P L D 1965 (W (PLP)

(3) that by limiting the total period of remissions to four years, and thus by implication cancelling some of the remissions already earned by the petitioners, the Government has violated the Fundamental Right embodied in sub‑clause (b) of clause 4 of the Rights, as enumerated in Chapter I of the Constitution (First Amendment) Act, 1963.

9. The question of the interpretation and application of the instructions contained in the memorandum of the 22nd of May 1961 came up before a Division Bench at Lahore in Writ Petition No. 780 of 1962, decided on the 9th of November 1962. The judgment of the Court in that case was delivered by one of us ;(Anwarul Haq, J.,) and it was held that "the decision taken by the Provincial Government vide its memorandum of the 22nd of May 1961, that transportation for life will mean fourteen years' R. I., will apply not only to those who may henceforth be sentenced to transportation for life but also to those prisoners who may be undergoing this sentence on the day the decision was pro mulgated". As regards the power of the Provincial Government to regulate the total period of remissions, it was observed that, "the power under section 401 of the Code of Criminal Procedure vests in the Government, and the Government, as a matter of policy;. decides that remissions in a particular class of prisoners will not exceed four years, it‑is clearly‑acting within the scope of section 401, Cr. P. C. and not in violation thereof". On the question whether the remissions already granted to or earned by a prisoner had taken effect or not, reliance was placed on the dictum of their Lordships of the Federal Court in the case of Shahbaz v. Crown (P L D 1956 F C 46), and it was held that, "although it is true that the remissions earned by the petitioner have been entered in his prison documents, yet they cannot be said to have taken effect for the reason that the petitioner is still in custody. If he had been released by virtue of the remissions earned by, or granted to him, it would have been a case of remissions having taken‑effect; but as the matter stands, the remissions have not taken effect, and it is clear, therefore, that they can be cancelled or rescinded. 7 There is thus no right vesting in the petitioner ‑to avail of the remissions granted, to him under the old system while benefiting from the reduced total .term of imprisonment of fourteen years as contained in the memorandum of 22nd of May 1961." Finally, the view was expressed that "the total period of imprisonment which the petitioner has to undergo as "lifer" is fourteen years, out of which the substantive imprisonment has to be at least ten years and the remissions cannot exceed four years".

10. It was contended before us that the question whether the ' remissions granted by the Central Government could be cancelled or rescinded by, the Provincial Government was not raised before the Division. Bench, nor did the Division Bench consider the effect of the Fundamental rights having been made justiciable' under the Constitution (First Amendment) Act, 1963. Finally, it was argued that the view adopted by the Division Bench on the question whether the remissions had taken effect or not by being entered in the Prison documents need to be reconsidered.

11. It is correct that the question whether the Provincial Government could cancel or rescind remissions granted by the Central Government was not raised before the Division Bench in Writ Petition No. 780 of 1962. Under subsection (5) of section 401 of the Criminal Procedure Code, the President or the Central Government have the right to grant pardons, reprieves, respites or remissions of punishment. A similar power is men tioned in section 55‑A of the Pakistan Penal Code. Again, under Article 18 of the Constitution of the Republic of Pakistan, 1962, this power is specifically conferred on the President. It is clear, therefore, that the President or the Central Government were competent to grant remissions on the occasion of the Republic Day 1962 and the Revolution Day 1959. It is conceded by the learned Additional Advocate‑General that the remissions granted by the President or the Central Government cannot be cancelled or rescinded by the Provincial Government, If any authority was needed for this proposition we could refer to an unreported judgment of their Lordships of the Supreme Court, delivered on the 28th March 1958 in Criminal Appeals Nos. 54 and 55 of 1957 on behalf of Musafir and Rahat Gul. In that case their Lordships answered in the negative the question whether an order of com mutation of death sentence passed by the Central Government under section 402‑A, Criminal Procedure Code, could be recalled by the Provincial Government.

12. Our answer, therefore, to the question referred to the Full Bench, by the learned Single Judge, is that the Provincial Government has no power to control, cancel or rescind the remissions, ordinary or special, granted to the convicts by the Central Government. We consider, however, that the question referred to us by the learned Single Judge is not the only question which needs consideration in this case, and that by answering this question alone, the controversy is not finally resolved. The question has still to be answered as to how the cases of convicts sentenced to transportation for life before the issue of Provincial Government's memorandum of the 22nd of May 1961 are to be regulated. In view of the fact that there is already a Division Bench decision in the field, the correctness of which is being challenged, it would be appropriate if the entire matter is dealt with by this Full Bench. Accordingly we proceed to consider the other contentions which have been raised before u by the learned counsel for the petitioners.

13. It has already been stated that the learned counsel has challenged the correctness of the view of the Division Bench in Writ Petition No. 780 of 1962 on the question as to when to the remissions take effect. We were referred to a judgment of the Full Bench in Venkatesh Yeshwat Deshpande v. Emperor (A I R 1938 Nag. 513) in which it was held that "It is not open to Government, after remitting a sentence unconditionally, and in absence of fraud or mistake, to cancel the order and restore the sentence. Even assuming that the Government has such power, an order remitting sentence which has been acted upon to the extent of informing the Legislature of the remission, cannot be amended or cancelled or suspended by the Assistant Legal Remembrancer writing to the Superintendent of Central Jail a memorandum telling the Superintendent to keep a prisoner in custody until he is told to let him go. That is not the way that orders are amended. When the amending order is passed some days after an application under section 491 for writ of Habeas Corpus had been launched and after the prisoner was entitled to be released under the order of remission, any possible locus poenitentiae is clearly at an end." A perusal of the facts stated in the judgment of the Court shows that before the date on which the prisoner was due to be released under the earlier order of remission passed by the Government, no formal order recalling the earlier order was passed, and the formal order was passed after the date of release earlier specified had expired. Their Lordships, therefore, took the view that after the date of release specified in the earlier order, it was no .longer open to the Government to amend or recall the earlier order.

14. Reference was then made to the decision of the Full Bench of the East Pakistan High Court in Lt.‑Col. G. L.1 Bhattacharya v. The State (P L D 1963 Dacca 422), in which it was held by their Lordships that "An order of remission of a sentence was acted upon in the sense that the Provincial Government had done everything that was necessary for it to do to give effect to the order. A right had already accrued upon the petitioner to claim the advantage given to him under the order, whatever may be the nature of such right, when the order was communicated to the relevant authorities and was recorded in the "history ticket" of the prisoner. The criterion as to whether there is a locus poenitentiae is not dependent upon the fact whether the prisoner has or has not been released. The crux of the matter is whether the order has been acted upon, that is, whether the authority exercising such power has done that which is necessary for it to make the order effective. When such a step has been taken the order was acted upon thereby conferring a right upon the prisoner. Therefore the subsequent order of cancellation can have legally no effect whatsoever." In coming to these conclusions their Lordships referred the decision of the Federal Court in the case of Shahbaz as well as to A I R 1938 Nag. 513.

15. In view of the decision of their Lordships of the Federal Court in the case of Shahbaz, there can be no doubt regarding the power of Government to recall or rescind an order of remission of sentence passed under section 401 of the Code of Criminal Procedure. On this point their Lordships have expressed themselves as under "It does not seem to us necessary in this case to decide whether section 21 of the General Clauses Act applies to orders passed under section 401, Criminal Procedure Code, for apart from that provision, Government must, in the nature of things, possess power to recall its own orders. In fact existence of such power is necessary in the case of all authorities empowered to pass orders under a statute or regulation and that is apparently the reason why in order to give finality to judicial orders provisions greatly restricting the use of this power had to be introduced in the Civil and Criminal Procedure Codes. Whenever there is no such restriction imposed on Governments there is no reason to deny them the power of correcting even the errors of judgments. In several cases this power of correc tion is necessary for the proper discharge of their functions. In the Nagpur decision relied upon by the appellant it was not held that Government does not possess power to modify or cancel its earlier orders. What was objected to there was the exercise of that power after the date on which the prisoner was due to be released under the original order . . . . . ."

16. The question, however, is up to what point or stage can this power of recall be exercised by Government. In the case of Shahbaz the answer given by the Federal Court was in the following words :‑ "Locus poenitentiae in law refers to the power of receding till a decisive step is taken. If a decisive step is taken other considerations would arise, but if that step is yet to be taken, we see no reason to restrict the power to modify or cancel."

17. In the case before their Lordships, Shahbaz had been sentenced to death by the Sessions Judge of Sialkot and on appeal the High Court at Lahore had upheld his conviction but reduced the sentence to transportation for life on the 6th of May 1952. Towards the end of 1953, the brother of Shahbaz moved the Government of the Puniab for the remission of his sentence and early in August 1954 the Punjab Government passed orders remitting the sentence of Shahbaz unconditionally with the direction that he should be released on the Independence Day, i.e. 14th August 1954. But this order was cancelled on the 13th August with the result that the convict was not released on the Independence Day, Their Lordships observed that the order of cancellation was passed before the date of release and, therefore, there was locus poenitentiae for the Government to act as the order of remission had not been carried into effect. Their Lordships further observed that "the original order in this case remitted no doubt the unexpired portion of the sentence, but there was a definite direction that it should come into effect on the 14th August. Detention till the 14th was lawful and it would have become unlawful only after that day, but before that day arrived the order of cancellation was received. The facts of Nagpur case on which Mr. Mahmud Ali relied were materially different on this point. There the order had been given effect to by the time the order of cancellation was passed."

18. Elaborating the point further, the judgment concludes with the following paragraph :‑ "It is argued by Mr. Mahmud Ali that if orders of remission are not taken as coming into effect on the day they are issued it would lead to this result that in a case where a sentence of death is commuted to one of transportation for life under section 402, ‑Cr. P. C., Government can cancel its order of commutation after the prisoner has undergone several years of the sentence of transportation and then the death sentence will have to be executed. But in this extreme case imagined .by the learned Advocate the very commencement of the sentence of transportation necessarily involves the carrying into effect of the order of‑commutation. Prisoners under death sentences are kept in separate cells without being assigned any work and the moment the orders of commutation is received, the prisoners are removed to the cells where sentences of imprisonment and transportation are undergone. This clearly amounts to giving effect to the order of commutation."

19. It will be seen that the test for determining whether there is locus poenitentiae or not is to ascertain whether a decisive step has been taken in pursuance of the earlier order which is sought to be recalled or rescinded. Now, can it be said that the mere entry of the grant of a remission in the prison documents of a convict is a decisive step in the implementation of the order of remission? Their Lordships of the East Pakistan High Court seem to think that it is, as, in their view, the entry of the grant of remission in the prison documents, is all that is required to be done under the order of remission passed by the Government, and it is immaterial whether the prisoner has or has not been released in pursuance of that remission. With great respect to the learned Judges, who decided Bhattacharya's case, we are unable to adopt this view. It seems to us that the phrase "taking a decisive step" or the alternative phrase "carrying an order into effect"; as used in respect of an order capable of physical implementation, cannot mean mere documentation, but must connote the taking of an active physical step by which alone the. order could be effectively implemented. This meaning becomes clear with reference to the observation contained in the last paragraph in the judgment of their Lordships of the Federal Court in the case of Shahbaz. While discussing the theoretical case of a condemned prisoner whose sentence is commuted into one of transportation for life, their Lordships have clearly stated that a decisive step would be taken when the prisoner would be removed from the condemned cell to that part of the prison where the ordinary sentences of imprisonment are to be under gone. It is clear to us that if in the view of their Lordships the mere entry of an order of commutation in the prison documents was enough, then they would not have stated that the removal of the prisoner from the condemned cell to the other part of the jail was a decisive step in such a case. Thus an order of remission of sentence can be said to have been carried into effect only when as a result of that remission the convict has been released from custody. It is only then that a decisive step is taken in pursuance of the order of remission. Until that stage is reached, the order remains, to use the words employed by their Lordships of the East Pakistan High Court, "an inchoate order". For these reasons, with the utmost respect, we venture to differ from the view taken in Bhattacharya's case, and find ourselves in agree ment with the view expressed by the Division Bench of this Court at Lahore in Writ Petition No. 780 of 1962 that an order of remission cannot be said to have been carried into effect until such time as the prisoner is released from custody in pursuance of that order, with the result that until that decisive step is taken, locus poenitentiae exists for the Government to recall or rescind that order.

20. We must, however, state one exception to this rule and that is the type of case which arose before the Nagpur High Court, namely, where although the prisoner has not yet been physically released, yet his release has already become due by virtue of the remission granted to, or earned by, him, before the order of recall is issued. In such case we would agree that a right had already accrued to the prisoner, and locus poenitentiae, for the Government was at an end. The reason for our thinking so is that the period of detention of the prisoner, after making allowance for the remission granted to him, having already come to an end, the remission must be considered to have taken effect; and his further detention not being in pursuance of any valid and subsisting order, the same could not be legalised or extended retrospectively by an order, passed subsequently, recalling the remission. It is not difficult to conceive of the release having been delayed due to a combination of fortuitous causes which could not have any legal effect on the termination of the period of custody, which termination should have already taken place in such a case. Similarly, a prisoner may be undergoing two or more sentences either concurrently or consecutively, and the remission may relate to only one of them. In such a case, he could not be released after he had served the shorter sentence in regard to which the remission may have ‑ been granted. Here again, the order of remission. could not be recalled simply for the reason that the prisoner is still ..in custody in connection with another sentence. Subject to these exceptions, we consider that an order ‑of remission must be taken to have been carried out, or a decisive step taken with regard thereto, only when the prisoner is released from custody in pursuance of that remission.

21. The next contention which needs to be noticed is the one based on the justiciability of fundamental rights. The right relied upon on behalf of the petitioners is worded as follows "

4. Protection against retrospective punishment‑‑ No law should authorize‑‑ (a) the punishment of a person for an act or omission that was not punishable by law at the time of the actor omission; or (b) the punishment of a person for an offence by a penalty greater than, or of a kind different from; the penalty prescribed by law for that offence at the time the offence was committed."

22. Clause (a), of course, has no application to the present case, and we have only to examine whether clause (b) would be applicable. The contention put forward by Doctor Abdur‑Rahim is that at the lime the petitioners were convicted and ordered to undergo transportation for life, that sentence meant a total rigorous there was no condition that the convict must undergo ten years substantive imprisonment, but under the new instructions prisoner may have to remain in Jail for an aggregate period o more than 20 years so as to complete ten years of substantive imprisonment, as in the case of prisoner in Writ Petition No. 467 of 1963. It is further contended that under the rules applicable at the time the petitioners were convicted there was no restriction on the total length of remissions, but now these remissions have been limited to four years, thus having the effect of imposing a penalty of longer substantive imprisonment on the petitioners.

23. It is clear that clause (b) of Fundamental Right No. 4 on which reliance has been placed by Doctor Abdur Rahim does not apply in terms in the present case, for there is no question here of imposing a greater penalty on the petitioners then was prescribed by law at the time the offence was committed. The penalty prescribed by law for the offences committed by the petitioners remains the same. At the same time, however, we agree that if the new instructions have the effect of keeping a prisoner in custody for an aggregate period of more than 20 years, including remissions, then it can be said that in practical effect the punish ment imposed upon him has become greater than was prescribed at the time he committed the offence. This aspect of the matte is particularly clear from the case of the prisoner in Writ Petition No. 467 of 1963. As already stated, this convict has completed an aggregate period of more than 20 years, including remissions, and he would have been entitled to be released on the completion of 20 years, if the memorandum of the 22nd of May 1961 had not) prescribed a new condition, namely, that of substantive imprisonment for ten years. The result is that this prisoner is being compelled to undergo a longer sentence in the aggregate than was prescribed at the time he committed the offence, or was convicted. This result seems to us to be clearly against the spirit, if not the terms of the right embodied in clause (b) of Fundamental Right No. 4 granted by the Constitution. In the matter of the liberty of the subject it is the duty of the Courts to ensure that not only the letter of the law but also its spirit is observed. We must, therefore, hold that the instructions embodied in the memorandum of the 22nd of May 1961 cannot be allowed to be operated retrospectively in a manner so as to authorize the detention of a `lifer' for an aggregate period, including remissions, of more than 20 years. This aspect of the matter could not have been considered by the Division Bench at Lahore, as at that time the Fundamental Rights had not been made justiciable and in any case, the argument was not raised before the Bench.

24. The position which emerges, therefore, is that all persons undergoing transportation for life, whether convicted before or after the issue of the memorandum of the 22nd of May 1961 are governed by the instructions embodied in this memo namely, that transportation for life means rigorous imprisonment for fourteen years, including ten years' substantive imprisonment; but the Provincial Government cannot operate this rule in a manner so as to authorise the detention of a lifer, who committed the offence, or was convicted, before the date of this memorandum, to an aggregate period of more than 20 years, including remissions of all kinds. In calculating the remission admissible in such a case, the remissions granted by the Central Government cannot be cancelled or rescinded by the Provincial Government. In other words, such cases must be governed by the previous rule which did not impose any restriction on the total period of remissions, nor did it prescribe any minimum period of substantive imprisonment. Further, it is clear to us that it is not open to a prisoner to seek the benefit of the reduced aggregate period of fourteen years as laid down in this memo randum, without fulfilling the other conditions imposed therein, namely, that he must undergo substantive imprisonment for ten years and that remissions shall not exceed four years. The reference is answered accordingly.

25. All the cases shall now go back to a learned Single Judge of this Court for decision in the light of the opinion recorded above. MUHAMMAD DAUD KHAN, J.‑I agree. BASHIRUDDIN AHMAD, J.‑I agree. A. H. Reference answered.