' SHAHID HAMEED DAR, J. Inayat Bibi petitioner has prayed in this petition that the release of Amjad Ali, respondent No.1 and Amer Jamshaid, respondent No.2, from District Jail, Gujrat by Superintendent District Jail, Gujrat, respondent No.3, may be declared illegal, incorrect, void ab initio and done without lawful authority with further prayer that they (respondents Nos.1 and 2) may be directed to surrender before respondent No.3 for serving remaining sentence of "13 years", their non-bailable warrants of arrest may be issued for causing their arrest and that strict legal action may be taken against respondent No.3.
2. The brief facts to be taken into consideration for filing the instant petition are that respondents Nos.1 and 2 were convicted and sentenced to imprisonment for life with order to pay Rs.50,000 each to the legal heirs of the deceased and in default of payment thereof, to further undergo 6 months' S.I. Vide judgment dated 31-8-2008 passed by learned Additional Sessions Judge, Gujrat in case F.I.R. No. 386/95 dated 13-6-1995under sections 302 & 34, P.P.C. Read with section 109, P.P.C., registered at Police Station, Civil Line Gujrat, in connection with murder of Javed Iqbal, the son of the petitioner. Benefit of section 382-13, Cr.P.C., however, was extended to both the respondents- accused. The petitioner filed a revision petition before this Court for enhancement of sentence of the respondents-accused to death. The respondents-accused were awarded certain remissions in their sentence by respondent No.3 which was challenged by the B petitioner before this Court vide Writ Petition No.23185 of 1999 which was decided by this Court on 2-4-2007 in terms that the grant of remissions to respondents Nos. 1 and 2 vide Notification, dated 28-8-1997, to the extent of 1/5th of the total sentence, 3 months vide Notification dated 14-8-1996 by the President of Pakistan and Notification dated 28-4-1996 followed by another Notification dated 27-2-1997 granting 2 months remission each by the Provincial Government was declared to be inapplicable and contrary to law, therefore, the same were set aside by partly accepting the writ petition. It was further held by this Court that the benefit of said notifications shall not be extended or awarded by way of remissions to the imprisonment to which respondents Nos.1 and 2 were sentenced on 31-8-1998 by a competent Court of law. The respondents Nos.1 and 2 preferred an Intra-Court Appeal No.384 of 2001 and the petitioner also filed I.C.A. No.349 of 2001 against the above said judgment / order passed by single learned Judge in chamber, which were decided by a learned Full Bench of this Court on 16-5-2006, whereby the impugned judgment passed by the learned Single Bench was upheld.
3. The Superintendent, District Jail Gujrat, respondent No.3 released the respondents Nos.1 and 2 on 8-8-2007 from the jail granting them 13 years, 6 months c and 4 days remissions in their sentence with reference to a judgment passed by a learned Division Bench (Bahawalpur) of this Court in Writ Petition No.292 of 07/BWP, hence, the instant petition.
4. Learned counsel for the petitioner contends that the act of grant of remissions, by respondent No.3, to the respondents Nos.1 and 2 is illegal, incorrect, void ab initio and without lawful authority; the judgment relied upon by respondent No.3 for grant of remissions and release of respondents- convicts was not applicable as a learned Full Bench of this Court had already adjudicated the question of grant of remissions to the respondents Nos.1 and 2, the judgment of a learned Division Bench cannot be preferred over the above noted , judgment of learned Full Bench of this Court on the question of grant of remissions to the convicts; the pre-mature release of respondents- convicts has caused grave miscarriage of justice and contempt of the judgment passed by the learned Full Bench of this Court in the Intra-Court Appeal on 16-5-2006; the act of respondent No.3 qua release of the respondents-convicts is patently illegal, may be set aside and both the beneficiaries may be committed to custody for serving their remaining sentence.
5. On the other hand learned counsel for respondents Nos.1 and 2 have vociferously controverted the submissions of learned counsel for the petitioner and submits that the respondents-convicts have been lawfully extended the remissions in their sentence by the respondent No.3 and no illegality has been committed by him, to set both the respondents at liberty, as they had served out their entire sentence; the respondents-convicts were not only entitled to the post judgment remissions but also to the pre-judgment remissions as the provision of section 382-B, Cr.P.C. Is absolutely clear and unambiguous in this respect, the refusal to allow remissions of pre-sentence or post-sentence custody to a convict whom the Court has granted the benefit of section 382-B, Cr.P.C. Is tantamount to deprivation of his liberty within the contemplation of Article 9 of the Constitution, except for the convicts of offences under the National Accountability Ordinance, 1999, Anti-Terrorism Act, 1997, the offence of Karo Kari etc., where the law itself prohibits the same, all other convicts are entitled to the remissions both pre-sentence and post-sentence, therefore, no illegality has been committed in connection with release of respondents Nos.1 and 2 by respondent No.3 so, the instant petition may be dismissed. Relied upon "Shah Hussain v. The State" (PLD 2009 SC 460).
6. The learned Deputy Prosecutor-General shares the view point of the learned counsel for the respondents Nos.1 and 2 and adds that respondent No.3 had not committed any illegality in releasing the respondents-convicts under the aforesaid formula of awarding the remissions in the sentence of the convicts.
7. I have heard learned counsel for the parties and perused the record.
8. The respondents-convicts had been released from the prison on 8-8-2007 by respondent No.3 after calculation of their remissions granted by the competent authorities from time to time by way of issuance of various notifications. The judgment dated 16-5-2006 passed in I.C.A. No.349 of 2001 by a learned Full Bench of this Court, of course, could not be eclipsed by a judgment passed by a learned Division Bench (Bahawalpur) of this Court in Writ Petition No.292 of 2007/BWP. The remissions, in sentence, resolved in favour of the respondents-convicts on the basis of a judgment passed by a learned Division Bench of aforesaid Writ Petition No.292 of 2007/BWP, in presence of a Full Bench judgment dated 16-5-2006 passed by this Court in I.C.A. No.349 of 2001, might be of little academic interest at this stage, as a recent glittering judgment of august Supreme Court of Pakistan, reported as "Shah Hussain v. The State" (PLD 2009 SC 460) has decided the question of grant of remissions to a convict, having been extended the benefit of section 382-B, Cr.P.C., for good, wherein, the question, if a convict would be entitled to the benefit of section 382-B, Cr.P.C.
And if so, whether he would be entitled to the remission granted by the President of Pakistan or the Provincial Government or any other authority, has been dealt with. The judgment delivered by a learned Single Judge of this Court, in the case of "Inayat Bibi v. Amjad Ali" (2001 PCr.LJ 1453) was dissented to, in another judgment of this Court passed in the case of "Aamer Ali v. State" (2002 YLR 1902), which was taken note of by the august Supreme Court in Shah Hussain's case, supra, and deeming it pertinent to the relevant paragraph from Aamer Ali's case was reproduced as under:- "Now we may advert to the question whether the appellant can avail of the benefit of jail remissions granted to a convict prior to the date of his conviction if he is given the benefit of section 382-B, Cr.P.C. Of the Criminal Procedure Code. The appellant's actual date of conviction is 10-5-2001 and his date of arrest is 21-2-2001. He was given the benefit of section 382-B, Cr.P.C. Of the Criminal Procedure Code. Meaning thereby that the period of his sentence would be deemed to have commenced from the date of his arrest i.e. 21-2-2001. This question came up before a learned Single Judge of this Court in the case of Inayat Bibi v. Amjad Ali and others (2001 PCr.LJ 1453) in which it was held that question of granting remissions to a convict would arise only after the trial was over and judgment delivered by the Court. Thereafter, from the date of conviction onwards the convict could claim the remissions granted by the Competent Authority. The arguments that since the substantive period of imprisonment was to be counted from the date of arrest of the convict by virtue of the provisions of section 382-B of the Criminal Procedure Code, therefore, remissions granted by the competent Authority from the date of arrest to be counted towards the appellant's substantive sentence, was repelled. With due deference, we are not inclined to subscribe to the view expressed in the above referred case. It is true that the benefit of remissions is to be granted after announcement of judgment and passing of the sentence of imprisonment against a convict. However, the moment benefit of section 382-B of the Criminal Procedure Code is given to a convict, the period during which he remained in detention as under- trial prisoner, would be counted towards his substantive sentence. Legally he would be deemed to be in jail as a convict since the date of his arrest and would certainly be entitled to the benefit of remissions granted by the competent Authorities to the convicts after the said date."
9. It is now settled once for all that a convict who has been extended the benefit of section 382-B, Cr.P.C. Shall be entitled to grant of remissions from the date of his arrest as an under trial prisoner.
It has been held by the august Supreme Court that refusal to allow remissions of pre-sentence custody period to a convict, whom the Court has granted the benefit of section 382-B, Cr.P.C. Is tantamount to deprivation of his liberty within the contemplation of above Article 9 of the Constitution. The cases of convict prisoners who are expressly debarred under any law from the benefit of section 382-B, Cr.P.C. Stand on a different footing.
10. Almost all the judgments passed by this Court as well as by the august Supreme Court of Pakistan, on the subject of extension of benefit of section 382-B, Cr.P.C. And the remissions oozing therefrom, have been taken care of and discussed in the luminous/landmark judgment of Shah Hussain's case with following conclusions and directions:-
(1) After the use of word "shall" for the word "may" in section 382-B, Cr.P.C., at the time of passing the sentence, it is mandatory for the Trial Court to take into consideration the pre-sentence custody period in the light of the principles discussed above;
(2) The refusal to take into consideration the pre-sentence custody period at the time of passing the sentence is illegal inasmuch as if the Court sentences a convict to imprisonment for life, which is the alternate but maximum sentence for the offence of murder, but does not make allowance for the pre-sentence custody period, it would be punishing the convict prisoner with imprisonment, for life plus the pre-sentence custody period, that is to say, more than the maximum legal punishment.
(3) The convict-prisoner who are granted the benefit of section 382-B, Cr.P.C. Shall be entitled to remissions granted by any authority in their post-sentence detention or during their pre-sentence detention in connection with such offence. However, the same shall not be available to the convicts of offences under the National Accountability Bureau Ordinance, 1999, Anti-terrorism Act, 1997, the offence of Karo Kari, etc. Where the law itself prohibits the same;
(4) The law laid down in Abdul Malik's case that 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, is hereby reaffirmed.
11. The respondents Nos.1 and 2 had not been convicted and sentenced for offence which could debar the extension of benefit of section 382-B, Cr.P.C. To them which had been validly conferred upon I them so, they could not be denied the remissions in their sentence, announced from time to time by the President or the Provincial Government by way of issuance of notifications in this regard. No illegality, in attending circumstances has been committed by respondent No.3 while he set the respondents-convicts at liberty by taking into account the afore said remissions.
12. Therefore, the release of the respondents-convicts cannot h interfered with nor they can be remitted to custody on the wishes and whims of the petitioner.
13. The nutshell of the above discussion is that the instant petition is dismissed being devoid of any merit.