P L D 1967 Karachi 428 (PLP)

NOOR‑UL‑ARFIN, J.‑This petition under Article 98 of the Constitution has been brought by Abdullah, son of Haji Muhammad Bhatti to question his detention in the Central Jail, Karachi to serve out the sentence imposed on him by the Special Military Court.

2. The Special Military Court convicted the petitioner on 14th April, 1959 for smuggling activities under Martial Law Regulation No. 27 read with (C. M. L. A's.) No. 40 and sentenced him to transportation for life, with forfeiture to the State of smuggled goods and confiscation of movable and immovable properties to the extent of Rs. 1,50,

000. By warrant of commitment dated 11th May, 1959, the petitioner was committed into the custody of the Superintendent, Central Jail, Karachi. The sentence of transportation for life was later commuted by the Commander‑in‑Chief of the Pakistan Army to one of rigorous imprisonment for seven years, which was to expire on the 16th of April 1966.

3. During his imprisonment, the petitioner earned remission of sentence for good conduct. Sometime in October, 1959, the Chief Martial Law Administrator granted Revolution Day remissions in Jail sentences to persons convicted by the Special/ Summary Military Courts and Civil Courts under Martial Law Regulations. The remissions however were not available to persons convicted for anti‑state and anti‑social and smuggling activities under C. M. L. A. Regulations Nos. 6, 7, 13, 15, 20, 21, 23, 24, 25, 26, 27, 28, 34, 36, 38, 41, 51, 55, 58 and 62.

4. In 1963, the petitioner made a representation to the Jail Superintendent that having been convicted under C. M. L. A. Regulation 40, he was entitled to the Revolution Day remission granted to the Martial Law convicts in October, 1959. By letter dated 23‑9‑1963 the Superintendent sought clarification in this behalf from the Judge Advocate‑General of the Pakistan Army, who replied on 1‑10‑1963 that C. M. L. A. Regulation No. 40 was not a substantive regulation as it merely amended C. M. L. A. Regulation 27, which provided for convic tion and sentence for smuggling activities. It was pointed out that the petitioner's conviction was in fact under Regulation 27 and, accordingly, he was not entitled to the Revolution Day remission. However, and not withstanding this clarification, a remission of fourteen months was granted to the petitioner by the Superintendent of Jail. An entry to this effect was made in the Jail records and the petitioner was released from custody on 20th January, 1964.

5. It is alleged in the counter‑affidavit of Mr. Shaikh Ihsan Ghani, the present Superintendent of the Karachi Central Jail, that the office copy of the letter dated 23‑9‑1963 of the Superin tendent of Jail to the Judge Advocate‑General, and his reply thereto dated 1st October 1963 were removed from the Jail files before the petitioner's release and that the entry in the jail records that the petitioner was entitled to Revolution Day remission of fourteen months was fraudulent. The illegal release of the petitioner was detected by Mr. Ihsan Ghani when he assumed charge of his office. The District Magistrate of Karachi, the Judge Advocate‑General of the Pakistan Army and the Home Secretary to the Government of West Pakistan were apprised by him in writing of this fact on 18th April, 1964. The Judge Advocate- General in his reply dated 27th April, 1964 invited attention to the earlier correspondence between him and the then Superintendent on the inadmissibility of Revolution Day remission to the petitioner and advised that steps should be taken for the petitioner's arrest and detention is prison for the remaining period of the sentence. But the petitioner is alleged to have gone "under‑ground" to escape arrest. He could only be traced on 15th August, 1966 when he was arrested on a non‑bailable warrant issued by the District Magistrate of Karachi under section 224 of the Pakistan Penal Code.

6. The petitioner's learned counsel, Mr. A. K. Brohi, agreed that the petitioner was not entitled to the Revolution Day remission and that his release on 20th January 1964 was premature by 14 months. But the legality of tire petitioner's present detention in the Central Jail is, according to the learned counsel, questionable as being against the tenor of the warrant of commitment, under which the sentence took effect on 17th April, 1959 and, after commutation to seven years' rigorous imprisonment by the Commander‑in‑Chief, expired on 16th April 1966. This contention is sought to be supported by the provisions of section 3 of the Prisoners Act (No. III of 1906) and the Martial Law (Pending Proceedings and Protection) Order (President's Order No. 26 of 1962). Section 3 of the Prisoners' Act provides that the officer incharge of a prison shall receive and detain all persons duly committed to his custody "according to the exigency of any writ warrant or order by which such person has been committed, or until such person is discharged or removed in due course of law". The material provision of the President's Order No. 26 of 1962 is Article 6 which is in these terms :‑ "Execution and‑continuance of Martial Law sentence. (1) Subject to the provisions of this Order, all sentences passed during the Martial Law period by a Martial Law Authority shall be deemed to have been lawfully passed and shall be carried into execution according to their tenor. (2) Every sentence of death passed during the Martial Law period by a Martial Law Authority, which was not executed during the Martial Law period, may be executed under the Order of the Central Government. (3) Every sentence of imprisonment passed during the Martial Law period by a Martial Law Authority, which was not gut into execution under the warrant of the District Magistrate of the District in which the person under sentence may be found ; and every such sentence shall commence to run on the date on which the person under sentence is received into the prison to which he is committed by such warrant. (4) Every sentence of fine passed during the Martial Law period by a Martial Law Authority, which was not carried out during the Martial Law period, may be carried out by the District Magistrate of the District in which the person under sentence resides, as if it. were a sentence of fine imposed by him under the Code of Criminal Procedure, 1898 (Act V of 1898) provided that the provisions of Chapter XXIX of the aforesaid Code shall not apply to any such sentence."

7. It was urged that the combined effect of Article 6 (1) of the President's Order No. 26 of 1962 and section 3 of the Prisoners' Act, is that the sentence of seven years' rigorous imprisonment imposed on 4he petitioner having taken effect from 17th of April, 1959, expired on 16th April, 19615, whereafter, the petitioner's detention could neither be deemed to be according to the tenor of the sentence imposed upon him, nor according to the exigency of the warrant of commitment. Turning to the petitioner's arrest on 15th August, 1966, Mr. Brohi contended that this arrest was effected on a warranted issued under section 224, P. P. C. by the District Magistrate of Karachi which section, however, did not permit detention without trial, but required the petitioner's trial before a competent Court for determination that he escaped from lawful custody, and that it is only on such determination that the petitioner could be convicted and sentenced to imprisonment.

8. Thus, Mr. Brohi's argument in effect is, that notwith standing that the petitioner was released from custody fourteen months before the completion of his Sentence, and despite this release being fraudulent and illegal, the petitioner cannot now be detained to complete his sentence except on conviction by competent court under section 224, P. P. C.

9. Mr. Muhammad Halim, the learned Assistant Advocate -General, stated before us that though the petitioner's arrest was effected under warrant issued by the District Magistrate under section 224, P. P. C., his present detention is under the sentence passed by the Special Military Court, Karachi, fourteen months, of which sentence still remain to be completed.

10. The question which, therefore, falls for determination is, whether the petitioner could be re‑arrested and detained to undergo the remaining sentence of fourteen months, even though the duration of the warrant of commitment expired on 16th April, 1966. With regard to the arrest of the petitioner, reference may be made to section 54 (Fifthly), of the Criminal Procedure Code which empowers a Police' officer to arrest without warrant any person who has escaped from lawful custody. In view of this provision, the petitioner's arrest, even though made on a warrant issued under section 224, P. P. C. cannot be treated as' illegal, as the petitioner was liable to be arrested even without warrant. On the question of the petitioner's present detention, Mr. Muhammad Halim invited our attention to the rules contained in the Punjab Jail Manual. These Rules it is not disputed, are now applicable to the prisons maintained in the territory of Karachi and the former province of Sind. Under rule 619, the escape of a prisoner is required to be reported to the Superintendent of Police and to the District Magistrate. Rule 625, sub‑rule (ii) provides that the re‑captured prisoner may be admitted and detained in Jail on the authority of his original warrant, and that the time he was at large shall not count as sentence served. Independently of these rules, the explanation to section 224, P. P. C. contemplates, we would even say "requires", that an escaped prisoner on re‑arrest shall be detained to serve out his original punishment. The explanation provides that the punishment in section 224 is in addition to the punishment for which the person to be apprehended or detained to custody was liable for the offence of which he was convicted It is not necessary that an order to this effect should be made by the Court before whom such person is tried under section 224 P. P. C. The President's Order No. 26 of 1962, on which reliance was placed by Mr. Brohi, would also appear, in our opinion, to justify the petitioner's present detention. Article 6 (1) of the Order provides that a sentence imposed by a Martial Law Authority shall be carried into execution according to its tenor. The requirement is not that the sentence shall be carried out according to the exigency of the writ of commitment, but it is that the sentence shall be served out according to its tenor, that is for the full period if the sentence is one of imprisonment. We cannot agree with Mr. Brohi that Article 6 (1) of 'the Order is intended to apply only where the execution of the sentence has not commenced because, in our view, for this purpose the provision is made in sub‑Articles (2), (3) and (4). Sub‑Article (1) makes provision for cases in which the sentence has come into effect but has not been served out.

11. Mr. Brohi, however, objected to the petitioner being treated as an "escaped" prisoner because, as he contended, the petitioner was released by the Superintendent of Jail, even though illegally, and could not, therefore, he said to have escaped from custody. We are, however, unable to agree with this view. An escape is where one in custody gains his liberty before hi discharge by due course of law. A person escapes from custody even if his escape is suffered with the consent of the officers of law, i. e., when he is released with the illegal consent of the person entrusted with the prisoner's custody (1) (Russel Law of Crime 10th Ed., Vol. I, pages 339 and 340). The petitioner had to serve out his full sentence of seven years' rigorous imprisonment, subject to any remissions which were legally permissible to him. But he managed his release fourteen months before the completion of his sentence. We have no doubt that this release was the result of collusion between the petitioner and the then Superintendent of the Karachi Central Jail. The consent to the release by the Superintendent being fraudulent, was illegal. The petitioner, therefore, escaped from lawful custody and his re‑arrest and present detention cannot be held to be unlawful.

12. For these reasons, we are of the view that this petition cannot be granted and, is therefore, dismissed. K.B. A. Petition dismissed.