' ZAFFAR HUSSAIN MIRZA, J.-The Constitutional Petitions Nos, 1055, 1432 and 1488 of 1978 were heard together as common questions of law were raised in them and they will, therefore, be disposed of by this common judgment.
2. Constitutioual Petition No, 1055/78 has been filed by Muhammad Bhai and Muhammad Yakoob who were tried and convicted under section 302, P. P. C. And sections 323, 324/34, P. P. C. On 30-3-
68. The petitioners were each sentenced to Transportation for life under section 302, P. P. C. And to one year's R. I. Under section 323/34, P. P. C. And to two years' R. I. Under section 324/34, P. P. C. All the sentences were ordered to run concurrently. Eversince their conviction the two petitioners have been undergoing imprisonment in connection with the aforesaid sentences. Both petitioners claimed to have earned remission of portions of their sentences so that according to them taking into consideration the remission earned by them they have already completed the maximum term of their-imprisonment and are, therefore, entitled to be released.
' In Constitutional Petition N. 1432/78 detenu Mir Muhammad son of Din Muhammad was tried and convicted under section 302, P. P. C. And was sentenced to transportation for life on 10-7-69. On 13- 4-76 the then Acting Chief Minister of Sind Mr. Abdul Waheed Katpar visited the Open Jail, Badin and passed orders for premature release of certain prisoners in exercise of his powers under section 401, Cr. P. C. The detenu was also released alongwith others, but on 27-5-76 he was rearrested as having been illegally released and continues to suffer imprisonment.
4. Constitutional Petition No, 1488/78 is in respect of 12 convicts who were also sentenced to transportation for life on various dates and were among those who were released as a consequence of the orders passed by the then Acting Chief Minister of Sind Mr. Abdul Waheed Katpar dated 13-4-76. They were also re-arrested in the last week of May 1976 and are undergoing imprisonment eversince.
5. The total period of actual substantive sentence suffered by each of the detenus in these petitions has not been disputed by the respondents and the learned Additional Advocate-General has placed before us a statement showing the total remissions earned by each of the detenus under the Remission Rules as well as under section 401, Cr. P. C. As on 4-3-79. However, the actual sentence undergone by the detenus in Constitutional Petition No, 1488/78 has been disclosed by the petitioner upto 13-4-76 and further particulars are not available on the record. The particulars of the detenus as far as available may, therefore, be stated as under :- {{TABLE}} Remission Period Remission u/S. 401, S. Date of served earned Cr. P. C.
No, Name Sentence YMD YMD YMD
1. Mohd. Yaqoob s/o Mohd Bhai. 30-3-68 10 11 4 12 2 1 6 11
2. Mohd. Bhai s/o Fakir Mohd. 30-3-68 10 11 4 11 2 21 5 11
3. Mir Mohd. s/o Din Mohd, 10-7-69 9 7 22 9 7 14 5 11 Period served up to 13-4-76
4. Arbab s/o Gahi 13-11-68 7 5 0 9528 5 5
5. Akram s/o Rafiq 28-4-67 9 11 16 8 10 15 5 5
6. M. Ishaq s/o Shams- uddin 28-4-67 8 11 16 9 5.16 5 11
7. Talib s/o Bhutto 29-11-69 6 4 14 9 6 23 6 0
8. Haji Fazlullah s/o Haji Sanwaro 25-1-69 7 2 18 9 3 26. 5 5
9. Hasan s/o Shah Mohd. 28-4-67 8 11 16 8 10 27 5 5 #TBS 28-4-67 8 11 16 9 7 11 5 11 #TBE VOL. XXX1I 1 2 3 4 5 6.
10. Ali Bux s/o Karim Bux 25-3-70 6 9 19 7 1 10 5 5
11. Siddiq s/o Ahmad Din
12. Illahi Bux s/o Allah Rakhio 25-4-68 7 11 19 10 4 20 5 11
13. Maula Dino s/o Eidan 12-12-68 7 4 2 8 2 27 6 4 9
14. A. Majid s/o Khushhal 26-2-70 6 4 17 10 7 7 7 0 9
15. Sardar Ahmad s/o Mohammad Ahmad 28-10-69 6 5 15 8 7 27 6 1 5 {{TABLE}}
6. The detenus claim that taking into account the remissions granted to them they have served out the sentences lawfully required to be served by them and have challenged their further detention as illegal and without lawful authority. The detenus made representations to the Government of Sind for their release but their request was turned down and as far as the detenus in the last two petitions are concerned, they were informed that according to the latest Government Policy prisoners sentenced to suffer transportation for Life have to undergo at least 14 years substantive sentence excluding remissions.
7. Now according to section 57 of the Pakistan Penal Code as it originally stood, transportation for life was to be reckoned as equivalent to the transportation for 20 years. This section was amended by the Law Reforms Ordinance, 1972 whereby for the word "transportation" the word "imprisonment" was substituted and the term "imprisonment for life" is to be reckoned as equivalent to 25 years.
There is no dispute before us that the case of the petitioners is governed for purposes of the computation of the total sentence by section 57 before it was amended viz. 20 years, as obviously amended law has no retrospective effect as held by a learned Single Judge of the Lahore High Court in Muhammad Sharif v. I.-G. Of Prisons, Punjab (1). Admittedly none of the detenus in these petitions has undergone actual substantive sentence of imprisonment of 20 years from the date of their respective conviction, but it is urged that taking into account the remissions granted to the respective detenus they have already served out their sentences and are not liable to be detained further. This brings me to the question of remissions earned or awarded to the prisoners on which the decision of these petitions turns. Subsection (5) of section 3 of the Prisons Act, 1894 defines "remission system" to mean the rules for the time being in force regulating the award of marks to, and the consequent shortening of sentences of prisoners in Jail. Under section 59, clauses (5) and
(21) of the Prisons Act, 1894 the earstwhile West Pakistan Government, in supersession of the previous rules on the subject, promulgated the West Pakistan Prisons (Remission of Sentences)
Rules, 1965. In these Rules clause (c) of rule 2 "life convict" was defined as a convict sentenced to transportation for life, such sentence shall mean 14 years Rigorous Imprisonment. The Rules provide in some detail the various categories of remission but rule 20 explicitly excludes from the application of the Rules special remission awarded by Government on occasions of public
(1) PLD 1978 Lah. 15 rejoicting under section 401(1) of the Cr. P. C. For a convict other than a life convict the Superintendent of the Prison has been empowered by rule 22 to release a convict unconditionally if he has earned such remissions as entitled him to such release. Bu under sub-rule (2) of the same Rule in case of life convict who has earned special remission as would entitle him to release, the Superintendent is required to report accordingly to the Government in order that his case may be considered with reference to section 401 of the Code of Criminal Procedure. These Rules came up for interpretation in Muhammad Hussain v. State (1) where it was held that the period of 20 years prescribed by section 57 of the Pakistan Penal Code has not been curtailed by the rules framed under section 59 of the Prisons Act and the period of 14 years' Rigorous Imprisonment mentioned in those rules in connection with the sentence of transportation for life is intended to serve merely as a basis for working of the remission system formulated by the Provincial Government. It was, therefore, held that under sub-rule (2) of rule 22 the Rules of all life convicts who have completed an aggregate period of 14 years including remissions of all kinds worked out on the basis of 14 years have to be forwarded to the Provincial Government for appropriate action-under section 401 of the Cr. P. C. In those cases, however, where the Provincial Government does not wish to release a life convict after he has completed an aggregate period of 14 years' Rigorous Imprisonment it shall be assumed that the prisoner has to undergo an aggregate imprisonment of 20 years and in that eventuality all the remissions earned by him, whether ordinary or special, will have to be calculated on the basis that he was undergoing a total sentence of 20 years, and not 14 years. In the light of this decision it is further pertinent to refer to sub-rule (2) of Rule 10 which provides that remission, both ordinary and special, earned by a life convict shall not exceed 4 years under any circumstances. For the purposes of the rules," therefore, a life convict's case for consideration of the Provincial Government under section 401, Cr. P. C. Can only be submitted after the convict has undergone actual substantive sentence of at least 10 years, The learned Additional Advocate- General invited our attention to clause (5) of section 59 of the Prisons Act which empowers the Provincial Government to make rules consistent with the said Act, inter alia, for the award of marks and shortening of sentences. Clause (5) was also amended by the Law Reforms Ordinance, 1972 so that it reads -after its amendment as under :- "(5) for the award of marks and the shortening of sentences, so however, that a sentence of imprisonment for life is not shortened to a period of imprisonment less than 15 years."
' The contention of the learned Additional Advocate-General was that by the aforesaid amendment in law no life convict can be released unless he has undergone minimum substantive sentence of 15 years excluding the remissions earned by or granted to him. According to him the provisions of statute will override the rules and have to be given effect notwithstanding the same.
We art, however, unable to accept the argument as it overlooks the fact that by doing so we will be giving retrospective 'operation to the amended law when it affects the substantive right of the convicts as to the duration of their imprisonment in absence of an express provision in that behalf.
The amendments relied upon are clearly prospective in nature and, therefore, the cases of the detenus herein will be regulated by the law as it stood prior to the aforesaid amendments which place no embargo on the minimum duration of a sentence of imprisonment for life except as provided by the rules.
(1) PLD 1968 Lah. 1
8. We are, therefore, clearly of the opinion that the case of all the detenus as to the minimum substantive sentence to be undergone will be governed by rule 19(2) read with rule 2(c) of the Remission Rules of 1%5, the combined effect of which is that for the purposes of computing the remission in their case, life imprisonment shall be computed as 14 years and the maximum remission under these Rules to which the detenus can be entitled will not exceed 4 years. It may, however, be clarified that special remissions awarded by the Government under section 401, Cr. P.
C. Will not be subject to the maxim limit of 4 years remission as clearly provided by rule 20 which expressly lays down that such remissions are not governed by these Rules. The final position, therefore, that emerges is that a life convict governed by the Rules as they stood before the amendment of section 59 of the Prisons Act can claim maximum remissions under the Rules to the extent of 4 years in addition to any special remission granted to him under section 401, Cr. P. C. With the result that if such remissions plus the actual substantive sentence undergone by him make up a total period of 20 years imprisonment, such convict has to be released forthwith. It however, the period actually undergone and the remissions make up a total period of 14 years then his case will have to be referred to the Government as required by sub-rule (2) of Rule 22.
9. Before considering the case of each individual detenu in the light of what has been stated above, we might dispose of the contention of the learned Additional Advocate-General that in terms of the latest Government Policy life convicts are required to undergo actual substantive sentence of 14 years excluding remissions, on which ground the request of the detenus for release was turned down. It was urged that the policy decision though not incorporated in the Rules will have the force of rules as it has been taken by the rule making authority. The leading case on this subject is Pakistan v. Abdul Hamid (1) in. Which Office Memoranda printed 'as appendices to the Rules,,, were held to have the force of statutory rules as in many respects they possessed the characteristics of formal rules framed and were issued by the authority competent to frame rules. The test laid down for official instructions to be given the effect of the Rules was that they must be expressed in precise terms which are capable of being applied with particularity to a great variety of cases. The text of the policy decision relied upon has not been placed on the record and we are, therefore, unable to examine the validity of the contention advanced by the learned Additional Advocate- General. We have perused the letter produced in this behalf by the petitioner in petition No, 1432/78 which merely refers to the latest Government Policy which required that the detenu Mir Muhammad was to complete 14 years substantive sentence excluding remissions. Besides any policy decision contrary to the Remission Rules which have been framed under the provisions of the statute cannot be held to have been amended by an inconsistent policy decision. It 9 the intention of the Government was to amend the Rules by the so-called policy decision, the necessary amendment could have been made in the Rules. We cannot, therefore, attribute to the Government any intention that the policy decision was intended to alter or amend the existing Rules. Be that as it may, even if the decision relied upon is regarded as having the effect of amending the Rules, clearly the amendment in the Rules, extending the minimum period of actual substantive sentence to be undergone by the life convicts from 10 years to 14 years, cannot be given retrospective effect so as to operate against the detenus in these petitions, as already held by us.
(1) PLD 1961 SC 105
10. Now we shall deal with the cases of each detenu separately having regard to the data reproduced earlier. Detenus Muhammad Bhai and Muhammad Yakoob in Constitutional Petition No, 1055/78 have both undergone actual substantive sentence of 10 years, 11 months, 4 days each as or 4-3-79. Muhammad Yakoob has earned 12 years, 2 months, 1 day remissions under the Rules but as pointed out the maximum remission permissible under the Remission Rules can be 4 years.
He has, however, been granted 6 years, 11 months special remission under section 401, Cr. P. C.
Consequently he is deemed to have undergone a total period of 21 years, 10 months, 4 days which is well over the maximum period of sentence awarded to him. Detenu Muhammad Bhai has also earned remission under the Rules for 11 years 2 months 21 days out of which he can claim maximum of 4 years. He has been granted 5 years, 11 months special remission under section 401, Cr. P. C. The total period of remissions legitimately earned by him, therefore, conies to 9 years 11 months. He has, therefore, undergone a total period of 20 years 10 months 4 days which is also above the maximum period of imprisonment awarded to him. Both detenus in Constitutional Petition No, 1055/78 are, therefore, entitled to be released forthwith.
11. As far as detenu Mir Muhammad is Constitutional Petition No, 1432/78 he has undergone a period of 9. Years 7 months 22 days. He has earned remission under the Rules for 9 years 7 months 14 days out of which he can claim only 4 year. Special remission earned by him under section 401, Cr. P. C. Is 5 years, 11 months and, therefore, the total remission earned by him comes to 9 years, 11 months which if added to the actual period undergone by him is less than 20 years. He cannot, therefore, be released forthwith but his case has to be referred to the Government under rule 22(2) of the Remission Rules.
12. As for the remaining detenus in Constitutional Petition No, 1488/79 as already pointed out, their particulars up-to-date have not been brought on record and, therefore, it is not possible to give a decision in their cases. It is, however, expected that the Authorities will deal with their cases in the light of what has been stated in this judgment.
13. In the result, we allow Constitutional Petition No, 1055/78 with costs and direct that detenus Mohammad Yakoob and Mnhammad Bhai shall be released forthwith if not required to be detained in connection with any other case. Constitutional Petitions Nos, 1432/78 and 1488/78 are, however, dismissed with the observations made in the foregoing part of this judgment. All the aforesaid petitions are disposed of accordingly.