1988 P Cr (PLP)

Provided that, in case of passing examinations at serial No.2 he shall be entitled to earn one remission for each such examination, but shall not be entitled to earn more than two remissions; Provided also that he is certified by the Superintendent to have been of good character. Under Rule 215 a convicted prisoner is entitled to four months' remission for passing Intermediate examination in full subjects in case he is undergoing substantive sentence exceeding six years but not exceeding 10 years. Similarly he is entitled to similar remission for passing B.A. examination in full subjects. The grievance of the petitioner No.1 is that the Prison authorities are not giving him the benefit of the remissions to which he is entitled under the applicable rules for passing the Intermediate and B.A. examinations. Mr. Zawar Hussain Jafferi learned A.A.‑G. had drawn our attention to the amendment in the Rules through a notification dated 17‑7‑1986 issued by the Government of Sind in exercise of the powers conferred by section 59 of the Prisons Act, 1894 whereby a new Rule 214‑A has been introduced in the Prison Rules and Rule 214‑A reads as follows:‑ "No person who is convicted for espionage or anti‑State activities shall be entitled to ordinary or special remission unless otherwise directed by the Provincial Government," When this matter came up before us at the stage of Katcha Peshi on 'Z2‑10‑1987, Mr. Mohammad Sidik Kharal, learned counsel for the petitioners, submitted that petitioner No.1 had passed his Inter mediate Examination after the date of his sentence by the Special Military Court while he was in custody and before the issuance of the notification dated 17‑7‑1986 introducing new Rule 214‑A in the Prison Rules and as such patently petitioner No.1 was entitled at least to four months' remission under Rule

215. Mr. Sidik Kharal, learned counsel for the petitioners states that this Court may decide the question of the entitlement of the remission available to the petitioners No. l on the basis of his passing the Intermediate examination before the introduction of Rule 214‑A in the Prison Rules and if this remission is extended to the petitioner No. 1, the petitioners will not press their claim in respect of remission for having passed the B.A. examination while in custody but after the introduction of Rule 214‑A in the Prison Rules. In our view rule 214‑A introduced in Prison Rules by notification, dated 17‑7‑1986 cannot be given retrospective effect in the sense that if any remission has already been earned by a‑convict under the Rules as in force prior to 17‑7‑1986, the introduction of Rule 214‑A cannot take away the right of the convict in respect of the remission already earned by the convict. Even Rule 214‑A does not provide that it affects the remissions that have already been earned by convicts prior to the introduction of such Rule in the Prison Rules. In the circumstances it appears that the petitioner No.1 is entitled to remission of four months as education remission under Rule 215 on account of passing the Intermediate examination in May 1984. However, Mr. Zawar Hussain Jafferi, learned A. A.‑G., has submitted that, under the second proviso to Rule 215, this remission of four months for having passed the Intermediate examination is not available to petitioner No.1. It is pointed out by the learned A.A.‑G. that in 1984 the petitioner No.1 had passed his Intermediate Examination while he was in custody, he was confined in Central Prison, Sukkur but then Superintendent of Central Prison Sukkur had given a certificate that the petitioner No.1 was of "satisfactory conduct". We had asked the learned A. A.‑G. whether the relevant rules provided for more than two categories of character. i.e. good and not good and the learned A.A.‑G. submits that the only words used are "good character:. If there had been a separate category of satisfactory character or conduct, apart from 'good character', there might have been substance in the contention advanced by the learned A.A.‑G. By giving a certificate of satisfactory conduct, in our opinion, in view of the wordings of the applicable rules, it will be considered as a certificate of good character. . We may also observe here that on the last date of hearing as well as today Mr. Mohammad Hayat Phul, Superintendent, Central Prisons, Khairpur, is present and he informs that petitioner No.1 is at present confined in Central Prison, Khairpur and that he has given petitioner No.1 a good character certificate. Even if there had been any substance in the submission of the learned A.A.‑G. the matter stands clinched by the statement of tre Superintendent, Central Prison, Khairpur that he has given the petitioner No.1 a certificate of good character. In the circumstances we are of the view that the petitioner No.1 was entitled to education remission of four months under Rule 215 for having passed Intermediate Examination while in custody and that he has already earned such remission of four months. We accordingly declare that the petitioner No.1 is entitled to four months' education remission under Rule 215 of the Prison Rules for having passed Intermediate Examination in May, 1984, while he was undergoing sentence and was in custody and that he has earned such education remission of four months. The Superintendent Central Prison, Khairpur, while computing the sentence shall give the benefit of four months' education remission to petitioner No.1. Constitutional Petition No.D‑268/87 stands disposed off accordingly with no order as to costs. M. Y. H./G‑60/K Petition allowed.