P L D 1968 Lahore 120 (PLP)

Masood Ahmad Khan for A. G. for the State Date of hearing: 4th April 1967. This is an application under section 491 of the Code of Criminal Procedure read with section 561‑A of the same Code by Mst. Nathu, seeking the release of her son Muhammad Bashir who was sentenced to death under section 302/34, P. P. C. by the Sessions Judge, Lahore, but the sentence of death was altered by the High Court on appeal to transportation for life.

2. The ground for release urged in the petition and as argued by the learned counsel appearing for the petitioner is that Muhammad Bashir has already suffered imprisonment for fourteen years and seven months, including the remission period of six years, five months and twelve days earned by him and, therefore, his continued detention in prison is illegal and without lawful authority.

3. The Officer on Special Duty (Prisons) has submitted a report, stating that the Government have considered the case of the convict Muhammad Bashir and have approved of his release on completion of ten years' substantive sentence which he has not completed so far although he has served a sentence of fourteen years, four months and twenty‑five days, inclusive of the remissions earned by him up till the date of the submission of the report, via., 3rd of April 1967. The report refers to a Full Bench Judgment of the High Court of West Pakistan, Peshawar Bench, in Case No. 177 of 1963 for the opinion that as Muhammad Bashir was convicted before the 22nd of May 1961, the sentence of transportation for life in his case means a sentence of an aggregate period of twenty years, including remissions which may be earned by him.

4. I have been referred to the rules framed by the Governor of West Pakistan in exercise of powers conferred by clauses (5) and (21) of section 59 of the Prisons Act (IX of 1894) which were notified on the 3rd of August 1965 in supersession of all the then prevailing rules on the subject of remission of sentences of prisoners in any of the Provinces or areas now integrated into West Pakistan. According to these rules (hereafter to be referred to as the Rues), remissions granted to the prisoners are of two kinds‑ordinary or special. Rule 7 provides for the scale of ordinary remissions and Rule 16 contains a list of remissions which may be granted for special services. Similarly, Rules 15 and 17 provide for special remission for donating blood and pass ing examinations by the convicts respectively. Under Rule 19 the total remission, both ordinary and special, awarded to a convict under these Rules other than remission for donating blood awarded under Rule 15 and for passing examination awarded under Rule 17 shall not exceed one‑third of his sentence, although the Government has the powers, on the recommendation of the Director, to grant remission beyond that limit in exceptional and deserving cases. In the case of life convicts, remission, both ordinary and special, shall not exceed four years under any circumstances. A "life convict" under Rule (1) (c) is defined as a convict who is sentenced to transportation for life and such sentence shall mean fourteen years' rigorous imprisonment. Apart from these remissions, ordinary and special, envisaged under these Rules, there is a mention of another special remission under Rule 20 which is awarded by the Government on occasions of pubic rejoicings under section 401 of the Criminal Procedure Code (hereafter to be referred to as the Code). According to this rule, the remission granted under section 401 of the Code is unconditional and is not governed by the 1965 Rules. This clearly means that the special remissions awarded by the Government to a prisoner under section 401 of the Code are independent of the remissions covered by the Rules and are to be added to the remissions earned by him under these Rules, both ordinary and special, and even the limitation of the period of remission not exceeding four years in the case of life convicts does not affect remissions granted under section 401 of the Code and recognized by Rule

20. The report, referred to above, submitted by the Officer on Special Duty (Prisons), while stating that the convict must serve a substantive sentence of ten years seems to take into account this limitation on the remission period not exceeding four years as contained in Rule 19, without, however, taking notice of Rule 20, according to which, as already stated, special remissions awarded by the Government under section 401 of the Code have to be allowed to the prisoner apart from the remissions under the Rules, even though in the result the total period of remissions exceeds four years and the substantive sentence undergone by the prisoner is consequently reduced to less than ten years. In the present case, Muhammad Bashir has earned a remission of three years and four months on the Republic Day, awarded by the Central Government and he has also earned a remission of seven months and fifteen days as War Remission, also awarded by the Central Government. He has thus earned the total remission of six years, six months and twenty‑six days, made up of the ordinary Jail remissions and special remissions under the Rules as well as of special remissions awarded by the Central Government under section 401 of the Code. He will thus be deemed to have served his total period of imprisonment of fourteen years as a life convict, including the remissions earned by him. His further detention in the prison is, therefore, unlawful.

5. The learned counsel for the petitioner referred me to a judgment in Criminal Miscellaneous No. 4173 of 1966, delivered by my Lord, Chief Justice Inamullah Khan, in which precisely in a similar situation the detention of Miraj Din, a life convict, was declared to be illegal after the completion by him of the term of imprisonment of fourteen years (transportation for life), inclusive of the remissions earned by him, ordinary and special, under the Rules and under section 401 of the Code. Respectfully, I concur in that view on my own examination of the 1965 Rules which now govern such cases in supersession of all previous rules on the subject.

6. In the result, I direct that Muhammad Bashir convict shall be set at liberty at once. A.H. Order accordingly.