Sardar Muhammad Sarfraz Dogar, J. By way of filing instant petition under Article 199 of The Constitution of Islamic Republic of Pakistan, 1973 ("The Constitution") the petitioner has sought grant of remissions to her son namely, Muhammad Hanif while canvassing the following prayer:- "Under the circumstances, it is, therefore, respectfully prayed that by accepting this writ petition, the remissions granted to the respondent No.4 by the respondents No.1, 2 & 3 may kindly be granted to the petitioner son in the interest of justice, equity and fair play and he may be released forthwith.
Any other relief in the circumstances of the case, which is deemed fit may be granted to the petitioner."
2. Before proceeding further to examine the crux of controversy involved, it will be appropriate to summarize the facts of the instant case are as under: "Muhammad Hanif son of the petitioner along with his co-accused Sohail Masih was indicted to face trial in case F.I.R. No. 48 dated 17.05.2006, offence under section 9 (c) of the Control of Narcotic Substances Act, 1997, registered at Police Station ANF, Lahore. The learned trial Court, after a full-fledged trial, vide judgment dated 5.7.2011 convicted Muhammad Hanif son of the petitioner and his co-convict Sohail Masih under section 9 (c) of the Act ibid and both were sentenced to undergo imprisonment for life and to pay a fine of Rs. 50,000/- each or in default of payment thereof to further undergo simple imprisonment for six months each. Benefit of section 382-B, Code of Criminal Procedure was extended to them. Both the convicts namely Muhammad Hanif (petitioner's son) and Sohail Masih challenged their convictions and sentences before this Court by way of filing separate appeals bearing Crl. Appeals No.1488 and 1403 of 2011, respectively, but the same were dismissed by this Court through consolidated judgment dated 07.12.2015. Feeling aggrieved, petitioner's son Muhammad Hanif and co-convict Sohail Masih assailed their convictions before the Hon'ble Supreme Court of Pakistan through Crl. Petition No.106-L and 107-L of 2016, respectively and the same were also dismissed vide judgment dated 21.06.2018."
3. Learned counsel for the petitioner in aid of this petition submits that co-convict Sohail Masih, has been released from jail on 07.04.2021 after serving out his sentence and earning fruits of certain remissions available under the law/rules, whereas, son of the petitioner is in incarceration as the respondents are not inclined to grant remissions to him as have been given to said Sohail Masih in spite of the fact that both Sohail Masih and Muhammad Hanif were tried together and the same sentence was inflicted upon them by the learned trial Court and they both were admitted in jail on the same date, i.e. 20.5.2006. Requests for issuance of direction to the respondents to release son of the petitioner after granting remissions as have been given to his co-convict Sohail Masih.
4. On the other hand, learned Law Officers have unanimously opposes this petition while submitting that the petitioner's son Muhammad Hanif was admitted in jail on 20.05.2006 and was released on bail on 21.07.2009, while his co-convict Sohail Masih was admitted in jail on the same date, i.e. 20.05.2006, whereas, he was released from jail on 7.4.2021 after serving his sentence as he remained in jail without getting any bail till 03.04.2021. On the other hand, the petitioner's son Muhammad Hanif was again admitted in jail on 05.07.2011 to serve out the remaining sentence awarded to him by the learned trial Court. The petitioner's son Muhammad Hanif remained on bail w.e.f 21.07.2009 to 05.07.2011, whereas, co-convict Sohail Masih remained confined in jail since the date of his arrest i.e. 20.05.2006 and he had earned 03 Special Remissions (79 months) on the eve of 18th amendments alongwith two other remissions awarded by President of Pakistan vide Notification No.8/2/2010-Ptns dated 09.04.2010 and Notification No.8/12/9-Ptns dated 16.04.2009 and Notification No.8/12/2008-Ptns dated 01.12.2009 (annexures attached with the parawise comments) received through Inspectorate of Prisons Punjab, Lahore, but at that time, petitioner's son Muhammad Hanif was on bail and not confined in jail, thus, he is not eligible for these remissions.
5. I have heard the learned counsel for the petitioner, the learned Law Officers appearing on behalf of the State and perused the record of the case as well as report/parawise comments submitted on behalf of the respondents with their able assistance.
6. From the facts and circumstances as well as the contentions raised before this Court, the controversy involved in this case can be divided into following twofold:-
(i) Whether the period during which son of the petitioner remained on bail after being released from jail until he is again placed in confinement can be considered as the sentence served by him?
(ii) Whether a convicted prisoner undergoing sentence of imprisonment is entitled to remissions of the period during which he was on bail?
7. So far as the claim of the petitioner that her son is entitled to deduct the period during which he was on bail is concerned, before moving further, it would be advantageous to reproduce the relevant Rule 35 of the Pakistan Prisons Rules, 1978. Rule 35 of the Pakistan Prisons Rules 1978 reads as under:- "Periods to be included for sentence. Rule 35. If any prisoner is released on bail pending appeal or revision or his sentence of imprisonment is suspended for some time, for any reason, and such a prisoner is subsequently again committed to prison, the period during which the prisoner was out of prison or on bail or the sentence was suspended shall not count as sentence served, unless the warrant or the order of recommitment otherwise directs: Provided that--
(a) a prisoner who is released on bail on the day on which the sentence of imprisonment is passed, shall not be deemed to have undergone any part of his sentence until he is again placed in confinement; and that
(b) this rule shall not be deemed to apply to persons undergoing imprisonment under the provision of section 123 of the Code of Criminal Procedure."
A bare reading of the Rule 35 of the Pakistan Prisons Rules, 1978 makes it clear that the period which is not to be counted as sentence served is the period which an accused spends out of prison and is not again committed to prison.
8. Coming to the second question as to whether a convicted prisoner undergoing sentence of imprisonment is entitled to remissions of the period during which he was on bail, the clear fallacy of the approach made by the learned counsel for the petitioner can be demonstrated through an illustration. "An accused was tried for an offence under section 380 PPC. During trial period, he was allowed to remain on bail and the trial prolonged up to, say 3 years. Finally the Court convicted him and sentenced him to imprisonment for three years. Should not the convicted person go to jail at all on the premise that he was on bail for three years and is hence entitled to remission of that period"?
9. Yet another illustration can be shown by stretching the above illustration a little further. If the aforesaid convicted person filed an appeal and got his sentence suspended by the appellate Court and the appellate Court confirmed the conviction and sentence after a period of three years, is he entitled to claim that he need not go to jail at all as he was on bail for more than three years during the post-conviction stage also? If it is to be held that he is entitled to such remission, I am afraid; the criminal justice system would be reduced to a mockery. The absurdity of the claim of the petitioner can thus be demonstrated.
10. Adverting to the merits of the case, the petitioner's son Muhammad Hanif is seeking remissions which were granted to his co-convict Sohail Masih, who had been released from jail on 07.04.2021 after serving his sentence and earning fruits of remissions available under the law/rules. I have given my anxious considerations to the arguments advanced by learned counsel for the petitioner and found that no convincing or persuasive reason whatsoever has been brought on surface through any material to prove malafide or malice on the part of the jail authorities with regard to non-granting remissions at par of co-convict Sohail Masih. The petitioner's son Muhammad Hanif was admitted in jail on 20.05.2006 and was released on bail on 21.07.2009, while co-convict Sohail Masih was admitted in jail on 20.05.2006 and he had served his sentence without getting any bail till 03.04.2021. The petitioner's son Muhammad Hanif was again admitted in jail on 05.07.2011 to serve out the remaining sentence awarded to him by the learned trial Court. The petitioner's son Muhammad Hanif remained on bail w.e.f 21.07.2009 to 05.07.2011. Co-convict Sohail Masih remained confined in jail since the date of his arrest i.e. 20.05.2006 and he had earned 03 Special Remissions (79 months) on the eve of 18th amendments alongwith two other remissions awarded by President of Pakistan vide Notification No.8/2/2010-Ptns dated 09.04.2010 and Notification No.8/12/9-Ptns dated 16.04.2009 and Notification No.8/12/2008-Ptns dated 01.12.2009 (annexures attached with the parawise comments) received through Inspectorate of Prisons Punjab, Lahore, but at that time, petitioner's son Muhammad Hanif was on bail and not confined in jail, thus, he is not eligible for these remissions and the bald contention in this regard remained unable to find support from any substance. Thus, it can safely been gathered from the record that the prayer of the petitioner to the extent of granting remissions to her son Muhammad Hanif for the period which he remained on bail is totally misconceived as the plea of the petitioner is inconsistent with the remissions so availed by the co-convict Sohail Masih.
11. For the foregoing reasons, there is no doubt left in my mind that neither the period during which son of the petitioner Muhammad Hanif convict remained on bail after being released from jail can be considered as the sentence served by him nor he is entitled to remissions of the period during which he was on bail, therefore, the instant petition having no merits is hereby dismissed.