P L D 2003 Karachi 398 (PLP)

(10) Arbee Adeeb for year 2000 300 days (11) F.A. (Intermediate) for year 2001 300 days (12) Computer for year 2002 300 days Total education remission: 1380 days Grant Total: 6121 days Y M D Total sentence served up to 10‑2‑2003 only in case No. 1. 06 05 10 Remission earned up to 31‑1‑2003 16 10 05 Un-expired portion 10 08 15 34 00 00 It will appear from above that the above convict has already completed his substantive sentence in first two cases and still having about 10 (ten) years to his credit to be deducted from the substantive sentence of 12 years in third case, whereas subject to the approval of the higher authorities the actual period of 12 years and 11 months spent by above convict in jail during trial of Case No.2 and Case No.3 is to be further deducted from total sentence, resulting in completion of total sentence still leaving over 3 years to the credit of the convict."

7. The case record further reveals that after receipt of above jail report, on 18‑2‑2003 further clarification was sought by this Court in respect of remissions awarded by the President under Article 45 of the Constitution. In response to such order further report was received from the Superintendent Jail on 22‑2‑2003 wherein some clarification was given by the Superintendent Jail, which is reproduced as under‑‑

1. Remission granted under Pakistan Prison Rules: (a) Under Rule 204 Work 414 days (b) Under Rule 211 (Good Conduct) 150 days (c) Under Rule 215 (Education Remission being processed in Inspectorate) 1380 days (d) Under Rule 216 (I.‑G. Prisons Remission) 180 days (e) Under Rule 216 (Superintendent Remission) 60 days (f) Under Rule 212 (Blood donation) 90 days (2) Remission ranted by President/Governor Sindh (a) Under Article 45 of Constitution 3457 days Under section 401, Cr.P.C. 450 days Total: 6121 days (16 Years 10 Months 05 days) The Hon'ble trial Court has allowed the benefit of section 382‑B, Cr. P. C. in all of the cases to above convict according to which the actual period spent in each case is 6 years, 5 months, 10 days from the date of admission in jail. Other details in our earlier letter dated 10‑2‑2003 remain the same. In addition to the above remissions the President has also granted 780 days remission from 15‑12‑2001 to 11‑2‑2003 on various occasions of public rejoicing under Article 45 of Constitution, which will be applicable to above convict subject to approval of higher authorities. "

8. Before examining the import of above two reports if we take into account the benefit of section 382‑B, Cr.P.C. which has been extended to the appellant in each case separately, it will be seen that in Reference No.50 of 2000 when the appellant was convicted and awarded substantive sentence of seven years vide judgment dated 31‑3‑2001 by that time he had already remained in custody for 4 years, 6 months and 25 days while in other Reference No.52 of 2000 by the time he was convicted and awarded substantive sentence of seven years vide judgment dated 13‑4‑2001 he had remained in custody for 4 years, 7 months and 8 days. Over arid above, after his first conviction in Reference No.50 of 2000 uptil today he has further remained in custody for 2 years and 10 days. This is all without reference to the two reports showing huge remissions earned by the appellant during the period he remained in custody, which at this stage in all fairness, cannot be ignored for deciding the fate of two listed applications. It will be pertinent to mention here that distinct sentences awarded to the appellant in three different cases are not to be taken into account collectively fox deciding the fate of application under section 426, Cr.P.C. Thus sentence of twelve years' R.I. awarded to the appellant by last judgment dated 29‑5‑2002 in Reference No.51 of 2000 is not relevant for decision on these two applications.

9. Reverting to the two jail reports we may observe that we have carefully perused these reports and seen that even if we take into account only the remissions earned by appellant after his first conviction or a marginal portion of total remissions earned by him then too it seems that he has already served substantive sentences of seven years' R.I. in each case.

10. Besides, while considering the question of suspension of sentence in exercise of its powers under section 426, Cr.P.C. this Court cannot remain oblivious of the fact that though by virtue of section 32(b) of the Ordinance XVIII of 1999 specific period of 30 days has been prescribed for disposal of such appeals, but for no fault of appellant these appeals are still pending for disposal for almost two years. In such circumstances, for this delay appellant cannot be penalized and incarcerated for an indefinite period.

11. The case‑law referred by Mr. Aitizaz Ahsan is apt to the facts and circumstances of these appeals and furnishes valid justification for grant of two applications.

12. For the foregoing reasons M.As. Nos.781 of 2001 and 2541 of 2002 pending in the above two appeals are allowed. In the result sentences of imprisonment and fine awarded to the appellant by impugned judgments are suspended. The appellant is ordered to 'be released on bail on furnishing surety in the sum of Rs.1 (one) million with P.R. bond in the like amount in Criminal Accountability Appeal No. 17 of 2001 and furnishing of surety in the sum of Rs.2.5 (two and half) million with P.R. bond in the like amount in Criminal Accountability Appeal No.18 of 2001. Such sureties may be furnished with the Nazir of this Court. H.B.T./M‑482/L Application allowed.