' SAJJAD ALI SHAH, J.---Appellant was arrested on 10-9-1996 in Crime No,15 of 1996 under sections 409, 468, 471 and 34 P.P.C. Read with section 5(2) of the Prevention of Corruption Act, 1947 by F.I.A .
CBC. The appellant initially was tried by Special Court (Offences in Respect of Banks) and after promulgation of National Accountability Ordinance, 1999 (hereinafter referred to as "Ordinance 1999") his case in terms of section 16(a) was transferred to Accountability Court which after regular trial found the appellant guilty of corruption and corrupt practice as defined in section 9-A of National Accountability Ordinance, 1999, and schedule attached thereto and convicted him under section 10-A of the Ordinance, 1999 and sentenced him to undergo rigorous imprisonment for twelve years with fine of Rs,20 Million and in case of non-payment, the appellant was to undergo additional rigorous imprisonment for six months. The appellant through instant appeal has impugned the judgment of the Accountability Court and through listed application seeks pre and post-conviction remission.
' Mr. Shahab Sarki, learned counsel appearing for the petitioner contends that, the petitioner, was arrested in the instant case on 10th September. 1996, and was initially tried by Special Court (Offences in Respect of Banks), Karachi and after promulgation of National Accountability Bureau Ordinance, 1999, the petitioner's case under the provision of section 16(a) of Ordinance 1999, was transferred to Accountability Court which after regular trial convicted the appellant through the impugned judgment on 31-10-2012 and sentenced him to suffer R.I. For 12 years and fine of Rs,20 Million and on account of nonpayment of fine the appellant was to further suffer R.I. For six months.
Per learned counsel, the appellant as of today has remained behind the bars for twelve years and twenty one days as in case he is found entitled to remission then it would transpire that the appellant presently is in illegal confinement, when confronted with the judgment of the Supreme Court in the case of Shah Hussain v. State PLD 2009 SC Page 460 wherein, the Hon'ble Supreme Court in Para-41 has held:--
(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 a 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 prisoners 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 kayo Kari, etc., where the law itself prohibits the same; "
3. Mr.Shahab contends that since the appellant was arrested and was put to trial for the subject offence even prior to the promulgation of the National Accountability Bureau Ordinance, 1999 therefore the provision of section 10(d) of Ordinance 1999 which prohibits grant of remissions to the convicts under Ordinance, 1999 could not be made applicable to appellant and therefore, the denial of the remission to the appellant as per jail rules is unlawful. It was contended that since the appellant on the date, of his arrest and trial was entitled to pre and post-conviction remission, in accordance with the jail rules, therefore, his rights could not be taken away by giving retrospective effect to the provision of section 10(d) of Ordinance, 1999. It is further contended that even otherwise the provisions of section 10(d) which prohibits remission to the convicts under the Ordinance, 1999 were introduced by a subsequent amendment which had taken place by virtue of Ordinance CXXXIII of 2002 introduced on 23-11-2002 therefore, the entitlement of appellant in accordance with the jail rules to the remission could not be withheld. Mr. Sarki in support of his contention that the appellant's entitlement to remissions could not be withheld by giving retrospective effect to the provision of section 10(d) of Ordinance 1999 has placed reliance on the judgment of Lahore High Court, in the case of M. 'Islam Mouvia v. Home Secretary (PLD 2011 Lahore 323) and contends that a Divisional Bench of the Lahore High Court while examining the provisions of section 21-F of the Anti-Terrorism Act, 1997 which also prohibits the grant of remission to the convicts under Anti-Terrorism Act, 1997 and is pari material to the provision of section 10(d) of Ordinance 1999 came to the conclusion that the provisions of section 21-F prohibiting remission could not be made applicable to the convicts who were under trial before the introduction of section 21-F as such provisions could not be given retrospective effect. In the last, it is contended that the trial Court rightly granted the benefit of section 382-B, Cr.P.C. To the appellant, which was unlawfully denied by the jail authorities.
4. On the other hand Mr.Dayo opposes the grant of remission to appellant on the ground that the appellant is not entitled to such remission in terms of judgment of the Apex Court in the case of Shah Hussain (Supra).
5. We have heard the learned counsel for the parties, perused the record and case-law cited at bar.
6. The admitted position which emerges from record appears to be that the appellant was arrested in the year 1996 and was put to trial initially before the Special Court constituted under Offences in Respect of Banks Ordinance, 1984 and that promulgation of National Accountability Ordinance, 1999 his case was transferred to Accountability Court. It also appears to be an admitted position that the appellant would have been entitled to pre and post-conviction remission in terms of the Judgment of the Supreme Court in the case of Shah Hussain (supra) had section 10(d) of Ordinance 1999, would not have been introduced. Section 10(d) of Ordinance 1999 which was inserted in the year 2001 in the Ordinance, 1999, reads as follows:- (10)(n) Punishment for corruption and corrupt practices: (a)
(b)..
(c (d)Notwithstanding anything to the contrary contained in any other law for the time being in force an accused, convicted by the Courts of an offence under this Ordinance, shall not be entitled to any remission in his sentence.
7. The question arises that in cases where certain rights had already accrued in favour of a person by way of his entitlement to the benefit of remissions in accordance with the prevailing law, any subsequent change in law as has been introduced by section 10(d) of Ordinance, 1999 could have the effect of depriving that person from the rights which were available to him at the time when the offence was committed and or the trial commenced. A similar question had come up before a Bench of Lahore High Court in the case M. Aslam Mouvia (supra) while examining the entitlement of a person who was arrested and put to trial before section 21F was introduced in Anti-Terrorism Act, 1997. The provision of section 21-F which are pari material to the provisions of section 10(d) reads as under:- 21-F. Remissions. Notwithstanding anything contained in any law or prison rules for the time being in force, no remission in any sentence shall be allowed to a person, other than a child, who is convicted and sentenced for any offence under this Act, unless granted by the Government.
The Bench by taking guidance from the judgment of the apex Court in the cases of Pakistan Steel Mills Corporation v. Muhammad Azam Katper and others (2002 SCMR 1023), Commissioner of Income Tax Karachi v. Eastern Federal Union Insurance Co. (PLD 1982 SC 247), Kumair Mondal and others v. Paramatha Nath Chowdhary and others (PLD 1963 Dacca 886), Mian Rafi ud Din and others v. The Chief Settlement and Rehabilitation Commissioner (PLD 1971 SC 252), Hassan and others v. Fancy Foundation (PLD 1975 SC 1), Pir Bakhsh and another v. The State (PLD 1965 (WP.)
Lahore 308), Sakhi Muhammad v. Wajid Ali and others (PLD 1964 (W.P.) Lahore 426), Nagina Silk Mill, Lyallpur v. The Income Tax Officer and another (PLD 1963 SC 322), Commissioner Income Tax
(West) Karachi v. Messrs Kruddsons (PLD 1974 SC 180), Adnan Afzal v. Capt. Sher Afzal (PLD 1969 SC 187), Central Exchange Bank v. Ch. Dilawar Ali Khan and others (PLD 1965 (WP.) Lahore 628), State v.
Maulvi Muammad Jamil and others (PLD 1965 SC 681), Commissioner, Sindh Employees Social Security's Institution and another v. Messrs E.M. Oil Mills and Industries and others (2002 SCMR 39), Molasses Trading and Export (Pvt.) Ltd. v. Federation of Pakistan (1993 SCMR 1905) wherein the Apex Court had consistently held that "when the law is altered during the pendency of an action, the rights of the parties are decided according to law as it existed when the action was begun unless the new statute shows a clear intention to vary such rights. The Bench reached to the following conclusion:-- "20. The trial of the petitioner commenced before insertion of section 21.F of the. ATA. Certain rights had already accrued in favor of the petitioner, by way of his entitlement to the benefit of remissions in accordance with law in the field at the relevant time i,e, the time that the alleged offence was committed, F.I.R. Was registered against him, he was arrested and his trial commenced. Any subsequent changes in law would not have the effect of depriving him of the rights which were available to him at the time when the offence was committed and the trial commenced. In addition, there is nothing in section 21-F of ATA to indicate even remotely that it has retrospective operation or that it has the effect of taking away the rights that were available to certain convicts registered or the trial commenced. Looked at from this point of view, the provisions of section 21-F are prospective in nature and, therefore, cannot take away or affect the rights which were available to the petitioner at the relevant time. In support of this contention, reliance may also usefully be placed on the dictum of the honourable Supreme Court of Pakistan, in the case of Commissioner Sindh Employees etc. (2002 SCMR 39)
21. In the case of Pakistan Steel Mills (2002 SCMR 1023), the honourable Supreme Court of Pakistan has held that any amendment in law will not take away, empower, nullify or destroy a vested right, which has attained finality and has become past and closed transaction. Admittedly, registration of the case against the petitioner, his arrest and initiation of his trial were all prior to the insertion of section 21-F. As a result, the dictum of the honourable Supreme Court of Pakistan in the aforesaid cases is clearly applicable to the facts and circumstances of the present case. In Muhammad Rafi ud Din's case reported as PLD 1971 SC 252 and Hassan's case reported as PLD 1975 SC 1, it has clearly and unambiguously been laid down that where a law was altered during pendency of an action, the rights of the parties are to be decided according to the law as it existed when the action was initiated and not under the law prevailing on the date of the judgment/order. Looked at from this angle also, the act of the respondents whereby the petitioner has been denied the benefit of remissions under the Pakistan Prisons Rules is neither legally justified nor sustainable.
8. In the instant case too, the trial of the appellant commenced before the insertion of section 10(d). Of Ordinance, 1999 and the appellant's right by way of his entitlement to the benefit of remission in accordance with the prevailing law had already accrued. Consequently, subsequent changes in law unless shows a clear intention to vary such rights, in our view would not have the effect of depriving the appellant of the rights which were available to him at the time when the offence was committed and trial commenced.
9. Perusal of section 10(d) of the Ordinance, 1999 does not even remotely suggest that it has retrospective operation and or that it has the effect of taking away the rights that were available to a person on-the date when the crime is registered or the trial commences. The provisions being prospective in nature, therefore, the embargo placed by section 10(d) on the remission of a person convicted by the Accountability Court under Ordinance, 1999 would have no application to the cases where the trial has commenced before the introduction of said provisions and, therefore, the rights of such person are to be decided on the basis of law prevailing at the relevant time.
10. In the circumstances, we are of the view that the dicta laid down in the case of M. Aslam Mouvia (Supra) are applicable to the instant case on all fours and we see no reason to take a different view. We consequently while allowing the application direct the Superintendent Jail to allow remissions to the appellant in accordance with the jail rules. The remission would be calculated and the benefit of such remission would be allowed to the appellant within twenty four hours on receipt of this order.