P L D 2004 Peshawar 47 (PLP)

DOST MUHAMMAD KHAN, J.

The petitioner Nazim Khan, a convict prisoner for offence under section 9, C.N.S. Act in case F.I.R No.88 dated 26-11-2001 was tried and was sentenced to 6 years' R.I. with a fine of Rs.4,00,000 or in default thereof to suffer further 4 years S. I. Benefit of section 382-B, Cr.P.C was extended.

2. The main grievance of the petitioner is that albeit the benefit of section 382-B, Cr.P.C. was extended to him, for the period of his detention as under-trial prisoner but the Jail. Authorities/respondents have denied him the concession of remissions granted at different occasions by the relevant authorities during the said period. This he has explained in his rejoinder filed to the comments of the respondents albeit in the writ petition the petitioner has not taken this plea in unequivocal words. On such premises the petitioner, claims that if the concession of remissions thus granted are allowed to him he is entitled to be released as by adding the period of remissions his sentence then would come to an end.

3. We have heard the arguments of the learned counsel for the petitioner as well as for the State at great length.

4. To avoid the binding legal effects of the law enunciated by a Division Bench of this Court in Akbar Khan Marwat case (H.C.P.No.10 of 2002) the learned counsel for the petitioner argued that in that case the learned Bench has not construed the provision of section 382-B; Cr.P.C. in its correct perspective as according to the leaned counsel the scope of this provision can be validly enlarged by interpreting it in a manner beneficial to accused so that to cover the lacuna left therein in not mentioning the words "remission" in "sentences" and the period of detention to be considered as that of substantial sentence undergone. Reliance was heavily placed in. this regard on the recent view formed by a subsequent Division Bench of this Court in the case of Zia-ur-Rehman (W.P.No.221 of 2001).

5. The learned State Counsel, however, strongly opposed the petition and placed reliance on the view taken in the Akbar Khan Marwat case supra wherein principle of law has been enunciated altogether in a different manner denying the concession of remission to an under-trial prisoner, granted by the Government or authorities during the period of detention as under-trial prisoner.

6. Legally the two law terms i.e. "detention" and "sentence" have altogether different meaning and connotation. Detention under the Court order is the one where an accused person is kept in jail pending trial or inquiry as ordinary prisoner without undergoing any hard labour, and without facing rigorous imprisonment. Under the Jail Manual under-trial prisoners and those sentenced to imprisonment are distinctly classified. The under-trial prisoners in view of Chapter 15, of the Pakistan Prison Rules are a privileged class of prisoners. According to Rule 373 they are entitled as of right to wear their own clothes, to use their own bedding and they are destitute, be essentially provided those facilities at State expenses. Again under Rule 375 an under-trial prisoner can be allowed to receive food, private clothing, bedding and other necessities of his choice from private sources including cash money. He is entitled to cook food of his choice for himself even in jail premises, under Rule

378. Further, under Rule 381 under-trial prisoner cannot be employed in any type of labour except productive labour if the voluntarily opts for that. Similarly under rule 383 under-trial prisoners are to be kept separately from the convict prisoners and their ward/barrack or confinement, is to be regularly attended for sweeping, cleaning and supplying of food and water purposes. They are further allowed to have their own books/newspaper to read if approved by the Jailer. On the contrary prisoners undergoing sentence of imprisonment have no such privileges and they are required to render hard labour or different kinds including the labour in the jail factory or elsewhere under the direction of the Jailer, therefore, the two classes of prisoners are distinctly placed and classified. The classification is based on sound and justifiable rationale.

8. Not only because the under-trial prisoner, get preferential treatment during detention but the law itself has drawn a sharp distinction between the two legal terms i.e. "detention" and "sentence" therefore, these two phrases cannot be considered or taken synonymous or pari materia to each other.

9. The learned Division Bench of this Court in Akbar Khan Marwat case supra has placed proper construction on Rule 204(i) (b) and Rule 216 (i) and we have no reasons whatsoever to disagree with the interpretation so adopted. The fundamental principle and canon bi interpreting a Statute-is that Court must give and pay due regard to a clear intent of the law maker. It is only in case of ambiguity in a Statute which would entitle the Court to make efforts by interpreting a Statute in a manner which is in consonance with the settled principle of justice and to advance the cause of the Statute, its purposes and to suppress the mischief.

10. The Legislature, while enacting the provision of section 382-B, Cr.P.C. under legal presumption, was knowing well about the relevant provisions contained in the Jail Rules pertaining to grant of remissions in sentences to prisoners, no ignorance could be attributed to it in this regard, thus judged from this angle, we are firm in our view that Legislature has deliberately employed the word "detention" and the words "shall take into consideration the period" while awarding sentence. The benefit thus extended by the Legislature is confined only to the extent and length of detention of under-trial prisoner in the matter of sentence unassociated with the grant of remissions. The latter one is only permissible to prisoners undergoing sentence of imprisonment.

11. The other, contention that the provision of section 382-B. Cr.P.C. be construed in a manner to enlarge its scope to the extent as suggested is also misconceived one because the suggested interpretation if given effect, would, certainly defeat the clear intent of the law makers and the Court would indulge in adding or inducting into the plain language of the said Statute something which is deliberately omitted by the Legislature and this would certainly amount to legislation which is not the province of the Court.

12. In the conclusion, we, however, would not follow the view of the subsequent learned Division Bench in Zia-ur-Rehman case (W.P.No.221 of 2001) on the basis of well-entrenched and consistently followed principle of law that a subsequent Division Bench shall not dissent from the law enunciated by earlier Division. Bench on the same subject-matter and in case if it has reasons to disagree then the proper course to be adopted is to refer the same to a larger Bench or it be left open to be decided by the Hon'ble Supreme Court. This principle of law was laid down with much clarity by a Full Bench of the Lahore High Court in the case of Ajudhiya Prashad Ram Prashad v. Sham Sundhar and others (AIR 1947 Lahore 13), the Hon'ble Supreme Court while firmly and emphatically reiterating this principle of law in the case of Province of East Pakistan v. Dr. Aziz-ul-Islam (PLD 1963 SC 296) held in the following terms:-- "With respect we must point out that the decision was a direct authority also on this question, as in spite of the rubber-stamp signature the validity of the order of requisition was upheld and if the learned Judges of the High Court deciding the present case were inclined to take a different view, they should have, in accordance with the rules of their own Court, referred the matter to a larger Bench. Alternatively, they could have expressed their doubts regarding the view taken in the precedent case, in a Court of co-equal jurisdiction, while yet following that view, and left the matter to be raised in appeal before this Court." Therefore, while following the above principle of law, we with all respect to the subsequent Division Bench are unable to agree with its view held in Zia-ur-Rehman case supra because while holding the contrary view, it has not taken notice of the consistent principle of law laid down by the Hon'ble Supreme Court time and again. The object oil, this principle is to maintain uniformity and consistency of views/decision in different Benches of the same High Court and is aimed at to foster develop and channelize the system of justice to an extent sufficient enough for the general public to repose its firm confidence in the same and for this very reason we are constrained to follow the view taken by the earlier Bench in the Akbar Khan Marwat case supra.

13. The prayer of the petitioner seeking the benefit of remission granted during the period when he was confined to hospital bed for treatment, undoubtedly is based on sound footings because principles or justice, rules of propriety and good conscience favour him in this regard. He did not render hard labour during the said period because of ill-health he was unable to perform it. It was not the case of refusal on his part to render hard labour, therefore, the refusal of the Jail Authorities to gram the benefit of remission to him during the period when he was under treatment as indoor patient both inside and outside the jail cannot be approved on the above principles. To refuse this concession to the petitioner would tantamount to treat him inhumanly, harshly, the same would be equally violative of the spirit of the Prison Rules itself because hard labour cannot be taken from a prisoner who is unable to perform it on account of serious illness, therefore, it is directed that the Jail Authorities shall extend to the petitioner the benefit of the remissions granted by different authorities during the period when he was unable to perform hard labour because of his illness and having been admitted in the hospital as indoor patient for treatment. For the foregoing reasons and on the principle of law thus enunciated but subject to the above directions this petition is dismissed. M.B.A./12/P Petition dismissed.