' FAQIR MUHAMMAD KHOKHAR, J.--- The convict-petitioner seeks leave to appeal from judgment dated 12-5-2003, passed by a learned Division Bench of the High Court of Balochistan, Quetta, in Constitutional Petition No,617 of 2001.
2. Briefly stated the facts of the case are that the respondent No,1 lodged F.I.R No,61/94 dated 7-5- 1994 at Police Station Chamman, under sections 302/324/148/149/365/511 P.P.0 read with section 17(3) of the Offences Against Property (Enforcement of Hadood) Ordinance, 1979, against the petitioner and others for the murder of Dawood Shah and Muhammad Raza and for causing injuries on the person of Ahmed Shah. The co-accused Abdul Zahir, Gul Baran and Haji Allah Dad were tried by the Sessions Judge, Pashin. Abdul Zahir and Gul Baran were convicted and sentenced to suffer 14 years' R.I. Whereas Allad Dad co-. Accused was acquitted of the charge, by judgment dated 22-6-1996. The Criminal Revision No,38 of 1996 for enhancement of sentence of Abdul Zahir and Gul Baran, Criminal Acquittal Appeal No,161 of 1996 against acquittal of Allah Dad and Criminal Appeal No,131 of 1996 for acquittal of Abdul Zahir and Gul Baran were dismissed by the High Court of Balochstan, by judgment dated 24-7-1997. This Court, by judgment dated 15-10-1999, upheld the acquittal of Haji Allah Dad but convicted Abdul Zahir and Gul Baran under section 302(b), P.P.0 and sentenced them for life imprisonment. The sentence of fine of Rs,1,00,000 was also maintained and in default whereof they were to further undergo imprisonment for one year. Their conviction under section 324, P.P.0 and sentence of 7 years' R.I. With a fine of Rs,5,000 or in default to further undergo R.I. For 6 months, was also maintained. The benefit of section 382-B, Cr.P.0 was refused to them.
3. The petitioner Abdul Ali was arrested in the case on 24-7-1997. He was tried by the Sessions Judge, Pashin and was acquitted of the charge by judgment dated 19-10-1998. However, the High Court set aside the acquittal of the petitioner, convicted him under section 302(b), P.P.0 and sentenced him to suffer life imprisonment, by judgment dated 5-10-1999. The benefit of section 382-B, Cr.P.0 was extended to him. An appeal filed by the petitioner thereagainst was also dismissed by this Court and he was directed to pay Rs,1,00,000 as compensation to the legal heirs of the deceased or in default of payment to suffer 6 months' R.I.
4. The petitioner and his co-convicts Abdul Zahir and Gul Baran were given a number of remissions of their sentences by jail authorities on the strength of general orders passed, from time to time, by the Government of Balochistan under section 401, Cr.P.0 as well as by the President of Pakistan under Article 45 of the Constitution of Islamic Republic of Pakistan. The respondent-complainant filed Constitutional Petition No,677 of 2001 to challenge the remissions. A learned Division Bench of the High Court of Balochistan, by the impugned judgment dated 12-5-2003, declared that the petitioner and his co-convicts were not entitled to the remissions of their sentences for the period prior to their conviction. The High Court also withheld the benefit of remission of 60 days of sentence of the petitioner granted by a general order dated 5-1-2000 of the Government of Balochistan under section 401, Cr.P.0 as well as the remission of one year granted by the President of Pakistan under Article 45 of the Constitution on 6-1-2000 on occasion of Eid-ul-fitr to the prisoners undergoing sentence of life imprisonment. The High Court took the view that the same were not admissible to convicts under Chapter XVI of P.P.0 in view of the provisions of section 402- C of the Criminal Procedure Code. Hence this petition by the petitioner for leave to appeal.
5. Mr. Tariq Mehmood, Advocate Supreme Court, learned counsel for the petitioner submitted that the petitioner was entitled to remission of sentences given from the date of his arrest as benefit of section 382-B, Cr.P.0 had been extended to him for the period he remained an under-trial prisoner.
It was further contended that the High Court was not correct in taking the view that the petitioner was not entitled for grant of remissions under the Prison Rules or under section 401, Cr.P.0 by the Provincial Government. It was lastly submitted that once a remission had been granted and recorded by the jail authorities in the history ticket of a convict, the same could not be withdrawn or rescinded.
6. On the other hand, Mr. Salahuddin Mengal, Advocate-General, Balochistan as well as Mr. H.Shakeel Ahmed, Advocate Supreme Court, for respondent No,1, argued that in terms of Notifications of the Provincial Government as well as by the Federal Government, the petitioner was not entitled to any remission of sentence granted prior to the date of his conviction. He had already been granted benefit of section 382-B, Cr.P.0 for the period he was detained as an undertrial prisoner. It was further stated that the jail authorities had wrongly recorded remission of 60 days granted by the Provincial Government and one year granted by the President in view of prohibition contained in section 404-C of the Criminal Procedure Code for convicts under Chapter XVI of Pakistan Penal Code.
7. We have heard the learned counsel for the parties as well as the learned Advocate-General, Balochistan at length. Admittedly, the petitioner was arrested in the case on 24-7-1997 and was acquitted by the trial Court, by judgment dated 19-10-1998. The respondent No,1 preferred Criminal Acquittal Appeal No,320 of 1998 against acquittal of the petitioner. The High Court of Balochistan, by order dated 24-12-1998, directed that he be kept in prison till the decision of the appeal. The high Court, by judgment dated 5-10-1999, convicted him under section 302(b), P.P.0 and sentenced him to imprisonment for life. However, benefit of section 382-B, Cr.P.0 was extended to him for the period he remained in detention. The appeal of the petitioner was also dismissed by this Court and he was directed to pay Rs,1,00,000 as compensation to the legal heirs of the deceased or in default to suffer 6 months' R.I. 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.0 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 A 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 ante dated. A some-what similar view was taken in the cases of State v. Chandra Khandapani (1968 Crl.LJ 1152 (1153), The State v. Jernelsingh (AIR 1955 NUC Rajasthan 4613), Gulzar Muhammad v. Crown (1951) (52) CrI.LJ 238 (Lahore), Dangar 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).
8. Under section 3(3) of the Prisons Act, 1894, (Act IX of 1894), "convicted criminal prisoner", means any criminal prisoner under sentence of a Court or Court Martial Under rule 3 of the Prison Rules a convict means a convicted criminal prisoner under sentence of a Court. The legislature in its wisdom and in order to give more rational treatment of the pre-sentence period spent by a convict in jail enacted section 382-B, Cr.P.0 by promulgating the Law Reforms Ordinance, 1972. The sentencing Court is required to take into consideration the period, if any, during which an accused is detained in custody for an offence. But there is nothing in section 382-B, Cr.P.0 or any other law to indicate that such a person is to be treated as convict from the very inception. Therefore, remissions granted by the President under Article 45 of the Constitution or the Provincial Government were not available to the petitioner for the period during which he had not been convicted of any offence nor was he undergoing any sentence. As regards the remission of 60 days granted by the Government of Balochistan on 5-1-2000, under section 401, Cr.P.C, the High Court was quite correct in taking the view that the same was not permissible in view of section 402-C, Cr.P.0 as the petitioner had been convicted and sentenced under section 302(b), P.P.0 falling in Chapter XVI of P.P.C. The Lahore High Court has also expressed a similar view in the case of Inayat Bibi v. Amjad Ali and others (2001 PCr.LJ 1435).
9. However, the remission of one year granted by the President of Pakistan on 6-1-2000, under Article 45 of the Constitution could not be refused to him on that ground. The order dated 6-1-2000 of the President of Pakistan passed in exercise of constitutional power did not lay down any such limitation or condition that a convict who was sentenced to life imprisonment under section 302(b), P.P.0 falling in Chapter XVI of the P.P.0 would be disentitled to the remission by virtue of section 402-C of Criminal Procedure Code. Therefore, in our view, the petitioner is entitled to the special remission of one year granted by the President of Pakistan on 6-1-2000 under Article 45 of the Constitutional of Islamic Republic of Pakistan. Needless to mention here that the language of order dated 6-1-2000 is almost similar to the one used in remission orders dated 15-3-2000, 24-6- 2000, 14-8-2000, 24-12-2000, 3-3-2001 of the President, the benefit whereof has been given to the petitioner by the C High Court.
9. For the foregoing reasons, this petition is converted into appeal and is partly allowed. The impugned judgment is modified to the extent that the petitioner shall be entitled to the remission of one year in his sentence of imprisonment for life in terms of order dated 6-1-2000 passed by the President under Article 45 of the Constitution of Islamic Republic of Pakistan. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.