P L D 2007 Lahore 399 (PLP)

ASIF SAEED KHAN KHOSA, J.

The petitioner is a convict undergoing his sentence of imprisonment in a jail. When the petitioner was still an under-trial prisoner the jail authorities had accredited his `history ticket' with the benefit of certain remissions which were legally admissible only to convicts undergoing their sentences but after his conviction and after a declaration of the correct legal position regarding such remissions by the Hon'ble Supreme Court of Pakistan the petitioner's history ticket was rectified by the jail authorities and the benefit of remissions extended to the petitioner during the period when he was an under-trial prisoner was withdrawn. Through this writ petition the petitioner has sought restoration of the said benefit to him maintaining that after extension of such benefit to him earlier on the jail authorities could not have subsequently withdrawn the same. The learned counsel for the petitioner has placed a wholehearted reliance in this regard upon a judgment rendered by a learned Full Bench of this Court in the case of Muhammad Arif v. Superintendent Central Jail, Lahore and 2 others (PLD 2006 Lahore 561).

2. The prayer made by the petitioner through this writ petition cannot be granted as the law on the subject stands settled by the Hon'ble Supreme Court of Pakistan in the case of Haji Abdul Ali v. Haji Bismillah and 3 others PLD 2005 SC

163. In the said case it had authoritatively been declared by the Hon'ble Supreme Court that the benefit of remission of sentence is admissible only to a convict who has already been sentenced and not to an under-trial prisoner who is yet to be convicted and sentenced. In that case too, as in the present case, the benefit of remissions had been accredited to an under-trial prisoner's history ticket maintained in the jail but after recording of his conviction and sentence the said benefit had been withdrawn through a judgment passed by the Hon'ble High Court of Balochistan and the Hon'ble Supreme Court had upheld that part of the judgment passed by the Hon'ble High Court of Balochistan. In the case in hand if the jail authorities had initially accredited the petitioner's history ticket with any such remission erroneously and in violation of the law then no vested right had accrued to the petitioner in that regard. It goes without saying that there is no estoppel against the law and the petitioner cannot reclaim a benefit received by him earlier on in contravention or infringement of the law.

3. It may be observed with profound respect that the above mentioned judgment rendered by a learned Full Bench of this Court in the case of Muhammad Arif v. Superintendent Central Jail, Lahore and 2 others PLD 2006 Lahore 561 may not enure to the benefit of the petitioner for the following reasons: (a) In the case of Inayat Bibi v. Amjad Hussain and others (PLD 2006 Lahore 587) heard on the same day the same learned Full Bench had taken an absolutely opposite view of the same matter and had refused to restore the benefit of remissions withdrawn from an under-trial prisoner after his conviction. (b) In the judgment rendered by the learned Full Bench of this Court in the case of Muhammad Arif v. Superintendent Central Jail, Lahore and 2 others PLD 2006 Lahore 561 the learned Full Bench had deemed it appropriate to rely upon a judgment delivered by this Court in the case of Chaudhry Aamir Ali v. The State 2002 YLR 1902 wherein the judgment handed down by this Court earlier on in the case of Inayat Bibi v. Amjad Ali and others 2001 PCr.LJ 1453 had been dissented from. It had not been appreciated by the learned Full Bench that the judgment rendered in the case of Inayat Bibi v. Amjad Ali and others 2001 PCr.LJ 1453 had been upheld by the same learned Full Bench itself in the case of Inayat Bibi v. Amjad Hussain and others PLD 2006 Lahore 587 and in the case of Haji Abdul Ali v. Haji Bismillah and 3 others PLD 2005 SC 163 the Hon'ble Supreme Court had referred to the case of Inayat Bibi v. Amjad Ali and others 2001 P.Cr.L.J. 1453 with approval and acceptance. (c) In its judgment passed by the learned Full Bench of this Court in the case of Muhammad Arif v. Superintendent Central Jail, Lahore and 2 others PLD 2006 Lahore 561 the learned Full Bench had placed reliance upon the judgment delivered in the case of Lt.-Col. G.L. Bhattacharya v. The State PLD 1963 Dacca 422 which was upheld by the Hon'ble Supreme Court of Pakistan in the case of Lt.-Col. G. L. Battacharya v. The State and' 3 others PLD 1964 SC

503. It had not been appreciated by the learned Full Bench of this Court that the said case pertained to a remission of sentence lawfully granted to a convict undergoing a sentence and not to a remission of sentence unlawfully or mistakenly accredited in favour of an under-trial prisoner. (d) The learned Full Bench of this Court had held that the benefit of a remission of sentence already' accredited to the advantage of an under-trial prisoner in his history ticket maintained by the jail authorities cannot be withdrawn at any subsequent stage. Recognition and acceptance by the learned Full Bench of a convict's right to cling on to a benefit received by him unlawfully or mistakenly as an under-trial prisoner ran contrary to the law already declared by the Hon'ble Supreme Court of Pakistan in the afore-referred case of Haji Abdul Ali v. Haji Bismillah and 3 others PLD 2005 SC 163 according to which the benefit of remission of sentence is admissible only to a convict who has already been sentenced and not to an under-trial prisoner who is yet to be convicted and sentenced. In the said case withdrawal of such wrongly extended benefit by the Hon'ble High Court of Balochistan had been upheld by the Hon'ble Supreme Court. (e) The Hon'ble Supreme Court of Pakistan had subsequently reiterated the same view in the case of Amanullah v. Superintendent Jail (Criminal Miscellaneous Application No.149-L of 2005 decided on 21-7-2005).

4. Propriety demands that a judgment rendered by a learned Full Bench of this Court should be followed by this Bench but in the matter in hand the same learned Full Bench had expressed two views on the same day which views were mutually contradictory and destructive of each other. Apart from that the provisions of Article 189 of the Constitution of Islamic Republic of Pakistan, 1973 mandate that an enunciation of the relevant law by the Hon'ble Supreme Court is binding upon this Bench. It goes without saying that the binding mandate of the Constitution must have a sway over any question of propriety coming in the way.

5. For what has, been discussed above this writ petition is hereby dismissed with no order as to costs. M.B.A./M-133/L Petition dismissed.