P L D 2009 Peshawar 33 (PLP)

DOST MUHAMMAD KHAN, J.

The petitioner, a convict prisoner, under section 9(c) C.N.S. Act, 1997 was sentenced to life imprisonment by the Judge Special Court, Kohat on 4-9-2001 and is now undergoing his sentence in Central Jail, Haripur.

2. The present controversy arose when the jail authorities deducted remissions of 104 months and 25 days earlier allowed/granted to him as the President of Pakistan/Government at different occasions allowed/granted remissions of different periods to prisoners. In his written comments, the respondent/Superintendent Jail has stated that the deductions of remissions from the sentence of the petitioner were made on the strength of the judgment of this Court dated 17-5-2002 given in the case of Akbar Marwat v. The Superintendent Jail, Peshawar. The petitioner has questioned the said action through this constitutional petition.

3. Learned counsel for the petitioner vehemently contended that while following the proclamation order of the President/Government the jail authorities granted remissions in sentence of the petitioner which were duly incorporated into the petitioner's remissions sheet, therefore, due effect was given to the remissions orders and vested right had accrued to the petitioner which could not be withdrawn on the strength of judgment of this Court or that of the Honourable Supreme Court because the respondent could not retrace/withdraw the step taken under the principle of locus poenitentiae. In this regard, reliance was placed on the view held by the learned High Court of Lahore in the case of Muhammad Arif v. Superintendent Central Jail Lahore and 2 others PLD 2006 Lah. 561.

4. We have considered the submissions made at the Bar and have gone through the case law relevant to the subject as well as the effect of principle of locus poenitentiae involved herein.

5. The principle of locus poenitentiae has been subject to discussion and interpretation of the superior Courts since long. However, by now it is well-settled principle that the authority competent to grant a concession or to confer a benefit on a party or an individual cannot rescind or make retrace by withdrawing it at a stage when it has reached to a logical conclusion and the order has been acted upon whereby irreversible vested right is accrued to the beneficiary of the order. We have also no cavil with this legal proposition.

6. What is important to be determined is the legal sanction of law investing the authority with powers to grant concession or confer benefit/benefits on a party or an individual.

7. This Court in the case of Akbar Marwat HCP No.10/2002 and later in the case of Nazeem Khan v. Inspector General of Prisons, Government of N.-W.F.P. and 2 others PLD 2004 Peshawar 47 has only interpreted the provision of section 382-B, Cr.P.C. which is coached in plain words easily understandable.

8. All the orders/notifications issued by the President/Government granting remissions in sentences to prisoners have clearly stated that the remissions shall be allowed to the prisoners undergoing sentences of different kinds. Some exceptions were taken thereto with regard to certain categories of prisoners who were sentenced for different crimes under the Anti-terrorism law or under the NAB law.

9. It is of utmost importance to be clarified here that under-trials prisoner under the Jail Manual is a privileged class, apart, the legal analogy that they under no circumstances can be treated convict prisoners. This aspect has been very elaborately dealt with by this court in the case of Nazeem Khan ibid and needs no further elaboration.

10. As the remissions were granted and remained confined Only to the cases of those prisoners who were already undergoing sentences of imprisonment awarded to them by the competent Court of law, therefore, stretching its scope beyond the clearly laid down parameters by extending this benefit to under-trial prisoners would be in violation of the very orders/proclamations and notifications issued by the President or the Governments in this regard at different occasions.

11. The legislature extended the benefit of counting the detention period towards the sentences of the prisoners when awarded by the Court has granted relief on the principle of equity and justice so that the period of detention undergone by an under-trial prisoner shall not go waste but he must be compensated for that. However, as earlier mentioned this relief/concession is only confined to add the period of detention towards the length of sentence awarded to a prisoner but it does not include the remissions in sentences granted to prisoners facing trial because detention and sentences are altogether two different terms which cannot be intermingled nor the clear intent of the legislature in this regard can be defeated by giving it extended scope and meaning. If the legislature wanted to extend the benefit in remissions of sentences, then it would have done it through express words and necessary intendments which is not the case. The principle on the construction of statute in this regard is well settled that once the legislature has deliberately omitted something from a statute, the court or any other authority has no powers to add it into the statute nor it is supposed to supply the deliberate omission.

12. Keeping in view the above legal position, the jail authorities not only had disregarded the orders/proclamations of remissions in sentences issued by the President/Governments but have also acted in clear violation of the provisions of section 382-B, Cr.P.C. and also against the relevant rules contained in Jail Manual where prisoners sentenced to imprisonment and those facing trial are placed pole apart from each other and in this way the jail authorities without the sanction of law and legal authority inadvertently and under entire misconception added the remissions in sentences in the remissions sheets of the prisoner. The petitioner is not the only one but there are hundreds and hundreds prisoners from whom the concession thus granted illegally was withdrawn, the element of discrimination thus is also not available in the case. Once it is held that the jail authorities were not legally competent nor they were authorized by the provision of law or by the very orders granting remissions in sentences, then granting the said concession to the petitioner by the jailer was absolutely without lawful authority and ab initio void and it was not competent to grant the concession/confer benefit on the petitioner and when the order was coram non judice then its withdrawal was within the jurisdiction and competency of the jailer.

13. Reliance placed by the learned counsel on the view held in Muhammad Arif's case is not attracted because that operates on different principle of law, However, with utmost respect we are unable to follow the said principle laid down in the said case because the learned High Court of Lahore was not assisted properly on the legal proposition involved and discussed herein above. In the said case, the competency of the jail authority incorporating the concession in remissions of sentences in the remissions sheets of the prisoners was neither pointed out nor it was discussed and determined, therefore, the said principle would not apply.

14. A Full Bench of this Court in the case of Farid Khan v. The State PLD 1965 (W.P.) Peshawar 31 while dealing with the principle of locus poenitentiae referred to the case Venkatesh Yeshwat Deshpande v. Emperor (AIR 1938 Nag. 513) where a Full Bench on the facts and circumstances of that case held that after remission granted the prisoner was released and on the very date the order was recalled, therefore, their lordship took the view that after the date of release it was no longer open to the Government to amend or recall the earlier order. The case of Lt. Col. G.L.I Bhattacharya v. The State PLD 1963 Dacca 422 was referred where the same view was taken because the order passed by the Government in that case was given practical effect.

15. Their lordships of the Full Bench of this Court while determining the effect of locus poenitentiae held in unequivocal terms as follows:-- "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? While differing with the view of their lordships of the then East Pakistan High Court it was further held:-- "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 undergone. 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 agreement 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". 15-A. The view held above by a Full Bench of this Court seems to us very sound and is based on correct interpretation/construction of the principle of locus poenitentiae. In this case, the petitioner is still undergoing the remaining part of the sentence, thus the principle of recalling the concession would be attracted and we see no legal impediment in the way of it. In addition to that, as discussed in the earlier part of this judgment, the jailer was not competent to grant the concession of remission to the petitioner both under the statutory law, the rule of the Jail Manual and in view of the clearly understandable orders/notifications/proclamations issued by the President/Government.

16. As held above, the concession granted to the petitioner was without lawful authority and being ab initio void, the jailer was competent to withdraw it to which no exception could be taken. Accordingly, this petition being bereft of legal merits and substance is dismissed in limine. H.B.T./201/P Petition dismissed.