleem Raza
(Supra) and Nazar Hiissain (Supra) to see if we can find any judicial guidance in terms of whether
Section 21F ATA is in violation of Article 25 of the Constitution as was found to be the case in respect
of Section 10(d) NAO which also excluded remissions for those persons convicted under the NAO.
41. The law regarding discrimination under Article 25 of the Constitution is settled and was well set
out in the classic case of I.A. Sherwani (Supra) which held as under:
---Art 25(1)---All citizens are equal before law and entitled to equal protection of law---State,
however, is not prohibited to treat its citizens on the basis of a reasonable classification-
Reasonable classification-Basis or criterion for classification as to avert violation of Art. 25(I).
Clause (1) of Article 25 of the Constitution of Pakistan (1973) enshrines the basic concept of religion
of Islam. However, this is now known as the golden principle of modern Jurisprudence, which
enjoins that all citizens are equal before law and are entitled to equal protection of law (p. 1081)
Following are the principles with regard to equal protection of law and reasonableness of
classification:

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(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 reason for it, but a classification which is arbitrary and is not founded on any
rational basis is no classification as to warrant 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;
(b) that the differentia must have rational nexus to the object sought to be achieved by such
classification (p. 1086)
Principles as to classification are as under-
(a) A law may be constitutional even though it relates to a single individual if, on account of some
special circumstances, or reasons applicable to him and not applicable to others, that single
individual may be treated as a class by himself.
(b) There is always a presumption in favour of the constitutionally of an enactment and the burden is
upon him who attacks it to show that there has been a clear transgression of the constitutional
principles. The person, therefore, who pleads that Article 25, has been violated, must make out
that not only has he been treated differently from others but he has been so treated from persons
similarly circumstanced without any reasonable basis and such differential treatment has been
unjustifiably made. However, it is extremely hazardous to decide the question of the
constitutional validity of a provision on the basis of the supposed existence of facts by raising a
presumption. Presumptions are resorted to when the matter does not admit of direct proof or
when there is some practical difficulty to produce evidence to prove a particular fact;
(c) it must be presumed that the Legislature understands and correctly appreciates the needs of its
own people, that its laws are directed to problems made manifest by experience, and that its
discriminations are based on adequate grounds;
(d) the legislature is free to recognize the degrees of harm and may confine its restriction to those
cases where the need is deemed to be the clearest;
(e) in order to sustain the presumption of constitutionality, the Court may take into consideration
matters of common knowledge, matters of common report, the history of the times and may
assume every state of facts which can be conceived existing at the time of legislation;
(f) while good faith and knowledge of the existing conditions on
the part of the Legislature are to be presumed, if there is nothing on the face of the law or the
surrounding circumstances brought to the notice of the Court on which the classification may
reasonably be regarded as based, the presumption of the constitutionality cannot be carried to the
extent of always holding that there must be some undisclosed and unknown reasons for
subjecting certain individuals or corporations to hostile or discriminating legislation;
(g) a classification need not be scientifically perfect or logically complete;

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(h) the validity of a rule has to be judged by assessing its overall effect and not by picking up
exceptional cases. What the Court has to see is whether the classification made is just one taking
all aspects into consideration (p. 1086) (bold added)
42. Sherwani's case (Supra) has remained good law ever since and was followed in the cases of
Government of Balochistan v. Azzizullah Memon (PLD 1993 SC 341) and more recently by a full bench
of the Hon'ble Supreme Court in the case of Dr. Mubashir Hasan v. Federation of Pakistan (PLD 2010
SC 265).
43.Indeed it was the interpretation of I.A. Sherwani's case (Supra) vis a vis Article 25 of the
Constitution which laid the foundation for Section 10(d) of the NAO being found to be in violation of
Article 25 of the Constitution and led to that provision being struck down in Saleem Raza's case (Supra).
44. In our view one of the key elements in determining discrimination so as to lead to a violation of
Article 25 of the Constitution as set out in Sherwani's case (Supra) are the following principles which
have already been reproduced above but for ready reference are again set out below;
Following are the principles with regard to equal protection of law and reasonableness of
classification.
(viii) 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;
(b) that the differentia must have rational nexus to the object sought to be achieved by such
classification (p. 1086) (bold added)
Principles as to classification are as under:-
(c) There is always a presumption in favour of the constitutionally of an enactment and the burden is
upon him who attacks it to show that there has been a clear transgression of the constitutional
principles. The person, therefore, who pleads that Article 25, has been violated, must make out
that not only has he been treated differently from others but he has been so treated from persons
similarly circumstanced without any reasonable basis and such differential treatment has been
unjustifiable made. However, it is extremely hazardous to decide the question of the
constitutional validity of a provision on the basis of the supposed existence of facts by raising a
presumption. Presumptions are resorted to when the matter does not admit of direct proof or
when there is some practical difficulty to produce evidence to prove a particular fact;
(bold added)
45. According to these principles Section 21F ATA has a presumption of constitutionality and the
burden lies on the petitioners to prove otherwise. Now if we apply these principles to Section 10(d)
NAO which excluded remissions to those persons who were convicted under the NAO as was discussed
in the case of Saleem Raza (Supra) it becomes apparent why Section 10(d) NAO fell foul of these
principles. In short, this was because in Pakistan there are a number of laws dealing with corruption like
the NAO. For example, the Prevention of Corruption Act (II) 1947, certain sections of the P.P.C.,
Offenses in Respect of Banks (Special Courts) Ordinance 1984, Provincial ACE etc. Now it is quite
possible that similar offenses of corruption as contained in the NAO can be tried under these other
Acts/Ordinances dealing with corruption instead of under the NAO. The upshot of this is that a person
convicted under say, the Prevention of Corruption Act (II) 1947 for a similar offense which exists under
the NAO and is subject to a similar sentence would be entitled to remission whereas a person convicted
under the NAO for the similar offense having the similar sentence will not be entitled to remission.
Thus, it was apparent that persons who had been convicted of similar offenses of corruption but under
different law's dealing with corruption would be treated differently in terms of whether or not they were
entitled to remission. Thus, by the insertion of Section 10(d) in the NAO whereby person's tried under
that law were excluded from benefiting from remission and whilst those tried under other laws dealing
with corruption in respect of similar offenses for which they received similar sentences under the NAO
and were entitled to remission made an unreasonable classification since in respect of offenses under
various corruption laws there was no intelligible differentia which distinguishes persons or things that
are grouped together from those who have been left out. Hence Section 10(d) NAO was rightly held to
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be discriminatory and in violation of Article 25 of the Constitution based on the principles laid down in
Sherwani's case (Supra) because in all cases the persons were tried under different corruption laws but in
some cases remission was allowable and not in other cases. The common feature is that all the accused
were tried under different corruption laws for similar offenses but which each had a different legal
consequence in respect of entitlement to remission.
46. In the case of Saleem Raza (Supra) which was largely based on Sherwani's case (Supra) regarding
discrimination in terms of Article 25 of the Constitution the court at P.152 Para 15 summarized the
position as under:
"This brings us to the principles governing the provisions pertaining to fundamental rights guaranteed
under Article 25 of the Constitution relating to the equal protection of law. This Article enjoins
that all citizens are equal before law and are entitled to equal protection of law, i.e., all persons
subjected to law should be treated alike under all circumstances and conditions both in privileges
conferred and in the liabilities imposed. It must be amongst equals. The equality has to be
between persons who are placed in the same set of circumstances. The guarantee of equal
protection of the law requires that all persons shall be treated alike, under like circumstances and
conditions. The Phrase "equal protection of law" envisaged by Article 25 of the Constitution
means that no person or class of persons would be denied the same protection of law which is
enjoyed by persons or other class of persons in like circumstances in respect of their life, liberty,
property or pursuit of happiness. Persons similarly situated or in similar circumstances are to be
treated in the same manner. In the application of these principles, however, it has always been
recognized that classification of persons or things is in no way repugnant to the equality doctrine,
provided, the classification is not arbitrary or capricious, is natural and reasonable and bears a
fair and substantial relation to the object of legislation. It means that two sets of similar
circumstances shall not have different legal effects unless there is a difference of circumstances
and the difference between the two sets is material enough to support the discrimination." (bold
added)
47. Likewise in summarizing the relevant case law the Supreme Court in the case of Government of
Balochistan v. Azzizullah Memon (PLD 1993 SC 341) whilst summarizing both the Pakistani and Indian
law on this point agreed with/approved the above summarization referred to in Sherwani's case (Supra)
and Saleem Raza's case (Supra) in the following terms at P.359
"As the judgments from Indian jurisdiction have been considered in the aforestated judgments of this
Court, we would not refer to them here. In all these authorities there seems to be unanimity of
view that although class legislation has been forbidden, it permits reasonable classification for
the purpose of legislation. 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 bear a
relationship 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. lf 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."
48. This conclusion was in essence reached by the court in Saleem Raza's case (Supra) at P.169 Paras
27 and 37 in the following terms:
"27. As in respect of public servants found involved in corruption or criminal misconduct, the
offences punishable under sections 218 and 219 P.P.C., which are ordinarily triable by the Courts
specified in the Second Schedule to the Criminal Procedure Code are also triable by NAB Court.
The punishment and the nature of offence are still same. Similarly the offences punishable under
Sections 468, 471, 472, 477-A P.P.C. are triable ordinarily by the Court specified in Second
Schedule to Criminal Procedure Code, in appropriate cases by Special Courts under the offences
in Respect of Banks (Special Courts) Ordinance, 1984 and Special Judges appointed under
Pakistan Criminal Law Amendment Act 1958, as well as by the NAB Court by virtue of schedule

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10(b) of the NAB Ordinance. The nature of offences are same and the punishments provided are
also the same. The special rules of evidence contained in NAB Ordinance, Prevention of
Corruption Act 1947, Pakistan Criminal Law Amendment Act 1958 and Offences in Respect of
Banks (Special Courts) Ordinance, 1984, also similar. However, merely on account of change of
forum one set of convicts under the same class not convicted by Accountability Court shall be
entitled to remission and thus shall serve out their sentence, much earlier than the other set of
convicts in the same category or class convicted by the Accountability Court. Result is too
obvious that there is no intelligible differentia, distinguishing one group of persons from other
group of persons and thus, there is no reasonable classification permissible for such purpose.
Merely on the basis of change of forum the classification cannot be held to be permissible as
reasonable because such classification shall not be based on any real and substantial distinction."
(bold added)
"37. The entire discussion above, leads to the conclusion that section 10(d) of the NAB Ordinance
denying remission to the NAB convicts has the effect of enhancing the punishment awarded to
the NAB convicts and further is discriminatory as it is not based on any reasonable and rational
classification. It is arbitrary in nature and as argued by the learned D.A.G. is merely based on the
basis of the forum of trial is a reasonable and rational classification based on intelligible
differentia. The denial of remission to NAB convicts under section 10(d) of the NAB Ordinance
has no nexus with the object of the legislation and consequently, we hold that it is violative of
and repugnant to the provisions contained in Articles 12 and 25 of the Constitution. We are of the
considered opinion that such provision of law is not permissible and cannot be saved being
patently violative of the fundamental right guaranteed in the Constitution."(bold added)
49. Interestingly in Saleem Raza's case (Supra) at P.171 Para 32 the Court stated as under in respect
of no remissions being permissible under Section 21F ATA when dealing with the exclusion of
remissions under the NAO.
"We would not like to make any observation in respect of this provision for the reason that the
possibility of assailing the above provision before any Superior Court, cannot be ruled out and
any observation made by us in this judgment may adversely affect any subsequent proceedings.
However, we would like to observe that merely because a similar provision is contained in the
Anti-Terrorism Act, 1997, it will not provide any justification for upholding the provision under
challenge. 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 on its own merits with reference to the particular law under consideration." (bold
added)
50. So having considered the rationale as to why Section 10(d) NAO excluding remissions was
declared unconstitutional under Article 25 of the Constitution keeping in view Sherwani's case (Supra),
Azizullah Memon's case (Supra), Saleem Raza's case (Supra) and Mazhar lftikhar's case (Supra). Let us
now turn specifically to the ATA which deals as its name implies with acts of terrorism.
51. S.6 of the ATA defines "terrorism" in the following terms:
"6. Terrorism- (1) In this Act, "terrorism" means the use or threat of action where:
(a) the action falls within the meaning of subsection (2);
and
(b) the use or threat is designed to coerce and intimidate or overawe the Government or the public or
a section of the public or community or sect or a foreign government or population or an
international organization or create a sense of fear or insecurity in society; or
(c) the use or threat is made for the purpose of advancing a religious, sectarian or ethnic cause or
intimidating and terrorizing the public, social sectors, media persons, business community or
attacking the civilians including damaging property by ransacking, looting, arson or by any other
means, government officials, installations, security forces or law enforcement agencies:
Provided that nothing herein contained shall apply to a democratic and religious rally or a peaceful
demonstration in accordance with law.

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(2) An "action" shall fall within the meaning of sub-section (1), if it:
(a) involves the doing of anything that causes death;
(b) involves grievous violence against a person or grievous bodily injury or harm to a person;
(c) involves grievous damage to property including government premises, official installations,
schools, hospitals, offices or any other public or private property including damaging property by
ransacking, looting or arson or by any other means;
(d) involves the doing of anything that is likely to cause death or endangers a person's life;
(e) involves kidnapping for ransom, hostage-taking or hijacking;
(ee) involves use of explosives by any device including bomb blast or having any explosive
substance without any lawful justification or having been unlawfully concerned with such
explosive;
(f) involves hatred and contempt on religious, sectarian or ethnic basis to stir up violence or cause
internal disturbance;
(g) involves taking the law in own hand, award of any punishment by an organization, individual or
group whatsoever, not recognized by the law, with a view to coerce, intimidate or terrorize
public, individuals, groups, communities, government officials and institutions, including law
enforcement agencies beyond the purview of the law of the land;
(h) involves firing on religious congregations, mosques, imambargahs, churches, temples and all other
places of worship, or random firing to spread panic, or involves any forcible takeover of mosques
or other places of worship;
(i) creates a serious risk to safety of the public or a section of the pubic, or is designed to frighten the
general public and thereby prevent them from coming out and carrying on their lawful trade and
daily business, and disrupts civic life;
(j) involves the burning of vehicles or any other serious form of arson;
(k) involves extortion of money ("bhatta") or property;
(l) is designed to seriously interfere with or seriously disrupt a communication system or public utility
service;
(m) involves serious coercion or intimidation of a public servant in order to force him to discharge or
to refrain from discharging his lawful duties.
(n) involves serious violence against a member of the police force, armed forces, civil armed forces,
or a public servant.
(o) involves in acts as part of armed resistance by groups or individuals against law enforcement
agencies; or
(p) involves in dissemination, preaching ideas, teachings and beliefs as per own interpretation on FM
stations or through any other means of communication without explicit approval of the
government or its concerned departments.
(3) The use or threat of use of any action falling within sub-section (2), which involves the use of
firearms, explosives or any other weapon, is terrorism, whether or not subsection 1(C) is
satisfied.
(3A) Notwithstanding anything contained in subsection (1), an action in violation of a convention
specified in the Fifth Schedule shall be an act of terrorism under this Act.
(4) In this section "action" includes an act or a series of acts.
(5) In this Act, terrorism includes any act done for the benefit of a proscribed organization.
(6) A person who commits an offence under this section or any other provision of this Act, shall be
guilty of an act of terrorism.
(7) In this Act, a "terrorist" means:
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(a) An individual who has committed an offence of terrorism under this Act, and is or has been
concerned in the commission, preparation facilitation, funding or instigation of acts of terrorism;
(b) An individual who is or has been, whether before or after the coming into force of this Act,
concerned in the commission, preparation, facilitation, funding or instigation of acts of terrorism,
shall also be included in the meaning given in clause (a) above."
52. In our view there is only one law which deals with offenses of terrorism in Pakistan and that is the
ATA. As such unlike offenses of corruption where there are numerous laws dealing with offenses of
corruption it cannot be said that persons are treated differently in terms of remission if they are
convicted for offenses of terrorism since there is only one Act namely the ATA for which you can be
proceeded with if your offense meets the definition of terrorism. As such all persons who are convicted
of acts of terrorism in Pakistan are of the same class and are treated the same in terms of remission.
Namely, no remission is allowed to them and as such there is no question of any person who is convicted
for an act of terrorism under the ATA being treated any differently. As such the denial of remission under
the ATA is distinguishable from the facts and circumstances which lead to Section 10(d) NAO being
struck down where an accused could be tried under different corruption laws for the same offense and
receive the same sentence but be entitled to remission in all such cases unless he was convicted under
the NAO where no remission was applicable especially keeping in view that it was the sole discretion of
the Chairman NAB whether a case of corruption was to be proceeded with under the NAO and if not left
to be dealt with under other corruption related laws. In the case of offenses under the ATA no single
person has any discretion whether an offense is tried under the ATA or the ordinary law. The only issue
is whether as a matter of law based on the facts and circumstances of the particular cases the offense in
question falls within the purview/meets the ingredients of being an offense under the ATA. If it does then
the offense will proceed under the ATA whereas if it does not it will proceed under any other applicable
law
53. It is apparent from the definition of terrorism in Section 6 ATA as reproduced above that the
offenses mentioned in Section 6(2) also in some cases fall under other laws. However it is only when
such offenses have the additional requirement of design and intent as mentioned in Section 6(1)(b) and
(c) that they will fall within the purview of the ATA and will be decided by the ATC courts and as such,
although this point is not in issue in this case, this additional requirement in our view justifies the higher
sentence which may be awarded in such cases and also the denial of remission as an additional mens rea
is required which elevates the crime to one of the most heinous known to any civilized society whereby
innocent civilians being men, women and even young children are deliberately and intentionally targeted
with the intent to cause and spread terror within the State. The fact that there are two possible mens rea
required in terms of either 6(1)(b) or (c) we consider to be inconsequential.
54. The next issue, in our view, is whether to deny remission in terrorism cases falling under the ATA
is in violation of Article 25 of the Constitution having distinguished the case of Section 10(d) NAO
when for many other criminal offenses remission is allowed. Namely, that in order to make a
classification reasonable, it should be based on an intelligible differentia which distinguishes persons or
things that are grouped together from those who have been left out and (b) that the differentia must have
rational nexus to the object sought to be achieved by such classification (as per Sherwani's case (Supra)
and that such discrimination is not arbitrary
55. In this respect it is of assistance to consider apart from the Prison Rules (which are excluded from
the ATA in terms of remission) the policy on remissions.
56. This is found in the policy framed by the Government of Pakistan, Ministry of Interior in August
2009 in consonance with the judgment in the case of Shah Hussain v. State (PLD 2009 SC 460) whereby
a larger bench of the Hon'ble Supreme Court held that it was unconstitutional not to allow remissions to
under trial prisoners for the period they had spent in jail once they were convicted. For ease of reference
these guidelines are set out as under;
""MOST IMMEDIATE
No. D. 2792/2009-DS (Admn.)
Government of Pakistan Ministry of Interior
From: Islamabad, the August, 2009
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Mehir Malik Khattak,

Deputy Secretary (Law),
To:
The Registrar,
Supreme Court of Pakistan,
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, 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 Days.
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.
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 discretion.
Accordingly, the MOI in consultation with Law and 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, (bold added)
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 (Sec.10 Offence of Zina
(Enforcement of Hudood) Ordinance, 1979 (also under Sec. 377, P.P.C.), robbery (Sec. 394,
P.P.C.), dacoity (Sec. 395-396 P.P.C.), kidnapping/abduction (Section 364-A and 365-A), and
terrorist acts (as defined in the Anti-Terrorism (Second Amendment) Ordinance, 1999 (No. XIII
of 1999). (bold added).
ii. Special remission for 45 days to all other convicts except the condemned prisoners and also except
those convicted of 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 P.P.C.),
kidnapping/abduction (Sec. 364-A and 365-A); robbery (Sec. 394, P.P.C.), dacoity (Sec. 395-396,
P.P.C.), and those undergoing sentences under the Foreigners Act, 1946.(bold added)
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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, P.P.C.) robbery (Sec.
394, P.P.C.), dacoity (Sections 395-396, P.P.C.), kidnapping/abduction (Secs. 364-A and 365-A)
and anti-State activities.(bold added)
viii. Those convicted in cases processed by NAB will not be entitled to any remission. (NB as already
noted in this judgment this (sub-clause (viii) is no longer applicable having been struck down by
the Hon'ble Supreme Court)
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.
Yours faithfully,
(Mehir Malik Khattak)
Deputy Secretary
Tele:9203851"
57. Whether this policy is in violation of Article 25 of the Constitution in terms of Sherwan's case
(Supra) has in our view been answered by the Hon'ble Supreme Court in the case of Nazar Hussain
(Supra) at P.1037 Para's 25 and 26 which are set out below for ease of reference.
"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 insofar
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 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-State
activities, sectarianism, Zina (Sec. 10 Offence of Zina (Enforcement of Hudood) Ordinance,1979
(also under Sec. 377, P.P.C.), robbery (Sec. 394, P.P.C.), dacoity (Sec. 395-396, P.P.C.),
kidnapping/ abduction (Sec.364-A and 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 ;(bold added)
Sr.No. Class of prisoners Reason
/convicts excluded
1. Murder It is a heinous offence
2. 3. Espionage,) Anti-State) Rule 214-A of the Prisons Rules mandates as follows:

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Activities) 214.A.-No person who is convicted for espionage or

anti-State activities shall be entitled to ordinary or
special remission unless otherwise directed by the
Provincial Government.
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 (bold added).
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 sections 375 and
376 in P.P.C. It 's a heinous offence.
6. Dacoity (See 395- 396, These are heinous offences.
P.P.C. Kidnapping
abduction
7. 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
his Act. (bold added)
26. The afore-referred chart indicates that the policy of remissions under consideration is neither
arbitrary nor 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".(bold
added)"
58. The above policy remains in force as of today without any alterations or additions.
59. We are in full agreement with the, above findings of the Hon'ble Supreme Court in the case of
Nazar Hussain (Supra) in finding that Section 21F ATA does not violate Article 25 of the Constitution.
60. It may be recalled that even in Sherwani's case (Supra) it laid down the following principles with
regard to equal protection of law and reasonableness of classification at (iii):
(i)
(ii)
(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;
61. It is clear that in denying remissions to a certain category of offenses these are regarded as
heinous or as acts against the state. There can be no doubt, in our view, that acts of terrorism are heinous
offenses as indicated by the preamble to the ATA which reads as under:
"ACT NO.XXVII OF 1997
An Act to provide for the prevention of terrorism, sectarian
violence and for speedy trial of heinous offences;
Whereas it is expedient to provide for the prevention of terrorism sectarian violence and for speedy trial
of heinous offences and for matters connected therewith and incidental thereto;"
62. In Saleem Raza's case (Supra) it was also noted that another test for permissible classification is
that the differentia must have rational nexus to the object sought to be achieved by such classification at
P.170 Para 30 in the following terms;
"30. Another test for permissible classification is that the differentia must have rational nexus to the
object sought to be achieved by such classification. For this purpose the object of the law creating
differentia is to be examined. As rightly stated by the learned D.P.G.A. the object and purpose of
enacting NAB Ordinance is not to keep the accused persons in custody for longer periods but the
main purpose is to recover the outstanding amounts and State money misappropriated by the
persons prosecuted. The entire scheme of plea bargain, power to freeze the property, holding the
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transfer of property void, voluntary return, constitution of Conciliation Committees for payment
of loans, reference of the cases to the Governor State Bank of Pakistan and prior approval of
State Bank, are directed in this behalf. The Hon'ble Supreme Court while examining various
provisions of the NAB Ordinance in the case of Khan Asfandyar Wali v. Federation of Pakistan
PLD 2001 SC 607, held that one of the purpose and object of the law was to recover the ill-gotten
money. This object of the law has no nexus with the classification pleaded by the learned D.A.G.
under section 10(d) of the NAB Ordinance."
63. Thus, there is no doubt in our minds that the denial of remission in cases under ATA is in
conformity with the object and purposes of the ATA which Preamble was set out earlier and which is to
give no concession to those persons who commit heinous offenses which strike at the very foundations
of the State. A reading of the ATA in its totality shows that in effect its primary objective is punitive and
to act as a deterrent to those who commit heinous crimes as opposed to the NAO which although penal
in nature its primary object is the recovery of looted money of the State which is illustrated by the novel
provisions of voluntary return and plea bargain which are found in the NAO where the accused can be
released if in effect he returns the looted money which provisions still apply after conviction for an
offense under the NAO which facilitates accused/convicts early release on that basis. Perhaps to a
certain extent this legislation is reformative since usually a voluntary return and a plea bargain is only
allowed in addition to the return of the plundered money if the accused/convict admits his guilt and
under-takes not to engage in criminal activities in the future.
64. The fact that offenses of terrorism are heinous is also shown by the fact that they require a
specific/special intent in addition to the usual elements of a criminal offense being the actus reus and
mens rea. Before an act can fall within the purview of the ATA not only do you have to have committed
the actus reus and have the mens rea for the offense under Section 6(2) but you also need to have the
additional intent under Section 6(1)(b) and (c) as under;
(a) "the use or threat is designed to coerce and intimidate or overawe the Government or the public or
a section of the public or community or sect or a foreign government or population or an
international organization or create a sense of fear or insecurity in society; or
(b) the use or threat is made for the purpose of advancing a religious, sectarian or ethnic cause or
intimidating and terrorizing the public, social sectors, media persons, business community or
attacking the civilians including damaging property by ransacking, looting, arson or by any other
means, government officials, installations, security forces or law enforcement agencies" (bold
added)
65. In essence offenses of terrorism through barbarous/heinous acts have the design and intent in
effect of destabilizing the State which offenses are of the most heinous nature at the national level of any
nation state.
66. As discussed earlier it is this requirement of special/specific intent in addition to the usual actus
reus and mens rea of murder which leads to the crime of crimes known as genocide. Murdering a large
number of people will not amount to the offense of genocide (although it may amount to extermination
or mass murder) unless any of the following acts are committed with intent to destroy, in whole or in
part, a national, ethnical, racial or religious group, as such: (a) Killing members of the group; (b)
Causing serious bodily or mental harm to members of the group; (c) Deliberately inflicting on the group
conditions of life calculated to bring about its physical destruction in whole or in part; (d) Imposing
measures intended to prevent births within the group; (e) Forcibly transferring children of the group to
another group. (Article II Convention on the Prevention and Punishment of the Crime of Genocide
Approved and proposed for signature and ratification or accession by General Assembly resolution 260
A (III) of 9 December 1948 Entry into force: 12 January 1951, in accordance with Article XIII))
67. Such criminal offenses which in addition to the usual requirement of actus reus and mens rea also
require specific/special intent (as with offenses under the ATA) are usually confined to the most heinous
of crimes such as terrorism and genocide since there is a need to provide an additional specific/special
intent which is usually of a very heinous nature and such acts are often carried out with the
specific/special intent of destabilizing a State or trying to eliminate a certain class of people and as such
legislatures in their wisdom may want to impose the highest, penalties and restrictions on the
perpetrators of such acts as a deterrent to others.

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68. Even in Saleem Raza's case (Supra) which was approved by the Supreme Court in Mazhar
lftikhar's case (Supra) it accepted that certain offenses for which remission had been excluded were
based on a reasonable classification based on intelligible differentia was available based on the nature of
the offense such as Karo Kari, Siah Kari or similar other customs and practices, Espionage and other
Anti State Activities even if in some of these cases remission can be granted with the permission of the
Federal or Provincial Government.
69. We are further fortified in our view that the heinousness of the offense under the ATA is based on
an intelligible differentia which is permissible by considering some Indian case law on this point.
70. In the case of State of Haryana and another v. Jai Singh dated 17-02-2003 (SC India):(Indian
Kanoon http:/indiakanoon. org/doc/ 1841133/ where the Indian Supreme Court also considered whether
denying remission for those convicted for heinous crimes was discriminatory and violated Articles 14
and 21 of the Indian Constitution (similar to Articles 4 and 25 of our constitution) it was held as under;
"We will first take up for consideration the argument accepted by the High Court in the impugned
judgment that the impugned classification is arbitrary, unreasonable and violate of Article 14 of
the Constitution. While considering the challenge based on Article 14 as to the arbitrariness in
the impugned classification, the court has to examine whether the impugned classification
satisfied certain constitutional mandates or not. They are (i) that the classification must be
founded on an intelligible differentia which distinguishes persons or things that are grouped
together from others left out of the group; (ii) that the differentia must have a rational relationship
with the objects sought to be achieved by the Act. (See Kathi Raning Rawat v. The State of
Saurashtra (1952 SCR 435]).
In the instant case, the State Government under the impugned notification granted the benefit of
remission to all convicts except those excluded in the said notification. Though the notification in
question does not give any specific reason for exclusion of such convicts, from the pleadings of
the State Government, it is clear that this exclusion was done based on the nature of offence
committed by the said convicts and taking into consideration the effect of such offence on the
society as also the integrity of the State. The question then is whether such classification of
convicts based on the nature of offence committed by them, would be an arbitrary classification
having no nexus with the object of the Code.
The answer to the said question, in our opinion, should be in the negative This Court in a catena of
decisions has recognized that the gravity of an offence and the quantum of sentence prescribed in
the Code could be a reasonable basis for a classification. This Court in State of Haryana and
others v. Mohinder Singh etc. (2000 (3) SCC 394) held "Prisoners have no absolute right for
remission or special remission shall not apply to a prisoner convicted of a particular offence can
certainly be a relevant consideration for the State Government not to exercise power of remission
in that case." (emphasis supplied) In Maru etc. etc. v. Union of India and another (1981 (1) SCR
1196), THIS Court while repelling an argument of discrimination in regard to the sentence to be
imposed in murder cases, held:
"The logic is lucid although its wisdom, in the light of penological thought, is open to doubt. We have
earlier stated the parameters of judicial restraint and, as at present advised, we are not satisfied
that the classification is based on an irrational differentia unrelated to the punitive end of social
defence. Suffice it to say here, the classification, if due respect to Parliament's choice is given
cannot be castigated as a capricious enough to attract the lethal consequence of Art. 13 read with
Art. 14."
In Sunil Batra v. Delhi Administration and others (AIR 1978 SC 1675), this Court upheld the validity
of a classification based on the gravity of the offence.
From the above observations of this Court, it is clear that the gravity of the offence can form the basis
of a valid classification if the object of such classification is to grant or not to grant remission.
Having come to the conclusion that the gravity of the offence can be the basis for a valid
classification, we will not consider whether the offences excluded from the impugned notification
can be said to be such offences which have been wrongly excluded from the benefit of remission.
We notice that the convicts who have been excluded from the benefit of said notification, are
those convicts who have been sentenced for offences of rape, dowry death, abduction and murder

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of a child below 14 years, offences coming under Sections 121 to 130 IPC, dacoity, robbery, etc.
These are the offences for which the Code has prescribed the sentence of rigorous imprisonment
extending upto life, therefore, from the very nature of the sentence which the offence entails, the
said offences can be categorized as grave offences, therefore, they can be aptly classified as grave
offences, which classification will be a valid classification for the purpose of deciding whether
the persons who have committed such offences should be granted remission or not. On this basis,
we are of the opinion that the State Government having decided not to grant remission to these
offenders/offences which carry life imprisonment, should not be granted remission, is justified in
doing so.
Similarly, the offences under the NDPS and the TADA Acts, apart from carrying heavy penal
sentences are offences which could be termed as offences having serious adverse effect on the
society, cognizance of which is required to be taken by the State while granting remission,
therefore, they can also be classified as offences which should be kept out of the purview of
remission". (bold added)
71. TADA is the Terrorist and Disruptive Activities (Prevention) Act which remained in force in India
from 1985 to 1995 to deal with a particular internal insurgency and rising terrorism and even some of its
provisions were regarded as draconian and contrary to human rights and the NDPS is the Narcotic Drugs
and Substances Act 1985 under Indian law which Statutes were respectively enacted to prevent terrorism
and dealings in narcotic substances in India like the ATA and the Control of Narcotic Substances Act,
1997 in Pakistan
72. In the Indian case of Jameel Ahmed v. State of Rajasthan and others dated 01-01-2007): (Indian
Kanoon - http//indiakanoon. org/doe/ 1264082/ before the Rajasthan High Court it was held as under
when dealing with the withholding of remission to certain categories of convicts;
"Remission and parole are not vested rights of the prisoners. In fact, they are privileges granted by the
State to the convicted prisoners. Therefore, a convicted prisoner cannot claim these two
privileges as their vested rights. Jurisprudentially, there is a difference between right and
privilege. Rights are classified under two categories of either being a fundamental right under the
Constitution, or a statutory right granted by a Statute. On the other hand, a privilege is granted by
the State under certain conditions and privilege by their very nature can equally be taken away by
the State. Whereas rights are universal in nature, privileges can be given to certain specific
groups and need not necessarily be universal in its application. Remission and parole are part of
the reformative theory of punishment. Since they are privileges granted by the State, it is not
necessary that all the convicted prisoners must have the privilege extended to them. Certain
categories of prisoners can be refused these privileges. In case the refusal is based on intelligent
differentia and has a nexus to the object of the Rules, the refusal is not violative or Article 14 of
the Constitution of India. Since a privilege can be denied under the law, it is procedure
established by law, therefore, such a denial would not be violative of Article 21 of the
Constitution of India. Undoubtedly, the freedom of movement is cribbed, cabined and confined
by the very act of imprisoning a prisoner. Therefore, the personal liberty is curtailed by judicial
order under a procedure established by law. It is a policy decision of the State to decide the
category of prisoners who are entitled to the privilege of remission and parole and those who are
disentitled for such a privilege. Considering the fact that TADA was a law enacted for the
purpose of controlling the terrorist activities in India, considering the fact that terrorist activities
shake the very foundation of the nation, considering the fact that such activities are an attack on
the integrity and unity of the nation, considering the fact that such activities entail the killing of
innocent women and children, considering the fact that such activities post a serious threat to the
survival of the nation as a whole, the State has rightly deprived prisoners convicted under TADA
of the privilege of remission and parole and Open Camp. Those who conspire and threaten the
nation do not deserve any mercy from the law or from the State". (bold added)
73. It also notably observed that the Government of Punjab had
excluded remission in Narcotics related cases in the following terms at P.172 Para 36 in Saleem
Raza's case (Supra) as under;
"Again in this provision there is a reasonable and rational classification specifying a class of persons
and still leaving the discretion with Federal or the Provincial Government and competent
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authority. A similar provision has been inserted by the Punjab Government through Rule 214-A
of the Prison Rules. The Punjab Government has deprived all the convicted persons for special
remission or on premature release on parole if they are sentenced for drug/narcotics offences vide
Home Department letter No.14/1/93/MP, dated 27.1.1993. In this case also a classification has
been made which is based on intelligible differentia. The remission has not been denied on
account of mere forum of trial but on account of commission of offences pertaining to drugs and
narcotics." (bold added)
74. Even in Sherwani's case (Supra) when dealing with principles regarding equal protection and
reasonableness of classification it was noted at (iii) that different laws can validly be enacted for person's
accused of heinous crimes.
75. We would also like to observe that the legislature in considering
the kind of law which it needs to pass in order to deter such offenses like terrorism also needs to
consider the current environment prevailing in the country which was again emphasized in Sherwani's
case (Supra) when enunciating Principles as to classification at (c), (d) and (e) as set out below for ease
of reference:.
(a) ..
(b) ..
(c) it must be presumed that the Legislature understands and correctly appreciates the needs of its
own people, that its laws are directed to problems made manifest by experience, and that its
discriminations are based on adequate grounds;
(d) the legislature is free to recognize the degrees of harm and may confine its restriction to those
cases where the need is deemed to be the clearest;
(e) in order to sustain the presumption of constitutionality, the Court may take into consideration
matters of common knowledge, matters of common report, the history of the times and may
assume every state of facts which can be conceived existing at the time of legislation;
76. Pakistan unlike many other countries in recent times has been grappling with the problem of
internal terrorism with deliberate design and intent is to adversely effect the stability of the State through
acts which undermine the government and its institutions and create fear and insecurity in the minds of
the general public and as such it is the duty of Parliament to respond to such situations by passing the
appropriate legislation in order to protect the State and its citizens which it has done by passing the ATA.
In recent times in order to attempt to combat this menace of terrorism the legislature by a two thirds
majority even amended the constitution for a limited period to allow certain so called black terrorism
cases to be tried by military courts. As mentioned earlier in this judgment Parliament being elected by
the people and therefore reflecting the will of the people can promulgate any legislation, with any
sentences and restrictions, which it deems necessary/ appropriate and the courts will only interfere with
the same by way of interpretation if the legislative intent is unclear or if such legislation or parts thereof
are in violation of the Constitution which approach is in conformity with the sovereignty of Parliament
and the doctrine of the trichotomy of powers on which our constitution is based in a Parliamentary
democracy.
77. We have also deliberately avoided considering too many rules regarding remission in most other
countries since in our view each country through its duly elected legislative body passes such laws as are
relevant to its own particular environment and circumstances pertaining in that country. As such we have
confined ourselves to the Indian sub-continent which has also grappled with the menace of terrorism and
is a similar environment to ours to some extent in terms of social and economic development. For
example, in some countries which face a lesser threat from terrorism and a lesser threat to their internal
stability on account of terrorism at this point in time not only might their Anti-Terrorism laws be much
less stringent than the provisions in the ATA but they may also provide lesser penalties, remission etc. It
is for each country to respond to its own particular challenges and pass effective laws in respect of such
challenges through its own legislatures. Our role in this case as alluded to earlier in this judgment was
only to consider whether under the Pakistani ATA 1997 the exclusion of remission was in violation of
Articles 4, 12, 13 and 25 of the Constitution
78. In answering this question for the reasons and discussion mentioned above we find that Section
21F ATA 1997 does not violate Articles 4, 12, 13 or 25 or any other Article of the Constitution and as
such we uphold Section 21F ATA with the result that the petitions stand dismissed.

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79. Before parting with this judgment however we would like to emphasize that since remissions are
not applicable in cases under the ATA which concern heinous offenses having a special object and intent
aimed at destabilizing the State and its institutions and cowering it citizens through instilling in them a
sense of fear and insecurity the Anti Terrorism Courts must exercise great care and caution in
determining whether the cases before them fall under the ATA based on the requirements of Section 6
and in the absence of the ingredients of Section 6(1)(b) and (c) being made out amount to cases to be
tried under the ordinary criminal law. Without belaboring the point we set out once again below Section
6(1)(b) and (c) ATA which are a pre condition which needs to be satisfied before Section 6 ATA might
be attracted by virtue of the offenses set out in Section 6(2) ATA:
6. Terrorism- (1) In this Act, "terrorism" means the use or threat of action where:
(a) the action falls within the meaning of subsection (2);
and
(b) the use or threat is designed to coerce and intimidate or overawe the Government or the public or
a section of the public or community or sect or a foreign government or population or an
international organization or create a sense of fear or insecurity in society; or
(c) the use or threat is made for the purpose of advancing a religious, sectarian or ethnic cause or
intimidating and terrorizing the public, social sectors, media persons, business community or
attacking the civilians including damaging property by ransacking, looting, arson or by any other
means, government officials, installations, security forces or law enforcement agencies. (bold
added)
Provided that nothing herein contained shall apply to a democratic and religious rally or a peaceful
demonstration in accordance with law".
80. We would also like to place on record our appreciation of all the learned counsel who have
appeared before us in these petitions and provided us with their most valuable assistance.
81. These petitions stand disposed of in the above terms.
MH/J-17/Sindh Order accordingly.
;

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