P L D 2008 Supreme Court 71 (PLP)

IFTIKHAR MUHAMMAD CHAUDHRY, C.J.

This petition raises a question in respect of withholding of remissions to the convicts in the Province of N.-W.F.P. in view of the judgment pronounced by the Peshawar High Court in Habeas Corpus Petition No.10/2002 filed on behalf of Muhammad Akbar Murawat which has been decided on 17-5-2002 and has been authored by one of us (Nasir-ul-Mulk, J.). In pursuance of notice, the learned Additional Advocate General and Home Secretary appeared.

2. The learned Additional Advocate General contended that only those remissions have been withheld, which were pronounced during the period when the prisoners were under trial. However, after their conviction whatever remission is pronounced either by Federal Government or Provincial Government, its benefit is extended to them. To substantiate the plea, a chart showing grant of the remissions to the convicts has been placed on record for our perusal.

3. It is to be observed that in the case of Akbar Murawat reference to which is mentioned in the news publication as also before this Court the question is whether an under trial prisoner while getting benefit of section 382-B, Cr.P.C. would also be entitled for the remissions pronounced by the Federal Government or Provincial Government during the period when he/they were not convicted prisoners but were facing the trial. On having examined section 382-B, Cr.P.C. comparing it with the corresponding provisions of section 428 of the Indian Criminal Procedure Code, as well as; the judgments available on this subject, it was concluded that because under trial prisoner is not a convict, therefore, the remissions pronounced during such period would not be available to them. However, the remissions, which are pronounced after passing of the conviction by the Court of law, shall be available to the prisoners except in the cases pertaining to the NAB because they have been excluded from the benefit of such remissions by the competent authority .in view of the judgment passed by the learned Peshawar High Court. The view taken by the learned High Court is consistent with the view taken in the case of Haji Abdul Ali v. Haji Bismillah and 3 others PLD 2005 SC

163. The relevant para. therefrom is reproduced hereinabove:

"

8. Under section 3(3) of the Prisons Act, 1894 (Act IX of 1894) 'convicted Criminal prisoner' means any criminal prisoner under sentence of a court or Court Martial Under rule 3 of the Prisons Rules a convict means a convicted criminal prisoner under sentence of a Court. The legislature in its wisdom and in order to give more rational treatment of the pre-sentence period spent by a convict in jail enacted section 382-B, Cr.P.C. by promulgating the Law Reforms Ordinance, 1972. The sentencing Court is required to take into consideration the period, if any, during which an accused is detained in custody for an offence. But there is nothing in section 382-B, Cr.P.C. or any other law to indicate that such a person is to be treated as convict from the very inception. Therefore, remissions granted by the President under Article 45 of the Constitution or the Provincial Government were not available to the petitioner for the period during which he had not been convicted of any offence nor was he under going any sentence. As regards the remission of 60 days granted by the Government of Balochistan on 5-1-2000, under section 401, Cr.P.C. the High Court was quite correct in taking the view that the same was not permissible in view of section 402-C, Cr.P.C. as the petitioner had been convicted and sentenced under section 302(b), P.P.C. falling in Chapter XVI' of P.P.C. The Lahore High Court has also expressed a similar view in the case of Inayat Bibi v. Amjad Ali and others 2001 PCr. LJ 1435."

4. Thus, in view of the above pronouncements, we are inclined to agree with the learned Additional Advocate General, N.-W.F.P. that the under trial prisoners notwithstanding the fact that the benefit of section 382-B, Cr.P.C. has been extended to them would not be entitled to the remissions pronounced by the Federal Government or Provincial Government during the period when they were under trial or to any remission which was not admissible under the Prisons Rules for being not the convicted prisoners at the relevant time. However, it is made clear that after recording of conviction/sentence, the prisoners shall be entitled for the remissions as may be/are pronounced, from time to time; by the Federal or Provincial Government under the provisions of the Constitution or rules except those specifically excluded from the benefit of such remissions by the competent forums.

5. The petition stands disposed of in above terms. S.A.K./H-16/S Petition disposed of.