P L D 1989 Karachi 7 (PLP)

P L D 1989 Karachi 7 Before Sajjad Ali Shah and Salahuddin Mirza, JJ MUHAMMAD AFZAL--Petitioner versus THE HOME SECRETARY, GOVERNMENT OF SIND and another--Respondents Constitutional Petition No.697 of 1988, heard on 3rd October, 1988. (a) Pakistan Prisons Rules

Rr. 212, 213 & 215--Constitution of Pakistan (1973), Art. 199-Petitioner challenging his detention in jail after spending specified period therein on basis of benefit of remission--Authority disputing such claim of the petitioner--Different calculations made by petitioner and Authority as to period of time to be undergone in jail by petitioner--Question of calculation of sentence to be completed by petitioner, being g. disputed question of fact could not be gone into in Constitutional petition as Constitutional jurisdiction was extraordinary jurisdiction which could not be invoked for deciding question of fact as same might require recording of evidence.-[Sentence]. (b) Penal Code (XLV of 1860)

S. 57--Law Reforms Ordinance (XII of 1972), Sched. , para. 3-Pakistan Prisons Rules, 8.140--Sentence of transportation for life substituted for imprisonment of life--Period of imprisonment to be undergone for such convict--Period of imprisonment fixed to be at twenty-five years--Sentence of imprisonment for life not to be shortened to period of imprisonment of less than fifteen years.--[ Sentence]. (c) Criminal Procedure Code (V of 1898)

S. 401--Pakistan Prisons Rules, R. 140--Suspension or remission of sentence by Government--Essential requirements--Provincial Government could suspend execution of sentence at any time upon conditions or without conditions or remit the whole or any part of sentence--Provincial Government's such powers, however, would not interfere with the right of President or of Federal Government to grant pardons, reprieves, respites or remissions of punishment. (d) Pakistan Prisons Rules

Rr. 201, 214, 215, 216 & 217--Scope of Rules--Remission of sentence--Remissions to be of two kinds viz. ordinary and special- Remission system explained.--[Sentence]. Remission system is explained in detail in Chapter 8 of Pakistan Prisons Rules. Remissions are of two kinds, ordinary and special. Rule 201 of Pakistan Prisons Rules provides for ordinary remission. Subsequent rules which follow explain as to how these ordinary remissions are earned and calculated. Rule 214 defines special remissions to be awarded to any prisoner for special services rendered by him such as teaching other prisoners, acquiring proficiency in learning and passing examination, success in teaching a handicraft, greatly increased outturn of work of good quality, protecting a prison officer or a prisoner from attack, special assistance to an officer of the prison in emergency, economy in the use of clothes, preventing breaches of prison discipline or regulations and regular prayers and observance of fasts during Ramazan. Rule 215 of Pakistan Prisons Rules further provides for education remission. According to this rule a convict prisoner, who has passed examination is entitled to earn remission as per scale given therein. Rule 216 envisages extent of award of special remission by Superintendent, Inspector-General, Provincial Government and Federal Government. Rule 216(2) further provides that an award of special remission shall be entered in the history ticket and remission sheet of the prisoner concerned as soon as possible after it is made and the reasons for every award of special remission by the Superintendent shall be briefly recorded thereon. Rule 217 of Pakistan Prisons Rules is a very important rule for the reason that it imposes embargo and limit on the availing of total remission. Careful perusal of Rule 217 shows that with the exception of remissions earned on account of donating blood under Rule 212, surgical sterilization under Rule 214 and passing examination under Rule 215 all other remissions whether ordinary or special can be calculated and the benefit can be availed provided it does not exceed one-third of sentence. Second prominent feature of this rule is that a lifer convict is allowed to avail the remissions but limit is fixed that remissions so earned and availed by him shall not shorten period of his imprisonment to less than 15 years. This provision in Rule 217 read in conjunction with Rule 140 of Pakistan Prisons Rules makes the intention of rule-makers very clear that a lifer convict has to undergo minimum sentence of 15 years compulsorily and upto that extent he is allowed the benefit of remissions earned by him but he will not be given benefit of such remissions if they shorten the period of his imprisonment to less than 15 years. Rule 218 further provides that special remission awarded by the Government on the occasions of public rejoicing is not governed by these rules but is covered by section 104, Cr.P.C-. Special remission under Rule 218 is to be awarded by the Government and requirement of Rule 217 also is that Government is competent to grant remission beyond one-third limit as contemplated under sub-rule (1). Muhammad Bhai and another v. Islamic Republic of Pakistan PLD 1980 Kar. 166 rel. (e) Criminal Procedure Code (V of 1898)

S. 401--Pakistan Prisons Rules, Rr. 140 & 217--Constitution of Pakistan (1973), Art. 199--Constitutional jurisdiction, exercise of--Life imprisonment--Essential period of imprisonment to tie completed--Where a convict sentenced to life imprisonment had not completed fifteen years of substantive sentence as per requirement of Rr.140 & 217 of Prisons Rules no exception could be taken by High Court in exercise of its Constitutional jurisdiction to interfere in such matter--Petition being devoid of merit was dismissed in circumstances. Gul Zawar Khan for Petitioner. A.A. Mohammadally, Asstt. A.-G. for Respondents. Date of hearing: 3rd October, 1988. SAJJAD ALI SHAH, J.--In this petition filed under Article 199 of the Constitution of Pakistan, petitioner has challenged action of respondents in detaining him in jail after expiry of his sentence to be without lawful authority and of no legal effect. Briefly stated the relevant facts giving rise to this petition are that the petitioner was convicted for offence under sect. 302, P.P.C. and was sentenced to death vide judgment dated 6-6-1976 learned Vth Additional Sessions Judge, Karachi. In appeal, High Court of Sind maintained conviction but reduced sentence from death to imprisonment vide' judgment dated 30-4-1981. Petitioner was also give benefit under section 382-B, Cr. P.C. He was arrested on 23-11-197 and he remained in custody till his trial ended on 6-6-1979 resulting in judgment mentioned above. According to the petitioner as stated in the memorandum of petition, he has completed 25 years of sentence on 31-3-1988, after undergoing substantive sentence of 13 years plus 4 months and 4 days and including in calculation remissions earned by him for total period of 11 years plus 7 months plus 26 days. Respondent No.2, who is Superintendent of Central Prison, Karachi, has filed comments dated 5-7-1988 in which it is admitted that petitioner has served out substantive sentence of 13 years plus 4 months plus 4 days but on the question of remissions claim of the petitioner is denied and assertion is made that the petitioner has earned remissions for the period of 9 years plus 6 months and 7 days. It is denied that the petitioner has completed 25 years of sentence on 31-3-1988. Reference is made to Rule 140 of Pakistan Prison Rules (hereinafter to be referred as P.P.R.) which envisages that lifer-convict has compulsorily to undergo 15 years of substantive sentence in spite of earning remissions in the computation of sentence. Facts stated in the comments mentioned above have been disputed in the statement in writing dated 16-7-1988 filed by the counsel for the petitioner, in which reliance has been placed on note in writing from respondent No.2 addressed to I.-G. Prisons with Jail Nominal Roll of petitioner for onward transmission to Home Secretary, in which this fact is mentioned that total remissions earned by the petitioner are for period of 11 years plus 2 months plus 5 days and further that the petitioner is due for release on 22-9-1988. further stand is taken in the statement in writing mentioned above that remissions earned under rules 212, 213 and 215 being special remissions are not covered by rule 217 and are to be included in substantive sentence, hence the petitioner has completed minimum requirements of 15 years of sentence. After perusal of statement of counsel in writing mentioned above, respondent No.2 filed second comments dated 21-7-1988 in which stand is taken that imprisonment for life means imprisonment for 25 years and the prisoner who is convicted to imprisonment for life has to undergo a minimum of 15 years of substantive sentence. In the instant case, petitioner has not completed minimum requirement of 15 years of substantive sentence and further that the-case of the petitioner would be referred to the Government at the appropriate time. After second comments mentioned above, counsel for the petitioner filed second additional statement in writing dated 2-8-1988 in which facts were disputed particularly with regard to education remission and discrepancies were pointed out in the first comments and second comments showing education remission as two years and 2 years and 6 months, respectively. Also dispute was raised with regard to the counting of days in the process of calculation of special remissions. Respondent No.2 filed third comments dated 7-8-1988 in which errors and discrepancies in the record have been explained and stand is taken that the petitioner was removed from death cell on 10-6-1981 after the sentence was reduced from death to life imprisonment and he was then assigned the task of school teacher from 25-6-1981 and not from 1-5-1981 as mistakenly stated in jail roll which was clerical error. Further claim is made that new remission chart alongwith roll after verification and rectification of mistakes is correct, according to which petitioner cannot be released even after taking into consideration remissions earned by him because he has not completed minimum 15 years of substantive sentence. Now so far the question about calculation is concerned whether calculation made by the petitioner is correct or calculation made by respondent No.2 is correct, this being the disputed question of facts cannot be gone into in a constitutional petition for the reason that constitutional jurisdiction is extraordinary jurisdiction and cannot be invoked for the purpose of deciding a question of fact which may involve recording of evidence. So far the other questions are concerned to the effect as to what are the provisions in the Jail Rules and their scope with regard to the earning of remissions and the manner in which computation of sentence is to take place can be taken up for detailed consideration. Sentence of transportation for life was substituted in section 57, P.P.C. for imprisonment of life by section 3 of Law Reforms Ordinance, 1972 and for that purpose period of imprisonment has been fixed at 25 years. Section 59 of the Prisons Act, 1894 empowers the Provincial Government to make rules consistent with provisions of the said Act. Subsection (5) of section 59 of the said Act envisages that a sentence of imprisonment for life is not to be shortened to a period of imprisonment of less than 15 years. During the days when West Pakistan was the One-Unit, West Pakistan Prison (Remissions and Sentences) Rules, 1965 were in operation. After break-up of One-Unit, a Jail Reforms Conference was held in Islamabad in 1972 in which it was resolved that in order to achieve uniformity of discipline in administration in Jails in Pakistan, a common Jail Manual be evolved for implementation in all the provinces. Consequently final draft of Jail Manual was prepared which was approved for publication by the Federal Government. Since prison was provincial subject, Federal Government in a meeting of the Inspector-Generals of Prisons/ Directors of Prisons of all the Provinces held on 12th April, 1976 advised the Provincial Governments to adopt the draft manual so that uniform treatment may be meted out to prisoners in all the Jails of Provinces. This common Jail Manual which is being followed in all the Provinces after necessary approval is called Pakistan Prisons Rules (hereinafter to be referred as P.P.R.). Since we are dealing with remissions earned by the prisoner who is sentenced to life imprisonment, it will be necessary first to study Rule 140, P.P.R. This rule very clearly contemplates that, imprisonment for life will mean 25 years' rigorous imprisonment and every lifer prisoner shall undergo a minimum of 15 years of substantive imprisonment. In sub-rule (2) of this rule, it is provided that cases of all prisoners sentenced to life imprisonment shall be referred to Government through the Inspector-General after they have served out 15 years substantive imprisonment for consideration with reference to section 401 of the Code of Criminal Procedure. It would be pertinent at this stage to point out that section 401, Cr.P.C. relates to power of the Provincial Government to suspend or remit sentences. These are very wide powers which authorise the Provincial Government to suspend execution of sentence at any time D upon conditions or without conditions or remit the whole or any part of the sentence. These powers of the Provincial Government will not interfere with the right of the President or of the Federal Government to grant pardons, reprieves, respites or remissions of punishment. Now, two things are very clear from perusal of Rule 140 of P.P.R lifer convict must undergo 15 years of substantive sentence E as minimum. Secondly his case is to be referred to the Government for consideration of further benefit to be given to him as contemplated under section 401, Cr.P.C. Remission system is explained in detail in Chapter 8 of P.P. R. Remissions are of two kinds, ordinary and special. Rule 201 of P.P.R. provides for ordinary remission. Subsequent rules which follow explain as to how these ordinary remissions are earned and calculated. Rule 214 defines special remissions to be awarded to any prisoner for special services rendered by him such as teaching other prisoners, acquiring proficiency in learning and passing examination, success in teaching a handicraft, greatly increased outturn of work of good quality, protecting a prison officer or a prisoner from attack, special assitance to an officer of the prison in emergency, economy in the use of clothes, preventing breaches of prison discipline or regulations and regular prayers and observance of fasts during Ramazan. Rule 215 of P.P. R. further provides for education remission. According to this rule a convict prisoner, who has passed examination is entitled to earn remission as per scale given therein. Rule 216 envisages extent of award of special remission by Superintendent, Inspector-General, Provincial Government and Federal Government. Rule 216(2) further provides that an award of special remission shall be entered in the history ticket and remission sheet of the prisoner concerned as soon as possible after it is made and the reasons for every award of special remission by the Superintendent shall be briefly recorded thereon. Rule 217 of P.P. R. is a very important rule for the reason that it imposes embargo and limit on the availing of total remission. This rule is reproduced verbatim as under: "Rule 217.--(i) The total remission, both ordinary and special awarded to a prisoner under these Rules (other than remission for donating blood awarded under rule 212, surgical sterilization under rule 213 and for passing an examination under rule 215) shall not exceed one-third of his sentence: Provided that Government may, on the recommendation of the Inspector-General, grant remissions beyond the one-third limit in very exceptional and deserving cases. (ii) Remission, both ordinary and special, earned by a lifer convict shall be so much that a sentence of imprisonment for life is not shortened to a period of imprisonment less than 15 years." Careful perusal of rule 217 as stated above shows that with the exception of remissions earned on account of donating blood under rule 212, surgical sterilization under rule 214 and passing examination under rule 215 all other remissions, whether ordinary or special can be calculated and the benefit can be availed provided it does not exceed one-third of sentence. Second prominent feature of this rule is that a lifer convict is allowed to avail the remissions but limit is fixed that remissions so earned and availed by him shall not shorten period of his imprisonment to less than 15 years. This provision in rule 217 read in conjunction with rule 140 of P.P.R. makes the intention of rule-makers very clear that a lifer convict has to undergo minimum sentence of 15 years compulsorily and upto that extent he is allowed the benefit of remissions earned by him but he will not be given benefit of such remissions if they shorten the period of his imprisonment to less than 15 years. Rule 218 further provides that special remission awarded by the Government on the occasions of public rejoicing is not governed by these Rules but is covered by section 104, Cr.P.C. Since the petitioner is sentenced to imprisonment for life, his counsel has not been able to show us that petitioner has completed 15 years of substantive sentence which is compulsorily requirement of Rule 140 read with Rule 217 of P.P.R. On his own showing in the memorandum of Petition in Paragraph 3, it is admitted on behalf of the petitioner in unequivocal terms that he had completed substantive sentence of 13 years plus 4 months plus 4 days from 27-11-1974 to 31-3-1988. This fact with regard to substantive sentence served by the petitioner upto the extent shown by him in the petition, it is admitted in the first comments dated 5-7-1988 and then categorical stand is taken by respondent No.2 that petitioner has not completed 15 years of his substantive sentence as such he cannot be released in spite of allowing him benefit of remissions. It was then argued on behalf of the petitioner that remissions earned by the petitioner under Rules 212, 213 and 215 are not ordinary or special remissions, as such they were not covered under Rule 217 and they should be added to in the substantive sentence. Rule 212 covers remissions granted on account of donation of blood and Rule 213 covers remission on account of surgical sterilization. It is stated in the comments dated 21-7-1988 filed on behalf of respondent No.2 in paragraph No.8 that petitioner has not been allowed any remission under Rules 212 and 213 for the reason that he has never donated any blood not had undergone surgical sterilization. In compliance of the order of the High Court period for which petitioner remained in custody during trial from 27-11-1974 to 6-6-1979 has been counted in the sentence as part of sentence. So far other remissions are concerned, they have been allowed as permissible under Rules as stated in the comments dated 7-8-1988. It is submitted on behalf of respondent No.2 that there were some clerical errors which were rectified in the record. All those remissions have been allowed which are supported by the record maintained in the prison. Rule 218 envisages that on occasions of public rejoicing special remissions awarded by the Government are covered by section 401, Cr.P. C. anti are not governed by P.P. R. Such remission covered under Rule 218 is to be added to the substantive sentence as is observed in the case of Muhammad Bhai and another v. Islamic Republic of Pakistan (P L D 1980 Kar. 166). Special remission under rule 218 is to be awarded by the Government H and requirement of Rule 217 also is that Government is competent to grant remission beyond one-third limit as contemplated under sub-rule (1). From the facts and reasons stated above, no exception can be taken to the stand taken by respondent No.2 that petitioner has not completed 15 years of substantive sentence as required under Rulel 140 and Rule 217. In any case, case of the petitioner will be referred 1 to the Government for consideration of benefit under section 401, Cr.P.C., which will be done at the appropriate time as considered fit and proper by respondent No.2. There is no merit in this petition, which is hereby dismissed. A . A . /M-604/ K Petition dismissed.