P L D 2004 Karachi 99 (PLP)

The ratter may be placed before Hon'ble Mr. Justice S.A. Sarwana for hearing of above, (Review Application) at Principal Seat at Karachi. OR The matter may be sent back to the Sukkur Bench to fix the above (Review Application) there before Hon'ble - Court Mr. Justice Muhammad Afzal, soomro. OR Any other order as deemed fit and proper may kindly be passed. (Sd.) Assistant Registrar (Writ). (Sd.) O.S.D. (Judicial). HON'BLE CHIEF JUSTICE: As at A. (Sd.) Chief Justice." The file of this case was received by the office of this Court here at Sukkur and the matter was placed before me on 26-2-2003 when the learned, Addl. A.-G. sought .time and the matter was adjourned to 17-3-2003. On 17-3-2003 Manzoor Ahmed Memon and Muhammad Ishaque Meo the then Superintendent and Assistant Superintendent, Central Prison, Khairpur, respectively (now posted at Central Prison. Larkana) had appeared before this Court when the notices were directed against respondents 4 and 5 namely Nisar Ahmed Mahesar and Javed Mempn through S.H.O Pirjogoth and the matter was adjourned to 31-3-2003. On -31-3-2003 the notices against respondents 4 and 5 were repeated for 17-4-2003. On 17-4-2003 this matter could not be proceeded with as the said date was declared to be holiday on account of Urs of Shah Abdul Lateef Bhitai and. n 16-5-2003 this matter was placed before this Court when respondents 4 and 5 made their appearance and sought time to engage their counsel and the matter was adjourned to 26-5 2003. On 26-5-2003 the arguments of the respective parties were heard and the order was reserved. I have heard the petitioner, respondents 4 and 5 in person and Mr. G.D. Shahani learned Addl. A.-G. as well as Mr. Sher Muhammad Shar learned A.A.-G. It. has been contended by the petitioner that respondent No.3 filed the counter-affidavit on the petition and he has filed the rejoinder, but the said respondent did not response the rejoinder of the petitioner, though the copy of the same was sent to him through Registered Post A/D and such acknowledgement receipt. was delivered to the petitioner duly received by respondent No.3 on 4-9-2001. It has further been contended by him that learned Addi. A.-G. wrongly apprised this Court that respondents 4 and 5 were released after completion of their sentence in accordance with law on the basis of letter dated 3-6-2001 sent to the respondent No.3 by Home Department. He submitted that the said letter was not approval but it contained the conditions for release of the lifer convicts. It has also been contended that the respondent/accused No.4 served out only six years, three months and sixteen days whereas respondent/accused No.5 served out only six years, two months and twenty-six days which does not exceed the substantive sentence of one third. He added that the respondent No.3 violated the Rule 140 of Jail Manual Law. The petitioner argued that the above Rule 140 clearly shows that every lifer prisoner shall undergo a minimum of fifteen years of substantive imprisonment but in the respondent No.4 has served out only 6 years, 3 months and 16 days and respondent No.5 served out only 6 years, 2 months and-26 days thus the respondents/accused have not served out the minimum of fifteen years of substantive imprisonment as such the releasing of the respondents/accused by the respondent No.3 is illegal and in contravention of Rule 140(1) of Jail Manual Law. He further argued that respondent No.3 also violated the provision sub rule (.ii) of Rule 217 of Jail Manual Remission, subsection (2) of section 401 .Cr. P. C. He also argued that the respondent No.3 ignored the mandatory provision of subsections .(1) and (2) of section 544-A, Cr. -P.C. as the' respondents/accused did not pay compensation of Rs.100,000 to L.Rs. of both the deceased and Rs.3,000 to injured complainant nor they have served out the sentence in lieu of non payment of compensation. The petitioner lastly argued that the respondent-No-3 did not care the pendency of respondents/accused's appeal and criminal revision of the petitioner for enhancement of sentence from life imprisonment to death and without waiting the fate of both the matters released the respondents/accused illegally, malafidely and improperly and at the time of dismissal of the petition the proper facts and legal points were. not brought before this Court either by respondents or learned Addl. A.-G. resultantly, no proper justice has been extended to aggrieved party. In that eventuality the petitioner argued that it is a fit case where an order dated 2-10-2001 be recalled and the remission granted to the respondents/accused by respondent No.3 be declared to be illegal, improper and in violation of mandatory provisions of law and they may be remanded to jail custody to serve out the remaining sentence. The petitioner has referred to the cases of Hakim Khan and 3 others v. Government of Pakistan through Secretary Interior and others (PLD 1992 SC 595), Habib-ul-Wahab Al-Khairi and others v. Federation of Pakistan through Secretary, Ministry of Justice, Law and Parliamentary Affairs, Islamabad (PLD 1991 Federal Shariat Court 236), Inayat Bibi v. Amjad Ali and others (2001 PCr.LJ 1453) and Muhammad Meer and others v. Abdul Qadir and 2 others (1998 PCr.LJ 921) in support of his contentions. As against the arguments of petitioner learned Addl.A.-G. and A. A.-G. opposed the Review Application on the ground that it is a disposed of matter and the review application is not maintainable. They argued that the respondents/accused were released by respondent No.3 in accordance with law. The learned Addl. A.-G. on the point of maintainability of review application referred to the case of Ahmed and others v. The State (2002 SCMR 1611) in support of his contentions. Respondents/accused Nisar Ahmed Mahesar and Javed Memon, were provided an opportunity either to engage their counselor to explain their view-point by themselves but they neither engaged any Advocate nor explained themselves their view-points and they kept mum. They admitted that they were convicted and sentenced for life imprisonment and were also directed to pay compensation of Rs.100,000 each to L.Rs. of both the deceased and Rs.3,000 to injured complainant as Daman. They further admitted that they have not paid the compensation amount as well as the amount of Daman and they were released by the Jail Authority by giving them remission. I have given my anxious consideration to the arguments of petitioner and respondents/accused as well as learned Addl. A.-G. and A.A.-G. perused the record and I am of the considered view that at the time of dismissal of the main petition the proper facts and law points were not considered as the petitioner in his petition had mentioned legal points and on such legal points the remission granted by the respondent No.3 to the respondents Nos.4 and 5 was challenged but the same, points were not properly brought before a D.B. consisting of myself and my senior brother Mr. Justice S.A. Sarwana as such this review application is very well-maintainable. The perusal of record shows that the respondents 4 and 5 were convicted for murder of Fariduddin (the brother of the petitioner) and Noor Khan and they were sentenced for life imprisonment and each of respondents/accused were directed to pay Rs.100,000 to the L.Rs. of both the deceased and in case of non payment, the same would be recovered as arrears of Land Revenue. The each of respondents/accused were also convicted for under section 337-F(i), P.P.C. for causing injuries to complainant and sentenced to suffer R.I. for six months and they were directed to pay Rs.3,000 to injured complainant as Damah but the respondents/accused admittedly neither paid the compensation amounts to L.Rs. of two deceased and Daman amount to injured complainant but they were released by the Jail Authorities only after serving of six years, 3 months and 16 days and six years, two months and 26 days respectively, which reveals that the respondent No.3 violated Rule 140(1) of Jail Manual Law which reads as under:-- "Rule 140(1). Imprisonment for life, will mean twenty-five years' rigorous imprisonment and every lifer prisoner shall undergo a minimum of fifteen years of substantive imprisonment, " The record further reveals that respondent No.3 based the release of respondents 4 and 5 upon a letter No.HD(PRS.11)/6 4/2001 dated 3-7-2001 treating as approval for release of respondents/accused. The conditions of such letter is reproduced as follows:-- "(1) No remission has been granted under section 401 and Rule 216 of Prison Rules if he is convicted under Hadd or Qisas. (2) No special remission has been granted for the imprisonment in default of fine. (3) Total remission both ordinary and special granted under Prison Rules as provided under Rule 217 to him does not exceed one-third of his substantive sentence." The above quoted letter shows that it was a letter containing the conditions of remission and the same was not approval letter for release of the respondents/accused. Subsection (2) of section 401 of Cr. P.C reads as under:-- "Whenever an application is made to the Provincial Government for the suspension or remission of a sentence, the Provincial Government may require the Presiding Judge of the Court before or by which the conviction was had or confirmed to state his opinion as to whether the application should be granted or refused, together with his reasons for such opinion and also to forward with the statement of such opinion a certified copy of the record of the trial or of such record thereof as exists." In the present case the respondent No.3 while granting huge remission i.e. more than 18 years could not make reference to the concerned Presiding Judge for granting remission/releasing the accused/respondents but himself illegally and wrongly granted remission and released them. As the respondents/accused admittedly have not paid the compensation amount to the L.Rs. of two deceased and Daman amount to injured complainant thus it was the duty of respondent No.3 to inform the trial Court about recovery of the said sum before releasing them but it has not been done so and straightaway released them which seriously prejudiced the L.Rs. of two deceased and injured complainant as' well as caused injustice to them. In such type of cases the Hon'ble Supreme Court, as well as the High Courts and Federal Shariat Court have taken serious view for remission of accused persons and such remissions were declared to be illegal and improper and the accused of those cases were 'remanded to jail to serve out the remaining sentences. In case reported in PLD 1992 SC 595 the Full Bench of Hon'ble Supreme Court remanded back the matter to the High Court for decision of this and other relevant pleas namely, to examine whether the terms of the commutation Order applied to the cases to which it had erroneously been extended and whether the orders of commutation passed by the Jail Authorities in such cases were not liable to beset aside. In case reported in PLD 1991 FSC.236, the Full Bench of Hon'ble Federal Shariat Court declared such remission/commutation of sentence as un Islamic and against the Injunction of Islam. It has also been observed by the Federal Shariat Court that question of remission of sentence arises only when the trial is over and judgment is delivered and Court becomes functus officio. Provisions of sections 401, 402, 402-A and 402-B, Cr. P.C with respect to suspension, commutation or remission of sentence thus do not relate to the law of procedure as it is a power or, in other words, the right of the Provincial Government, in certain situations and of the Federal Government, to suspend, remit or commute the sentence passed by a Court of law, but in the present case the jail authority illegally and improperly released the respondents/accused by granting them remission of more than 18 years. In case reported in 2001 PCr.LJ 1453 the Lahore High Court declared the grant of remission to those respondents/accused to the extent of 1/5th of the total sentence by notification issued by the President of Pakistan and Provincial Government to be illegal, inapplicable and contrary to law-and the said notifications were set aside. In case reported in 1998 PCr.LJ 921 a D.B. of Balochistan High Court declared the remission being not sustainable and unwarranted by law. It has .been observed in that case that remission of un expired sentence of imprisonment of accused by Provincial Government in terms of section 401, Cr. P.C. Validity of powers conferred upon Provincial Government under section 401, Cr. P.C were although discretionary, yet discretion when and wherever provided in statute, could not be equated to that of unfettered and unbridled powers, but such discretion was to be exercised judiciously with care and caution and after deligent application of mind to all, relevant circumstances including nature of offence committed and ultimate decision of case. Discretion exercised by Provincial Government had been exercised in arbitrary manner without taking into consideration that accused had been convicted by Sessions Judge, whose appeal was dismissed by High Court and subsequently Supreme Court had refused to grant leave to appeal. Such aspect of matter having escaped unnoticed, had resulted in serious miscarriage of justice. In the present case the Jail Authorities totally ignored that not only the appeal of the respondents/accused is pending for its result before this Court but revision of the petitioner against the respondents/accused for enhancement of sentence from life imprisonment to death is also pending nor they have paid compensatory amount to L.Rs of both the deceased nor Dainan amount to injured complainant inasmuch as the respondents 4 and 5 have served out only 6 years, 3 months' sentence and they have been granted remission for more than 18 years. For what it has been discussed above and in view of dicta laia down in the quoted authorities I accept this review application and recai the order. dated 2-10-2001, set aside the remission so granted by the Jaii Authorities as well as the, Provincial Government by- declaring it to be illegal, improper and unsustainable. The respondents. 4 and 5 shall be taken into custody, remanded to jail to serve out the remaining sentence. Issue show-cause notice to Manzoor Ahmed Memon and Muhammad Ishaque Meo the then Superintendent and Deputy Superintendent of Central Prison, Khairpur (now posted at Central Prison, Larkana). The copy of this order may also be sent to Home Secretary, Government of Sindh-Karachi as well as I.-G. Prison, Sindh, Hyderabad to initiate proceedings against the said delinquent officers. The petitioner is also at liberty to file proceedings for compensation against both the officers. C.M.A. 2305 of 2001 as well stands disposed of M.H./N-156/K Application allowed