Instant is a petition that has been filed by Imran Mustafa (convict herein) under Article 199(1)(ii) of the Constitution of Islam Republic of Pakistan 1973 (hereinafter referred to as the "Constitution") with the supplication that reads: "...awfully implored that instant solicitation be approved and application of newly inserted Section 9(A)1 be declared as having no legal effect on the petitioner/convict as he was charge sheeted under Section 9-C Control of Narcotic Substances Act, 1997 prior to promulgation of Narcotic Substances Amended Act, 2022 dated 5th September, 2022.
It is correspondingly prayed that respondent No.2 be directed to award all special remission earned by the petitioner on special occasions since his arrest on 12.11.2020 till to date and his sentence be reduced accordingly.
It is correspondingly prayed that respondent No.2 be directed to award all monthly, quarterly as well as annually ordinary remission earned by the petitioner since his arrest on 12.11.2020 till to date and his sentence be reduced accordingly.
Any other relief "
2. Facts in brief giving rise to the filing of instant petition are that convict having been booked in case F.I.R. No.810 of 2020 dated 12.11.2020, under section 9(c) of the Control of Narcotic Substances Act, 1997 ("CNSA, 1997"), registered at Police Station Qutabpur, Multan was sent to face the trial and after being indicted and tried was convicted under section 9(c) of CNSA, 1997 and sentenced to ten years and six months rigorous imprisonment with fine of Rs.50,000/-, in default of payment of fine to further undergo simple imprisonment for eight months.
3. Convict assailed his conviction and sentence before this Court by way of filing Criminal Appeal No.514/2022 which was dismissed vide judgment dated 15.12.2022 by maintaining his conviction, however, sentence awarded to him by learned trial court was reduced to rigorous imprisonment for six years by also maintaining the amount of fine and imprisonment in default whereof. Convict who was rounded up on 12.11.2020 in above referred case requested the respondents for his release but was informed that owing to insertion of section 9(A) (1) through an Act namely Control of Narcotic Substances (Amendment) Act, 2022 (Act No.XX of 2022) (hereinafter referred to as the "Amendment Act, 2022), no remission could have been awarded to him and his probable date of release as told was 24.01.2025. Hence, this petition.
4. Report was requisitioned from respondent No.2 and same was submitted containing their stance precisely that in view of insertion of section 9(A) (1) through an amendment promulgated under Amended Act, 2022, no remission in sentence for the prisoners convicted under CNSA, 1997 could have been granted.
5. Learned counsel for the convict contended that when convict was booked in the case and even when was indicted and convicted, provisions of section 9(A) (1) were not inserted in CNSA, 1997 and even the provisions of section 9(A) (1) of Amendment Act, 2022 had no retrospective effect as the said section do not contain any provision signifying the intention of legislature qua its applicability with retrospective effect. Learned counsel by placing reliance on "Shah Hussain v. The State" (PLD 2009 SC 460) and "Nazar Hussain and another v. The State" (PLD 2010 SC 1021) argued that convict is entitled to earn remissions.
6. Learned Law Officers argued that in reply to the guidance sought by Inspector General of Prisons, Punjab, Lahore from Government of Punjab, Law and Parliamentary Affairs Department through letter No.OP:15-11/2023/5503 dated 28.09.2023, opined that the principle of grant of no remissions in sentence seems to be applicable in all cases from the date of insertion of the Amendment Act, 2022 notwithstanding anything contained in Prison Rules, 1978. Learned Law Officers, however, when confronted with the query put by us that where certain rights were available with the convict qua his entitlement to get the benefit of remissions in accordance with existing law when he was arrested, tried and convicted, how he can be deprived of getting remissions in view of insertion of section 9(A) (1) through Amendment Act, 2022 that was inserted subsequent to his conviction and sentence, failed to meet the point.
7. Heard either of the sides and record perused.
8. The moot point that requires our consideration and its decision is that whether the provisions of section 9(A) (1) of the Amendment Act, 2022 have retrospective effect and in turn depriving of the convict who has been arrested, indicted and convicted before 06.09.2022 when the said section was inserted. Undeniably convict was rounded up on 12.11.2020 in case F.I.R. No.810/2020 dated 12.11.2020, under section 9(c) of CNSA, 1997, registered at Police Station Qutabpur, Multan and after having been sent to face trial, was indicted on 23.12.2020 and was convicted and sentenced on 10.05.2022. There is also no denial to the fact that section 9(A) (1) was introduced by virtue of an amendment through the Amended Act 2022 dated 06.09.2022. Provisions of section 9(A) (1) are reproduced hereunder for the facility of ready reference: "9(A)(1) Notwithstanding anything contained in any other law or prison rules for the time being in force, no remissions in any sentence shall be allowed to a person, who is convicted under this Act: Provided that in case of a juvenile or female convicted and sentenced for an offence under this Act, remission, may be granted as deemed appropriate by the Federal Government."
Bare perusal of above would vividly suggest that same have given no retrospective effect by the legislature. Even it does not transpire therefrom that the rights available to an accused involved in case falling within the purview of CNSA, 1997 prior to the amendment made on 06.09.2022 have been taken away in any manner whatsoever. The provisions of section 9(A) (1) of Amendment Act, 2022 from their bare reading are prospective in nature and same cannot be given effect retrospectively by placing any sort of embargo on the right of a convict qua earning remissions who had been arrested, indicted and even convicted prior to insertion of section 9(A) (1) through Amendment Act, 2022. Almost similar sort of point in issue was taken up and dealt with by this Court in case "M. Aslam Mouvia v. Home Secretary and others" (PLD 2011 Lahore 323), wherein after having referred to good number of case laws on the moot point by the apex Court, this Court resolved the same in the following terms: "20. The trial of the petitioner commenced before insertion of section 21-F of the ATA. Certain rights had already accrued in favour of the petitioner by way of his entitlement to the benefit of remissions in accordance with law in the field at the relevant time i.e. the time that the alleged offence was committed, F.I.R. was registered against him, he was arrested and his trial commenced. Any subsequent changes in law would not have the effect of depriving him of the rights which were available to him at the time when the offence was committed and the trial commenced. In addition, there is nothing in section 21-F of ATA to indicate even remotely that it has retrospective operation or that it has the effect of taking away the rights that were available to certain convicts under the prevalent law when the offence was committed, the F.I.R. was registered or the trial commenced. Looked at from this point of view, the provisions of section 21-F are prospective in nature and, therefore, cannot take away or affect the rights which were available to the petitioner at the relevant time. In support of this contention, reliance may also usefully be placed on the dictum of the honourable Supreme Court of Pakistan in the case of Commissioner Sindh Employees etc. (2002 SCMR 39).
21. In the case of Pakistan Steel Mills (2002 SCMR 1023), the honourable Supreme Court of Pakistan has held that any amendment in law will not take away, empower, nullify or destroy a vested right, which has attained finality and has become past and closed transaction. Admittedly, registration of the case against the petitioner, his arrest and initiation of his trial were all prior to the insertion of section 21-F. As a result, the dictum of the honourahle Supreme Court of Pakistan in the aforesaid cases is clearly applicable to the facts and circumstances of the present case. In Muhammad Rafi ud Din's case reported as PLD 1971 SC 252 and Hassan's case reported as PLD 1975 SC 1, it has clearly and unambiguously been laid down that where a law was altered during pendency of an action, the rights of the parties are to be decided according to the law as it existed when the action was initiated and not under the law prevailing on the date of the judgment/order. Looked at from this angle also, the act of the respondents whereby the petitioner has been denied the benefit of remissions under the Pakistan Prisons Rules is neither legally justified nor sustainable.
(Underlining is to supply emphasis).
The dicta laid down in case referred supra is squarely applicable to the facts and circumstances of the instant case on its all fours and we see no reason to take a different view.
9. As natural and logical corollary to the above discussion, we hold the convict entitled to earn remissions albeit insertion of section 9(A) (1) in CNSA, 1997 through Amendment Act, 2022. Petition in hand is allowed with the direction to respondent No.2 to grant remissions to the convict in accordance with law and rules. Office is directed to transmit copies of this order to the Additional Chief Secretary (Home), Government of the Punjab, Home Department, Lahore and I.G. Prisons, Punjab, Lahore, who in turn will circulate this order to Superintendents of all the Jails in the Province of Punjab for compliance. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.