PL D 2006 Lahore 561 (PLP)

ALI NAWAZ CHOWHAN, J.

Muhammad Arif petitioner in this case is asking for the setting aside of an order dated 5-5-2005 withdrawing remissions already allowed while he was under-trial by the Provincial Government under the Jail Rules.

2. This is not a case which is falling under Chapter XVI of the Pakistan Penal Code and, therefore, the law of Diyat is not attracted in the matter.

3. The question for consideration is whether the remissions once allowed can be withdrawn by the Provincial Government?

4. The remissions in this case were conveyed to the petitioner. The controversy actually arose after the new dispensation which came about defining as to who is a convict and who will not be considered as a convict. It happened because of Presidential remissions which came in view of the powers exercised by the President under Article 45 of the Constitution allowing remissions particularly at the time of Golden Jubilee celebration of Pakistan.

5. Various questions then arose. Firstly whether the remissions could at all be granted by the President or any concession to the convict shall be governed by Diyat Laws and the preponderant case-law view is that the remissions cannot be granted under the law by any authority after the promulgation of the Qisas and Diyat Ordinance. However, it was observed that the constitutional power exercised by the President? under Article 45 of the Constitution could not be eclipsed by the law of Diyat and, there is no cavil to that proposition.

6. The main question which is also to be determined is whether these remissions were allowed on account of an error or because of inadvertence deliberate or otherwise.

7. According to the learned counsel the remissions were validly allowed at the relevant time in view of the law as it was interpreted at the relevant time. In this connection he has referred to Chaudhry Aamir Ali v. The State 2002 YLR 1902 (Lahore) and the relevant excerpt from the same reads as follows:-- "S.382-B.-Reduction of period of sentence of imprisonment.-Benefit of remissions, no doubt, is to be granted after the announcement of judgment and passing of the sentence of imprisonment against a convict, but the moment benefit of S.382-B, Criminal Procedure Code is given to a convict, the period during which he remained in detention as an under-trial prisoner would be counted towards his substantive sentence and legally lie would be deemed to be in jail as a convict since the date of his arrest and would certainly be entitled to the benefit of remissions granted by the Competent Authorities to the convicts after the said date

(Inayat Bibi v. Amjad Ali and others 2001 PCr. LJ 1453 dissented from)." Which means that when the benefit under section 382-B,Cr.P.C. was extendable to a person his substantive sentence according to the dispensation as given by this ruling was to be counted before his order of conviction and not merely afterwards.

8. Reference was made to the case of Haji Abdul Ali v. Haji Bismillah and 3 others PLD 2005 Supreme Court 163 in which the law laid down was as follows:-- "??.. Now, the question arises as to whether the petitioner was entitled to the remissions granted by the President under Article 45 of the Constitution or by the Provincial Government under section 401, Cr.P.C. prior to and from the date of his conviction and sentence by the High Court. A careful reading of the provisions of sections 335, 383, 396 and 397 of the Criminal Procedure Code would clearly show that the conviction and sentence of an accused could not be made to run from the date prior to the date of conviction by a competent Court although in certain eventualities the execution of sentence of a convict could be postponed. Ordinarily, a conviction commences from the time it is passed. A criminal Court does not possess a power to make a sentence to precede the conviction. In other words, the conviction and sentence cannot be antedated. A somewhat similar view was taken in the cases of State v. Chandra Khandapani 1968 Cr.LJ 1152(1153), The State v. Jernelsingh AIR 1955 NUC Rajasthan 4613, Gulzar Muhammad v. Crown (1951) (52) Cr1.LJ 238, Danger Khan and others v. Emperor AIR 1923 Lahore 104, Emperor v. Tha Hmun (1908)(7) Criminal Law Journal 453, Baghel Singh v. The Emperor (1907)(5) Crl. Law Journal Reports 217 and Emperor v. Naga Po Min AIR 1933 Rangoon 28".

9. The learned counsel for the petitioner when confronted with this ruling of the apex Court came forward with the argument that this ruling cannot be given a retrospective effect and, as such, was not applicable to the present circumstances but shall be the law henceforth with respect to the remissions.

10. It was argued before this Court that at the time when the remissions were allowed to the petitioner the law and interpretation of law to be followed was given in the case of Chaudhry Aamir Ali v. The State 2002 YLR 1902 (Lahore) and, therefore, it could not be said that the remissions allowed to the petitioner were illegal and against the law.

11. It is now to be seen whether in view of the later dispensation in the case of Haji Abdul Ali v. Haji Bismillah and 3 others, the concession already allowed can be withdrawn.

12. The interpretation of law later underwent a change and the change was that only a convict could get remission and not an under-trial.

13. Anyway since the interpretation of law at the relevant time was as stated by the Division Bench in Ch. Aamir Ali's case, therefore, a remission allowed to Muhammad Arif as an under-trial under the circumstances was something without an exception. Now it is to be seen whether in view of the later dispensation can this concession be withdrawn?

14. The main reliance in this regard is placed on the case of Lt.Col. G.L. Bhattacharya v. The State PLD 1963 Dacca 422 and the relevant portion of which reads as follows: "Held, 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 poentitentiae 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."

15. This ruling given in the Bhattacharya's case of the Dacca High Court was upheld by the apex Court in again Bhattacharya's case PLP' 1964 SC 503.

16. We respectfully are following the ratio decidendi laid in Bhattacharya's case which is an apt authority on the issue and are of the view that since the entire transaction took place before the law laid a down? in Haji Abdul Ali v. Haji Bismiallah's case and as while a following remissions the authorities concerned were guided by the interprrrtation as given in Caudhry Aamir Ali's case and the remissions wh,11th were granted have been acted upon these cannot be withdrawn i1`tow. We decide this petition accordingly. M.B.A./M-279/L???????????????????????????????????????????????????????????????????????????????? Order accordingly.