Muhammad Arshad Khanm vs The State through AG KP

Judgment Sheet

IN THE PESHAWAR HIGH COURT,

PESHAWAR

(Judicial Department)

Writ Petition No. 8159-P/2025.

Date of hearings: 14.05.2026 & 21.05.2026.

Date of announcement. 18.06.2026.

M/s. Fawad Afzal Khan Safi, Amjad Ali Afridi, Amjad Noor Khan, and Ms. Farhana Marwat, advocates, for the petitioner(s).

M/s. Sana Ullah, Assistant Attorney General, Mr. Inam ullah Khan Yousafzai, Addl. Advocate General, Aamir Hayat & Atta Muhammad, Law Officers, Central Prison, Peshawar.

Mr. Shumail Ahmad Butt, advocate, Amicus Curiae.

JUDGMENT

SAHIBZADA ASADULLAH, J.- The institution of remission is neither a mere manifestation of executive grace nor a concession deriving legitimacy solely from statutory prescription. Its origins are deeply embedded in the gradual evolution of criminal jurisprudence itself. Historically, punishment was conceived as an instrument of retribution, exacting from the offender a measure of suffering proportionate to the wrong committed. As constitutional governance matured, however, and as concepts of human dignity, fundamental rights, and modern penology gained prominence, the philosophy

of punishment underwent a profound transformation. Criminal justice systems increasingly came to recognize that the purposes of punishment extend beyond retaliation and deterrence, embracing as well the objectives of correction, rehabilitation, and eventual reintegration of the offender into society. It was within this jurisprudential transition that remission, parole, probation, earned-conduct credits, and other reformative mechanisms acquired their contemporary significance.

Modern penology no longer proceeds upon the assumption that prisons exist merely to isolate offenders or inflict hardship. Rather, incarceration is viewed as a process through which society seeks, wherever reasonably possible, to reclaim those who have transgressed its laws. The recognition that imprisonment ought not to become an exercise in perpetual despair inevitably gave rise to institutional mechanisms capable of encouraging personal reform. Remission thus emerged as a structured incentive through which discipline, educational attainment, vocational development, productive labour, and sustained good conduct could be acknowledged and rewarded. Its rationale is neither sentimental nor indulgent. It rests upon the practical and deeply human realization that reform is more effectively cultivated through

the preservation of hope than through its extinction.

At the center of this philosophy lies the enduring principle that a prisoner, though lawfully deprived of liberty, does not cease to be a human being. Conviction may curtail freedom, but it does not extinguish dignity. Modern constitutional jurisprudence rejects the notion that incarceration strips an individual of all constitutional protection or moral worth. The prisoner remains entitled to humane treatment, protection against arbitrariness, and an opportunity to demonstrate genuine rehabilitation. Experience has repeatedly shown that systems founded exclusively upon deprivation frequently breed resentment, alienation, and institutional indiscipline, whereas systems preserving a regulated prospect of advancement tend to encourage responsibility, self-improvement, and lawful conduct. Remission therefore serves not merely an administrative function but reflects a broader constitutional commitment to the belief that human character is capable of transformation.

The development of prison law across modern jurisdictions substantially reflects these principles. Although the mechanisms vary in form and operation, legal systems throughout the civilized world have generally accepted that remission, parole, sentence

reduction, supervised release, and analogous measures constitute important components of correctional administration. In Pakistan, remission is regulated through prison rules, executive policies, and constitutional powers vested in the State. Ordinary, special, and earned remissions are linked with good conduct, prison discipline, labour, educational achievement, and other indicators of constructive engagement. Similar philosophies are discernible in India, where remission, though not an indefeasible right, remains subject to fair consideration under established legal principles, and where courts have consistently emphasized that incarceration cannot be reduced to a mechanical process divorced from the possibility of reform. Comparable approaches are reflected within the United Kingdom and the United States, where parole systems, earned-time credits, supervised release frameworks, and rehabilitative programs seek to encourage behavioral improvement, maintain institutional discipline, and facilitate successful reintegration into society.

This comparative experience reveals a striking degree of consensus. Contemporary correctional systems increasingly incorporate educational opportunities, vocational training, psychological counselling, labour programs, and structured rehabilitation initiatives. These

measures are designed not merely to occupy prisoners during confinement but to prepare them for eventual re-entry into society as responsible and law-abiding citizens. The same philosophy finds expression in the United Nations Standard Minimum Rules for the Treatment of Prisoners, 2015, (Nelson Mandela Rules), which affirm that all prisoners retain their inherent dignity and that prison administration should be directed towards their successful reintegration into society. The underlying premise is both simple and profound: imprisonment may lawfully restrict liberty, but it ought not extinguish the possibility of rehabilitation.

Comparative jurisprudence equally demonstrates that no modern legal system regards remission as an absolute entitlement available irrespective of the nature of the offence or the demands of public safety. States unquestionably possess a legitimate interest in imposing stricter standards where crimes involve terrorism, espionage, organized criminal enterprises, narcotics trafficking, or other conduct producing exceptional societal harm. Considerations of deterrence, public protection, and the gravity of the offence may justify heightened scrutiny, delayed eligibility, or carefully regulated restrictions upon remission and premature release.

The more difficult question arises when such restrictions assume the form of an absolute and inflexible embargo. Modern correctional philosophy increasingly recognizes that if a prisoner is informed from the outset that no degree of repentance, educational accomplishment, vocational advancement, institutional discipline, or demonstrable transformation can ever affect his future, the very incentive structure upon which rehabilitation depends may gradually erode. The concern is not that every prisoner must inevitably obtain remission. Rather, it is that the complete extinction of every prospect of review may undermine the mechanisms through which reform is ordinarily encouraged and sustained. It is against this broader constitutional and jurisprudential backdrop that the present controversy must be examined.

1. FACTS OF THE PETITIONS

1.1 Before us there is two sets of petitions: the first set of petitions includes the present petitions as well as connected W.P. No. 7472-P of 2025, 1874-P, 1334-P, 2205-P, & 2206-P of 2026; while the second set of petitions includes W.P. No. 7632-P & 4399-P of 2025 and 4505-P of 2026. Through this consolidated judgment all these petitions shall be disposed of as common questions of law and facts are involved therein.

First Set of Petitions

1.2 In the first set of petitions, the petitioners are convicted prisoners sentenced under Section 9 of the Control of Narcotics Substances Act, 1997 (CNSA 1997), and they are serving their sentences in different prisons of the province. They have earned different type of remissions from time to time, such as Presidential remissions under Article 45 of the Constitution of Islamic Republic of Pakistan, 1973 (Constitution) and, labor, educational and other remissions within the contemplation of the Prisons Act, 1894 (Prison Act) and the Prison Rules, 1978 (Prison Rules). However, through the amendment in CNSA 1997 through Act No. XX of 2022 known as the Control of Narcotic Substances (Amendment) Act, 2022 (Amendment Act) vide which Section 9(A)(1) was inserted (impugned provisions), which has retrospectively taken away the remissions earned by the petitioners. They have challenged the withholding of remissions by the respondents as unconstitutional, discriminatory and against the spirit of Articles 4, 9, 10, 11, 14, 15 & 25 of the Constitution.

Second Set of Petitions

1.3 The petitioners in the second set of petitions are convicted prisoners and sentenced under section 9 of the CNSA 1997,

and serving their sentences in different prisons of the province. They challenge the vires of section 9(A)(1) of CNSA 1997 being unconstitutional, discriminatory, and in contravention of the spirit of Articles 4 and 25 of the Constitution. They assert that the newly introduced impugned provisions of CNSA 1997 is against the constitutional scheme of remissions. Moreover, the petitioner alleges that since they have earned remissions under the relevant law, therefore, vested rights have been created in their favor, which cannot be taken away retrospectively through the impugned provisions. Any action in pursuance of the impugned provisions is detrimental to their liberty guaranteed under Article 12 of the Constitution.

2. QUESTIONS FOR DETERMINATION

2.1 We have heard the arguments and perused the record with valuable assistance of learned counsels for the parties, as well as learned amicus curiae appointed vide order dated 14.04.2026, who besides oral submissions at length also submitted detail written synopsis addressing the points framed by this Court.

2.2 The core issues which arises for determination in all these petitions are: (i) whether the remissions already earned by the petitioners have crystalized into vested rights

which cannot be taken away retrospectively? and (ii) whether section 9(A)(1) of CNSA 1997 is ultra vires the constitution?

3. REMISSIONS: A VESTED RIGHT OR

EXECUTIVE GRACE?

3.1 The determination of whether remission constitutes a vested right or a mere executive grace requires a nuanced understanding of the source of the remission and the stage of its realization. As established in the preceding jurisprudential overview, the philosophy of modern penology has shifted from pure retribution to a reformative model. In this context, the nature of remission must be viewed through the lens of constitutional guarantees and statutory frameworks.

3.2 At the apex of the remission hierarchy lies the power vested in the President under Article 45 of the Constitution. This power is a manifestation of sovereign clemency, described by the Supreme Court in Nazar Hussain Vs. State (PLD 2010 SC 1021) as a constitutional power “not subject to any limitations or conditions that may be found in the Pakistan Penal Code or the Code of Criminal Procedure.” While the initial grant of such remission is an act of grace, and thus an “administrative facility” in its inception, but once the President exercises this power, it becomes a binding constitutional mandate. It is

not a concession that the prison authorities or the legislature can subsequently rescind through subordinate legislation, as it is intended to “afford relief against undue harshness... or miscarriage in the judicial process,” as noted by the Supreme Court in Bhai Khan v. The State (PLD 1992 SC 14).

3.3 The remission system in Pakistan is a structured reformative framework primarily governed by the Prisons Act, and the Prison Rules. Born from a 1976 multi- provincial consensus to ensure uniformity, these Rules, specifically Chapter 8, institutionalize the transition from retributive to corrective penology. Under Rule 199, the system operates as a dynamic incentive structure where prisoners “become eligible” for sentence reduction through sustained good conduct and industry. This framework categorizes remissions into ordinary (Rules 200–204), special remissions (Rule 214 & 216), and educational remissions (Rule 215) credits. While Rule 140 imposes a substantive floor for life convicts, requiring 15 years of actual custody before reference to the government, the broader rules create a predictable pathway for release. Although initially viewed as a mere administrative “concession,” a critical legal transformation occurs the moment a prisoner fulfills the requisite conditions. Once labor is performed

or an educational milestone is achieved and recorded on the prisoner’s history ticket, these credits cease to be mere possibilities. As affirmed in Raza-Ur-Rehman vs. Government of Sindh (PLD 2007 Sindh 186), earned remissions “are as of right.” By investing effort and discipline in reliance on this statutory promise, the prisoner’s expectation crystallizes into a vested interest in their residual liberty.

3.4 To distinguish between a mere executive grace and a vested right, one must examine the mechanism through which the legal interest is acquired. Under the law, a vested right is created when a person has performed all the conditions required by a statute to entitle them to a specific benefit, such that the right is no longer contingent but has become an accrued and fixed interest. Reference may be made to Mian Raft-ud-Din v. The Chief Settlement and Rehabilitation Commissioner (PLD 1971 SC 252) & Commissioner Inland Revenue and others v. Mekotex (Pvt.) Limited and others (PLD 2024 SC 1168). In the latter case of Mekotex (supra), the Hon’ble Supreme Court articulated the concept of vested right as below:

“14. As for vested rights, the legal position is also well settled. A right vests when all the facts required by law to establish that right have occurred. In other words, when all the facts necessary to create a right have occurred, the right is

said to be “vested”. A right remains inchoate and contingent when some, but not all, of the investitive facts have occurred. A “vested right” is, therefore, one that is absolute, complete and unconditional, with no obstacles to its exercise. It is immediate and perfect in itself, not dependent upon any contingency.19 Vested right are thus free from contingencies, but ordinarily there are always specific occasions and circumstances under which such vested rights may be exercised.”

In the specific context of the Prison Rules, the state issues a standing statutory promise: if a prisoner engages in certain commendable acts, such as passing an educational examination, donating blood, or maintaining exemplary discipline, a corresponding reduction in their term of confinement shall follow.

3.5 When a prisoner acts in direct reliance on these rules and fulfills the prescribed requirements, the benefit is “earned” and recorded on their history ticket. At this juncture, the transaction becomes “past and closed,” and the state’s power of receding, known as locus poenitentiae, is extinguished. The Peshawar High Court Full Bench in Farid Khan v. The State (PLD 1965 Pesh 31) long ago established that once a right has accrued to a prisoner through the fulfillment of remission requirements, their further detention beyond the recalculated release date cannot be legalized or extended by a subsequent order. The Lahore High Court in M. Aslam Mouvia

v. Home Secretary (PLD 2011 Lahore 323) held that “remissions are granted under special circumstances and are in fact earned by the convict on the basis of some acts specified in Rules 214 and 215” therefore, such remissions are “in the nature of earning and cannot be withdrawn arbitrarily unless provided in the relevant law.”

3.6 We, therefore, hold that remissions already earned by a prisoner are not acts of executive grace or indulgence; they are statutory earnings that crystallize into vested rights. To view them otherwise would be to allow the state to confiscate an accrued reward after the prisoner has irrevocably performed the act required to earn it.

4. RETROSPECTIVITY AND THE LIMITS

OF LEGISLATIVE INTERVENTION

4.1 The question then arises whether a subsequent legislative amendment, such as Section 9(A)(1) of the CNSA 1997, can reach back in time to strip away these vested rights. The “acid test” as held in E.M. Oil Mills (supra) for the retrospective application of any statute is legislative intent, and the settled rule of construction is that every statute is deemed prospective unless the legislature employs express words or necessary implication to the contrary. This is particularly true for laws that impair existing rights or impose new

obligations. It is equally true that legislature enjoy the privilege to enact laws retrospectively, and even vested right can be taken away. However, it must be done through express provisions or by necessary implications. As noted by the Supreme Court in Mekotex (supra) a “...legislature that is competent to make a law on a particular subject also has the power to legislate such a law with retrospective effect and can, by legislative fiat, even take away vested rights or affect past and closed transactions.” Reference may be made to a plethora of authorities in Shahbaz v. Crown (PLD 1956 FC 46); Nagina Silk Mill v. Income Tax Officer (PLD 1963 SC 322); State v. Maulvi Muhammad Jamil (PLD 1965 SC 681); Adnan Afzal v. Capt. Sher Afzal (PLD 1969 SC 187); Commissioner Income Tax v. Kruddsons (PLD 1974 SC 180); Hassan and others v. Fancy Foundation (PLD 1975 SC 1); Molasses Trading v. Federation of Pakistan (1993 SCMR 1905); Anoud Power Generation v. Federation of Pakistan (PLD 2001 SC 340); Commissioner Sindh Employees v. E.M. Oil Mills (2002 SCMR 39); Pakistan Steel Mills Corp. v. Muhammad Azam Katpar (2002 SCMR 1023); Haji Abdul Ali v. Haji Bismillah (PLD 2005 SC 163); Govt. of Pakistan v. Village Development Organization (2005 SCMR

492); Abdul Malik v. The State (PLD 2006 SC 365); Shah Hussain v. The State (PLD 2009 SC 460) & Nazar Hussain v. The State (PLD 2010 SC 1021). All these authorities establish the principle that statutes and executive notifications are presumed to be prospective and cannot be applied retroactively to destroy vested rights or unsettle “past and closed transactions” unless there is an express legislative mandate. This “acid test” of legislative intent ensures that the law in force at the commencement of an action governs the proceedings, protecting substantive rights, including the entitlement to earn remissions within the correctional system from being impaired by subsequent legal changes once a decisive step has been taken (locus poenitentiae).

4.2 Upon a meticulous review of Section 9(A)(1), we find that it contains no language suggesting a retrospective mandate. On the contrary, the Amendment Act in Section 1(2) specifies that it “shall come into force at once,” a classic legal formula signifying prospective operation. The Worthy Lahore High Court, while giving its finding on Section 21F of the Anti-Terrorism Act, 1997 a pari materia provision of Section 9(A)(1) CNSA 1997 in the case of M. Aslam Mouvia (supra), noted:

“20. [...] Certain rights had already accrued in favour of the petitioner by way of his entitlement to the benefit of remissions in accordance with law in the field at the relevant time i.e. the time that the alleged offence was committed, F.I.R. was registered against him, he was arrested and his trial commenced. Any subsequent changes in law would not have the effect of depriving him of the rights which were available to him at the time when the offence was committed and the trial commenced. In addition, there is nothing in section 21-F of ATA to indicate even remotely that it has retrospective operation or that it has the effect of taking away the rights that were available to certain convicts under the prevalent law when the offence was committed, the F.I.R. was registered or the trial commenced. Looked at from this point of view, the provisions of section 21- F are prospective in nature and, therefore, cannot take away or affect the rights which were available to the petitioner at the relevant time.”

The above legal position clarifies that a prisoner’s entitlement to the law in the field attaches at various “temporal anchors,” including the date the offense was committed, the registration of the FIR, and the date of arrest. Any change in law subsequent to these anchors cannot be permitted to deprive a convict of rights available at the commencement of their contact with the justice system. In the same vein, the Worthy Sindh High Court in the case of Abdul Qadir Tawakkal v. The State (PLD 2013 Sindh 481), while examining the scope of Section 10(d) of the National Accountability Ordinance, 1999, another pari materia provision of section 9(A)(1) CNSA 1997, observed as follow:

“8. In the instant case too, the trial of the appellant commenced before the insertion of section 10(d) of Ordinance, 1999 and the appellant's right by way of his entitlement to the benefit of remission in accordance with the prevailing law had already accrued. Consequently, subsequent changes in law unless shows a clear intention to vary such rights, in our view would not have the effect of depriving the appellant of the rights which were available to him at the time when the offence was committed and trial commenced.

9.Perusal of section 10(d) of the Ordinance, 1999 does not even remotely suggest that it has retrospective operation and or that it has the effect of taking away the rights that were available to a person on-the date when the crime is registered or the trial commences. The provisions being prospective in nature, therefore, the embargo placed by section 10(d) on the remission of a person convicted by the Accountability Court under Ordinance, 1999 would have no application to the cases where the trial has commenced before the introduction of said provisions and, therefore, the rights of such person are to be decided on the basis of law prevailing at the relevant time.”

The above case law confirms that in the absence of a “clear intention” to the contrary, legislative amendments cannot reach back to impair rights that attached when the legal process was initiated. The Court while referring to the law laid down in Muhammad Rafi ud Din (PLD 1971 SC 252) and Hassan (PLD 1975 SC 1) also noted that “...where a law was altered during pendency of an action, the rights of the parties are to be decided according to the law as it existed when the action was initiated and not under the law prevailing on the date of judgment.” This

unequivocally establishes that an amendment cannot destroy or take away vested rights, which has attained finality and has become past and closed transaction.

4.3 Furthermore, the retrospective withdrawal of remissions constitutes a direct and grave violation of Article 12(1)(b) of the Constitution, which provides an absolute shield against the imposition of a penalty greater than that prescribed by law at the time of the commission of the offense. It is a fallacy to view remissions as external to the sentencing process; in practical reality, they are an integral and inseparable component of the penalty structure. When a prisoner commits an offense, they do so under a legal regime where the “penalty” is not merely the nominal years pronounced by a judge, but the actual duration of custody as mitigated by the statutory remission system. As held by the Full Bench of the Sindh High Court in Saleem Raza v. The State (PLD 2007 Karachi 139), a reasoning later endorsed by a seven-member bench of the Supreme Court in Nazar Hussain v. The State (PLD 2010 SC 1021), the denial of remissions to those already serving sentences effectively enhances the sentence and results in a longer period of incarceration than was legally authorized at the time of the offense. Such a retroactive alteration of the penal consequences offends the very spirit of

justice and the fundamental rights of the subject, as it allows the State to reach back in time to increase the burden of punishment after the fact. The ratio laid down in Saleem Raza (supra) and Nazar Hussain (supra) was subsequently affirmed in Mazhar Iftikhar v. Shahbaz Latif (PLD 2015 SC 1).

4.4 In matters concerning the liberty of the subject, the Courts are mandated to act as the ultimate guardians of constitutional guarantees. This Court is firmly bound by the Larger Bench decision in Gul Zameen v. Government of Khyber Pakhtunkhwa (PLD 2021 Peshawar 68), which was specifically constituted to provide a definitive resolution on these questions. The Larger Bench, invoking the established “Re Athlumney” principle laid down in re Athlumney [1898] 2 QB 547, 551-55, held that penal laws or statutes curtailing existing rights must be construed with a heavy presumption against retrospectivity. Unless the legislature employs language that “imperatively and clearly” requires a retrospective application, the law must operate prospectively to avoid doing violence to the language of the enactment and the rights of the citizens. Most crucially, Gul Zameen (supra) established a “liberty- preferring canon” of construction: when interpreting punitive laws, Courts must strive to find an interpretation that favors the liberty

of the individual rather than its curtailment, unless the statute explicitly directs otherwise (para 31).

4.5 Applying these binding principles, we determine with absolute clarity that Section 9(A)(1) CNSA has no retrospective effect. The provision contains no express mandate to reach into the past; instead, its commencement clause stating it shall “come into force at once” is the classic legislative hallmark of prospective operation. Therefore, the bar on remissions cannot reach any prisoner whose rights attached at any of the recognized “temporal anchors” the commission of the offense, the registration of the FIR, the arrest, or the commencement of trial, prior to the amendment’s enactment on September 5, 2022. To allow Section 9(A)(1) to extend the incarceration of those who have already fulfilled the statutory requirements for their release would be to sanction detention without lawful authority, a result that this Court, in the exercise of its constitutional duty, cannot and will not permit.

4.6 Accordingly, issue no. (i) is decided in affirmative.

5. CONSTITUTIONALITY AND THE LIMITS

OF LEGISLATIVE WISDOM

5.1 The journey to determine the constitutional validity of a statute begins with

a fundamental, yet rebuttable, presumption in favor of its constitutionality. This Court is strictly guided by the definitive rules articulated by the Supreme Court in Lahore Development Authority v. Ms. Imrana Tiwana (2015 SCMR 1739), which mandate a high threshold for judicial intervention:

I. There is a presumption in favour of constitutionality and a law must not be declared unconstitutional unless the statute is placed next to the Constitution and no way can be found in reconciling the two;

II. Where more than one interpretation is possible, one of which would make the law valid and the other void, the Court must prefer the interpretation which favours validity; III. A statute must never be declared unconstitutional unless its invalidity is beyond reasonable doubt. A reasonable doubt must be resolved in favour of the statute being valid;

IV. If a case can be decided on other or narrower grounds, the Court will abstain from deciding the constitutional question;

V. The Court will not decide a larger constitutional question than is necessary for the determination of the case;

VI. The Court will not declare a statute unconstitutional on the ground that it violates the spirit of the Constitution unless it also violates the letter of the Constitution;

VII. The Court is not concerned with the wisdom or prudence of the legislation but only with its constitutionality;

VIII. The Court will not strike down statutes on principles of republican or democratic government unless those principles are placed beyond legislative encroachment by the Constitution;

IX. Mala fides will not be attributed to the Legislature.

The above case law mandate that a law must not be declared unconstitutional unless the statute is placed next to the Constitution and no way can be found in reconciling the two. We remain mindful that the Legislature is presumed to correctly appreciate the needs of its people and that its laws are directed at manifest problems. However, this presumption is not a license for legislative overreach. The Constitution is a “living document” that must be interpreted to keep it alive and blossoming in every atmosphere. Reliance placed on Arshad Mehmood v. Government of Punjab (PLD 2005 SC 193); Sindh High Court Bar Association v. Federation of Pakistan (PLD 2009 SC 879) & Hamza Rasheed Khan v. Election Appellate Tribunal (PLD 2024 SC 1028). While legislative wisdom commands respect, constitutional adjudication requires an inquiry into whether the practical consequences of a law bear directly upon the unequal treatment of individuals within the criminal justice system.

5.2 Undoubtedly, legislative wisdom commands judicial respect, and courts must exercise restraint before questioning policy choices adopted by the legislature. Yet constitutional adjudication occasionally requires an inquiry into whether the practical

consequences of legislation have been evaluated with sufficient comprehensiveness, particularly where those consequences bear directly upon the treatment of individuals within the criminal justice system. Legislation, after all, is a human endeavour, and constitutional review exists precisely to ensure that statutory classifications remain consistent with the broader values of fairness, proportionality, equality, and rational governance. Reference may be made to Muhammad Nasir Mahmood v. Federation of Pakistan (PLD 2009 SC 107). In the matter of the liberty of the subject, it is the duty of the Courts to ensure that not only the letter of the law (litera legis) but also its spirit (sententia legis) is observed. When a statute such as Section 9(A)(1) of the CNSA 1997 targets a specific class for the deprivation of accrued statutory benefits, the Court must scrutinize the “acid test” of its classification under the canopy of Article 25.

5.3 Besides, the concern which engages our attention is neither speculative nor peripheral. By excluding convicts sentenced under the CNSA 1997 from the operation of remission-related benefits, the legislature has created a distinct category of prisoners whose relationship with the correctional framework materially differs from that of other inmates confined within the same institutions. It is

entirely conceivable that prisoners convicted for substantially similar narcotics offences, involving comparable substances and producing analogous societal harm, may remain incarcerated within the same correctional facility while being subjected to markedly different correctional regimes solely because their convictions arise under different legislative instruments. One category may continue to receive the benefit of incentives linked with discipline, labour, education, and rehabilitation, whereas the other remains subjected to an absolute exclusion.

5.4 The law cannot remain indifferent to the human consequences generated by its own operation. A prisoner who perceives himself permanently excluded from every reformative benefit may gradually cease to regard educational advancement, vocational development, institutional discipline, or personal transformation as meaningful pursuits. Once the perception takes root that reform carries no legal significance, the incentive-based structure upon which correctional administration depends risks substantial erosion. The resulting sense of hopelessness and alienation may ultimately undermine not only prison discipline but the broader objective of rehabilitation itself. The implications extend beyond the prison walls. Society possesses a substantial interest in the

success of the reformative process. The State does not merely punish offenders; it must also concern itself with the character of those whom it eventually returns to the community. A correctional system that neglects rehabilitation may succeed in exacting punishment, yet fail in preparing individuals for lawful and productive reintegration. The consequences of such failure are seldom confined to the prisoner alone; they are ultimately borne by society itself.

5.5 For these reasons, modern criminal jurisprudence has consistently sought to maintain a delicate equilibrium between deterrence and rehabilitation. The issue before us is therefore not whether remission constitutes an absolute right, nor whether stringent standards may legitimately be imposed in respect of grave offences. The true question is whether an absolute and unqualified exclusion of every reformative incentive remains compatible with the broader constitutional values of dignity, fairness, proportionality, equality, and rational governance which underlie a modern democratic legal order. These considerations require examination not solely through the lens of punishment, but through the wider perspectives of constitutionalism, correctional philosophy, and the long-term interests of society itself. For while the criminal law must

undoubtedly protect society from harm, it must also preserve, wherever reasonably possible, the prospect that those who have transgressed its commands may one day return as reformed individuals capable of living peacefully amongst their fellow citizens.

6. THE REFORMATIVE PHILOSOPHY

AND THE NELSON MANDELA RULES

6.1 To assess whether Section 9(A)(1) is constitutionally sustainable, we must first identify the “object” of the remission system it purports to override. Modern criminal jurisprudence consistently seeks to maintain a delicate equilibrium between deterrence and rehabilitation. The issue before the Court is not whether narcotics offences deserve stringent punishment (on that there is little disagreement) but whether the complete exclusion of remission-related benefits advances the objectives of criminal justice in their entirety. Thus, the law cannot remain indifferent to the human consequences generated by its own operation.

6.2 The seven-member bench of the Supreme Court in Nazar Hussain (supra) settled this purpose authoritatively, holding that the Remissions Rules are “primarily based on the reformative principle”. Reformation seeks to bring about a change in the offender's character so as to reclaim them as a useful

member of society. A correctional system that neglects rehabilitation may succeed in exacting punishment, yet fail in preparing individuals for lawful and productive reintegration. A prisoner who perceives himself permanently excluded from every reformative benefit may gradually cease to regard educational advancement, vocational development, institutional discipline, or personal transformation as meaningful pursuits. Once the perception takes root that reform carries no legal significance, the incentive-based structure upon which correctional administration depends risks substantial erosion. The resulting sense of hopelessness and alienation may ultimately undermine not only prison discipline but the broader objective of rehabilitation itself.

6.3 It is in this context that the Nelson Mandela Rules assume significance. Of particular significance is Rule 4, which acknowledges that the protection of society and the reduction of recidivism are most effectively achieved when the period of incarceration is utilized, so far as practicable, to facilitate the successful reintegration of prisoners into the community upon release. The Rule thus reflects a sophisticated understanding that public safety is not served merely by confinement, but by the cultivation of conditions capable of reducing future

criminality. To tell an entire class of prisoners that their efforts at self-improvement are legally worthless signifies a resolve by society to be “harsh and unforgiving,” negating the very idea of rewarding good conduct. The international community, in renaming these Rules in honour of Nelson Mandela, sought to affirm a universal truth: that the deprivation of liberty does not entail the forfeiture of humanity.

6.4 Comparative jurisprudence from India and the United Kingdom further reaffirms that correctional administration functions most effectively when punishment is accompanied by incentives for reform. The Indian framework, sharing a common legal heritage with Pakistan, has consistently sought to maintain an equilibrium between societal protection and reformative aspirations. In Joseph v. State of Kerala (2023 INSC 843), the Supreme Court of India condemned blanket exclusions from remission as arbitrary, holding that they turn the ideals of reformation “on their head” and leave long-term convicts feeling hopeless. The Court highlighted the importance of fairness and reasonableness in the exercise of executive discretion, noting that while the state does have discretion in matters of sentencing and remission, this discretion must be exercised judiciously and in a manner that is not arbitrary. The Court further noted

that the executive’s refusal to grant remission in such cases undermines the principles of justice and rehabilitation, which should guide decisions regarding premature release. The Supreme Court ordered the immediate release of the petitioner, emphasizing the need for a more humane and rehabilitative approach in the criminal justice system.

6.5 Similarly, in the United Kingdom, the Supreme Court in Osborn v. The Parole Board [2013 UKSC 61] held that the evaluation of a prisoner’s progress is not a perfunctory administrative exercise but a process intimately connected with fairness and rehabilitation. Decisions in R (Gourlay) v. Parole Board [2020 UKSC 50] and R (Pearce) v. Parole Board [2023 UKSC 13] demonstrate a recurring judicial insistence that the gravity of an offence does not absolve the State of its obligation to engage in reasoned, individualized assessment. This trajectory of modern penological thought is further illuminated by the recent judgment in In the matter of an application for Judicial Review by JR123 (Northern Ireland) [2025 UKSC 8] While the Court in that case acknowledged the State’s power to adopt “general measures” and “bright-line rules” for the sake of legal certainty, it simultaneously reaffirmed the “essence of modern correctional thought”: that punishment serves its highest purpose when it

is capable not merely of restraining misconduct but of fostering responsible citizenship. Crucially, the JR123 judgment reflects a broader constitutional recognition that society’s interests are best served through calibrated mechanisms that permit rehabilitation alongside safeguards for public protection. The Court noted, and the Northern Ireland Assembly is currently considering legislative amendments to move away from absolute, permanent bars toward a regime that allows for individualized risk assessments even for the most serious categories of offences. This shift shows a growing consensus that while the criminal law must protect society, it should not “permanently close the door” upon the possibility of future reassessment, as a sentence which extinguishes every meaningful possibility of review raises profound concerns regarding human dignity.

6.6 The European Court of Human Rights (ECHR) provided a seminal articulation of these principles in the landmark case of Vinter and Others v. the United Kingdom ([GC], nos. 66069/09, 130/10 and 3896/10, ECHR 2013). The Grand Chamber held that for a life sentence to remain compatible with the prohibition of inhuman and degrading treatment, it must be reducible de jure and de facto, meaning there must be both a “prospect of release” and a “possibility of review”. The

Court reasoned that it would be “capricious” to expect a prisoner to work toward their own rehabilitation without knowing whether a mechanism exists to eventually consider them for release based on that reform. At the very heart of this jurisprudence is the “right to hope,” a recognition that to deny a human being the possibility of atonement and change is to deny a fundamental aspect of their humanity.

6.7 This human-rights-based approach is further rooted in the logic of the England & Wales Court of Appeal’s decision in R v. Bieber [2009] 1 WLR 223, which was extensively analyzed and reproduced within the Vinter judgment. In Bieber, the Court authoritatively defined the constitutional boundaries of incarceration:

“40. The legitimate objects of imprisonment are punishment, deterrence, rehabilitation and protection of the public. Where a mandatory life sentence is imposed in respect of a crime, the possibility exists that all the objects of imprisonment may be achieved during the lifetime of the prisoner. He may have served a sufficient term to meet the requirements of punishment and deterrence and rehabilitation may have transformed him into a person who no longer poses any threat to a public. If, despite this, he will remain imprisoned for the rest of his life it is at least arguable that this is inhuman treatment.”

6.8 The Court in Bieber concluded that the “essential requirement” of any such

penal system is the “possibility of a review” to determine if further imprisonment remains justified. When these international standards are aligned with the present matter, the constitutional infirmity of Section 9(A)(1) of the CNSA 1997 becomes manifest. By imposing a blanket, irreducible bar on all remissions, the statute effectively “extinguishes hope at the threshold”. It creates a regime where, regardless of whether the objects of punishment and deterrence have been exhausted, and regardless of how thoroughly a prisoner has been transformed through education or conduct, the State remains “harsh and unforgiving’. Such a framework does not merely punish the crime; it negates the person, violating the enduring dignity of the human person protected under our Constitution.

7. THE DOCTRINE OF REASONABLE

CLASSIFICATION AND FORUM-BASED

DISCRIMINATION

7.1 Article 25 of the Constitution enshrines the golden principle that all citizens are equal before the law and entitled to equal protection. While the State is not prohibited from classifying citizens, such a classification must satisfy two rigorous tests to be deemed “reasonable”. As laid down in I.A. Sharwani v. Government of Pakistan (1991 SCMR 1041) (i) It must be founded on an intelligible

differentia which distinguishes persons or things that are grouped together from those who have been left out. (ii) That differentia must have a rational nexus to the object sought to be achieved by such classification. Moreover, the principles enunciated in Government of Balochistan v. Azizullah Memon (PLD 1993 SC 341), states that any classification which is arbitrary and is not founded on any rational basis is no classification at all and falls within the mischief of Article 25. A proper classification must always rest upon some difference and must bear a reasonable and just relation to the things in respect of which it is proposed. If a law clothes a statutory authority with unguided power to administer justice in a discriminatory manner, it violates the equality clause.

7.2 The core constitutional infirmity of Section 9(A)(1) lies in its creation of an arbitrary distinction based solely on the forum of trial or the identity of the legislative instrument. We find an identical scenario in the Full Bench decision of Saleem Raza (supra) (PLD 2007 Karachi 139), which struck down Section 10(d) of the NAB Ordinance, a provision materially identical to the one before us. In Saleem Raza, the court observed that for the commission of the same offense (corruption), a convict under the NAB Ordinance was denied remissions, while a

convict under the Prevention of Corruption Act, 1947, retained them. The Worthy Court held:

“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 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, Criminal Law Amendment Act 1958 and Offences in Respect of Banks (Special Courts) Ordinance 1984, are 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.”

7.3 This reasoning was implicitly endorsed by a seven-member bench of the Supreme Court in Nazar Hussain (supra) (PLD 2010 SC 1021), which noted that an earlier observation to the contrary in Shah Hussain v. The State (PLD 2009 SC 460) was per incuriam because it failed to notice the Saleem Raza ruling. We hold that Section 9(A)(1) CNSA suffers from the same “repulsive procedure” identified in Azizullah Memon (supra). The denial of remission based on the mere forum of trial or choice of statute by the prosecution creates an invidious discrimination that bears no rational nexus to the object of narcotics suppression.

8. THE PROVINCIAL DISCREPANCY:

PRISONERS “UNDER THE SAME ROOF

AND INTELLIGIBLE DIFFERENTIA”

8.1 The concern which engages our attention is neither speculative nor peripheral. In Khyber Pakhtunkhwa, the CNSA 1997 has been validly repealed to the extent of cultivation, possession, selling, purchasing, delivery and transportation etc. within the Province by the Khyber Pakhtunkhwa Control of Narcotics Substances Act 2019 (KPCNSA), a statute definitively upheld by this Court in Asmat Ullah v. Government of Khyber Pakhtunkhwa (PLD 2020 Peshawar 35). Critically, the KPCNSA 2019 contains no

equivalent of Section 9(A)(1) and places no bar on remissions.

8.2 Consequently, the legislature has created a distinct category of prisoners whose relationship with the correctional framework materially differs from that of other inmates confined within the same institutions. It is entirely conceivable that prisoners convicted for substantially similar narcotics offences, involving comparable substances and producing analogous societal harm, may remain incarcerated within the same cell while being subjected to markedly different correctional regimes solely because their convictions arise under different legislative instruments. One category may continue to receive the benefit of incentives linked with discipline, labour, education, and rehabilitation, whereas the other remains subjected to an absolute exclusion. Such a distinction, viewed from within the prison environment, does not rest upon the nature of the offence, but rather upon the identity of the legislative instrument, rendering the classification arbitrary and unconstitutional.

8.3 In arriving at this conclusion, we are fully cognizant of the heavy burden associated with the judicial invalidation of a legislative enactment. Under our constitutional framework, there exists a fundamental

presumption in favour of the constitutionality of a statute, predicated on the premise that the Legislature correctly appreciates the needs of its people and that its laws are directed at manifest problems. However, as established in I.A. Sharwani (supra) and Saleem Raza (supra), this presumption is rebuttable. The presumption of validity must yield where a statute, upon its face, creates an arbitrary classification that hits only a particular class without any real or substantial distinction. Even applying the rigorous “acid test” of Imrana Tiwana, we find that the discrepancy created by Section 9(A)(1) of the CNSA 1997, when contrasted with the KPCNSA 2019 currently in the field in this Province creates an irreconcilable conflict with the letter of Article 25. When two prisoners occupy the “same roof” or even the “same cell,” yet are subjected to “markedly different correctional regimes” solely because of the legislative instrument of their conviction, the invalidity of such a distinction passes beyond reasonable doubt. In such instances, the Court’s duty to protect the liberty of the subject and the equality of citizens necessitates that the statute be struck down to the extent of its constitutional inconsistency.

8.4 In evaluating this provincial discrepancy, we are also mindful of the prevailing constitutional architecture regarding

legislative distribution. Under Article 142(b) of the Constitution, both the Federation and the Provincial Assemblies possess concurrent power to enact laws in the fields of criminal law and procedure. While Article 143 provides a mechanism for resolving inconsistencies between Federal and Provincial enactments by according precedence to the former, we must emphasize that the Federation’s power to validly enact law is not a license to override the fundamental guarantees of the subject. It is a settled principle of constitutional jurisprudence that provisions of the Constitution cannot be interpreted or given effect in isolation; rather, the Constitution must be read as a whole and interpreted harmoniously to ensure its various parts remain a living and consistent document.

8.5 Consequently, the command of Article 8(1), directing that any law inconsistent with fundamental rights shall, to the extent of such inconsistency, be void, stands as the ultimate check on legislative competence, whether federal or provincial. While we recognize that a provincial law, on the touchstone of Article 143, cannot be used as a yardstick to measure the constitutionality of a federal statute in a vacuum, yet its operation in the same field serves to illuminate the failure of Article 25’s guarantees of equal protection. When two prisoners reside “under the same

roof” yet face markedly different penal consequences based solely on the choice of statute, the classification fails the test of intelligible differentia.

8.6 This constitutional imbalance is further exacerbated when viewed through the prism of the statute’s own intent. The Preamble of CNSA 1997, establishes a multifaceted legislative mandate. It expressly declares the expediency of consolidating and amending the laws relating to narcotic drugs, psychotropic substances, and controlled substances; regulating the production, processing, and trafficking of such drugs; and providing for the forfeiture of property derived from illicit traffic to implement international conventions. Crucially, the Preamble further declares it “expedient to regulate the treatment and rehabilitation of narcotic addicts and for matters connected therewith and incidental thereto.” This comprehensive framework unequivocally demonstrates that the statutory purpose extends far beyond mere retribution or the narrow aim of punishment. By embedding the “treatment and rehabilitation of addicts” within its core objectives, the Act recognizes reformation as a vital and co-equal component of the criminal justice system.

8.7 Under the constitutional guarantee of Article 25, a legislative

classification is only deemed reasonable if the differentia upon which it is founded bears a “rational nexus” to the object sought to be achieved by the statute. When Section 9(A)(1) is subjected to this constitutional scrutiny, it demonstrably fails the “acid test” of rational nexus. A blanket exclusion from remissions, predicated solely on the forum of trial or the choice of legislative instrument, lacks any reasonable relation to the Act’s diverse goals of narcotics suppression, international compliance, or rehabilitation. By systematically withdrawing every reformative incentive, identified by the Supreme Court in Nazar Hussain (supra) as the primary legal mechanism for actualizing the “reformative principle,” the provision signals to a specific class of prisoners that their commitment to self-improvement and good conduct is legally inconsequential. Such an exclusion turns the ideals of reformation “on their head.” Consequently, rather than advancing the Act’s holistic purposes, the provision dismantles the incentive-based structure upon which correctional administration depends, instilling a sense of “mutually sustaining despair” that is fundamentally incongruous with the stated legislative intent and the constitutional mandate of equal protection. Modern correctional philosophy, as reflected in the Nelson Mandela Rules, reminds us that the

ultimate legitimacy of a penal system is derived from its ability to reform. A legislative framework that purports to control narcotics while simultaneously extinguishing the very reformative incentives intended to facilitate rehabilitation creates an internal contradiction that offends the spirit of the Constitution and the enduring dignity of the human person.

9. CONCLUSION ON VIRES AND

CONSTITUTIONAL EFFECT

9.1 In view of the foregoing discussion, the comparative jurisprudence analyzed, and the peculiar facts and circumstances of the present controversy, we have arrived at the considered conclusion that the impugned amendments, insofar as they seek to deprive or exclude prisoners convicted under the CNSA 1997 from the benefit of remission, reformative concessions, and allied statutory incentives, cannot withstand constitutional scrutiny. We determine that Section 9(A)(1) of the CNSA 1997 is ultra vires the Constitution.

9.2 The said amendments, in their practical operation and constitutional effect, offend the guarantees enshrined under Articles 4, 8, 9, 14, 25 and 10-A of the Constitution of the Islamic Republic of Pakistan. The provision is arbitrary, discriminatory in character, and destructive of the reformative

philosophy which forms an integral component of modern criminal justice administration. As established by the Full Bench in Saleem Raza, no formula of legislative drafting, including a non-obstante clause can save a provision that creates an irrational classification based solely on the forum of trial or the choice of legislative instrument.

9.3 Accordingly, issue No. (ii) is decided in affirmative.

10. OPERATIVE ORDER AND DIRECTIONS

10.1 In sequel to the above, the following directions are issued to the concerned jail authorities and all other functionaries exercising powers relating to remission, sentence administration, and prison management for immediate implementation and compliance:

i. Any remission, concession, benefit, or reformative incentive already granted to prisoners convicted under the CNSA 1997 shall not be withdrawn, recalled, curtailed, or adversely altered in any manner whatsoever, as the same shall be deemed to have accrued as vested rights protected under law.

ii. All prisoners convicted under the CNSA 1997, who were denied remission, concession, or allied reformative benefits solely on account of the impugned amendments, shall forthwith be reconsidered and extended such

benefits strictly in accordance with the legal regime existing prior thereto, subject always to satisfactory conduct and fulfilment of the statutory requirements otherwise governing remission and prison discipline.

iii. The concerned Provincial and Federal prison authorities shall undertake an immediate review of all pending and previously rejected cases pertaining to prisoners convicted under the CNSA 1997 and ensure that no such prisoner is deprived of equal treatment, reformative opportunity, or remission-related consideration merely on account of the impugned amendments declared unconstitutional hereinabove.

iv. Compliance report in respect of the aforesaid directions shall be furnished before the Registrar of this Court within a period of 45 working days from the date of receipt of this judgment.

10.2 Before parting with this case, we consider it necessary to observe that the true measure of a constitutional democracy is not found in the manner in which it treats those who enjoy freedom, influence, and social acceptance. Its character is revealed, rather, by the manner in which it treats those who stand at the margins of society, including those who have transgressed its laws and now remain confined behind prison walls. The Constitution does not speak only for the popular, the

powerful, or the privileged. It speaks with equal authority for the forgotten, the condemned, and the incarcerated. Punishment may lawfully deprive a person of liberty, but it cannot strip him of his humanity. The prison gate is not a constitutional frontier beyond which fundamental values cease to exist. Human dignity survives conviction. Hope survives incarceration. And the possibility of redemption survives even the commission of grave wrongs. A civilized legal order must remain firm against crime, yet it must never become indifferent to the capacity of human beings for change. The administration of criminal justice achieves its highest purpose not when it merely punishes wrongdoing, but when, without compromising public safety or the rule of law, it preserves the possibility that those who have fallen may one day rise again as responsible members of society. The Constitution, in its enduring wisdom, demands nothing less.

JUDGE

JUDGE

Announced.

Tariq Jan. DB, Mr. Justice Sahibzada Asadullah, HJ & Mr. Justice Inam Ullah Khan, HJ.