' TASSADUQ HUSSAIN JILLANI, J.---Crime and punishment have vexed Prophets, reformers, judges and criminologists ever since the advent of organized human living. At the jurisprudential plane, the issues raised have varied in time and space and the theories of punishment i.e retribution, deterrence, prevention and reformation or rehabilitation are various facets of the age old human odyssey to devise ways and means to deter, to punish, to reform the deviant behavior and to balm the aggrieved. As the basic human elements remain the same, the struggle continues.
2. In these appeals, the convicts and the complainants have approached this Court to seek acquittal or enhancement of the sentences awarded to the offenders in the cases punishable with death. Any exercise to go to the merits of these appeals would entail resolution of questions both of law and of fact. The merits and factual aspects of these appeals would be gone into by the respective Benches in due course. The learned counsel were, therefore, directed to address this Court on the following common question of law which emerged during the course of arguments:--
(i) Whether the enhancement of a sentence of a convict who has already undergone the sentence of life imprisonment during the pendency of appeal/revision would be hit by the principle of double jeopardy enshrined in Article 13 of the Constitution of the Islamic Republic of Pakistan?
(ii) Whether the powers of the President of Pakistan for granting remissions in terms of Article 45 of the Constitution can be fettered by any sub-constitutional statute?
(iii) What is "life imprisonment" and can a person undergoing such a sentence be released on the basis of remissions granted by the Provincial Government?
3,. Mr. Maqbool Elahi Malik, Senior Advocate Supreme Court appearing for the complainant submitted as under:--
(i) Merely because a person has undergone a sentence of life imprisonment would not nullify the effect of the appeal being continuation of trial. Unless the appeal concludes no question of double jeopardy arises.
(ii) The arguments with reference to Article 13 of the Constitution, therefore, are not relevant in these cases. In support of his submissions, the learned counsel relied on PLD 2003 SC 240, AIR 1950 SC 365.
4. Sardar Muhammad Ishaq, Sr. A.S.C. (appearing in Crl. Appeal No,424/2001 and Cr. Appeal No,144 of 2002) also made submissions in line with the contentions raised by Mr. Maqbool Elahi Malik.
5. Sardar Muhammad Latif Khan Khosa, learned counsel for the appellant in Crl. Appeals Nos.63/1997, 148/1999, 149/2000, 150/2000 and No, 1371/2003, contended that Article 13 of the Constitution of the Islamic Republic of Pakistan was not attracted in these appeals as the issue of double jeopardy arises only if there was a fresh prosecution or punishment in an offence in which the offender already stood finally convicted. In the instant appeals, he explained, it was the continuation of the same prosecution and unless the appeal or revision against the judgment of the trial Court or first Court of Appeal was finally disposed of, it could not be said that the prosecution had concluded.
6. Sheikh Khizar Hayat, learned counsel for the appellant (in Crl. Appeal No,203/2003) submitted that the absence of motive is no ground to award lesser sentence and that since the prosecution case stood proved beyond reasonable doubt, the normal sentence under section 302 PPC is the death sentence. He also took exception to the remissions granted by the State in cases of Qisas and Diyat.
7. Sheikh Zameer Hussain, Advocate in Crl. Appeal No,390 of 2000 submitted that Article 13 would not be applicable as in all these cases the offenders have been convicted only for once and this Court is seized of the appeals against judgment of the first Court of Appeal and question essentially remains the same i,e, conviction of the offender pursuant to the initial and the only prosecution initiated against him. The offender has not been prosecuted for the second time. While explaining the import of the word "sentence" he referred to rule 198 (c) of the Pakistan Prison Rules to contend that "sentence" means what is finallyawarded and the fmal sentence in the instant cases would be the one which is determined by this Court. In support of the submissions made he relied on 2002 SCMR 810, 1976 SCMR 359, PLD 1976 SC 452 and AIR 1983 SC 636.
8. Ch. Mushtaq Ahmad, Advocate appearing for appellant (in Crl. Appeal No,31/2000) submitted that Article 13 of the Constitution would not be relevant as the question of double jeopardy would arise only if there is a fresh prosecution on the same facts with regard to an offence in which the accused was either acquitted or convicted. Merely because an offender has served out his sentence of imprisonment would not deprive this Court of its power to decide the matter and if the facts and circumstances so warrant to award a legal sentence provided in law. In support of the submissions made, the learned counsel relied on AIR 1953 SC 362, PLD 2001 SC 465 and also placed on record his written arguments.
9. Ch. Afrasiab Khan, A.S.0 appearing for appellant in Crl. Appeals Nos.384/99, 385/99, 351 of 2003 and 195 of 2000 adopted the arguments of Sheikh Zameer Ahmad, Advocate.
10. We have heard learned counsel for the parties and State, gone through the precedent case law cited at the Bar and have given anxious consideration to the contentions raised.
11. The first proposition framed is whether the enhancement of a sentence of a convict who has already undergone the sentence of life imprisonment during the pendency of appeal/revision would be hit by the principle of double jeopardy enshrined in Article 13 of the Constitution of the Islamic Republic of Pakistan?
12. For a better understanding of the proposition in hand, it would be imperative to appreciate the import of Article 13 of the Constitution of the Islamic Republic of Pakistan and the nature of the appellate or revisional jurisdiction under which the sentence of a convict is sought to be enhanced.
Article 13 reads as under:-- "No Person-
(a) shall be prosecuted or punished for the same offence more than once; or
(b) shall, when accused of an offence, be compelled to be a witness against himself."
13. It is clause (a) of this Article which is relevant for the issue in hand. The genesis of this provision can be traced to the English Con Law rule "nemo debet bis vexari", which in literal sense means that aperson may not be put twice in peril for the same offence. This principle by now has come to assume a universal application and is found in constitutions of most of the countries. Reference to few would be in order. In U.S.A. This principle is couched in the 5th amendment of the Constitution which mandates, "nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb." In England this principle was evolved in Common Law and Blackstone describe it as, "this universal maxim of the Common Law of England, that no man is to be brought into jeopardy of his life more than once for the same offence." In India the provision is found in sub-Article (2) of Article 20 which reads, "no persons shall be prosecuted and punished for the same offence more than once." Article 39 of the Constitution of Japan provides that, "no person shall be held criminally liable in any act.... of which he has been acquitted nor shall he in any way be placed in double jeopardy". Article 14.7 of the U.N Covenant on Civil & Political Rights, 1966 embodies the same principle and mandates, "no one shall be liable to be tried or punished again for an offence for which he has already been finally convicted or acquitted in accordance with the law and penal procedure of each country".
14. This almost universally accepted principle and as enshrined in Article 13(a) of our Constitution in its import and as evolved through the precedent case-law, has following implications:--
(i) A person may not be tried for a crime in respect of which he has previously been acquitted or convicted.
(ii) In respect of the crime of which he could on some previous charge/indictment has been lawfully convicted.
(iii) Where the offence charged is in effect the same or substantially the same as one in respect of which the person charged has previously been acquitted or convicted or in respect of which he could on some previous indictment, have been convicted.
(iv) The evidence necessary to support the second indictment or the facts which constituted the second offence would have been sufficient to procure a legal conviction upon the first indictment either as to the offence charged or as to an offence of which on the indictment the accused could have been found guilty.
(v) The offence charged in the second indictment must have been committed at the time of the first charge i,e, a conviction or acquittal for an assault will not bar a charge of murder if the assaulted person later died.
(vi) The earlier adjudication leading to guilt or innocence of a person charged must have been through a valid process and by a Court of competent jurisdiction.
(vii) The conviction or acquittal in the previous proceedings must be enforced at the time of the second trial.
(viii)The proceedings in which the plea of double jeopardy is being raised must be fresh proceedings where the person is sought to be prosecuted for the same offence for the second time.
15. When the conviction or acquittal of a person is under challenge in appeal or revision the proceedings are neither fresh prosecution nor there is any question of second conviction or double jeopardy. It is by now a well settled principle of law that an appeal or revision is continuation of trial and any alternation of sentence would not amount to double jeopardy. In Kalawati and another v.
The State of Himachal Pradesh AIR 1953 SC 131, the Court was called upon to comment on a similar question when it ruled in para. 9 of page 10 that, " an appeal against an acquittal wherever such is provided by the procedure is in substance a continuation of the prosecution".
16. To say that an appellate or revisional Court cannot enhance the sentence of a convict who during the pendency of the appeal or revision, as the case may be, has undergone the sentence under challenge is to negate the mandatory provisions relating to the powers of the appellate Court under sections 423 and 427 of Cr.P.C. And of the revisional Court under sections 435 and 439 of the same Code. Under these provisions, the concerned Court, seized of the appeal or revision, has the power to annul, to reduce or to enhance the sentence.
17. The question of sentence is primarily a matter of judicial discretion to be exercised in the first instance by the Trial Court. The Court of appeal can enhance the sentence if the same is found to be inadequate or not in accord with judicial principles laid down by superior Courts in this regard.
But as already held by this Court in Zarin v. The State 1976 SCMR 359 it "will depend on circumstances of that case and it would be undesirable to lay a principle of general application".
18. In Muhammad Afzal v. Ghulam Asghar and 2 others (PLD 2000 SC 14) this Court too will taking note of the precedent case law in which sentence was not enhanced by the Supreme Court, allowed complainant's appeal and converted life into death as circumstances so warranted. In Asharafi Lal and sons v. State of U.P (AIR 1987 SC 1721) the Court upheld the death sentence and laid down the social necessity of doing so. It was held as under:-- "This case falls within the test 'rarest of the rare cases' as laid down by this Court in Bachan Singh v.
State of Punjab (1980) 2SCC 684: (AIR 1980 SC 898) as elaborated in the later case of Machhi Singh v. State of Punjab (1983) 3 SCC 470: (AIR 1983 SC 957). The punishment must fit the crime. These were cold-blooded brutal murders in which two innocent girls lost their lives. The extreme brutality with which the appellants acted shocks the judicial conscience. Failure to impose a death sentence in such grave cases where it is a crime against the society particularly in cases of murders committed with extreme brutality will bring to naught the sentence of death provided by S.302 of the Penal Code. It is punishment depending upon the degree of criminality and desirability to impose such punishment. The only punishment which the appellants deserve for having committed the reprehensible and gruesome murders of the two innocent girls to wreak their personal vengeance over the dispute they had with regard to property with their mother Smt.
Bulakan is nothing but death. As a measure of social necessity and also as a means of deterring other potential offenders the sentence of death on the two appellants Ashrafi Lal and Babu is confirmed."
19. In R. v. Newsome & Browne (1970 (2) Q.B.711), the U.K. Court of Appeal laid down four broad principles/guidelines in this regard where the Court could interfere and enhance the sentence.
Those are as under:---
(i) Where the sentence was not justified by law.
(ii) Where a person was sentenced upon a wrong factual basis.
(iii) Matters improperly taken into consideration or fresh matters to be taken into account.
(iv) The sentence manifestly is excessive or wrong in principle.
' These are mere guidelines and their application would depend on each case. The cases entailing capital charge are to be decided with utmost care. When law vests a discretion in Courts to award sentence of death or life imprisonment, it casts a heavy duty to balance the various considerations which underlie these sentencing provisions. The circumstances surrounding the offence, the question of mens rea, the principle of proportionality of sentence, of the gravity of the offence charged, the considerations of prevention or of deterrence and of rehabilitation may also be kept in view if the circumstances of the cases and the law applicable so warrant.
20. There is no rule of general application that the serving out of sentence during the pendency of appeal or revision, by itself, would constitute a bar for enhancement of sentence or that any exercise to that effect would be violative of Article 13 of the Constitution. This could be one factor which the Court may consider, along with other factors and the principles referred to in para. 18 above, while deciding the question of enhancement.
21. We are mindful of the fact that this Court did not enhance sentence of convicts from life imprisonment to death who had already undergone the sentence in some cases. But the consideration of having already undergone the sentence was considered along with other circumstances in not enhancing the sentence and in some cases there was an oblique reference to provisions of Article 13 of the Constitution. A brief comment on those cases would be pertinent here:--
(i) Muhammad Sharif v. Muhammad Javed alias Jeda Tedi & 5 others (PLD 1976 SC 452)
' This was a petition filed by the complainant seeking enhancement of sentence of the convicts whose sentence had been reduced by the High Court. This Court while not approving the reduction of sentence from death to life imprisonment made by the High Court did not deem it proper to interfere and the reasons which found favour with the Court were as under:-- "Having already detailed the facts and circumstances of the case, I would not have hesitated to enhance the sentences of Jeda Tedi, Latif and Nisar but for the reasons, that nobody has come forward to prosecute the appeal for enhancement of sentence and all the convicts have already secured their release from the jail after having undergone the entire sentence of life imprisonment inclusive of the remission earned by them. In consequence, therefore, all the appeals fail and are hereby dismissed."
(ii) Mst. Razia Begum v. Jahangir & others (PLD 1982 SC 302).
' In this case again it was the complainant who had challenged the reduction of sentence of the convict by the High Court from death to life imprisonment. While not approving the reduction of sentence by the High Court in facts and circumstances of this case, the Court refrained from converting the same into death sentence but merely enhanced the sentence by way of imposing a fine of Rs,25,000. The Court observed as follows:- "This distinction has been mentioned in order to appreciate the argument advanced on behalf of Jahangir respondent, namely, that he has already served the sentence of imprisonment for life, therefore, he should not be sentenced to death. The effect of awarding the latter sentence in such a situation would be that the accused having served a legal sentence for the same offence,contrary to the demand of justice, would be punished again for the same offence. On factual side, the statement made by the learned counsel for Jahangir respondent that he has served the sentence, is supported by a certificate which has been placed on record. We accordingly following the rule laid down in Muhammad Sharif v. Muhammad Javed alias Jeda Tedi & 5 others (PLD 1976 SC 452), in the circumstances afore-noted, refrain from awarding the sentence of death to the respondent, although he deserved it; and, instead, impose a fine of Rs,25,000 as enhancement of sentence."
(iii) Mst. Promilla & others v. Safeer Alam & others (2000 SCMR 1166).
' In this case leave was refused to the complainant against the judgment of the High Court whereby the death sentence was altered to 14 years R.I and he had been released having served out the same when the case came up for hearing before this Court. There was no reference to Article 13 of the Constitution and the Court did not interfere as it was of the view that no exception could be taken to the judgment of the High Court and in doing so it observed that: "It is noted that, both death and imprisonment for life/imprisonment for 25 years cannot be awarded for the same offence simultaneously. Whatever the circumstances, the fact remains that the respondent was awarded 14 years' R.I by the High Court and he served out the same. Now death penalty for the very offence cannot be awarded. Even otherwise, 14 years R.I, under the circumstances, was appropriate sentence."
(iv) Aziz Muhammad v. Qamar Iqbal & others (2003 SCMR 579).
' In this case also the Court refused to grant leave and beside the other reasons alluded to a reference was also made to Article 13 of the Constitution and section 403 of the Cr. P.C. It was observed as under:-- "In view of the above situation, we are of the opinion that as this Court in above-noted judgments has held that if an accused has served out the substantial/legal sentence for an offence, he cannot be awarded another sentence for the same offence and if it is so it would be unfair, unjust and would also be in violation of Article 13 of the Constitution of Islamic Republic of Pakistan read with section 403, Cr. P.C."
(v) Abdul Haq v. Muhammad Amin alias Manna & others (2004 SCMR 810).
' Again in this case the complainant was before this Court seeking leave against the order of the High Court whereby the sentence of death of the convict was altered to life imprisonment. This Court relying on the previous judgments reported in PLD 1982 SC 302, 2000 SCMR 1166 and 2002 SCMR 403 did not accord leave and observed as under:-- "But in our opinion this objection of the learned counsel is only of academic nature at this stage for the reasons noted above because this Court in above noted judgments has held that if an accused has served out the substantial/legal sentence for an offence, he cannot be awarded another sentence for the same offence. Additionally it may be added that it would be unfair, unjust and would also be in violation of Article 13 of the Constitution of Islamic Republic of Pakistan read with section 403, Cr.P.C, if now accused/convicts are vexed with another sentence for the same offence."
An analysis of the afore-cited precedent case law of this Court would show that mostly there were multiple factors which weighed with the Court in not enhancing the sentence and the circumstance that a convict has already undergone the sentence also weighed with the Court.
Reference to Article 13 of the Constitution as a ground was made in two cases only namely 2003 SCMR 579 and 2004 SCMR 810. In Muhammad Sharif supra (PLD 1976 SC 452), the Court did not lay down that enhancing the sentence would amount to second punishment for the same offence.
Nevertheless, this Court in a subsequent case (PLD 1982 SC 302) while relying on the former judgment (Muhammad Sharif supra) observed that enhancing the sentence from life to death would have the effect of punishing the offender for the same offence again. The other cases namely 2003 SCMR 579, 2000 SCMR 1166 and 2004 SCMR 810 are the leave refusing orders and there was neither any elaborate discussion nor adjudication with regard to the application of Article 13 of the Constitution in situations where the convict has already undergone the sentence of imprisonment during the pendency of appeal. In both these cases the judgment of this Court in Muhammad Ilyas v. Muhammad Sufian (2001 SCMR 465)(sic) was neither referred to nor discussed.
In this case bar of Article 13 was pleased by the convicted, but his sentence was enhanced to death, and this argument was repelled. At para. 474 it was observed as under:-- "We are not persuaded to agree with learned ASC on behalf of the convict/respondent that the convict/respondent has already undergone the sentence awarded by the learned Appellate Court and accordingly at this belated stage the judgment of the trial Court could not be restored in view of the Doctrine ofExpectancy of life for the reason that "as regards th doctrine of expectancy of life, in view of the chronic delays in committal, trial and disposal of appeals as also the deliberate tactics of the convicts to delay the proceedings in order to escape the gallows there has been a shift in the trend of this Court as adumbrated in its judgments in Asadullah Khan v. Muhammad Ali
(1) Muhammad Khan v. Dost Muhammad (2) and Mst. Razia Begum v. Hijrayat Ali and 3 others (3) and the doctrine like that of falsus in uno falsus in omnibus is rarely and exceptionally invoked by this Court." (Muhammad Sharif v. Muhammad Javed PLD 1976 SC 452; the State v. Rab Nawaz and another PLD 1974 SC 87; Abdus Sattar v. Muhammad Anwar and 6 others PLD 1974 SC 266; Asadullah v. Muhammad Ali and 5 others PLD 1971 SC 541 and Mst. Nuran v. Nura and another PLD 1975 SC 174." (Emphasis is supplied).
' This judgment still holds the field and has not been re-visited.
22. The second question mooted in the instant case relates to the power of the President of Pakistan for granting remissions in terms of Article 45 of the Constitution which reads as under:-- "The President shall have power to grant pardon, reprieve and respite, and to remit, suspend or commute any sentence passed by any Court, tribunal or other authority."
23. It was argued that the power enshrined in the afore-referred Article is violative of the spirit of Article 2-A of the Constitution. Any theological debate in this context is unnecessary as Article 2-A is not a self-executing provision and unless there is proper legislation or amendment in the Constitution, the provision as it stands has to be given effect to. The power of the President to grant pardon, reprieve or respite and to remit or suspend or commute any sentence is a power which is given to Heads of the States in most of the Constitutions of the world. The import and ambit of this provision were considered by this Court in Bhai Khan v. State PLD 1992 SC 14 wherein at page 25, it was held as under:-- "The exercise of the discretion by the President under Article 45 is to meet at the highest level the requirements of justice and clemency, to afford relief against undue harshness, or serious mistake or miscarriage in the judicial process, apart from specific or special cases where relief is by way of grace alone, as for instance to celebrate an event or when a new President or Prime Minister is installed, where relief or clemency is for the honour of the State. In the former case, the discretion has to be exercised with care, keeping in mind the duty to maintainjustice, so as to prevent the erosion of the deterrent effect that judicial punishment must retain. The scope of the power of the President under Article 45 is basically discretionary, in view of Article 48(2) of the Constitution. The power under Article 45 being at the apex and unfettered, the President, whilst commuting a sentence (on a number of counts) or different sentences, can order the commuted sentences to run concurrently inter se and/or concurrently with any other or others imposed by the Court."
24. The argument that the power of the President to grant pardon, reprieve, respite, remit, or suspend, or commute any sentence is subject to section 402, Cr.P.C. Is not tenable and is not only against the constitutional mandate but also the scope of the afore-referred provision, section 402- C, Cr.P.C. Reads as under:-- "402-C. Remission or commutation of certain sentences not to be without consent.
Notwithstanding anything contained in section 401, section 402, section 402A or section 402B, the Provincial Government, the Federal Government or the President shall not, without the consent of the victim or, as the case may be, of the heirs, suspend remit or commute any sentence passed under any section in Chapter XVI of the Pakistan Penal Code."
25. It is a settled principle of constitutional interpretation that a provision enshrined in the Constitution shall prevail notwithstanding anything contrary contained in a piece of subordinate legislation.
26. In Habib-ul-Wahab Alkhairi & others v. Federation of Pakistan through Secretary, Ministry of Justice, Law & Parliamentary Affairs (PLD 1991 FSC 236) the Federal Shariat Court declared that any provision of law which authorizes the Government to release or pardon an accused without the consent of the legal heirs of the deceased would be un-Islamic. This observation was made with reference to sections 401,402,402-A and 402-B Cr. P.C. This judgment has been challenged before the Shairiat Appellate Bench (Shariat Appeals No,20 of 1991, 22 of 1991 and 60 of i992), the matter is sub judice and the operation of the said judgment stands suspended by operation of law.
27. This brings us to the last proposition i,e, what is "life imprisonment" and can a person undergoing such a sentence be released on the basis of remissions granted by the Provincial Government? It was argued that the term 'life imprisonment' appearing in section 302(b), P.P.C. Or any other penal law means incarceration of a convict for hisentire life and the remissions granted by the Provincial Government on the strength of the Prison Rules cannot offset the mandate of the substantive law i,e, Pakistan Penal Code and life sentence has to be given its ordinary dictionary meaning.
28. It is true that the term 'life imprisonment' has not been specifically defined in Pakistan Penal Code section 57 of the said Code provides that for the purposes of calculating fractions of the term of punishment, "life" shall mean imprisonment for 25 years. The section reads as under:-- "Fractions of terms of punishment.---In calculating fractions of terms of punishment imprisonment for life shall be reckoned as equivalent to imprisonment for twenty-five years".
Rule 140 of the Pakistan Prison Rules which bears the heading, "Release of lifers and long term prisoners" defines 'life imprisonment' in the following terms:-- "Rule 140.---(i) Imprisonment for life will mean twenty five years rigorous imprisonment and every lifer prisoner shall undergo a minimum of fifteen years substantive imprisonment.
(ii) The case of all prisoners sentenced to imprisonment for life shall be referred to Government, through the Inspector General, after they have served fifteen years substantive imprisonment for consideration with reference to section 401 of the Code of Criminal Procedure.
(iii) The cases of all prisoners sentenced to cumulative periods of imprisonment aggregating twenty-five years or more shall also be submitted to Government, through the Inspector General, when they have served fifteen years substantive sentence for orders of the Government."
Similarly rule 198(b) of the same Rules defines 'lifer' as, "a person sentenced to imprisonment for life-such sentence shall mean 25 years R.I"
29. Dilating on the issue and the effect of section 57 of the Pakistan Penal Code, a Full Bench of the Lahore High Court in Muhammad Hussain & 5 others v. The State through Superintendent, District Jail, Lahore (PLD 1968 Lahore 1) held as under:-- "Although transportation for life means a sentence for the remaining span of the natural life of the convict, yet it has beenaccepted as being of twenty years' duration in view of the provisions contained in section 57 of the Pakistan Penal Code."
30. The expression "life imprisonment" came up for consideration before the English Court of Appeal in R. v. Foy (1962 All England Law Report Page 246) wherein it was held as under:-- "Life imprisonment means imprisonment for life. No doubt many people come out while they are still alive, but, when they P do conic out, it is only on licence, and the sentence of life imprisonment remains on them until they die."
' In England the life sentence does not mean incarceration of the convict for the rest of his life. The total period for which the lifer may remain in prison can either be determined by the sentencing Court or the Home Office (reference may be made to sections 269 and 277 of the Criminal Justice Act 2003). If a convict sentenced to life imprisonment is to be released after a certain period then he is under a licence (issued in terms of section 238 of the Criminal Justice Act 2003). The conditions of the licence can either be recommended by the sentencing court or determined by the Home Office itself. The minimum period generally varies from 12 to 15/16 years depending upon the gravity of the offence (Blackstone's Criminal Practice 2003:E1.21). In the Criminal Justice Act 2003 several new provisions have been enacted to revamp the sentencing system. For instance, the creation of Sentencing Guidelines Council to be chaired by the Lord Chief Justice of England and Wales (section 167), the provision for determination of a minimum term in relation to mandatory life sentence (section 269), making it obligatory for the sentencing Court to have regard to five purposes of sentencing while considering the quantum of sentence (section 142), increase in sentence for racial or religious aggravation (section 144), provision for awarding community sentences (section 147), duty to publish information about sentencing not only for the information of those engaged in administration of justice but also for the general public with a view to preventing the offence and promoting confidence in criminal justice system(section 175). The afore-referred provisions on the one hand are an attempt to lay down the philosophy of punishment and on the other a corresponding sentencing mechanism. In the context of our judicial system the relevance is rather academic and a food for thought for all those engaged in the administration of justice.
31. The issue under consideration has also been a moot point before the Indian Supreme Court. In Laksman Naskar v. The State of W.B (AIR 2000 Supreme Court 2762) it was held as under:-- "Sentence for 'imprisonment for life' ordinarily means imprisonment for the whole of the remaining period of the convicted person's natural life. A convict undergoing such sentence may earn remissions of his part of sentence under the Prison Rules but such remissions in the absence of an order of an appropriate Government remitting the entire balance of his sentence does not entitle the convict to be released automatically before the full life term is served. Though under the relevant rules a sentence for imprisonment for life is equated with the definite period of 20 years, there is no indefeasible right of such prisoner to be unconditionally released on the expiry of such particular term, including remissions and that is only for the purpose of working out the remissions that the said sentence is equated with definite period and not for any other purpose."
32. The afore-referred judgment of the Indian Supreme Court holds that sentence for "life imprisonment" would ordinarily mean imprisonment for the whole of the remaining period of the convicted person's natural life, However, while considering the effect of remissions granted by the Government under the Prison Rules, it observed that after earning remissions it would not be an automatic release of a lifer and his release has to be preceded by the order of the Government for remitting the balance of the sentence. The judgment therefore acknowledges the power of the appropriate Government to grant remission even to the extent of remitting the entire remaining sentence of a lifer. In Pakistan as well Rule 140 of the Prison Rules framed under Prisons Act and as reproduced in Para-29 above codifies this authority of the Government. It lays down as to what "imprisonment for life" would mean if the remissions were to be calculated (25 years); what is the minimum period of substantive sentence that a lifer is to undergo (15 years); how the cases of all the prisoners who have served out the minimum period of substantive sentence as provided in sub-rule (i) are to be submitted to the Government for appropriate orders. This exercise is to be carried out for the purposes of section 401 of the Cr. P.C. Which empowers the Provincial Government, inter alia, to suspend or remit the sentence of the prisoner and pass order of his release. While it is the function of the Court to pass a sentence, it is for the appropriate Government to carry it into effect, to regulate the custody of the convict/prisoner, to grant him remissions and to pass order of release under the law. If a prisoner/lifer is released in terms of the Prison Rules under consideration, the said prisoner is in fact under an order of release and the sentence of imprisonment for life continues to endure.
33. The prisons are important institutions which while keeping the custody of the convicts or under trial prisoners try to ensure that they are provided with certain basic rights in terms of the relevant Prisons Act and the rules framed thereunder. Such rules have certain rationale. They contain provisions to maintain discipline, to provide a physical activity with a view to keep the prisoners physically fit. The prisoners are imparted professional training/skills. Those skills are not only utilized during the period when they remain in prison but the skills make them useful citizens and earning hands when they are released. The remissions serve as incentives for the prisoners to abide by the rules, to maintain orderly conduct and to imbibe virtues of social/community service. The remissions are of two kinds i,e, ordinary and special. Rule 211 of the Pakistan Prison Rules provides for ordinary remission and rule 214 of the same rules stipulates special remissions which are given to the prisoners for special services, for passing examinations, for success in teaching of handicraft, for assisting the prison staff in cases of emergency, etc. Rule 217, however, imposes an embargo and limits the quantum of remissions which could be granted to a prisoner. It provides that except for remissions earned for donating blood (rule 212) or surgical sterilization (rule 213) or passing of an examination (rule 215), the total remissions cannot exceed 1/3rd of the sentence of the convict. The combined effect of rule 217 and rule 140 (which defines life imprisonment) of the Pakistan Prison Rules is that ordinarily the total remissions given to someone who has been sentenced to life imprisonment cannot shorten the period of sentence of a convict to less than 15 years.
34. For what has been discussed above, while rendering our findings on issues raised as mentioned in Para-2 of their judgment, we hold and direct as under:--
(i) Article 13 of the Constitution of Islamic Republic of Pakistan is not a bar for enhancement and final determination by the Appellant Court established under the law.
(ii) Under Article 45 of the Constitution, the President enjoys unfettered powers to grant remissions in respect of offences and no clog stipulated in a piece of subordinate legislation can abridge this power of the President.
(iii) The Provincial Governments and other authorities competent under the law can grant remissions to the prisoners in accordance with law and the rules framed thereunder.
35. Disposed of in terms noted above.
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