P L D 1964 Supreme Court 503 (PLP)

S. A. RAHMAN, J.

‑I concur in the order proposed to be passed by my Lord the Chief Justice in this case and agree general with the reasoning by which it is supported, subject to the reserva tion that, with respect, I am inclined to take a different view of the effect of President's Order No. 26 of 1962, (hereinafter referred to as the Order) on the powers of the Provincial Govern ment to grant remission of sentences passed by a Martial La Authority, under section 401 of the Code of Criminal Procedure. M In my humble judgment, if sections 5 and 6 of the Order are read together, the conclusion is irresistible that after the promulga tion of this Order, sentences passed by a Martial Law Autho rity must be carried into execution according to their tenor, subject only to the provisions of the Order itself. The only authority that can grant remission of such sentences under the Order would be the Commander‑in‑Chief of the Pakistan Arm in cases where the sentence is not less than seven years' imprisonment and the power of the Provincial Government to deal with the matter would be excluded, by necessary implication. The Order came into force with effect from the 6th June 1962, whereas the relevant order passed by the Provincial Government bears the date, the 26th of June 1962. The President's Order reducing the sentence of the appellant to 4 years' imprisonment was stated to have been signed on the 3rd of June 1962, and ma be attributed to his plenary powers which included supra‑constitu tional powers under the Laws (Continuance in Force) Order, 1958, and consequently it must be given full effect. The Provincial Government was made the channel of communication of that Order to the Jail authorities and that Government on an erroneous assumption, gave it the form of an independent order proceeding from themselves. The correct position was late realized and intimation was sent to the Jail authorities for com munication to the appellant that the source of the remission o reduction of sentence was the President's Order and not the Provincial Government. FAZLE‑AKBAR, J.

‑I have had the advantage of reading the judgment of my Lord the Chief Justice. He has covered the whole ground and I agree with his reasonings and conclusions. 1 would however, like to add some observations of my own with regard to the President's Order No. 26 of 1962. One of the questions raised in the appeal was: Does the above Order create a total bar to the application of section 401 of the Code of Criminal Procedure in respect of sentence passed by the Martial Law Authority? Section 6 (1) says that "Subject to the provisions of this Order, all sentences passed during the Martial Law period by a Martial Law Authority shall be deemed to have been lawfully passed and shall be carried into execution according to their tenor." These words are enough to warn any body that the provision of the Order are not absolute but it is going to be qualified in some way by what is mentioned in the Order itself. These quali fications will be found in subsections (2), (3), (4) of section 6 an also in section

5. Subsections (2), (3) and (4) provide how a sentence of death o a sentence of imprisonment or a sentence of fine which was passed during the Martial Law period but was not executed during that period should be executed. Subsection (4) which deals with a sentence of fine however, specifically excludes application of section 401 of the Code o Criminal Procedure in these words: "Provided that the provisions of Chapter XXIX of the afore said Code shall not apply to any such sentence." It may be noticed that no such proviso has been added to subsections (2) and (4) which deal with a sentence of death or sentence of imprisonment. Section 5 provides for annulment and commutation of sentence in these terms "5 (1) Any person who deems himself aggrieved by the find ing or sentence of a Martial Law Authority may, where no petition has been submitted against such finding or sentence, submit a petition against such finding or sentence to the Commander‑in‑Chief, Pakistan Army, if the sentence is one of rigorous imprisonment for a term of not legs than seven years, and in all other cases, to Commander of Crops No.1 of the Pakistan Army known technically as Commander 1 Crops, if the case relates to the Province of West Pakistan or to the Commander of the 14th Division of the Pakistan Army, known technically as the Commander 14 Division, if the case relates to the Province of East Pakistan. (2) On such a petition, the aforesaid authorities may, with or without any conditions grant pardon or remit, reduce, commute or suspend any sentence." I have underlined the words "where no petition has been submitted" to indicate that application of this provision was meant to be confined to those cases where no previous application for commutation or remission was pending. Hence in view of the clear language of section 5 there is no room for thinking that by implication this Order also excluded application of section 401 of the Code of Criminal Procedure to the pending petitions. Now the intention of a Legislature is no G to be judged by what is in its mind, but by its expression of that mind in the statute itself. If the intention was to exclude application of section 401, Cr. P. C. even in respect of pending petitions the President could have easily said so as he did while dealing with the sentence of fine in subsection (4) of section

6. It is thus fairly obvious that this is a transitory order pro viding for a change over of proceedings in respect of commu tation and remission of sentences passed during Martial Law period from those exercising power under the Code of Criminal Procedure to the Military Authorities. It however, does not say that the pending petitions should be treated as freshly commenc ed. What it clearly says is that only those cases where no petitions had been submitted would be dealt with under section

5. There is thus nothing in the Order to indicate even by implica tion that any taking away of a right under the pending petition was intended for the reasons stated above it seems to me that there is nothing in section 5 or 6 of President's Order No. 26 of 1962, to justify the view that they were intended to create a bar to the application of section 401, Cr. P. C. to the petitions for commu tation and remission which had been filed before promulgation of the said Order. I agree that this appeal must be dismissed. B. Z. KAIKAUS, J.

‑I am in agreement with my Lord the Chief) Q Justice except with respect to the jurisdiction of the Provincial Government under section 401, Cr. P. C. Section 6 of President's Order No. 26 of 1962 runs:‑ "6 (1) Subject to the provisions of this Order all sentences passed during the Martial Law period by a Martial Law Authority shall be deemed to have been lawfully passed an shall be carried into execution according to their tenor." The plain meaning of this provision is that a sentence awarded by a Martial Law authority has to be executed in accordance wit its tenor unless the sentence is interfered with in accordance wit the provisions of this Order. Section 6 does not say that the sentence shall be subject to the provisions of the Criminal Pro cedure Code. If the sentence is to be executed unless interfered with in accordance with the provisions of this Order obviously any exercise or power by the Provincial Government is excluded there being no provision in the Order itself as to the exercise o such power. A constitutional provision may override this Order and, there fore, the President may in spite of what is contained in this Order have the power of remission of sentence by virtue of a constitutional provision, but the Criminal Procedure Code cannot override section 6 of this Order. It appears to me that the appeal before us was concluded by section 6 of President's Order No.

26. I had pointed out to learned counsel for the appellant at the very commencement of his argument that unless he could get over section 6 of President's Order No. 26 any argument put forward would be of no avail. He preferred to argue the rest of the points and at the end of his argument referred to section 6 of Order 26 but said nothing as to how he could get over its wording. His junior who too was allowed to argue simply contended that Order 26 was no longer in force. This contention did not deserve any serious attention. In fact in the amendment of the Constitution by which fundamental rights have been made justiciable President's Order No. 26 has expressly been mentioned as one of the laws which cannot be attacked on account of violation of fundamental rights. HAMOODUR RAHMAN, J.

‑I have read the judgment of m Lord the Chief Justice and am in full agreement with him that the only formal and operative order of remission that was mad in this case was the order of the Provincial Government date the 26th Jute 1962, which was communicated to the Superinten dent of the Jail and duly given effect to on the 2nd July 1962. No formal order issued by the President was ever communicated to the Jail Superintendent. Indeed no such formal order purporting to have been made under Article 18 of the Constitution was ever issued under the signature of the President but al that the Provincial Government received was a "cypher message." This was nothing more than an executive direction to the subordinate Provincial Government to grant a remission of sentence of four years. It was in implementation thereof that the Provincial Government made the order in the purported exercise of its powers under section 401 of the Criminal Procedure Code. It is suggested that the Provincial Government could not grant such a, remission, for, the power under section 401 of the Criminal Procedure Code could not be invoked in respect of sentences passed by Military Courts under the Martial Law Regu lations. During the course of arguments it has also been canvassed that the exercise of any such power had been impliedly excluded by clause (1) of Article 6 of President's Order No. 26 of 1962. Upon a careful examination of the provisions of the said Presidential Order it seems to me that the same is not applic able in the case under consideration. It was made to provide for the disposal of cases pending before the Martial Law Authorities. Thus Article 3 makes provision for transferring them to Criminal Courts to be there tried under the ordinary law. Article 4 deals with cases pending for confirmation and prescribes the authority which will deal with pending review applications. Article 5 deals with annulment and commutation of sentences but only in respect of those cases where "no petition has been submitted" already before the coming into force of the Order. In the present case such a petition had been submitted to the Chief Martial Law Administrator before the 5th June 1962, on which date the Order No. 26 of 1962, came into force. Next coming to Article 6 it will be seen that although clause (1) thereof is in general terms and says that all sentences passed by Martial Law Authorities "shall be carried into execu tion according to their tenor" its other clauses clearly seek to make provision for the execution of sentences not yet put into execution. It is worth noting that although in clause (1) the language employed is "shall be carried into execution", the other clauses merely say that the sentences "may be" executed, put into execution or carried out by the order of the Central Govern ment in the case of a sentence of death and the District Magis trate of the District in which the person sentenced is found in other cases. This difference in language can only be explained on the basis that the possibility of commutation or remission of the sentence is not excluded. Obviously if a commutation o remission is granted under Article 5 the sentence cannot b intended to be carried out according to its original tenor, in spite of the compelling words used in clause (1) of Article

6. Bu Article 5 is only applicable where no petition has already been made before the 5th June 1962, to the then competent authority. Where such a petition has been made, can it be said that there was after the 5th June 1962, no authority competent to grant the remission or commutation? I cannot impute to the Legislature such an intention to discriminate unfairly. Obviously the inten tion was that cases which did not come within the ambit o the President's Order No. 26 would be dealt with according to the general law unless the application of such law was expressly excluded as in clause (4) of Article

6. The express exclu sion in this clause of the provisions of Chapter XXIX o the Criminal Procedure Code can only lead one to the inference that but for such exclusion the provisions of that Chapter, in which section 401 occurs, would have been applicable even in the case mentioned, in clause (4). If this be so, then its non‑exclu sion from the other clauses of Article 6 would indicate that the provisions of that Chapter applied in those cases. If, on the other hand, the argument is that recourse to other provisions outside the Order itself was excluded by the force of the so‑called mandatory provisions of clause (1) of Article 6 itself, then the express exclusion of Chapter XXIX of the Criminal Procedure Code in clause (4) would have been wholly unnecessary. The fact, therefore, that such express exclusion ha been made indicates that the law‑maker considered that the pro visions of that Chapter would apply if not so excluded. For these reasons I respectfully agree that as the present case was not covered by President's Order No. 26 of 1962, the Provin cial Government had acted rightly in granting the remission under section 401 of the Criminal Procedure Code of four years from the sentence of the appellant in implementation of the Pre sident's direction and that was the only remission that was granted to him. I, therefore, concur with the order that this appeal should be dismissed as also with the reasons given for such dismissal by my Lord the Chief Justice. A. H. Appeal dismissed.