P L D 2011 Lahore 323 (PLP)

The petitioner assails denial by respondent No.3 of the benefit of remissions to which he claims to be entitled under the provisions of ' Pakistan Prisons Rules, 1978.

2. The facts necessitating filing of this petition are that the petitioner was convicted on 23-11-2002 by Accountability Court No. I, Lahore in case F.I.R. No. 187 of 1997 dated 9-8-1997 under sections 302, 148/149, P.P.C., registered with Police Station Warbartun, District Sheikhupura. He was sentenced under section 7 of the Anti-Terrorism Act, 1997 (ATA) for life imprisonment. The benefit under section 382(b) Cr.P.C. was also extended to him. The conviction and sentence of the petitioner were maintained by this Court as well as the honourable Supreme Court of Pakistan.

3. The petitioner was taken into custody by the police on 17-1-2000. Since then he is behind bars. It is claimed that the petitioner had been getting remissions under the Pakistan Prisons Rules, 1978 till 26-1-2006. However, thereafter the respondents stopped giving him the benefit of remissions. Hence this petition.

4. The learned counsel for the petitioner submits that by virtue of Anti-Terrorism (Amendment) Ordinance (XXIX), certain new sections including section 21-F were inserted in the ATA, whereby remissions were withdrawn from the sentence awarded to any person convicted under the Anti-Terrorism Act, 1997. He submits that in view of the fact that the amendment in law was subsequent to registration of F.I.R. against the petitioner as well as his arrest, the benefit available to him at the time of registration of the case and his arrest could not have been withdrawn under the newly inserted section 21-F. He further submits that the petitioner's trial had commenced before insertion of section 21-F of ATA and the same could not have retrospective effect to take away rights, which had already accrued in favour of the petitioner. He argues that it is a settled principle of law that where a provision of law is altered during pendency of an action, rights of parties are to be decided according to the law as it existed when the action was initiated and not under the law prevailing on the date of the judgment/order. In this regard the learned counsel has placed reliance on PLD 1971 SC 252 and PLD 1975 SC 1.

5. It is further argued by the learned counsel for the petitioner that according to Pakistan Prisons Rules, 1978, the types of remissions are ordinary remissions, special remissions, remissions for rendering special services and educational remissions. He submits that these remissions are akin to the earnings of a convict, which are awarded in view of some act done by the convict and the same cannot be withdrawn without express sanction of law. He, therefore, prays that the benefit of remissions under the Pakistan Prisons Rules, 1978 may be allowed. to him since their discontinuation in 2006.

6. The learned Law Officer has opposed this petition. He submits that in terms of section 21-F of the ATA, prisoners convicted for sentences under any section of ATA' are not entitled to grant of any remissions. He points out that the petitioner was extended all kinds of admissible remissions up to 26-1-2006, which have not been withdrawn. However, on the said date, the respondents received notification regarding the aforesaid amendment in the Anti-Terrorism Act, whereafter grant of remissions was stopped, It is further argued that section 21-F of ATA is being given prospective effect, which is evident from the fact that remissions granted up to 26-1-2006 have not been withdrawn.

7. We have heard the learned counsel for the parties and have examined the relevant law on the subject.

8. The Anti-Terrorism Act was ,promulgated in 1997. By virtue of an amendment by way of Anti-Terrorism (Amendment) Ordinance (XXXIX), 2001 dated 15-8-2001, sections 21-A to 21-M were added to the ATA. For ease of reference, section 21-F, as amended in 2001, is reproduced below:-- "Notwithstanding anything contained in any law or prison rules for the time being in force, no remission in any sentence shall be allowed to a person, other than a child, who is convicted and sentenced for any offence under this Act unless granted by the government."

9. It may be clarified that by virtue of further amendment introduced through Ordinance XXI of 2009 dated 1-10-2009, section 21-F has further been amended in the following terms:-- (a)?? The words and comma "other than a child", and the comma and words ""unless granted by the Government" shall be omitted: (b)? For the full stop at the end, a colon shall be substituted and thereafter the following provisions shall be inserted namely: "provided in case of child convicted and sentenced for an offence under this Act, on satisfaction of government, may be granted remission, as deemed appropriate."

10. The main question that arises for consideration of this Court is whether the provisions of section 21-F would have retrospective effect so as to deprive convicts, who had been arrested, charged and were under custody before 15-8-2001 when the amendment by way of insertion of section 21-F was made. It may be noted that F.I.R. No.187 of 1997 was registered against the petitioner on 9-8-1997 and the petitioner has been in custody since 17-1-2000. It is common ground between the parties that section 2I-F was inserted in ATA during pendency of trial of the petitioner.

11. In the case of Sheikh Muhammad Sharif reported as PLD 1978 Lahore 15, while dealing with a similar question, this Court has held that the sentence of an accused is to be governed by the previous existing law and not the amended law, In PLD 2009 SC 809, the honourable Supreme Court of Pakistan, while dealing with grant of benefit of section 382, has held as follows:- "Once the benefit of section 382-B has been given to any of the accused as the time of awarding conviction punishment then it deems to be effected on the date of arrest that is why the period he had remained in jail during the period of trial before the announcement of his conviction would be deducted otherwise it would not be possible. The insertion of section 382-B is based on principles of equity and justice on the basis of which the detention, period undergone by him as under trial prisoner was deducted from his sentence. The purpose and object of the provisions of law/Act for which it was enacted must be kept in mind at the time of interpretation of the same. It is settled principle of law that court can supply an obvious omission in a particular provision of statute or omit the same which is apparently redundant in the context of the provision keeping in view to advance object of the Act and not to frustrate the same. There are several guiding principles laid down by the superior Courts qua supplying of omission such as one interpretation is possible construction should be preferred which carries . into effect the object of the statute."

12. In the case of "Pakistan Steel Mills Corporation v. Muhammad Azam Katper and others" (2002 SCMR 1023), it has been held that: -- "It is settled proposition of law that legislation concerning procedural matters would operate retrospectively. However, legislation not concerning mere procedure but more than a matter of procedure and touching a right in existence at the time gins passing will not operate retrospectively unless Legislature, either by express enactment or by necessary intendment has given legislation retrospective effect, considering that the dispute having become past and closed transaction having created a right in one's favour could not be taken away by giving retrospective operation to the amended statutory provision." 13.? In the case of "Commissioner or Income Tax, Karachi? v. Eastern? Federal? Union? Insurance? Co." (PLD? 1982? SC? 247), it was held:-- ?????? "Legislation not concerning procedure only but more that a matter of procedure and touching a right in existence at time of its passing would not operate retrospectively? unless Legislature either by express enactment or by necessary intendment gives legislation retrospective effect. Assessment for year in dispute having become a past and closed transaction, assessee's right, could not be taken away by giving retrospective operation? to amended statutory provision." Likewise in case of "Kumir Mondal and others v. Paramatha Nath Chowdhury and others (PLD 1963 Dacca 886), it was held by learned Court that: ?????? "Retrospectivity not to be inferred unless clearly arising from the Act and it would not impair existing rights so also vested rights cannot be affected by amending Act." 14.? Maxwell? in? his? Interpretation? of? Statutes,? 9th? Edition? at page 223 has made the following observation:-- ?????? "Every statute, it has been said, which takes away or impairs vested rights acquired under existing law, or creates a new obligation, creates a new duty, or attaches a new disability in respect of transactions or considerations already past, must be presumed, out of respect to the legislature to be intended not to have a retrospective operation. Where vested rights are affected prima facie it is not a question of procedure." 15.? In the case of "Mian Rafi ud Din and others v. The Chief Settlement and Rehabilitation Commissioner" (PLD 1971 SC 252) the Apex Court has held:-- ?????? "It is well-settled that when the law is altered during the pendency of an action, the rights of the parties are decided according to the law as it existed when the action was begum and not the law that existed at the date of the judgment or order. This is, however, subject to the exception that the new law shall apply if it is a mere rule of procedure or if it has been applied retrospectively to pending proceedings. This rule, as stated in Craies on Statute Law, Sixth Edition, page 400 is as follows:-- ?????? 'It is a general rule that when the Legislature alters the rights of parties by taking away or conferring any right of action, its enactments, unless in express terms they apply to pending actions, do not affect them. But there is an exception to this rule, namely, where enactments merely affect procedure and do not extend to rights of action." ?????? At page 313 learned author elaborates as under:-- ?????? "No legislative enactment, according to the universally accepted principle, should be held to be redundant or superfluous, and effort must be? made by courts to give effect to every enactment." 16.? In the case titled "Hassan and others v. Fancy Foundation" (PLD 1975 SC 1) the Hon'ble Supreme Court of Pakistan has held that:-- ?????? "It is well-established principle, that in general, when substantive law is altered during the pendency of an action, the rights of the parties are decided according to the law as it existed when the action was begum, unless the new statute shows a clear intention to vary such rights." ?????? In Pir Bakhsh and another v. The State (PLD 1965 (W.P.) Lahore 308) it was observed that:-- ?????? "Amendment in procedural law can affect the pending cases provided new procedure does not, in its application, work to prejudice accrued rights under old procedure." In Sakhi Muhammad v. Wajid Ali and others (PLD 1964 (W.P.) Lahore 426) it was held that:-- ?????? "Amendment of procedural nature in statute would apply to pending matters but not to matters past and closed. Any new provision made with regard to the orders of the Industrial Court by the amending Ordinance of 1961 cannot, without necessary legislative intendment, be said to have retrospective effect so as to govern orders passed before the amendment was introduced. There is no doubt that amendments of procedural nature have been consistently held to be retrospective in character, but that only means that the altered procedure will apply to pending matters, and not that matters which are closed and completed shall be re-opened so as to be governed by the new procedure." In Nagina Silk Mill, Lyallpur v. The Income Tax Officer and another (PLD 1963 SC 322) it was observed:-- ?????? "Court would lean against giving retrospective operation where vested rights or past transactions prejudicially affected or existing contracts impaired." In Commissioner of Income-tax (West), Karachi, v. Messrs Kruddsons Ltd. (PLD 1974 SC 180) at page 184 it was observed that:-- ?????? "It was well-settled proposition that a notification by Provincial Government cannot operate retrospectively to impair an existing right or to nullify the effect of a final judgment of a competent Court even if the notification be expressly so designed." 17.? In "Adnan Afzal. v. Capt. Sher Afzal" (PLD 1969 SC 187) it was held as under:-- ?????? "Matter retrospective if it is merely procedural in nature such matter, however, would not operate retrospectively if it touches any right in existence at the time of passing of legislation." ?????? In Central Exchange Bank v. Ch. Dilawar Ali Khan and others (PLD 1965 (W.P.) Lahore 628) it was observed that:-- ?????? "Statute not to be? construed to have greater retrospective operation than its language permits." ?????? In State v. Maulvi Muhammad Jamil and others (PLD 1965 SC 681) at page 685, it has been observed:-- ?????? "The general principle is that when the law is altered during the pendency of an action, the rights of the parties are decided according to the law as it existed when the action was begun unless the new statute shows a clear Intention to vary such rights. Where the Legislature has made its intention clear that the amending Act should have a retrospective operation, there is no doubt that it must be so construed even, though the consequences may entail hardship to a party. But even without express words to that effect, retrospective effect may be given to an amending law if the new law manifests such a necessary intendment. With regard to procedural laws, the general principle seems to be that alterations in procedure are retrospective unless there be some good reason against such a view." 18.? In the case titled "Commissioner, Sindh Employees Social Securities Institution and another v. Messrs E.M. Oil Mills and Industries and 2 others (2002 SCMR 39), the honourable Supreme Court of Pakistan has held that:-- ?????? "As a general rule every statute is deemed to be prospective unless? by express is provisions or necessary implication it is given retrospective effect. The acid test for ascertaining whether a statute or an amendment operates prospectively or retrospectively is the legislative intent. The language of the amending Ordinance and the Act and their terms neither make it manifest that the Legislature intended the amendments to operate retrospectively nor the intention can be gathered by necessary implication. The rationale is obvious inasmuch as the amendments have affected vested rights and created new obligations." 19.? In the case of "Molasses Trading and Export (Pvt.) Ltd. v. Federation of Pakistan" (1993 SCMR 1905), while dealing with the question of accrued rights, the honourable Supreme Court of Pakistan held that:-- ?????? "??..it has also been laid down (Province of East Pakistan v. Sharafatullah PLD 1970 SC 514) that a statute cannot be read in such a way as to change accrued rights, the title to which consists in transactions past and closed or any facts or events that have already occurred." 20.? The? trial? of? the? petitioner? commenced? before? insertion? of section 21-F of the ATA. Certain rights had already accrued in favour of the petitioner by way of his entitlement to the benefit of remissions in accordance with law in the field at the relevant time i.e. the time that the alleged offence was committed, F.I.R. was registered against him, he was arrested and his trial commenced. Any subsequent changes in law would not have the effect of depriving him of the rights which were available to him at the time when the offence was committed and the trial commenced. In addition, there is nothing in section 21-F of ATA to indicate even remotely that it has retrospective operation or that it has the effect of taking away the rights that were available to certain convicts under the prevalent law when the offence was committed, the F.I.R. was registered or the trial commenced. Looked at from this point of view, the provisions of section 21-F are prospective in nature and, therefore, cannot take away or affect the rights which were available to the petitioner at the relevant time. In support of this contention, reliance may also usefully be placed on the dictum of the honourable Supreme Court of Pakistan in the case of Commissioner Sindh Employees etc. (2002 SCMR 39). 21.? In the case of Pakistan Steel Mills (2002 SCMR 1023), the honourable Supreme Court of Pakistan has held that any amendment in law will not take away, empower, nullify or destroy a vested right, which has attained finality and has become past and closed transaction. Admittedly, registration of the case against the petitioner, his arrest and initiation of his trial were all prior to? the insertion of section 21-F. As a result, the dictum of the honourahle Supreme Court or Pakistan in the aforesaid cases is clearly applicable to the facts and circumstances of the present case. In Muhammad Rafi ud Din's case reported as PLD 1971 SC 252 and Hassan's case reported as PLD 1975 SC 1, it has clearly and unambiguously been laid down that where a law was altered during pendency of an action, the rights of the parties are to be decided according? to? the? law? as? it? existed? when? the? action? was? initiated and? not? under? the? law? prevailing? on? the? date? of? the judgment/order. Looked at from this angle also, the act of the respondents whereby the petitioner has been denied the benefit of remissions under the Pakistan Prisons? Rules is neither legally justified nor sustainable. 22?? During the course of arguments, the learned counsel for the petitioner has laid emphasis on the fact that the petitioner is only claiming remissions under the Pakistan Prisons Rules, 1978. We notice that such remissions are granted under special circumstances and are in-fact? earned? by? the? convict? on? the? basis? of? some? acts specified in Rules 214 and 215 of the aforesaid rules. Such remissions are in the nature of earning and cannot be withdrawn arbitrarily unless provided in the relevant law. Had section 21-F been attracted to the facts and circumstances? of? the? case,? denial? of? remissions? could? have? been justified? in? view? of? the? words? "notwithstanding? anything? contained? in? any? law? or? prison? rules ???..??.??..". However,? as? held by? us?? above,? the?? provisions?? of?? section?? 21-F?? have?? no? retrospective? effect? and? are? not? applicable? to? the? case? of? the petitioner. 23.? The learned counsel for the petitioner has not pressed his case on the question of special remissions announced either by the Provincial Government under section 401, Cr.P.C. or the President of Pakistan under Article 45 of the Constitution of Islamic Republic of Pakistan, 1973. 24.? For the reasons recorded above, we hold that the petitioner is entitled to remissions available to him under the provisions of Pakistan Prison Rules, 1978. 25.? As a result, while allowing this petition, we direct the respondents to grant such remissions to the petitioner as he is entitled to under? the? provisions? of? Pakistan? Prison? Rules, 1978 with effect from 26-1-2006. Order accordingly. M.H./M-166/L??????????????????????????????????????????????????????????????????????????????? Petition allowe