1. Through this application the petitioner has prayed for calling the comments from respondent No,1/Home Secretary. Since the learned A.A.-G. Has appeared on behalf of official respondents and placed all the relevant record in respect of the subject-matter of the case, as such no comments are required to be called. Application (CMA 439/2002) stands disposed of.
2. The petitioner by this application has prayed for review of an order dated 2-10-2001 whereby the petition of the petitioner was dismissed. The brief facts of the present application are that the petitioner filed Constitutional Petition bearing No,799 of 2001 mentioning therein that respondents 4 and 5 were arrested by the police on 2-11- 1990 on the basis of F.I.R. No,67/1990 registered at Police Station Pir-Jo-Goth for offence under sections 302, 323, 34 P.P.C. And 13-D A.O. The case was proceeded with by the learned Sessions Judge, Khairpur and later on the same was transferred to the Court of learned Sessions Judge, Sukkur on the application moved by the petitioner to the Hon'ble Chief Justice. The learned Sessions Judge, Sukkur proceeded with the case and after recording the evidence of respective parties, vide judgment dated 7-8-1997 convicted the respondents 4 and 5 and sentenced them to suffer imprisonment for life and to pay fine of Rs,25,000 and in default thereof to suffer R.I. For six months more. The respondents/accused had challenged their conviction and sentence by filing an appeal being Criminal Appeal No,D-25 of 1997 before this Court whereas the petitioner filed an Application being No,434 of 1998 for enhancement of sentence from life to death. The appeal of the respondents/accused and application of the petitioner both were heard together and decided by D.B comprising by my senior brothers Mr. Justice Muhammad Roshan Easani and Mr. Justice Muhammad Ashraf Leghari and vide judgment dated 18-10-2000 remanded back the case to the learned Sessions Judge, Sukkur with direction to re-write the judgment by mentioning the kinds of section 302, P.P.C. After remand the learned Sessions Judge, Sukkur again convicted the respondents/accused for offence under section 302, subsection (2), P.P.C. And sentenced them to suffer imprisonment for life and each of the accused was directed to make the payment of Rs,100,000 as compensation to the L.Rs, of deceased under section 544-A, Cr.P.C. In case of non-payment the said amount was ordered to be recovered as Land Revenue Act. The accused persons were also convicted for under section 337-F(i), P.P.C. And sentenced to suffer R.I. For six months for causing injuries to complainant and make payment of Rs,3,000 to him as Daman and the said amount of Daman was also ordered to be recovered under Land Revenue Act. The respondents/accused again assailed the said judgment dated 16-5-2001 before this Court by filing Criminal Appeal No,D-31 of 2001 whereas the petitioner had also filed Criminal Revision No,D- 34 of 2001 against the said judgment for enhancement of sentence from life imprisonment to death and according to the petitioner both the appeal and revision are pending adjudication before this Court. The petitioner alleged that during pendency of the above said appeal and revision the respondent No,3, illegally, malafidely and without caring the pendency of matters released the respondents/accused. The petitioner against such illegal release of respondents/accused by official respondents filed C.P. No,D-799 of 2001 before this Court. On this petition the notices were directed against the respondents and in response whereof the respondents/accused and official respondents appeared before this Court and filed comments.
1. On 2-10-2001 by a D.B. Comprising by myself and my senior brother Mr. Justice S. Ahmed Sarwana this petition was dismissed. The said order is reproduced hereinbelow:-- "This petition has been filed to challenge the release of respondents Nos.4 and 5 by the Jail Authorities before the expiry of the period of their punishment. According to the comments filed by Superintendent, Central Prison, Khairpur, the respondents were released after they had served out their sentence in accordance with law. The petition is misconceived and is accordingly dismissed." The petitioner was not satisfied with the above order and filed the present review application. On this review application the notices were directed against the respondents 3, 4 and 5 as well as learned A.A.-G. On 30-10-2001 by a D.B. Comprising by my senior brothers Mr. Justice S. Ahmed Sarwana and Mr. Justice Sarmad Jalal Osmani and the matter was being again proceeded before D.B. Of this Court. On 17-12-2002 the D.B. Of this Court comprising by myself and my senior brother Mr. Justice Ghulam Nabi Soomro sent the file of this case to the Hon'ble Chief Justice for passing appropriate orders.. The said order is also reproduced as under:- "This petition was finally disposed of by a Bench consisting of S.Ahmed Sarwana and Muhammad Afzal Soomro (one of us)- JJ. The review application can be disposed of only by the same learned Bench. This file may therefore be placed before the Hon'ble Chief Justice for passing appropriate orders." In compliance of the above order the file was sent to the Principal Seat 'at Karachi and the matter was placed before the Hon'ble Chief Justice who vide order dated 22-1-2003 nominated the undersigned to hear this matter in S.B. Here at Sukkur. The relevant paras. Of office note submitted by Assistant Registrar (Writ) and O.S.D. (Judicial) of Principal Seat at Karachi, before the Hon'ble Chief Justice read as follows:-- "It is respectfully submitted that according to roster of sitting Hon'ble Mr. Justice S.A. Sarwana is sitting at Principal Seat at Karachi from 10-1-2003 to 8-2-2003, while Hon'ble Mr. Justice Muhammad Afzal Soomro had been nominated to hold the Sukkur Bench at Sukkur for one year from 5-8-2002.
2. A Special Division Bench comprising of Hon'ble Mr. Justice S.A. Sarwana and Hon'ble, Mr. Justice Muhammad Afzal Soomro, may be constituted to hear the above (Review. Application) when both the Hon'ble Judges are available at Principal Seat at Karachi.
3. OR The matter may be placed before Hon'ble Mr. Justice S.A. Sarwana for hearing of above (Review Application) at Principal Seat at Karachi.
4. OR The matter may be sent back to the Sukkur Bench to fix the above (Review Application) there before Hon'ble Court Mr. Justice Muhammad Afzal Soomro.
5. OR Any other order as deemed fit and proper may kindly be passed.
6. (Sd.) Assstant Registrar (Writ). (Sd.) O.S.D. (Judicial).
7. HON'BLE CHIEF JUSTICE: As at A.
8. (Sd.)
9. Chief Justice." The file of this case was received by the office of this Court here at Sukkur and the matter was placed before me on 26-2-2003 when the learned Addl. A.-G. Sought time and the matter was adjourned to 17-3-2003. On 17-3-2003 Manzoor Ahmed Memon and Muhammad Ishaque Meo the then Superintendent and Assistant Superintendent, Central Prison, Khairpur respectively (now posted at Central Prison. Larkana) had appeared before this Court when the notices were directed against respondents 4 and 5 namely Nisar Ahmed Mahesar and Javed Memon through S.H.O Pirjogoth and the matter was adjourned to 313-2003. On 31-3-2003 the notices against respondents 4 and 5 were repeated for 17-4-2003. On 17-4-2003 this matter could not be proceeded with as the said date was declared to be holiday on account of Urs. Of Shah Abdul Lateef Bhitai and.On 16-5-2003 this matter was placed before this Court when respondents 4 and 5 made their appearance and sought time to engage their counsel and the matter was adjourned to 26-52003. On 26-5-2003 the arguments of the respective parties were heard and the order was reserved. I have heard the petitioner, respondents 4 and 5 in person and Mr. G.D. Shahani learned Addl. A.-G.
10. As well as Mr. Sher Muhammad Shar learned A.A.-G. It has been contended by the petitioner that. Respondent No,3 filed the counter-affidavit on the petition and he has filed the rejoinder, but the said respondent did not response the rejoinder of the petitioner, though the copy of the same was sent to him through Registered Post A/D and such acknowledgement receipt was delivered to the petitioner duly received by respondent No,3 on 4- 9-2001. It has further been contended by him that learned Addl. A.-G. Wrongly apprised this 'Court that respondents 4 and 5 were released after completion of their sentence in accordance with law on the basis of letter dated 3-6-2001 sent to the respondent No,3 by Home Department. He submitted that the said letter was not approval but it contained the conditions for release of the lifer convicts. It has also been contended that the respondent/accused No,4 served out only six years, three months and sixteen days whereas respondent/accused No,5 served out only six years, two months and twenty-six days which does not exceed the substantive sentence of one-third. He added that the respondent No,3 violated' the Rule 140 of Jail Manual Law. The petitioner argued that the above Rule 140 clearly shows that every lifer prisoner shall undergo a minimum of fifteen years of substantive imprisonment but in the respondent No,4 has served out only 6 years, 3 months and 16 days and respondent No,5 served out only 6 years, 2 months and 26 days thus the respondents/accused-have not served out the minimum of fifteen years of substantive imprisonment as such the releasing of the respondents/accused by the respondent No,3 is illegal and in contravention of Rule 140(1) of Jail Manual Law. He further argued that respondent No,3 also violated the provision of sub-rule (ii) of Rule 217 of Jail Manual Remission, subsection (2) of section 401 Cr. P. C. He also argued that the respondent No,3 ignored the mandatory provision of subsections (1) and (2) of section 544-A; Cr. P.C. As the respondents/accused did not pay compensation of Rs,100,000 to L.Rs, of both the deceased and Rs,3,000 to injured complainant nor they have served out the sentence in lieu of nonpayment of compensation. The petitioner lastly argued that the respondent -No,3 did not care the pendency of respondents/accused's appeal and criminal revision of the petitioner for enhancement of sentence from life imprisonment to death and without waiting the fate of both the matters released the respondents/accused illegally, malafidely and improperly and at the time of dismissal of the petition the proper facts and legal points were not brought before this Court either by respondents or learned Addl. A.-G. Resultantly, no proper justice has been extended to aggrieved party. In that eventuality the petitioner argued that it is a fit case where an order dated 2-10-2001 be recalled and the remission granted to the respondents/accused by respondent No,3 be declared to be illegal, improper and in violation of mandatory provisions of law and they may be remanded to jail custody to serve out the remaining sentence. The petitioner has referred to the cases of Hakim Khan and 3 others v. Government of Pakistan through Secretary Interior and others (PLD 1992 SC 595), Habib-ul-Wahab Al-Khairi and others v. Federation of Pakistan through Secretary, Ministry of Justice, Law and Parliamentary Affairs, Islamabad (PLD 1991 Federal Shariat Court 236), Inayat Bibi v. Amjad Ali and others (2001 PCr.LJ 1453) and Muhammad Meer and others v. Abdul Qadir and 2 others (1998 PCr.LJ 921) in support of his contentions. As against the arguments of petitioner learned Addl.A.-G. And A.A.-G. Opposed the Review Application on the ground that it is a disposed of matter and the review application is not maintainable. They argued that the respondents/accused were released by respondent No,3 in accordance with law. The learned Addl. A.-G. On the point of maintainability of review application referred to the case of Ahmed and others v. The State (2002 SCM R 1611) in support of his contentions. Respondents/accused Nisar Ahmed Mahesar and Javed Memon, were provided an opportunity either to engage their counsel or to explain their view-point by themselves but they neither engaged any Advocate nor explained themselves their view-points and they kept mum. They admitted that they were convicted and sentenced for life imprisonment and were also directed to pay compensation of Rs,100,000 each to L.Rs, of both the deceased and Rs,3,000 to injured complainant as Daman. They further admitted that they have not paid the compensation amount as well as the amount of Daman and they were released by the Jail Authority by giving them remission.
11. I have given my anxious consideration to the arguments of petitioner and respondents/accused as well as learned Addl. A.-G. And A.A.-G. Perused the record and I am of the considered view that at the time of dismissal of the main petition the proper facts and law points were not considered as the petitioner in his petition had mentioned legal points and on such legal points the remission granted by the respondent No,3 to the respondents Nos.4 and 5 was challenged but the same points were not properly brought before a D.B. Consisting of myself and my senior brother Mr. Justice S.A. Sarwana as such this review application is very well-maintainable. The perusal of record shows that the respondents 4 and 5 were convicted for murder of Fariduddin (the brother of the petitioner) and Noor Khan and they were sentenced for life imprisonment and each of respondents/accused were directed to pay Rs,100,000 to the L.Rs, of both the deceased and in case of nonpayment, the same would be recovered as arrears of Land Revenue. The each of respondents/accused were also convicted for under section 337-F(i), P.P.C. For causing injuries to complainant and sentenced to suffer R.I. For six months and they were directed to pay Rs,3,000 to injured complainant as Daman but the respondents/accused admittedly neither paid the compensation amounts to L.Rs, of two deceased and Daman amount to injured complainant but they were released by the Jail Authorities only after serving of six years, 3 months and 16 days and six years, two months and 26 days respectively, which reveals that the respondent No,3 violated Rule 140(1) of Jail Manual Law which reads as under:-- "Rule 140(1). Imprisonment for life will mean twenty-five years' rigorous imprisonment and every lifer prisoner shall undergo a minimum of fifteen years of substantive imprisonment," The record further reveals that respondent No,3 based the release, of respondents 4 and 5 upon a letter No,HD(PRS.11)/6- 4/2001 dated 3-7-2001 treating as approval for release of respondents/accused. The conditions of such letter is reproduced as follows:-- "(1) No remission has been granted under section 401 and Rule 216 of Prison Rules if he is convicted under Hadd or Qisas.
(2) No special remission has been granted for the imprisonment in default of fine.
(3) Total remission both ordinary and special granted under Prison Rules as provided under Rule 217 to him does not exceed one-third of his substantive sentence." The above quoted letter shows that it was a letter containing the conditions of remission and the same was not approval letter for release of the respondents/accused. Subsection (2) of section 401 of Cr. P.0 reads as under:-- "Whenever an application is made to the Provincial Government for the suspension or remission of a sentence, the Provincial Government may require the Presiding Judge of the Court before or by which the conviction was had or confirmed to state his opinion as to whether the application should be granted or refused, together with his reasons for such opinion and also to forward with the statement of such opinion a certified copy of the record of the trial or of such record thereof as exists." In the present case the respondent No,3 while granting huge remission i,e, more than 18 years could not make reference to the concerned Presiding Judge for granting remission/releasing the accused/respondents but himself illegally and wrongly granted remission and released them.
12. As the respondents/accused admittedly have not paid the compensation amount to the L.Rs, of two deceased and Daman amount to injured complainant thus it was the duty of respondent No,3 to inform the trial Court about recovery of the said sum before releasing them but it has not been done so and straightaway released them which seriously prejudiced the L.Rs, of two deceased and injured complainant as well as B caused injustice to them. In such type of cases the Hon'ble Supreme Court, as well as the High Courts and Federal Shariat Court have taken serious view for remission of accused persons and such remissions were declared to be illegal and improper and the accused of those cases were remanded to jail to serve out the remaining sentences. In case reported in PLD 1992 SC 595 the Full Bench of Hon'ble Supreme Court remanded back the matter to the High Court for decision of this and other relevant pleas namely, to examine whether the terms of the commutation Order applied to the cases to which it had erroneously been extended and whether the orders of commutation passed by the Jail Authorities in such cases were not liable to be set aside. In case reported in PLD 1991 FSC.236, the Full Bench of Hon'ble Federal Shariat Court declared such remission/commutation of sentence as unIslamic and against the Injunction of Islam. It has also been observed by the Federal Shariat Court that question of remission of sentence arises only when the trial is over and judgment is delivered and Court becomes functus officio. Provisions of sections 401, 402, 402-A and 402-B, Cr.
13. P.0 with respect to suspension, commutation or remission of sentence thus do not relate to the law of procedure as it is a power or, in other words, the right of the Provincial Government, in certain situations and of the Federal Government, to suspend, remit or commute the sentence passed by a Court of law, but in the present case the jail authority illegally and improperly released the respondents/accused by granting them remission of more than 18 years. In case reported in 2001 PCr.LJ 1453 the Lahore High Court declared the grant of remission to those respondents/accused to the extent of 1/5th of the total sentence by notification issued by the President of Pakistan and Provincial Government to be illegal, inapplicable and contrary to law and the said notifications were set aside. In case reported in 1998 PCr.LJ 921 a D.B. Of Balochistan High Court declared the remission being not sustainable and unwarranted by law. It has been observed in that case that remission of unexpired sentence of imprisonment of accused by Provincial Government in terms of section 401, Cr. P.C. Validity of powers conferred upon Provincial. Government under section 401, Cr.
14. P.0 were although discretionary, yet discretion when and wherever provided in statute, could not be equated to that of unfettered and unbridled powers, but such discretion was to be exercised judiciously with care and caution and after deligent application of mind to all relevant circumstances including nature of offence committed and ultimate decision of case. Discretion exercised by Provincial Government had been exercised in arbitrary manner without taking into consideration that accused had been convicted by Sessions Judge, whose appeal was dismissed by High Court and subsequently Supreme Court had refused to grant leave to appeal. Such aspect of matter having escaped unnoticed, had resulted in serious miscarriage of justice. In the present case the Jail Authorities totally ignored that not only the appeal of the respondents/accused is pending for its result before this Court but revision of the petitioner against the respondents/accused for enhancement of sentence from life imprisonment to death is also pending nor they have paid compensatory amount to L.Rs of both the deceased nor Daman amount to injured complainant inasmuch as the respondents 4 and 5 have served out only 6 years, 3 months' sentence and they have been granted remission for more than 18 years. For what it has been discussed above and in view of dicta laid down in the quoted authorities I accept this review application and recall the order dated 2-10-2001, set aside the remission so granted by the Jail Authorities as well as the Provincial Government by declaring it to be illegal, improper and unsustainable. The respondents 4 and 5 shall be taken into custody, remanded to jail to serve out the remaining sentence. Issue show-cause notice to Manzoor Ahmed Memon and Muhammad Ishaque Meo the then Superintendent and Deputy Superintendent of Central Prison, Khairpur (now posted at Central Prison, Larkana). The copy of this order may also be sent to Home Secretary, Government of Sindh-Karachi as well as I.-G. Prison, Sindh, Hyderabad to initiate proceedings against the said delinquent officers. The petitioner is also at liberty to file proceedings for compensation against both the officers. C.M.A. 2305 of 2001 as well stands disposed of.