MUNIB AKHTAR, J.---By this common judgment, we intend disposing off the petitions listed in para. 15 below. The petitions arise in relation to the convictions of the petitioners under S.59 of the Pakistan Army Act, 1952 ("Army Act") and, in one case, the corresponding provision under the Pakistan Air Force Act, 1953 ("Air Force Act").
The petitioners claim that they are entitled to the benefit of S.382-B. Cr.P.C. In respect of their sentences with corresponding adjustments in the periods of imprisonment. The question that arises, in a manner shortly to be stated, is whether they are so entitled?
2. The question just posed had earlier come up before a Division Bench of this Court at the Sukkur Bench, and by judgment dated 19-3-2010 was answered in the affirmative. The judgment has been reported after some years as Nizamuddin v. The State PLD 2014 Sindh 248 (herein "Nizamuddin").
The same view was taken by another learned Division Bench, again at Sukkur Bench, by an order dated 1-10-2013 (C.P. D-1345/2012, titled Abdul Ghani v. Federation of Pakistan). Finally, yet another Division Bench, this time at Hyderabad Circuit Court, again answered the question in the affirmative by a detailed judgment dated 14-5-2014 (Cr Misc Appln. D-104/2014, titled Manthar alias Manoo v. Federation of Pakistan; unreported, hereinafter "Manthar"). It is pertinent to note that Nizamuddin was not cited before the learned Division Benches in either of the two subsequent cases (though the order in the second case was brought to the attention of the Court in Manthar), Thus, in three separate proceedings, three different Division Benches of this Court came to exactly the same conclusion. In such circumstances, it seemed that there could be hardly any doubt that we had also, on the basis of well known and established rules of precedent, to answer the question in these petitions in like manner. That is precisely what was urged by learned counsel for the petitioners. However, learned Standing Counsel begged to differ and the reason why he prayed for a different answer raises a point that is important and interesting in its own right.
3. Learned Standing Counsel referred to the judgments in Nizamuddin and Manthar and submitted that in both cases, the Court was referred to a judgment of the Balochistan High Court reported as Nabi Dad v. Registrar Court of Appeals Judge Advocate General's Department PLD 2009 Quetta 27 (herein after "Nabi Dad"). The Balochistan High Court had there considered the question posed at the beginning of this judgment, but had answered it in the negative. The Division Benches in both Nizamuddin and Manthar had however declined to take the view that found favor with the Balochistan High Court. Learned Standing Counsel submitted that the Supreme Court had been petitioned for leave to appeal against the decision in Nabi Dad. While refusing leave to appeal by order dated 3-2-2009 (hereinafter referred to as the "SC Order"), the Supreme Court had observed as follows: "4. We have heard the learned counsel and examined the record. The learned High Court while dealing with the plea of the petitioner qua maintainability of the confessional statement has rightly held that the High Court in exercise of constitutional jurisdiction could not undertake to decide the questions of fact concluded by the Field General Court Martial. Section 135 of the Pakistan Army Act, 1952 clearly states that sentence will commence from the date on which original proceedings were signed by the president. In view whereof section 382-B Cr.P.C. Is not legally applicable to the sentence awarded under the Pakistan Army Act, 1952. The learned High Court while referring to Section 59 of the Pakistan Army Act 1952 rightly came to the conclusion that the petitioner was rightly tried and convicted under said provisions of law and that petitioner's conviction and sentence does not suffer from any legal defect." (Emphasis supplied)
Learned counsel submitted that the foregoing observations amounted to the Supreme Court deciding a question of law within the meaning and contemplation of Article 189 of the Constitution.
As such, the observations were binding on all courts. The Supreme Court had decided that the benefit of section 382-B, Cr.P.C. Was not available in respect of the sentence awarded on a conviction under section 59 of the Army Act. That was the law of the land and had to be followed and applied accordingly.
4. The Division Bench that decided Nizamuddin was not referred to the SC Order. The said order was placed before the learned Division Bench that decided Manthar, but for reasons as set out in para 15 of that judgment, the learned Bench did not regard the SC Order as binding authority. Learned Standing Counsel submitted that both decisions of this Court, being contrary to the SC Order, did not have precedential effect. The said decisions were not therefore binding upon us; we were bound by the SC Order and had to give effect to the same. Putting the point in formal terms, what learned Standing Counsel contended was that the decision in Nizamuddin was per incuriam, while in Manthar the learned Division Bench had erred in concluding that the SC Order did not have binding effect.
5. It was primarily on the foregoing basis that learned Standing Counsel submitted that the question posed above ought to be answered in the negative. The principal point that requires consideration is thus the binding effect, or otherwise, of the SC Order. Learned Standing Counsel also raised a second ground, which will be set out and considered later (see para 14 below).
6. In support of their case, learned counsel for the petitioners, in addition to the above mentioned decisions of this Court, also relied on a number of decisions of the Lahore High Court. These are reported as Sajid lqbal v. Superintendent of Jail, Adiyala Rawalpindi and others 2011 YLR 283, Abdul Karim and others v. Federation of Pakistan and others 2011 YLR 1572, Shahid Mahmood v. The State and others PLD 2011 Lahore 502 and Javed lqbal v. The SHO and others 2013 PCr.LJ 1394. In all of these decisions the benefit of section.382-B, Cr.P.C. Was held to apply in respect of convictions under section 59 of the Army Act (and, in one case, the equivalent provision under the Air Force Act). Learned Standing Counsel on the other hand cited a single Bench decision of the Lahore High Court reported as Azhar lqbal v. The State and others 2014 PCr.11 1387. There, the learned Single Judge refused to give the benefit of section 382-B to the petitioner before him and observed as follows in a passage relied upon by learned Standing Counsel: "6. A somewhat similar issue came under consideration before the Division Bench of Balochistan High Court, Quetta reported as Nabi Dad v. Registrar Court of Appeals Judge Advocate General's Department (PLD 2009 Quetta 27) and their lordships were of the considered view that section 382- B, Cr.P.C. Was not legally applicable to the sentences awarded under the Army Act 1952 in presence of special provisions in the Army Act 1952. Although the principles settled by sister High Courts are not binding and are only persuasive in nature but the petitioner in the said reported case (Nabi Dad) assailed the observations of the learned Balochistan High Court before the apex Court through Criminal Petition 1-Q of 2009 and Hon'ble Supreme Court upheld the dictum laid down by the learned High Court and refused to grant leave to appeal and as such the same is binding on this Court."
7. During the course of arguments, reference was also made to a recent decision of the Supreme Court reported as Muhammad Tariq Badr and another v. National Bank of Pakistan and others 2013 SCMR 314. There a three-member Bench had occasion to consider the binding effect of a leave refusing order of the Supreme Court. It was observed as follows (pp. 325-6): "11. In so far as the effect of the order dated 11-6-2009 passed in Civil Petition No.1291-L of 2001 (supra) is concerned, suffice it to say that it is a leave refusing order and according to law, an order granting and/or refusing leave which does not lay down a rule of law should not be followed necessarily and imperatively [Khairullah v. Sultan Muhammad and others 1997 SCMR 906], as per the standardized or settled principles, meant for the purposes of following the precedents; however such orders may be shown obeisance on the basis of propriety provided those (orders) are strictly in line with the clear mandate and true spirit of law and does not impinge the rules of justice.
Moreover, for the purpose that a judgment of the apex Court should have due effect and due deference, three conditions as per Khan Gul Khan and others v. Daraz Khan (2010 SCMR 539) should be met (a) judgment decides a question of law; (b) it is passed upon the basis of law; and
(c) it enunciate the principle of law. The order passed in Civil Petition No.1291-L of 2001 referred to above, by simply mentioning the Mubeen-usSalam case has rendered the said petition as 'abated' ; obviously it does not qualify the afore-stated test, therefore, it is of no help to the case of the respondent." (Emphasis in original)
' (The decision noted in square brackets is an internal citation in the passage, by way of a footnote.) Learned counsel for the petitioners submitted that the effect of the foregoing observations was that a leave refusing order did not have binding effect as such, and it was therefore open to the High Courts to either apply and follow what was stated therein or to adopt some other view. The SC Order was admittedly a leave refusing order; it was not binding as such and it was open to this Court to take some other view. Since the consistent view of this Court was that the benefit of section 382-B was available even in respect of convictions under section 59 of the Army Act, that view ought to be followed in the present cases as well. Learned Standing Counsel on the other hand submitted that while a leave refusing order was not binding under all circumstances and on all occasions, it nonetheless had binding effect if a question of law was decided therein or thereby. It was submitted that that was precisely the position as regards the SC Order. Learned counsel stressed that the Supreme Court had therein given binding directions and its observations had effect as such. We were bound therefore to answer the question posed above in the negative, notwithstanding the earlier decisions of this Court.
8. We have heard learned counsel as above and considered the case law relied upon. The point taken by learned Standing Counsel is an important one that requires close and careful consideration. While the immediate context is the SC Order, the issue is broader than that. What is the effect of a leave refusing order of the Supreme Court? More precisely, are the observations on or relating to questions or principles of law made in such an order always of binding effect within the meaning of Article 189? Or are such observations always only of persuasive value? Or does the correct resolution of the issue raised lie somewhere in between?
9. As is obvious, it is the observations of the Supreme Court itself in respect of the effect of leave refusing orders that are of paramount importance. The recent view expressed in this regard in Muhammad Tariq Badr and another v. National Bank of Pakistan and others 2013 SCMR 314 (herein after "Muhammad Tariq Badr") has already been set out above. Reference may also be made to University of Health Sciences and others v. Mumtaz Ahmed and another 2010 SCMR 767 (herein after "University of Health Sciences") where a three-member Bench observed that "[i]t is also settled principle of law that leave granting or leave refusing order is not a judgment" (pg. 770). In addition reference must, in particular, be made to a more recent decision reported as Province of Punjab and others v. Muhammad Saleem and others PLD 2014 SC 783 (herein after "Muhammad Saleem") where a two member Bench applied Muhammad Tariq Badr. The point in issue, as relevant for present purposes, was the interpretation of section 4 of the Limitation Act, 1908. That section provides that if the court is closed on the day on which the period of limitation expires, then the relevant proceedings (suit, appeal etc.) can be filed on the day that the court re-opens. At issue was whether a court could be held to be closed for purposes of section 4 during vacations?
The learned Bench was referred to two earlier decisions where this question had been answered in the negative. In both of these decisions, Ch. Fayyaz Ahmed v. Mst. Hidayat Begum and 21 others 1997 SCMR 1393 and Fateh Ali Khan v. Subedar Muhammad Khan 1970 SCMR 238 the Supreme Court had been petitioned for leave to appeal. In the first mentioned case leave to appeal was refused. In the second mentioned case (which, it is pertinent to note, was an order of a three- member Bench), the leave petition was held barred by limitation and dismissed. In respect of both of these decisions, the learned Bench in Muhammad Saleem observed, inter alia, that they were leave refusing orders and "such order is not the enunciation of law which should be taken into consideration for the purposes of resolving the instant proposition" (pp.788-9). The learned Bench came to a conclusion different from the view taken in the two cited decisions.
10. In our respectful view, the foregoing decisions of the Supreme Court, i.e., Muhammad Tariq Badr, Muhammad Saleem and University of Health Sciences provide the framework in which the questions posed in para 8 above are to be considered. The crucial passage is from Muhammad Tariq Badr, reproduced above. After a careful consideration of these decisions, in our respectful view, the position that emerges is as follows. A leave refusing order of the Supreme Court is not, as such, of binding effect. This is made clear by the observation that such an order need not be followed "necessarily and imperatively", which would have been the case if the order had binding effect. However, if the observations in the leave refusing order meet the requirements identified in the quoted passage, then such observations are to be "shown obeisance on the basis of propriety" and "should have due effect and due deference". It is, in our respectful view, striking that the Supreme Court has not used the word "binding" (or some equivalent expression) even though the requirements identified in the passage are clearly relatable to Article 189. Rather, the focus is on "obeisance" by way of "propriety", and "due deference". Obeisance means "respectfulness of manner or bearing; deference; homage; submission" (see Shorter Oxford English A Dictionary, 6th ed., 2007, Vol. II, pg 1968). In our respectful view therefore, observations in a leave refusing order, if they meet the identified requirements, are to be regarded as being very highly persuasive. As used in the present context, by "very highly persuasive" we mean that such observations must ordinarily be followed, and the High Court should not in the normal course regard itself as free to take some other view, unless some exceptional circumstances exist for adopting the different view.
11. It follows from the foregoing that, in a formal sense, a decision of a High Court that is contrary to or inconsistent with an observation in a leave refusing order of the Supreme Court that meets the requirements identified in Muhammad Tariq Badr, but which leave refusing order was not cited before the High Court, is not as such per incuriam. Nonetheless the question remains as to what course should be adopted by a subsequent Division (or single) Bench of the High Court which is, on the one hand, asked to follow an earlier Division (or larger) Bench judgment of the same Court, and on the other is referred to a leave refusing order of the Supreme Court that meets the requirements identified, but which order was not brought to the attention of the earlier Bench? It will be noticed that the earlier decision, being of the same High Court, is, in a formal sense and on the basis of well established rules, binding as such and ordinarily has, and must be given, full precedential effect.
The leave refusing order is very highly persuasive, in the sense explained above. In our respectful view, the appropriate course to be followed by the subsequent Bench would be to refer the matter to the Chief Justice for constitution of a larger Bench, unless there exist some exceptional circumstances for which the earlier decision should be given its ordinary and appropriate effect (i.e. Be regarded and followed as binding) notwithstanding the existence of the very highly persuasive leave refusing order of the Supreme Court.
12. Turning now to consider Nizamuddin and Manthar in light of the above, it is clear from the judgments that the Division Benches concerned came to the conclusion that the benefit of (or equivalent to) section 382-B, Cr.P.C. Was available by reason of the law laid down by the Supreme Court in, its landmark judgment reported as Shah Hussain v. The State PLD 2009 SC 460 (herein after "Shah Hussain"). This judgment, of a learned 6-member Bench, was handed down on 1-6- 2009. As was noted in Nizamuddin with specific reference to Nabi Dad, this was a date after the decision of the Balochistan High Court, the latter having been decided on 15-12-2008 (see para 7 of the judgment). Likewise, the learned Division Bench that decided Manthar noted that the SC Order was made on 3-2-2009, i.e., before the decision in Shah Hussain (see para 15 of that judgment).
Thus, in the Nabi Dad litigation, neither the High Court nor the learned Bench of the Supreme Court had the benefit of the views expressed by the larger Bench in Shah Hussain.
13. In our respectful view, the manner and basis on which the judgments in Nizamuddin and Manthar were rendered, i.e., the subsequent decision of the Supreme Court itself in Shah Hussain, constitute an exceptional circumstance in the sense as used and explained above. Thus even if the SC Order contained observations as met the requirements laid down in Muhammad Tariq Badr (but as to which, with the utmost respect, we offer no comment) and would therefore make that leave refusing order very highly persuasive, an exceptional circumstance exists for which we ought to regard and follow Nizamuddin and Manthar as binding. Accordingly, with respect, we are unable to agree with learned Standing Counsel that Nizamuddin and Manthar have no presidential value or effect. Furthermore, and for the reasons as already stated, we are also respectfully of the view that the present matters need not be referred to the Chief Justice for constitution of a larger Bench.
In our respectful view, the principles of law in relation to the post-conviction benefit of prior custody in the same case are as laid down in Shah Hussain and the principles so enunciated must be regarded as the law of the land, to be followed also in relation to convictions under section 59 of the Army Act (and equivalent provisions in other statutes). This is so notwithstanding the observations in the leave refusing order sought to be relied upon, even if said observations met the requirements laid down in Muhammad Tariq Badr.
14. We turn to the second ground taken by learned Standing Counsel. This was in relation to the judgment in Nizamuddin. Learned counsel for the State had there referred the Division Bench to an earlier Division Bench decision of this Court, Syed Hamid Ali Shah v. Summary Military Court, Karachi and others 1984 PCr.LJ 1379 in support of the submission that the benefit of section 382-B, Cr.P.C.
Was not available to those convicted under section 59 of the Army Act. The Division Bench had distinguished the earlier judgment for the reasons as set out in para 7 of the judgment in Nizamuddin. Learned State Counsel submitted before us that the Division Bench had erred in doing so. It was submitted that if at all the Division Bench wanted to disagree with the earlier judgment, then the proper course would have been to apply the well known rule reaffirmed in Multiline Associates v. Ardeshir Cowasjee and others 1995 SCMR 362, and refer the matter to the Chief Justice for constitution of a larger Bench. With respect, this ground is misconceived. The rule reaffirmed in Multiline Associates applies only if the subsequent Bench concludes that the rule or proposition (or, more properly, the ratio decidendi) of the earlier judgment does apply to the facts and circumstances at hand, but disagrees with the same. It is then that, because the earlier judgment would otherwise be binding, that the subsequent Bench must either (notwithstanding its disagreement) follow the earlier judgment or refer the matter to the Chief Justice for constitution of a larger Bench. However, where the earlier rule or proposition is no longer apt or applicable, whether on account of legislative changes or a subsequent decision of the Supreme Court, then the earlier decision oases to be binding. As explained in para 7 of the judgment in Nizamuddin, the earlier judgment was based on certain constitutional changes brought about during the Gen. Zia- ul-Haq martial law period which were no longer in the field, and the legal landscape had been fundamentally altered by the decision of the Supreme Court in Shah Hussain. The earlier judgment having been rendered during the martial law period, no question of fundamental rights could arise, which was no longer the case by the time Shah Hussain and, based on it, Nizamuddin came to be decided. The rule in Multiline Associates was not therefore applicable and the second ground cannot therefore be accepted.
15. This judgment will apply to the following cases: C.Ps. Nos.D-1449, 1450, 1454, 1847 and 1946, all of 2014 and also Cr. Misc. Application D-402/2014. The last mentioned application is converted into a constitutional petition and disposed off as such.
16. In view of what has been stated. In the foregoing, these petitions are allowed to the following extent and in the manner as stated. In each case, the concerned Jail Superintendent is hereby directed to prepare a fresh jail roll for each petitioner within 7 days of the receipt of this judgment, in which the pre-conviction period of custody is taken into consideration (along with any other applicable remissions). Once the petitioner has served out his period of detention as so computed, he shall be forthwith set at liberty unless required in some other case. The Jail Superintendent concerned shall provide a copy of the fresh jail roll to each petitioner and shall also send a copy to the Additional Registrar of this Court, who shall have it placed in the file of each case. If the Jail Superintendent fails to prepare a fresh jail roll as herein provided, the petitioner concerned may seek any appropriate remedy in accordance with law. The office is directed to forthwith send a copy of this judgment to the Jail Superintendent concerned in order to ensure prompt compliance.