P L D 1968 Lahore 1057 (PLP)

2. The sole contention raised in the petition is that the Government has failed to take into account a special remission of six months' earned by him by virtue of having passed the Punjabi Fazil examination, to which he is otherwise entitled under rule 17 of the West Pakistan Prisons (Remission of Sentences) Rules, 1965. It was considered expedient to call a report from the Jail authorities which has been received. A perusal of this report shows that the convict has undergone substantive sentence of 8 years, 4 months and 15 days in addition to a period of 5 years, 1 month and 14 days, earned by him by way of ordinary and special remissions. This period of remissions includes four different stretches of six months, each allowed to him for having passed Adeeb Urdu, Matriculation, Alam Urdu and F. A. English examinations. In regard to the last mentioned remission an endorsement on the report shows that while granting this remission, the Government advised the convict to clear the full B. A. examination, in order to get future remissions. A perusal of sub‑pare. (c) of para. 3 which is more relevant for the purposes of the present case clearly indicates that the convict had passed the Panjabi Fazil examination in September 1967, when his case was recommended to the Government for the grant of a special remission in this regard, but the recommendation was turned down on the pretext that the examination passed by the convict was only a language examination.

3. It is contended by the learned counsel for the petitioner that on a correct and reasonable interpretation of rule 17 of the relevant rules, the convict was entitled to another stretch of six months' remission for having passed the Punjabi Fazil examination which clearly fell in the categories of examinations enumerated in rule 17 of the aforesaid Rules. On the contrary, it is contended by the learned Advocate‑General that the use of the expression "an examination" coupled with the conspicuous absence of the pronoun "each" would clearly indicate that a person would be entitled to special remission on account of having cleared an examination only once and not for each successive examination passed by him. It is argued that if a convict may be deemed to be entitled to a special remission of six months for each examination passed by him without placing any restriction on the total remissions which could be earned in this regard, the conviction itself would be reduced to a mockery. According to the learned Advocate‑General, it would be facilitating the release of every convict, who may be gifted with an unusual measure of intelligence by enabling him to get his entire sentence easily liquidated by passing a number of examinations, notwithstanding the seriousness of the offence and the consequential length of sentence.

4. Having considered the contentions raised by the learned Advocate‑General, I find it difficult to agree with him for more than one reason. The West Pakistan Prisons (Remission of Sentences) Rules, 1965, envisage two broad categories of remissions, termed as "ordinary" and special remissions although it appears that they do not give a very precise classification. Rule 7 refers to the scale of ordinary remissions earnable by a convict for good conduct, observance of prison regulations, industry, performance of duty, prison service, etc. Rule 14 refers to fifteen days ordinary remission earnable on account of annual good conduct in addition to other remissions. Rules 15, 16 and 17 deal with special remissions. Rule IS allows 15 days' extra remission on account of blood donation and prescribes a scale of such remissions earnable for successive donations This is a kind of special remission which unlike ordinary remission on is not liable to forfeiture. Rule 16 provides for special remission on account of special service such as diligence in teaching to other convicts, special proficiency in learning, success in teaching handicrafts, distinction in work, protecting a prison officer from attack, special economy, assistance in education or prevention of breaches of prison discipline and regularity in prayers, etc. Rule 17, with which we are directly concerned in the instant case deals with special remissions to convicts for passing certain examinations and reads as follows "

17. Special remission to convicts who pass examinations.?(1) A convict who passes an examination conducted by a Board of Secondary Education, a University, the Education Department of the Government of West Pakistan or an examination conducted by a Technical Institute recognized by the Central or the Provincial Government and also is certified by the Superintendent to have been of good character shall be entitled to remission at the following scale: (1) Those having substantive sentence up to 3 years . . . . . 3 months special remission. (2) Those having substantive sentence from 3 years to 7 years . . . 4 months special remission. (3) Those having substantive sentence above 7 years . . . . . 6 months special remission. (2) Remission under this rule shall be granted by Government and Provisional Certificate or Diploma shall be obtained before the case is recommended to Government for consideration under this rule and shall be attached with the remission sheet. (3) Remission under this rule shall be exclusive of the limit of one‑third remission prescribed in rule 19." From the plain reading of the rule, it is abundantly clear that two conditions should be fulfilled before a convict qualifies himself for the grant of such a remission, firstly; that he should pass an examination conducted by different authorities mentioned above, and secondly, that be should be certified to have been of good character. Once these two conditions are satisfied, then the expression "shall be entitled" leaves one in no manner of doubt that he can claim such a remission as of right. As stated earlier, the Jail authorities bad recommended the case of the convict to the Government for the grant of a fifth stretch of six months for having passed the Punjabi Fazil examination, which was the fifth in the series. While turning down this recommendation, it was not the Government's case that the convict was entitled only to a single stretch of six months for any number of examinations and that Government had already erred in adding three more remissions to his credit in this regard, or that he bad reached or crossed the maximum limit prescribed, if any, to he earned on account of remissions. Nor was it the Government's case that he bad not conducted himself well and was not of good behavior during the relevant period. The sole Pretext on which tire recommendation was turned down was that tie Punjabi Fazil examination passed by the convict being only a language examination was not covered by any of the categories of examinations enumerated in sub‑rule (1) of rule

17. From this, it can be straightaway inferred that the Government had by implication conceded that if an examination passed by a convict falls within one of the categories mentioned in rule 17(1), then each examination passed by him would entitle him to a further remission of six months. The sole question which thus falls for determination on the view taken by the Government is whether Punjabi Fazil examination is, or is not an examination envisaged by the rule. From the plain reading of the rule, it is abundantly clear that neither the nature of the subject of examination, nor its utility or importance have any relevancy whatever while considering the question of remission. Thus the pretext on which recommendation of the Jail authorities was turned down by the Government, namely, that the examination passed by the convict was a language examination was patently untenable. It has been frankly conceded by the learned Advocate‑General that the Panjabi Fazil examination having been conducted by the Board of Secondary Education does certainly satisfy the requirement of the rule in this regard. Nonetheless, it has been strenuously contended that the view taken by the Government deeming every convict to be entitled to an unlimited number of special remissions on account of examinations, cannot be spelt out from the relevant rules on any known and reasonable principles of interpretation, and that the practice hitherto adopted by the Jail authorities is contrary to the provisions contained in the rules. I am afraid, the contention seems to be misconceived. A perusal of the different provisions contained in these rules when read together clearly resolve this difficulty. While on the one hand, the object of reformation of convicts is sought to be achieved by encouraging them in the pursuit of learning during detention by grant of special remissions on account of such attainments in order to maintain a healthy balance and prevent an abuse of this concession an over‑all restriction on the remissions to be earned by a convict has been imposed on the other. Rule 19 clearly envisages two categories of convicts, those who are undergoing a sentence of life imprisonment, and those who have lesser sentence to undergo. In regard to the first mentioned category of life convicts, sub‑rule (2) of rule 19 imposes a restriction of four years beyond which all kinds of remissions ordinary and special taken together shall not be allowed to exceed under any circumstances. Comparatively, a lenient view has been taken in regard to convicts other than life convicts and quite understandably so. Their case is dealt with under sub‑rule (1) of rule 19, which lays down that the total period of remission both ordinary and special, earned by such a convict shall not exceed one‑third of his sentence. An exception has, however, been made in regard to remissions earned for donation of blood or for having passed an examination which is not to be included while calculating the period of one‑third of sentence. This clearly shows that an incentive has been provided to a convict other than a life convict to pass any number of examinations, so as to earn his release before the termination of his substantive sentence. Further support is lent to this view by a perusal of rule 15 which deals with the remissions to convicts on account of donation of blood. Here too, the word "donation" has been used in the singular, just as "an examina?tion" is used in rule

17. But in case of remission earned on account of donations of blood, a table has been laid down prescribing the scale of remissions for each donation given in succession. There is no such scale under rule 17, reducing the amount of remission for every subsequent examination by having recourse to a sliding scale. Under the General Clauses Act singular would also include plural. Thus considered from every aspect, one is driven to the irresistible conclusion that a convict other than a life convict is entitled to each stretch of six months' remission for every single examination passed by him, provided the examination falls within one of the categories enumerated in sub‑rule (1) of rule 1.7, and he is certified to be of a good character during the relevant time. It was conceded by the learned Advocate‑General that the convict, notwithstanding the award of a sentence of fourteen years' R. 1. was not a life convict, and as such, the over‑all restrictions placed on the maximum remission "ordinary" and "special" applicable to the case of a life convict under sub‑rule (2) of rule 19, would not be attracted to his case. Of course, continuity or frequency of an otherwise illegal practice would not per se have the effect of curing the illegality amounting to a legal sanction, unless of course, it could be otherwise justified on a reasonable interpreta?tion of the relevant provisions of law, which I am in no manner of doubt, is available in the instant case. The learned Advocate? General was unable to produce any authority in support of the interpretation advocated by him.

5. The upshot of the discussion, therefore, is that the petition succeeds and is hereby allowed with the direction that a further period of six months may be added to the remissions already earned by the convict on account of having qualified the Punjabi Fazil examination. Making allowance for this stretch of six months, if he is entitled to release, as it appears to be so, he should be straightaway set at liberty, unless required in any other case.

6. A copy of this order may be supplied dasti to the petitioner on payment of usual charges. S.Q.???????????????????????????????????????????????????????????????????????????????????????????????????? Petition allowed.