The petitioners were tried under sections 395, 397 and 149, P. P. C. By a Special Military Court and sentenced to 10 years' R. I. Each on 4-11-1971. At the time when the sentence was passed against them they were not in custody. The first two petitioners, namely Syed Muzaffar Hussain Shah and Mushtaq, surrendered on 12-3-1973 and were immediately sent to the prisons but the third petitioner was arrested on 21-8-1972, but according to his learned counsel was sent to prison on 1- 9-1972.
2. A notification bearing No. 14(2)-S. C. Pre-II (H. D.)/70, dated 5-1-1972 was. Issued by the Governor of Punjab under section 401, Cr. P. C. With regard to grant of amnesty to the prisoners. It was provided that the notification would be applicable to all the prisoners. In para. 2 thereof certain categories of prisoners were excluded from being benefited by the notification. They were such as the prisoners accused or convicted for espionage or being agents of foreign power ; habitual criminals, prisoners detained in jails under sections 109 and 110, Cr. P. C. Or the disorderly persons under Goondas Act : prisoners convicted of the offences of robbery, dacoity, assault or criminal force to a woman with intent to outrage her modesty, offences under sections 359-377 of the P. P.
C., extorting confession and abetment, and attempt to commit offences mentioned above ; and the prisoners convicted of the offence of murder or attempt to commit murder or abetment to murder. Para. 3 of the notification provided that except in the cases mentioned in para. 2, remission. Of sentence shall be granted to the prisoners on the scale mentioned therein. Para. 4 of the notification, however, provided that in the case of those prisoners who were not covered by paras. 2 and 3 of the notification, special remission will be given on the following scale : "(a) Those undergoing, sentence of imprisonment of three months or less on 21-12-1971_ will be granted remission equivalent to half of their sentence ;
(b) Those under . Sentence of imprisonment of more than three months and not more than one year shall be given a remission of 1/4th of the sentence and in no case less than 1 j months ;;.
(c) Above one year, two months per year of the sentence imposed "to be undergone:"
3. According to the learned counsel for the petitioners, under clause (c) of para. 4 his clients having earned remission at the scale of two months r r year of the sentence imposed on them are lkable to be released, they giving undergone the period of the sentence awarded to them. .
The petitioners were sentenced to 10 years' R: I., each, on 4-11-1971, as mentioned above. It is admitted that at the time when the sentence vas passed they were not in custody. They were taken into custody later and sent to Jail on .The dates mentioned above.
4. It has been contended by the learned Assistant Advocate-General that since the petitioners were not in custody being not in jail at the time when the notification was issued on 5-1-1972, therefore, the same is not applicable to their case. It is contended that since the remission can be granted only to a prisoner and the petitioners were not in the prison at the relevant time, therefore, they cannot benefit from "the notification. According to the learned Assistant Advocate-General, since the period during which a convict remains on bail cannot be accounted for; so far as the grant of remission is concerned, therefore, similarly in the present case since the petitioners were not prisoners at the relevant time, when the notation was issued, they are not entitled to take benefit of the notification, He has referred to certain provisions as contained in the Jail Manual.
5. The notification in question .Has been issued under section 401,. Cr.: P. C., which empowers a Provincial Government to suspend or remit sentence of any person at any time without any condition or upon any condition. : It pertains to grant of special remission in addition to that which is otherwise granted under the relevant provisions of the Jail Manual. The conditions under which a prisoner has been made eligible to avail of the remission under the notification -in question are different from those a mentioned in the relevant provisions of the Jail Manual. The whole teno of the notification shows that remission has been specially granted to various categories of prisoners irrespective of the fact whether their cases for such purpose are covered by the relevant provision as contained in the Jail Manuah It has been mentioned in para. 4 of the -notification that special remission will be given to the prisoners whose cases are not covered by the condition laid down in pares: 2 and 3 thereof. Therefore the language as used in thenotification will have to be examined independent of the relevant provisions of the Jail Manual:
6. In clause (a) of pare. 4 'of the notification remission has been granted to those prisoners who were `undergoing sentence of imprisonment of three months or less on 21=12-1971. Different language has been used in clause (b) of the paragraph., Remission has been granted to, those persons who were un3er sentence ` of imprisonment for more than three months and not more than one year.. Similarly iii clause (c) remission has been granted at the scale of two months a year to the prisoners who were. Under sentence of imprisonment of more than one year. It appears that different language has been usedclauses (b) and (c) from that of clause (a) of theparagraph purposely 'in order enable such prisoners to take benefit oil the notification, who were not in - custody at the time of the enforcement of the notification.
7. There is,. No doubt that the notification will be applicable to the prisoners alone; and nobody else, meaning thereby that if any person after having been, sentenced has not surrendered or taken into custody then he cannot avail of clauses .(b) and (c) of paragraph 4 of the notification, as it has been specifically mentioned in the notification that it will be applicable) to the. Prisoners:. The;.
Words as used "under sentence". In clauses (b) and -- of paragraph 4 show- that it will be applicable to .Only those persons who D were found guilty and .Sentenced, but had. Not- surrendered themselves or taken into custody, at the time when the sentence was awarded.
Further, clause (c) shows that remission is to be granted at the scale of two months Per ,:year of the: sentence imposed ,to a person who is under sentence for, a period mole- than a . Year. It - means that a person who had been sentenced but was not taken into custody at the time .Of imposition , of sentence would be eligible to avail of the remission at the scale of two months per year of the total sentence .Imposed, provided .The sentence was .More - :than a year, after he was sent to jail to undergo the sentence so awarded.
8. The above view gains strength from the language used in section 303, P. P: C., which provides that whoever being under sentence of imprisonment for lite commits murder shall be punished with death. Here the words used as "being under sentence of imprisonment" have been interpretedin Po Kun v. The King (1) and Sohan Singh Nand Singh v. The State (2). In
(1) A. L R 1939 Rang. 124(2) A I1 R 1965 Punj. 156 the former case the appellant before the High Court was convicted of murder under section 302 of the Penal Code and sentenced to suffer transportation for life on 12-5-1923 by the Court of Sessions Judge, but was released in January, 1937 by an order of the Government under section 401, Cr. P. C., remitting, subject to conditions therein set out, the remaining punishment to which he had been sentenced. After he had come out of the jail he committed the offence of murder. He was taken into custody and was tried under section 303 of the Penal Code and sentenced to death. It was pleaded that since the appellant was not in prison, nor under sentence of imprisonment, therefore, section 303 of the Penal Code was not applicable in his cast. This plea was repelled and it was held that though the appellant was not actually in prison or under a penal settlement, he must be deemed to be still "under sentence of transportation for life". It was held that since after his sentence was remitted conditionally he committed offence of murder, therefore, being under sentence of imprisonment, section 303 was applicable in his case.
Similar view was taken in the latter case, where the accused was convicted in a previous case under section 302 of the Penal Code and sentenced to transportation for life. After he had undergone imprisonment for some period he was granted remission under section 401, Cr. P. C.
However, after release he committed murder of two women. The same plea, as mentioned above was raised in this case also, but it was repelled holding that the accused should be deemed to be under sentence of imprisonment for life at the time the occurrence took place in the second case and he was liable to beconvicted under section 303 of the Penal Code. It was held that according to law the conditional order of remission under section 401, Cr. P. C., as passed in that case, was not to altogether wipe out or efface the remitted portion of the sentence, but to keep it in abeyance. As soon as there was breach of the conditions of the remission, it was cancelled and the prisoner committed to custody to undergo the unexpired portion of the sentence.
9. In the present case, the petitioners were not in custody at the time when the sentence of 10 years'
R.1. Each was awarded to them. They were not undergoing the sentence of imprisonment on 5-1- 1972, when the notification was issued, but they were certainly under sentence of imprisonment till they actually surrendered or taken into custody and became prisoners. If they had not been in the prison then the notification in question would not have been applicable to them. They being in prison after E being under sentence of imprisonment are entitled to take benefit of clause -- of paragraph 4 of the notification, which provides remission of two months per year of the sentence imposed. It means that period of remission at this scale would be calculated from the date when they were sentenced. The would be released forthwith, if after availing of the aforesaid remission at the said scale they have served the term of their sentence.
10. The writ petition is accepted in the above terms without any order as to costs.