Ibad-ur-Rehman Lodhi, J.---The petitioner was convicted and sentenced by a Field General Court Martial. When to serve out the sentence, the person of the petitioner was handed over initially to the Superintendent, District Jail, Sialkot, a warrant of commitment was issued to the said jail authority, wherein the details of the conviction and sentence on three charges were provided to the following effect:--
(i) First charge under Section 59 of Pakistan Army Act read with Section 11-F(2) of Anti-Terrorism Act, 1997 for professing to belong a proscribed organization.
(ii) Second charge was laid under Section 31(d) of Pakistan Army Act, for attempting to seduce a person in the military forces of Pakistan from his allegiance to the Government of Pakistan.
(iii) Third charge was laid again under Section 59 of Pakistan Army Act for being party to a criminal conspiracy to commit an offence punishable with death under Section 120-B read with Section 302 of the Pakistan Penal Code. and by means of one sentence of all such offences, the petitioner was sentenced to suffer Rigorous Imprisonment for five years and also dismissal from service. The sentence was made effective w.e.f. 20.06.2012 and warrant of commitment so issued carried a date of issuance as 03.08.2012.
Subsequently, on 12.08.2012 the petitioner was shifted to Central Jail Adyala, Rawalpindi, where still he is lodged.
2. On behalf of the petitioner, his wife moved the Home Department in Government of the Punjab, by means of a representation seeking remissions and other facilities admissible under Prison Rules.
Such representation was declined by the Home Department, Government of the Punjab and such refusal was communicated to the wife of the petitioner through letter dated 31.08.2015 intimating that since the petitioner was sentenced under Section 11(F)(2) of the Anti-Terrorism Act, 1997, therefore, he is not entitled to any kind of remission in view of the provisions of Section 21-F of the said Act.
3. Such refusal has been called in question by the petitioner through this Constitutional petition being an aggrieved person of passage of the impugned order by the Home Department, Government of the Punjab.
4. The report and parawise comments from the respondents side did contain the same position as has been pleaded in the impugned refusal mainly on the strength of the provisions of Section 21-F of the Anti-Terrorism Act, 1997 as well as Rule 214-A of Pakistan Prison Rules, 1978.
Home Department, Government of the Punjab in its report and parawise comments has additionally placed reliance on two judgments of the Hon'ble Supreme Court of Pakistan reported as Shah Hussain versus The State (PLD 2009 SC 460) and Nazar Hussain and another versus The State (PLD 2010 SC 1021) with the contention that no remission to a convict under Anti-Terrorism Act is available.
5. The parties have been arguing mainly on the concept of a relief available under Section 382-B Cr.P.C. and for that purpose from both the sides, the above referred law laid down by the Hon'ble Supreme Court of Pakistan was referred. In Shah Hussain's case, it was the conclusion that benefit of Section 382-B, Cr.P.C. is available to all the prisoners irrespective of the fact under which penal clauses, they have been convicted, but benefit of said Section was not available to the convicts of offences under the National Accountability Ordinance, 1999, Anti-Terrorism Act, 1997, and the offence of Karo Kari and where the law applicable, prohibits itself to such relief, whereas, in Nazar Hussain's case mainly the powers of the President of Pakistan under Article 45 of the Constitution of the Islamic Republic of Pakistan, 1973, are discussed, which both have no nexus with the point involved in the present petition.
6. Both the sides have never addressed the Court on the real question involved as to whether remissions in view of Pakistan Prison Rules, 1978 can be refused to a person convicted by a Field General Court Martial and sentenced under three charges including the, one under Anti-Terrorism Act, 1997.
7. The petitioner was convicted under Sections 31(d) and 59 of Pakistan Army Act read with Section 11-F(2) of the Anti-Terrorism Act, 1997 and in compliance of the requirements of Rule 54 of Pakistan Military Rules one sentence of five years was imposed in addition to dismissal from service. The effect of one sentence for all the offences is to be analysed and also it is to be looked into as to whether if under one offence remissions are not permissible to a prisoner, whether such restraint would equally be applicable for offences under other laws, where such restriction is not imposed in that other law.
8. In the present case, remissions have been denied to the petitioner simply for the reason that he has been convicted for an offence under Section 11-F(2) of Anti Terrorism Act, 1997 and in view of the barring clause i.e. Section 21-F of the same Act, a convict under any provision of Anti Terrorism Act would not be entitled to get any remission. The important fact to be noted is that maximum sentence for an offence under Section 11-F(2) of Anti Terrorism Act, 1997 is six months. Now it is to be seen as to whether length of the "one sentence" of five years can be presumed for the offence under Section 11-F(2) also despite the fact that for such offence maximum sentence available under the law is six months and further that whether a barring clause refusing remission to a convict under any provisions of Anti-Terrorism Act, 1997 can be made applicable in case of a prisoner convicted and sentenced by Field General Court Martial against whom one accumulative sentence has been imposed under Anti-Terrorism Act, 1997 and also Pakistan Army Act. Even if the remissions are refused on account of conviction under Anti-Terrorism Act, 1997, the effect of such refusal must not be taken beyond the period of maximum conviction provided for such offence, as such, the principle of refusal of remission even if applied in this case, it must not be extended for remaining period of conviction i.e. 4 1/2 years after exclusion of the period of maximum sentence of six months provided under Section 11F(2) of Anti-Terrorism Act, 1997. Section 21-F of the said Act, do suggest that the remissions can only be refused to a person convicted and sentenced for any offence under such Act, as such, the petitioner can be refused remissions with regard to the period of conviction of six months, which is maximum period of conviction under Section 11-F(1) of Anti- Terrorism Act, 1997.
9. Chapter 8 of Pakistan Prison Rules, 1978 provides Remission System, which in view of Rule 199 is 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 and industry, become eligible for release when a portion of his sentence ordinarily not exceeding one-third of the whole sentence has yet to run. Such rules contained a prohibition in "themselves by means of Rule 214-A, which provides that no person, who is convicted for espionage or anti-state activities shall be entitled to ordinary or special remission, unless otherwise directed by the Provincial Government. The petitioner was never convicted and sentenced for any such offence resulting into refusal of remission under Pakistan Prison Rules, 1978, rather in view of the warrant of commitment on account of his first charge, he was sentenced for alleged professing to belong a proscribed organization, whereas, in view of the second charge, he was sentenced for attempting to seduce a person in the military force of Pakistan from his allegiance to the Government of Pakistan and in view of third charge, he was sentenced for being party to a criminal conspiracy. Even such barring clause provided under Rule 214-A of Pakistan Prison Rules, 1978, would not be applicable in case of the petitioner.
10. To grant remission is an extra judicial power of prison managers to shorten the sentence in a judicial manner to make the criminal minds sane citizen and it should have been in the exclusive domain of prison authorities to deal with such matters in post conviction period. No unjustified restrictions are to be imposed upon the prison authorities either in order to pre-empt their such jurisdiction or to overawe their such statutory right. It is only for the prison authorities in view of the conduct of the prisoner in post conviction period, either to grant or refuse remission and no other authority is competent to even comment upon conduct of the prisoner to which only prison authorities are supposed to be the direct witness.
11. In view of what has been discussed above, we have reached to the conclusion that the impugned refusal to grant remission to the petitioner is violative to the Pakistan Prison Rules, 1978 at least for The period of conviction of the petitioner to the extent of four years and six moths after exclusion of the period of maximum six months conviction under Section 11-F(2) Anti-Terrorism Act, 1997. The present writ petition is, therefore, allowed and the jail authorities are directed to grant remissions to the petitioner available under Pakistan - Prison Rules, 1978 by excluding the period of conviction of six months provided under Section 11-F(1) of Anti-Terrorism Act, 1997.