' MUHAMMAD ALI MAZHAR, J.---This Criminal Accountability Appeal has been brought to challenge the conviction recorded by the Accountability Court No,IV Sindh, Karachi in the NAB Reference No,31 of 2007 vide impugned judgment dated 30-4-2011, whereby the appellant was sentenced to undergo R.I. For 14 years and to pay fine of Rs,14,111,299 and in case of default in the payment of fine, he shall suffer further R.I. For one year more, however, the benefit of section 382-B, Cr.P.C. Was extended to the appellant by the trial court.
2. It is expedient to mention that during pendency of this appeal, the father of the appellant moved an application being M.A. No,4036/2014 in which he, inter alia, stated as under:-- "Mudassir Ahmad Khan has over served the punishment/sentence. He was arrested on 22-3-2007 and sent to jail on 20-4-2007 according to the order of NAB's Court. He has not been granted any remission though admissible to him under the law. Since the date of jail custody he has completed substantive confinement."
3. On 23-10-2014, the father of the appellant appeared in court and stated that the appellant is computer literate and during his sentence in jail he is also imparting computer knowledge/literacy to the other inmates. In view of his application and the statement, the Superintendent, Central Prison, Karachi was directed by the court to submit the jail roll of the appellant with the calculation of remissions admissible to him. According to the last jail roll his unexpired sentence was five years and ten months. On same date we also directed the office to issue production order of the appellant for the next date so that he may come and argue his case.
4. The appellant was produced on 12-12-2014. He argued that though his date of admission in jail was 20-4-2007 but he was convicted by the NAB Court vide judgment dated 30-4-2011. Despite remaining in custody since 2007, he has not been awarded remissions for the period when he was U.T.P. He also referred to the judgment of the honourable Supreme Court in Criminal Petition No,426 of 2009 in which section 10(d) of the National Accountability Ordinance, 1999 was also discussed which was declared ultra wires by a judgment of full bench of this court reported in PLD 2007 Karachi 139.
5. In order to resolve the controversy to some logical end, the Superintendent, Central Prison, Karachi was again directed to furnish fresh jail roll in which he was directed to mention, whether the appellant was granted any remission for the period when he was U.T.P. And if not then the Superintendent, Central Prison, Karachi was also directed to explain the reasons.
6. Today, PC Jahangir, Central Prison, Karachi, submitted a report dated 18-12-2014, sent by the Superintendent, Central Prison, Karachi along with jail roll of the appellant. According to the jail roll presented today the unexpired portion of sentence of the appellant is five (5) years and one (1) month, In the comments, the Superintendent, Central. Prison, Karachi submitted as under:-- "In this connection, it is further submitted that the honourable Supreme Court of Pakistan, Islamabad passed judgment in Shah Hussain's case in Criminal Appeal No,212 of 2009 out of Jail Petition No,56 of 2005 (copy of order passed at page No,36 is enclosed herewith for kind perusal) wherein it is clearly mentioned that remission allowed during the pre-sentence period in pursuance of the Supreme Court's directions are to be granted only to those prisoners who are not convicted under the National Accountability Ordinance, 1999, Anti-Terrorism Act, 1997 and Karo Kari etc. (PLD 2009 SC 460 Shah Hussain)."
7. The main stress and or whys and wherefores demonstrated by the Superintendent, Central Prison, Karachi in his report for not granting the remissions for the period of pre-conviction is basically resting on the dictum laid down by the honourable Supreme Court in the case of Shah Hussain's case, which is reported in PLD 2009 Supreme Court 460. We have also gone through the niceties and minutiae of the judgment of the honourable Supreme Court rendered in the case of Shah Hussain.
In paragraph 41 of the judgment, the honourable Supreme Court has held as under:-- "(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;
(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 Ordinance, 1999, Anti-Terrorism Act, 1997, the offence of karo kari, etc., where the law itself prohibits the same;
(4) The law laid done 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."
8. The ratio expounded in the above judgment unequivocally elucidates that the 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; refusal to take into consideration the pre- sentence custody period at the time of passing the sentence is illegal; 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 apex Court further held that the same shall not be available to 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. The apex court also reaffirmed 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.
9. In the case of Nazar Hussain (PLD 2010 Supreme Court 1021), seven members bench of the honourable Supreme Court revisited the case of Shah Hussain to the extent of convicts under NAO 1999 and in paragraph- 25, the apex court has held as under:-- "The moot point in Shah Hussain's case (supra) was the judgment of the High Court wherein certain convicts/prisoners though granted the benefit of section 382-B, Cr.P.C, but were refused remissions for the period preceding their date of conviction:. [The High Court had relied on a judgment of this Court in Haji Abdul Ali v. Haji Bismillah (PLD 2005 SC 163)]. This Court in Shah Hussain's case (supra) partly endorsed the policy and the classification made therein insofar as it was backed by law by observing, "However the same (remissions) shall not be available to the convicts of offences under the National Accountability Ordinance, 1999, Anti-Terrorism Act, 1997, the offences of Karo Kari, etc. Where the law itself prohibits that" It was not brought to the notice of this Court in Shah Hussain's case (PLD 2009 Supreme Court 460) that section 10(d) of the National Accountability Ordinance, 1999 had been declared ultra vires by a full Bench of the Karachi High Court (PLD 2007 Karachi 139).
So the observation made qua inclusion of convicts under the National Accountability Ordinance, 1999 be treated as per incuriam."
10. The honourable Supreme Court in the above judgment has also discussed the policy framed by the Ministry of Interior, Government of Pakistan. In which certain parameters/guidelines have been laid down for grant of remissions under Article 45 of the Constitution and thereafter a chart was also reproduced in the judgment with the classification made and denial of remission to a class of convicts/prisoners is either backed by law or rule or there is an objective criterion. The classification or nature of heinousness of offence classified in the breakup does not cover convicts of National Accountability Ordinance, 1999.
11. The Superintendent, Central Prison, Karachi has placed his reliance on Shah Hussain's case in which the remissions were declined to the NAB convicts but he failed to Comprehend and or ignored that subsequently, the honourable Supreme Court in the case of Nazar Hussain has clarified the position and the observation made qua inclusion of convicts under the National Accountability Ordinance, 1999, was treated per incurram by the apex court. After the judgment of Nazar Hussain (Supra), there is no ambiguousness that the calculation of remissions in the cases of NAB convicts are required to be calculated with the clarification made in the Nazar Hussain case and we are of the firm view that the explanation given by the Superintendent Central Prison, Karachi, refusing to allow remission of pre- conviction era is misconceived and irrational.
12. Now we revert back to the present jail roll. The appellant-was sentenced to 14 years and in default of fine one year more, so the total sentence with fine is 15 years as mentioned in the latest jail roll submitted in the Court today. In paragraph 15, it is clearly mentioned that unexpired portion of sentence of the appellant is 5 years and one month with fine. The appellant at this stage does not question the conviction awarded to him by the NAB court but he argued that if pre-conviction and post-conviction remissions are included, he has already served more than 16-1/2 years so according to him he has completed the entire sentence and deserves his release from the jail forthwith.
13. The learned A.D.P.G., NAB argued that in view of Nazar Hussain's case the appellant is entitled for pre-conviction and post-conviction remissions and there is no cavil to that proposition. However, he further argued that so far as impugned judgment is concerned, the appellant was rightly convicted which does not require any interference.
14. The remissions system is provided under Chapter 8 of Pakistan Prisons Rules (Jail Manual). In the aforesaid chapter, Rules 199 to 223 are germane to the grant of remissions. The remission system is defined under Rule 199 which means an arrangement by which a prisoner sentenced to imprisonment, whether by one sentence or by consecutive sentences for a period of four months or more may by good conduct an industry become eligible for release when a portion of his sentence ordinarily not exceeding one third of the whole sentence has yet to run. According to Rule 200, the nature of remission under the above rules may be ordinary or special while Rule 218 deals with the special remission awarded by Government on occasions of public rejoicing which is granted unconditionally under section 401(1) of the Criminal Procedure Code, 1898, which is not governed by these rules: It is an admitted fact that the Superintendent Central Prison, Karachi has failed to calculate proper remission and the appellant has also been deprived of the entitlement of remission for the era of his pre- conviction. It is also asserted by the appellant that he has already served out more than 16 years conviction and had the jail authorities calculated the remission properly he would have released much earlier. He also stated that he does not want to press the appeal on merits if the remission is awarded to him on proper calculation.
15. As a result of above discussions, while we maintain the conviction awarded to the appellant, we also direct the Superintendent Central Prison, Karachi to calculate the remission afresh in the light of this judgment and if on awarding the remission in accordance with chapter 8 of Pakistan Prisons Rules including ordinary, special and the remissions announced by the Government under section 401 of Cr.P.C, it is found that the appellant has already served 15 years sentence which includes one year sentence for non-payment of fine, he shall be released forthwith if not required in any other case. The Superintendent Central Prison, Karachi shall calculate the remission fairly and complete these exercises within three days without fail and submit the compliance report in this court along with history ticket of the appellant .Through Member. Inspection Team-II of this court. Appeal is disposed of accordingly.