1. NAIMUDDIN, ACTG. C. J.-This is a constitution petition under Article 199 of the Constitution of Islamic Republic of Pakistan.
2. The petitioners' case is that on 17th July, 1967, they were arrested in a case for committing an offence under section 302, P. P. C. Pertaining to Police Station, Bagarji, Tehsil and District, Sukkur and thereafter on 22nd March 1972, they were found guilty of the said offence and sentenced to death by the Sessions Judge, Sukkur. They however, filed an appeal in this Court and were acquitted by the judgment and order, dated 25th October, 1973, and released from Central Prison, Sukkur, on 31st October, 1973.
3. The State filed an appeal in the Supreme Court against the order of acquittal passed by this High Court and on 17th April 1974 petitioner Niaz Muhammad was re-arrested and on 27th April 1974 the petitioner Abdul Hameed was re-arrested under the order of the Supreme Court.
4. The Supreme Court set aside the order of acquittal on 26th February, 1977 and convicted the petitioners and sentenced them to death. However, subsequently in 1977, on Mercy petition filed by the petitioners the President of Pakistan was pleased to commute the sentence of death with that of transportation for life and since then the petitioners are serving out their sentences.
5. The facts stated by the petitioners are not disputed by the respondents or questioned by the learned Additional Advocate-General, Sind.
6. We have heard Mr. Nizam Ahmed, Advocate for the petitioner and Mr. Abdul Sattar Shaikh, Additional Advocate-General, Sind for the respondents.
7. Mr. Nizam Ahmed Advocate for the petitioners has raised the follow--ing grounds :- "(1) That the order of the Government commuting the sentence of death to transportation for life would take effect from the date of the judgment of the Sessions Judge and not from the date of the order passed by the President of Pakistan.
(2) That the petitioners are entitled to all the benefits provided in rule 7 of the West Pakistan Prisons (Remission of Sentences) Rules, 1965 (hereinafter called the Rules).
(3) That the petitioners are also entitled for consideration of their cases under rule 22 (2) of the Rules by the Provincial Government."
8. As regards the first submission it is settled principle that whenever a sentence is reduced either by the competent Court in exercise of judicial power or by any executive authority in exercise of its prerogatives, the reduced sentence shall be deemed to have commenced from the date on which the original sentence was passed. If any authority is needed reference may be had to Muhammad Sharif v. Inspector-General or Prisons (1). The above-cited case has been followed by this Court in an unreported decision in Constitution Petition No. D-775 of 1979, Hakim Ali v. The Superintendent, Central Prison, Karachi and another. This position has also not been disputed by the learned Additional Advocate---General. We therefore, direct respondent No. 2 to compute the sentence of the petitioners accordingly. No doubt the petitioners shall not be entitled for any benefit for the period from 26th October, 1973 when they were acquitted and released, to the date when they were re-arrested.
9. As regards the second ground we may first reproduce here the provisions of rule 7 of the Rules. Rule 7 reads as follows :- "7. Scale of ordinary remissions.--( PLD 1978 Lab. 15) Ordinary remission to be awarded to a convict, other than a convict employed on prison service shall be according to the following scale : -
(a) two days per month for thoroughly good conduct and scrupulous attention to all prison regulations ; and
(b) three days per month for industry and the due performance of the prescribed daily task.
(2) Ordinary remission to be awarded to a convict employed on prison service, as specified in the table now shall be according to the scale specified against each category of such service :- TABLE Serial No.Convicts classification as per labour allotmentExtent of award of ordinary remission per month
1. Convict official-- ---
(a) Convict night watchman6 days.
(b) Convict Overseer/ Monitor7 days.
(c) Convict Warder8 days.
2. Cook 7 days.
3. Convict Educational Teacher 8 days.
4. Sweeper8 days plus Rs. 5.00 per mensum to be paid under the head "Contract Contin--- gencies."
10. 5.Mason, Barber, Hospital Attendant and Cleaner, who work on Sundays and holidays.One day extra remission for each complete calendar month dur--ing which he has been so employed, viz. six days."
11. On the, principle stated in respect of ground No.1, we are of the opinion, that the petitioners will also be entitled to benefits of rule 7, if they have fulfilled the conditions mentioned therein from the date of the B sentence and not from the date of commutation of the sentence of death toy transportation for life.
12. As regards the last ground, we may first quote rule 22 (2) of the said Rules which provides as follows :- "(2) When a life convict has earned special remission as would entitle him to release, the Superintendent shall report accordingly to the Government in order that his case may be considered with reference to section 401 of the Code of Criminal Procedure."
13. It will be seen from the above-quoted provision that the Superinten--dent, Jail is required to report to the Government when a life convict has completed as aggregate period of fourteen years including remissions of all kinds, worked out on the basis of fourteen years, for consideration of his case in accordance with the provisions of section 401, Cr. P. C. And then it is for the Provincial Government to consider whether to release such a convict or not. We are fortified in our view by the Full Bench Judgment of Lahore High Court in Muhammad Hussain and 5 others v. The State through Superintendent District Jail, Lahore (PLD 1968 Lah. 1) wherein Anwarul Haq, J. (as he then was) at page 10 of the report observed as follows :-- "Therefore, under sub-rule (2) of rule 22 the rolls of all life convicts who have completed an aggregate period of fourteen years including remissions of all kinds, worked out on the basis of fourteen years, have to be forwarded to the Provincial Government for appropriate action under section 401 of the Criminal Procedure Code. In those cases, however where the Provincial Government does not wish to release a life convict after he has completed an aggregate period of fourteen years' rigorous imprisonment, it shall be assumed that the prisoner has to undergo an aggregate imprisonment of twenty years, and in that eventuality all the remissions earned by him, whether ordinary or special, will have to be calcula--ted on the basis that he was undergoing a total sentence of twenty, years, and not fourteen years."
14. The Full Bench case has been followed by this Court in Muhammad Bhai and others v. Islamic Republic of Pakistan (PLD 1980 Kar. 166).
15. The learned Additional Advocate-General, Sind has not brought any case to the contrary to our notice. In fact he has not contesred any of the grounds urged by the learned counsel for the petitioners. We therefore direct respondent No. 1 to compute the sentence of the petitioners in accordance with the principle stated in relation to ground No. I and in accordance with rule 7 of the Rules and then if the case of the petitioner falls under rule 22(2) of the Rules, to refer the same to the Provincial Government for dealing with it in accordance with the provisions of section 401, Cr. P.
16. C.