1. ' SARDAR MUHAMMAD NAWAZ KHAN, C.J.--- Through this constitutional petition, the petitioner seeks computation of the sentence as 14 years instead of 25 years including all pardons and remissions earned by him during undergoing the sentence awarded to him. He further seeks direction to non- petitioner No,4 to account/ calculate the sentence undergone by him w,e,f, March 30, 1998 with all privileges, pardons and remissions in his favour under Jail Rules and release him after completion of 14 years' imprisonment.
2. The background of this petition is that petitioner was initially charged for a murder case and the trial Court, after conclusion of trial, sentenced him to life imprisonment. On appeal by the complainant party, the learned Judge in the Shariat Court, awarded 25 years' imprisonment. The matter went to the Supreme Court from where the sentence awarded to the petitioner by the Shariat Court was upheld. From there onwards he is in the Jail and being so, he is requesting to release him in view of section 4 of the AJ&K Interim Constitution Act, 1974.
3. ' The learned counsel for the petitioner submitted that under section 4 of the Interim Constitution Act, the law did not allow the punishment of a person for an offence by a penalty greater than prescribed by law for that offence at the time the offence was committed. He, in order to strengthen his argument, relied upon a Judgment of the Supreme Court of AJ&K in the case titled Mehboob Khan v. Sardar Iftikhar Ahmed and another, decided on April 4, 2007. According to the learned counsel, the length of life imprisonment for an offence of murder at the time of commission of offence, in case of petitioner, under law was 14 years; but the Shariat Court as well as the apex Court awarded 25 years' life imprisonment which resulted into injustice to him. The occurrence of murder, according to the learned counsel, took place before amendment in the law and the constitution which is the supreme law, does not allow punishment more than 14 years in case of life imprisonment under section 5 of Islamic Penal Laws (Enforcement) Act, 1974.
4. ' Conversely, the learned counsel for the complainant party submitted that the point urged by the learned counsel of the petitioner for resolution by this Court had already been decided by the Apex Court while deciding appeal by the petitioner. It was next argued that the petitioner sought review of the Judgment of the Supreme Court wherein he was awarded 25 years' imprisonment but subsequently the review petition was withdrawn, therefore, it was not permissible for this Court to go into the controversy once again in view of above stated position.
5. ' After hearing the learned counsel for the parties, the record has been examined.
6. ' It is found correct that the apex Court of the State, while deciding the appeal of the petitioner against the judgment of the Shariat Court, decided the controversy raised before this Court with the following observation:--- "(21) From the above referred authority it becomes crystal clear that while awarding the sentence under section 3 of the Islamic Penal Laws (Enforcement) Act, the period of life imprisonment is not fixed by the legislature and the same has been left open to the discretion of the Court seized with the case. In the instant case the trial Court under section 3 of the Islamic Penal Laws (Enforcement)
7. Act awarded the sentence of life imprisonment to convict-appellant Jahangir but it was not clearly stated' as to what would be the length of the sentence. In the Shariat Court when the appeal was filed by the convict-appellant and by the complainant for enhancement of sentence to convict- appellant and for the conviction of other accused-respondents it felt advised to fix the period of sentence of life imprisonment as 25 years. The learned counsel for the appellant contended that when the offence was committed on 8-7-1993, the period of life imprisonment was fixed as 14 years under the AJ&K Penal Code and the same was awarded normally under the Islamic Penal Laws (Enforcement) Act, 1974 in past, therefore, the Shariat Court committed illegality by enhancing the period of life imprisonment from 14 years to 25 years.
(22) In our view the aforesaid contention of the learned counsel for the appellant is misconceived because under section 3 of the Islamic Penal Laws (Enforcement) Act, 1974, as said earlier, the limit of period of sentence is not fixed which may even exceed more than 14 years or more than 25 years. It was probably for this reason that the Shariat Court enhanced the sentence of life imprisonment from 14 years to 25 years and the Shariat Court while doing so was justified under the Islamic Penal Laws (Enforcement) Act. Therefore, in our view the Shariat Court committed no illegality by enhancing the sentence of imprisonment of 25 years which can even be awarded as discussed earlier under section 3 of the Islamic Penal Laws (Enforcement) Act. As discussed earlier that when a murder case is proved against an accused person the normal sentence to be given to him is the death penalty but in the instant case we are of the view that it appears from the record that deceased Abdul Rehman had been making vicious propaganda against the mother and sister .Of the accused that they were women of easy virtue and he had been writing letters and moving applications to high officials including the Inspector-General of Police to proceed against them, therefore, it cannot be rule out that the convict-appellant who is a young man had nourished a grudge by such accusations and consequently, prompted by such accusation he committed offence of murder, therefore, the Shariat Court was justified to award him the sentence of life imprisonment of 25 years instead of death penalty. Since the convict-appellant had also the expectancy of life by the sentence awarded to him by the two Courts below, therefore, this is also one of the circumstances for not awarding him the death sentence."
8. The above quoted portion of the judgment by the Supreme Court would show that no limit of period of sentence is fixed under section 3 of Islamic Penal Laws (Enforcement) Act, 1974 and it may even exceed 14 years or even more than 25 years. The appeal, by the petitioner herein, was decided in the year 2003, however, in another murder case titled Mehboob Khan v. Sardar Iftikhar Ahmed and another, decided in the year 2007, under section 5 of Islamic Penal Laws (Enforcement)
9. Act, the apex Court once again observed as under:--- "We have no doubt in our mind to hold that life imprisonment in the present case is 14 years as the amended law which provided for 25 years period for life imprisonment was not holding field at the time when offence was committed and in view of the Fundamental Right No,4, which deals with protection against retrospective punishment, a greater penalty cannot be awarded than one provided at the time of commission of offence."
10. ' Now the position which emerges out is that the Honourable Supreme Court of AJ&K has given divergent view on the controversy involved in this case, therefore, the present petition is disposed of with the following observation:--- ' The constitutional command, as provided under section 4 of the AJ&K Interim Constitution Act, 1974 which deals with the protection against retrospective punishment, is that (a) no law shall authorize the punishment of a person for an act or omission not punishable by law at the time of the act or omission, or (b) for an offence by a penalty greater than or of a kind different from penalty prescribed by law for that offence at the time it was committed.
11. The Constitution being supreme law has overriding effect, therefore, all laws suggesting punishment/penalty for any offence have to be in line with the constitutional command. The Apex Court of the State, while deciding the appeal of the petitioner herein against the judgment of Shariat Court wherein he was awarded 25 years' imprisonment, as stated earlier, observed that the punishment for an offence under section 5, I.P.L. Could be more than 14 years or even beyond 25 years. The above quoted portion of the judgment would show that the learned Judges are of the view that as section 3 of I.P.L. Provided imprisonment of either description only, therefore, the legislature left it to the discretion of the Court to impose penalty in shape of imprisonment to any length. According to the honourable Judges, punishment to the petitioner for 25 years' imprisonment was justified in law because I.P.L. Did not provide any period/length of life imprisonment, therefore, it could not be said that the period of life imprisonment at the time when offence was committed was 14 years. To be brief, their Lordships at the time of decision of appeal by the petitioner in the year 2003 were of the opinion that punishment for 25 years' imprisonment in the murder case under I.P.L. Before amendment in the law in the year 1995 was in line with the dictum of the Constitution. However, while deciding contempt application which resulted with the back ground of a murder case under section 5 L P. L. The learned Judges, as stated earlier, observed otherwise. This judgment came in the year 2007. Normally the latest view is to be followed where inconsistent view comes from the Apex Court on identical point.
12. ' The close examination and critical analysis of section 4 of the AJ&K Interim Constitution Act, 1974 and the judgments of the Apex Court, pronounced in the above stated cases, would suggest to say that the proposition raised before this Court while sitting in constitutional jurisdiction was raised, discussed and decided during hearing of appeal by the petitioner Muhammad Jahangir whereas in contempt application the point involved in the petitioner's case was neither raised nor discussed; but only a casual observation, regarding constitutional position about retrospectivity of punishment, has been given.
13. ' The learned counsel for the petitioner when confronted with the position that when the Apex Court, while deciding the case of the petitioner, has already held that the punishment for 25 years' imprisonment was justified in law despite the fact the occurrence of murder took place before the amended law providing period of life imprisonment as 25 years and a review petition has also been withdrawn, how this Court could go beyond that and decide the petition in favour of the petitioner; he referred to section 32 of I.P.L. And submitted that, perhaps the learned Judges in the Supreme Court escaped the attention that under section 32 of the said law, all those matters about which there was no expressed or clear provision or in other words there was some ambiguity, the provisions of Penal Code and Cr.P.C. Were to be resorted to and had it been properly attended, the learned Judges would have definitely arrived at a different conclusion.
14. I think this Court is not in a position to allow this constitutional petition, as it would amount to set aside the judgment of the Apex Court in the petitioner's case; but there is nothing bad to have an academic discussion about the controversy raised herein.
15. ' The Constitution admittedly is a supreme law therefore all laws have to be in line with its spirit. The words "greater than" used in clause (b) of section 4 of the AJ&K Interim Constitution Act 1974 are of great significance and they have to be attended in their proper perspective. To determine as to whether a penalty is greater than that provided by law at the time of commission of an offence, we have to reckon or compute it from the time limit or the period in a previous and a subsequent legislation. Where no time limit or period is fixed in a previous law, the determination of greater penalty is not possible. To my humble knowledge, all penal laws, except I.P.L., clearly provide minimum and maximum period/limit of imprisonment and the Courts are allowed to use their discretion within the range from minimum to maximum keeping in view the facts of each case. It is the I.P.L. (Enforcement) Act only wherein imprisonment of either description without any time limit has been provided under section 3 of the Act; but to the estimation of this Court, the discretion of the Court even under the said Act is not unfettered. This enactment is not an exhaustive law.
16. Though it provides penalty with regard to offences of certain categories and procedure for trial of the offences mentioned in it, nevertheless the fact remains that it does not cover all the matters and complicacies arising during trial and perhaps this is why provisions of P.P.0 and Cr.P.C. Are made applicable under section 32 of the Act to provide guidance for the Courts in case of any ambiguity. The legislature appears to have wisely allowed application of provisions of Criminal Procedure Code and Penal Code in absence of any expressed order or provision in the said law.
17. ' No doubt, section 3 of I.P.L. Provides imprisonment (URDU TEXT) of either description only but leaves an ambiguity about its length or period. This provision of law, if read in isolation to section 32 of the Act, would mean to negate the spirit of the Constitution. The provisions like section 4(b) of the Interim Constitution Act, when seen and interpreted in its true juristic sense, appears to have admitted that fixation of a period or time limit regarding penalty for an offence is necessary under law. Otherwise, the word "greater" might not have been used in the said constitutional provision. To fix the quantum of punishment for 25 years under amended law is indicative of the fact that there was a limit of life imprisonment before amendment which has been raised through amendment.
18. Had it been limitless, the necessity to fix a period of life imprisonment would have not arisen, strengthens the arguments listed above. The Azad Jammu and Kashmir Penal Code (Amendment Act) 1995 commonly known as Qisas and Diyat Act is an enactment in line with the injunctions of Islam, therefore, when the quantum of punishment is raised from 14 years to 25 years, it suggests to say that in fact the length of imprisonment for life in a murder case was 14 years before the amendment in the law and the discretion of the Court was not left uncontrolled or unfettered, while imprisoning an accused proved to be guilty for a murder. As the length of life imprisnment under Penal Code was 14 years prior to amendment in it and its provisions were made applicable in case of ambiguity in I.P.L.; that's why it has been enhanced to 25 years through another enactment which is also in line with the spirit of Islam. To put it in other words, we can say that the length of life imprisonment being 14 years was also in accordance with the spirit of Islam, but it has been raised perhaps in view of growing rate of crime in the society.
19. The conclusion, therefore, is that the length of imprisonment in case of petitioner, per estimation of this Court, could not be more than 14 years, however, as stated earlier despite my wish to release him, it is not possible in view of the judgment of the Apex Court in petitioner's case for judicial hierarchy warrants to stay my hands. The petitioner, if so advised, may knock at the door of those who stand on the top of judicial hierarchy to redress his grievance because their rules allow them to review their earlier view. With this observation this petition stands disposed of .