' AKHTAR ZAMAN MALGHANI, J:--The following reliefs have been claimed in the instant Constitutional Petition:-- "I. Declare that deletion of remissions for 1661 days = 4 years, 7 months, 11 days, earned during under trial period (from arrest on 29-5-2000 till conviction on 26-7-2001) intimated vide reply Annexure "0-4" dated 1-3-2006 was without lawful authority and of no legal effect and same be set aside.
II. Appropriate directions both mandatory and prohibitory, be made to respondents to give effect to above declaration and to count the remissions of under trial period (1661 days = 4 years, 7 months, 11 days) towards petitioner's imprisonment and to release petitioner forthwith, if not required in any other case".
2. Briefly stated, facts of the case are that the petitioner was tried and convicted by the Accountability Court No,1 under section 10 of the National Accountability Ordinance, 1999 vide judgment dated 26-7-2001 and sentenced to twelve years' R.I with fine of rupees twenty five crore, in default to further undergo, four years R.I. Appeal filed by him before this Court was dismissed on 16-12-2003, against which judgment he filed Petition for Leave to Appeal being No,14 of 2004 before the Hon'ble Apex Court which was not pressed on merits but reduction of sentence was sought. By order dated 18-3-2005 the Hon'ble Supreme Court of A Pakistan reduced the substantive sentence from twelve years to ten years, whereas, quantum of fine was maintained, however, imprisonment in default was reduced to three years. A the time of conviction of the petitioner 1661 days remissions were incorporated in his history ticket which were granted by the Government, Federal as well as Provincial and Jail Authorities prior to date of his conviction. It appears from the record that after pronouncement of judgment by the Hon'ble Supreme Court in the case Haji Abdul Ali v.
Haji Bismillah and three others reported in PLD 2005 SC 163 the above said remissions were deleted from history ticket of the petitioner, hence this petition.
3. We have heard the learned counsel for the petitioner as well as learned Advocate-General. The learned counsel for the petitioner contended that the judgment pronounced by the Hon'ble Supreme Court could not be implemented with retrospective effect as remissions granted to the petitioner and entered in his history ticket have become past and closed transaction. In support of his contentions, he referred to the judgment of Lahore High Court rendered in Writ Petition No,18205 of 2005. He further contended that once remissions were included in history ticket and acted upon, the same became vested right and respondent No,1 could not retrace steps on principle of locus poenitentiae. The learned counsel in support of his arguments placed reliance on the judgments reported in 1997 SCMR 15, PLD 1991 Supreme Court 973 and PLD 2002 Supreme Court 1079.
' On the other hand, the learned Advocate General contended that principle of locus poenitentiae is available to the authority despite decisive steps. In case the very order is illegal no right vests in a person to take benefit of illegal orders. He further contended that this Court is bound to follow the judgment of Division Bench pronounced in the case of Abdul Ali, because according to him, the facts and circumstances of Bhattachrya's case are distinguishable and could not be made applicable to the facts and circumstances of the instant case. In support of his arguments, he referred to the judgments reported in PLD 2005 Supreme Court 163 and 2000 SCMR 907.
4. We have carefully considered the contentions put forth by the parties' learned counsel and have also gone through the judgments referred to by them. After having gone through the judgment delivered by Hon'ble Full Bench of Lahore High Court and the judgments referred to in the said judgment, we with all respect in our command and due deference, were unable to agree with the proposition dealt with in the said judgment for the following reasons.
5. While declaring order of withdrawal of remission illegal reliance was placed on the judgment reported in PLD 1963 Dacca 422 and affirmed in the judgment reported in PLD 1964 Supreme Court
503. Perusal of said judgment would show that the facts and circumstances of that case were altogether different. In that case remission was granted specifically to Lieutenant Colonel Bhattacharya by the Provincial Government by communicating said remission to the concerned Superintendent Jail, who on receiving said order duly entered the, said remission in his ticket of history but later on said remission was withdrawn by the Provincial Government and during arguments the Government initially came up with the plea that the said order was result of misconception as the Provincial Government only wanted to communicate order of President, whereby, four years remission was granted to Bhattacharya by the President and afterwards with the plea that the Provincial Government has and had no power under section 401, Cr.P.0 to grant any remission with regard to a sentence passed by Special Military Court by virtue of the President's Order 26 of 1962 as also because of various Martial Law Regulations. The Hon'ble Judges after dilating upon the arguments so advanced concluded that the Provincial Government was empowered to grant remission under section 401, Cr.P.C even to the persons convicted and sentenced by Special Military Court and Order 26 of 1962 or other Martial Law Regulations did not put any embargo on the powers of Provincial Government conferred upon it by virtue of section 401, Cr.P.C. They also dealt with the plea of mistake and came to the conclusion that such plea was not legally available to the Provincial Government. After declaring the remission granted by Provincial Government valid, withdrawal of same was declared illegal. Interestingly the proposition in hand was also dealt with in the said judgment in following words:-- "In fact, as we have already stated above, in all the cases where mistake has operated to avoid a contract the ground upon which such avoidance has been effected was, in reality, something other than what is popularly understood as mistake. But apart from the law of contract the doctrine of mistake, whenever available as a defence, is restricted only to one point, namely, where it can be shown that the order made or the act done was, in fact, never made or done. For instance, suppose that the Provincial Government in the exercise of its powers under the said section 401, while considering the sentence of six months passed on A and B, had decided to remit the whole of the sentence passed on only and had recorded an order to that effect, without granting any remission on B and suppose again, that, through inadvertence, while communicating the order it was stated that B had been granted such a remission any claim by B that he was entitled to be released could be resisted on the ground that, in fact, no remission was granted to B and that the remission was actually granted to A. There was a mistake in communicating the order as passed. Such a defence could be set up against B on the ground that, in reality, no order was made in favour of B."
(Emphasis have been provided)
6. It may be seen that the remissions, which were entered in history ticket of the petitioner were granted to all prisoners and not specifically to the petitioner, who were undergoing sentences at the time of grant of remissions, whereas; at that time the petitioner was under trial prisoner, therefore; the same were neither communicated to the petitioner nor were recorded in his history ticket but on his conviction on 26th July, 2001 his history ticket was prepared and remissions granted prior to 26th July, 2001 were recorded in favour of petitioner by the Superintendent Jail at his own without being directed so by the concerned governments to do so. It may be noted that section 3 of the Prisoners Act, 1900 requires the officer incharge of prison to receive and detain all persons duly committed to his custody by any court, according to the exigency of any writ, warrant or order by which such person has been committed or until such person is discharged or removed in due course of law. By virtue of section 4 aforesaid officer has been bound down to return the writ, warrant or order to the court by which it was issued, when it has been duly executed, together with certificate of such execution, showing also where necessary "why the person committed thereby has been discharged from custody before execution thereof" whereas; section 17 provides for cases where the officer incharge of a prison doubts the legality of a warrant or order sent to him for execution or competence of the person whose official signatures affixed, thereto to pass the sentence. It is provided that in such a case matter will be referred to the Provincial Government by whose order the officer incharge shall be guided as to the further disposal of the prisoner. Thus on his own or on the direction of any authority not competent to grant remission Superintendent Jail cannot enter any remission in the history ticket of a prisoner and if he had done so, the same would be illegal and on coming to know about such illegality he can competently rectify and such wrong entry would not create any valid legal right in favour of the prisoner. Of course principle of locus poenitentiae is not available to the Government or authority once decisive steps arc taken and vested rights have been created in favour of a particular individual or class of persons but where the person who had made the initial order has no authority to make such order or the very order is illegal, then the principle of locus poenitentiae is always available irrespective of the fact whether in pursuance to such order decisive steps have been taken and rights have been created or not. In this regard; we are fortified by the judgment reported in PLJ 1999 Supreme Court 2331, wherein; it was observed as under:-- "It may be observed that section 20 of the West Pakistan General Clauses Act (corresponding section in General Clauses Act 1897 is section 21) lays down where by any West Pakistan Act or Regulation a power to issue notifications, orders, rules, schemes, form or bye-law is conferred then that power included a power, exercisable in the like manner and subject to the like sanction and conditions (if any), to add to, amend, convert or rescind any notifications, orders, rules, or bye-laws so issued. Similar to the power contained under the above provisions of the Act, under the principle of locus poenitentiae, the authority concerned has the power of receding its order till a decisive step is taken. In this regard reference may be made to the case of Pakistan, through the Secretary, Ministry of Finance versus Muhammad Himayatullah Farukhi (PLD 1969 SC 407) in which the following observation has been made in respect of the above principle: "There can hardly be any dispute with the rule as laid down in these cases that apart from the provisions of section 21 of the General Clauses Act, locus poenitentiae, i,e,, the power of receding till a decisive step is taken, is available to the Government or the relevant authorities. In fact, the existence of such a power is necessary in the case of all authorities empowered to pass orders to retrace the wrong steps taken by them. The authority that has the power to make an order has also the power to undo it. But this is subject to the exception that where the order has taken legal effect, and in pursuance thereof certain rights have been created in favour of any individual, such an order cannot be withdrawn or rescinded to the detriment of those rights."
' Reference may also be made to the case of . The Engineer-inChief Branch through Ministry of Defence, Rawalpindi and another versus Jalaludddin (PLD 1992 SC 207), in which this Court had commented upon the above principle as under:- "The principle of locus poenitentiae was invoked by the learned Tribunal in aid of the respondent.
Having gone through the facts of the case, we have come to the conclusion that this principle is not attracted in the present case. Additionally, under section 21 of the General Clauses Act, the authority which can pass an order, is entitled to vary, amend, add; to or to rescind that order. The order under which the payment was made to the respondent had no sanction of law. Locus poenitentiae is the power of receding till a decisive step is taken. But it is not a principle of law that order once passed becomes irrevocable and it is past and closed transaction. If the order is illegal then illegal order. Rights cannot be gained on the basis of an illegal order."
' In our view, the principle of locus poenitentiae is not attracted to the present case inter alia for the reasons, firstly, the appellants were not the authority which had approved Respondent No,5's building plan in violation of the above provisions of the Order and the Regulations. Secondly, since the above approval was in contravention of the provisions of law, the above illegal action/order cannot be treated as irrevocable or past and closed transaction. It may also be stated that as the order of approval of the plan is illegal, perpetual rights cannot be gained on the basis of the same."
' Likewise in the judgment reported in 2000 SCMR 907 the above view was affirmed by the Hon'ble Apex Court in following words:-- "It was held that under section 21 of the General Clauses Act, the authority which can pass an order, is entitled to vary, amend, add to or to rescind that order. It was further observed that locus poenitentiae is the power of receding till a decisive step is taken but it is not a principle of law that order once passed becomes irrevocable and past and closed transaction. If the order is illegal then perpetual rights cannot be gained on the basis of such an illegal order."
' Similarly; in the judgment reported in 1999 CLC 1883 it was observed as under:-- "If, however, due to any fallacy of facts, misrepresentation or misreading of any document or due to any other vitiating factor, a wrong or unwarranted order was passed, the same could be corrected by the same authority which passed the previous order, or by upper hierarchy under the same law in view of section 21 of the General Clauses Act; 1897 (Act No,X of 1897), which reads as under:- "Power to make, to include power to add to amend, vary or rescind orders, Rules or bye-laws.--- Where by any Central Act or Regulation, a power to issue notifications, orders, rules, or bye-laws is conferred, then that power includes a power, exercisable in the like manner and subject to the like sanction and condition (if any), to add to, amend, vary or rescind any notifications, orders, rules or bye-laws so issued."
' And, in this way, any wrong or mischief can be undone by the same authority."
7. As already observed, petitioner was not legally entitled to the remissions, which were granted prior to the date of recording his conviction and were illegally entered in his history ticket, as such; could be omitted/deleted at any time before his release in the light of law enunciated in the above referred judgments as before returning the warrant the Superintendent Jail is under legal duty by virtue of section 4 of the Prisoners Act, 1900 to certify that the warrant or writ has been duly executed including the reasons where the prisoner has been discharged before execution thereof and obviously such certificate could only be issued at the time of release of prisoner and not before that and what would happen if at that time officer incharge notices some discrepancy in calculation of sentence. Answer certainly would be that he can competently rectify such mistake and the prisoner cannot claim any vested legal right on account of any such wrong and illegal entry. In such event no question of withdrawal of remission arises but it is a case of rectification. In Bhattacharya's case the remission was specifically and legally granted to him, which was withdrawn by the Provincial Government on the ground not legally sustainable, whereas; the facts of the instant case are distinguishable as the remissions were neither specifically granted to the petitioner nor he was legally entitled to it. If the dictum laid down in Bhattacharya's case is made applicable to the petitioner's case, then it would also be equally applicable in the case of Abdul Ali, who was found not entitled to the remissions granted during the period when he was under trial prisoner and recorded in his history ticket by the Hon'ble Supreme Court in the judgment reported in PLD 2005 Supreme Court 163.
8. It may also be noticed that Hon'ble Supreme Court of Pakistan in the above quoted judgment affirmed the view taken by this Court in Abdul Ali's case (PLD 2003 Quetta 1) and we are bound to follow the said division bench judgment unless same is reversed by a larger Bench of this Court as held by this Court in the judgment reported in 1997 MLD 3142 in the following words:-- "We afraid, both the suggestions are not acceptable, because, it is a longstanding practice that if a Division Bench has given a judgment on particular question of law, another Division Bench of same High Court, while hearing identical matter in exercise of jurisdiction under Article 199 of the Constitution, is bound to follow the earlier judgment of Division Bench, unless, some new point is not agitated or more convincing arguments with support of fresh material including legal provisions etc. Are not advanced. As far as following judgment of another High Court on same question of law, is concerned, there is no prohibition, except with the condition that if the judgment has more convincing reasons, based on such legal proposition, legal provision, material, etc., which was not before the Bench of other High Court, who had already decided identical matter."
In view of what have been discussed above, in our considered view, the petitioner was not legally entitled to the remissions granted by the President and Provincial Government before recording of his conviction and were rightly omitted/deleted from his history ticket, as such; we find no merits in the instant petition which is dismissed accordingly.