MUHAMMAD AMJAD RAFIQ, J:- Knocking at the door of Court for one more time, the petitioner seeks his lawful release from the prison on the ground that he is behind the bars since 13.09.1989; say for more than three decades and after earning remissions he has completed the period of his imprisonment of 100 years, but bureaucratic delays and wrong legal advice are the major obstacles clutching him to remain incarcerating in the jail. With this heart felt story, I have examined the record.
2. It was learnt through record that in case FIR No. 409 dated 24.08.1989 under Sections 302/460/411/34 PPC P/S Wahdat Colony, Lahore, petitioner (Saghir Hussain) along with Talib Hussain and Abdul Ghafur were convicted under section 302/34 Pakistan Penal Code 1860 (the "PPC") and sentenced to death on three counts; conviction & sentence under section 460 PPC to imprisonment for life was also passed against them. Their appeals were dismissed by the High Court, but in the Supreme Court they opted not to assail the conviction and sought lesser sentence which was converted to imprisonment for life under Sections 302/34 PPC on three counts. A miscellaneous application was filed before the Supreme Court for seeking concurrent running of sentence of imprisonment for life on three counts, but such request was declined rather, Supreme Court clarified through order dated 14th June, 2002 that above sentence on three counts shall run consecutively. With such declaration, the period of imprisonment of the petitioner and others was calculated as 75 years under Sections 302/34 PPC and 25 years under section 460 PPC because Section 57 of PPC says that in calculating fractions of terms of punishment, imprisonment for life shall be reckoned as equivalent to imprisonment for twenty-five years.
3. Remission system introduced through Pakistan Prisons Rules 1978 though has benefited the petitioner and others because for 100 years imprisonment, they succeeded to earn remissions (ordinary and special) for a total period of more than 59 years during their period of detention, yet about 4 1/2 years imprisonment is still to go. Petitioner had been informed that benefit of Section 382B of Cr.P.C. has been extended to him by the order of Supreme Court of Pakistan, yet his undertrial period of detention of 0I year, 7 months and 24 days has been counted only once. Upon which petitioner requested for counting of his undertrial detention period four times in sentence of imprisonment for life on four counts. His contention was attended carefully by the Deputy Inspector General of Prisons, Multan Region Multan and sent a request to the Inspector General of Prisons, Punjab Lahore through Memo No. JB/2024/13517 dated 12.10.2024, somewhat in following terms; It is also submitted that as the above said convict prisoner is convicted and sentenced in four offences i.e.,Murder u/s 302, three counts and u/s 460 PPC and sentences were also ordered to run consecutively, but only single under trial period is counted towards his sentence. However, under trial period on four counts is required to be counted in his sentence being consecutive sentences in each offence as per understanding of the undersigned, in accordance with section 382B Cr.P.C.
4. Upon which Inspector General of Prison requested the Home Department for guidance and instruction, which request ultimately routed through Law and Parliamentary affairs Department to the office of Advocate General Punjab. Though as per provisions of Punjab Government Rules of business, 2011, its being a criminal matter must have been routed to the Public Prosecution Department. Authorities must take note of this direction for future refences, because if the government departments work properly, Court intervention would not be required, and particularly when Prisons Rules allow Prison (Correction) Department to calculate the period of imprisonment of accused in accordance with such rules keeping in view the admissible remissions and legal benefits.
5. Finding no response, petitioner filed present petition for issuance of a writ of mandamus to authorities to calculate his period of detention as per his request and release him accordingly. The case, of course had a novel situation, therefore, this Court by virtue of order dated 23.10.2024 while making reference of above facts, appointed Mr. Muhammad Usman Sharif Khosa, Advocate Supreme Court as amicus curiae to assist the Court on this complex legal question.
6. On 22.04.2025, Ms. Samina Mahmood Rana, learned Assistant Advocate General submitted that office of Advocate General has rendered opinion in this case but copy of opinion shall be available on the next date. Thus, parties were directed to come prepared for arguments on 29.04.2025.
7. While referring to legal opinion furnished by the office of Advocate General Punjab, the learned Assistant Advocate General submitted that no apt legal precedent is available on the subject, therefore, clear cut legal opinion could not have been given. She urged that the matter either could be resolved through fresh legislation or by beneficial interpretation of section 382B Cr.P.C. by this Court. I have examined the legal opinion furnished by Mr. Muhammad Nasir Chohan, Additional Advocate General Punjab and forwarded to Home Department through letter No. 5796/AG.Pb dated 21.04.2025 wherein he has focused on the object and purpose of Section 382B Cr.P.C. and while discussing the nature of relief as discretionary with the Courts to order counting of under-trial detention period of an accused into his substantive sentence of imprisonment; he has also put light on section 35 of Cr.P.C. which authorizes the Courts to pass consecutive or concurrent sentences. He, however, referred following judgments of Supreme Court & High Courts on the subject of Sections 35 & 382B of Cr.P.C; "JAVID SHAIKH Versus The STATE" (1985 SCMR 153); "JUMMA KHAN and another Versus The STATE" (1986 SCMR 1573); "MUHAMMAD ITTEFAQ Versus The STATE" (1986 SCMR 1627); "KHAN ZAMAN and another Versus The STATE" (1987 SCMR 1382); "FARIDULLAH SHAH and another Versus The STATE" (1990 P Cr. LJ 1945); "BASHIR and 3 others Versus The STATE" (PLD 1991 Supreme Court 1145); "QADIR and another Versus The STATE" (PLD 1991 Supreme Court 1065); "SHAH HUSSAIN Versus The STATE" (PLD 2009 Supreme Court 460); "ASFAQ AHMAD Versus The STATE" (2017 SCMR 307); "JAVID IQBAL Versus The STATE" (1998 SCMR 1539); "WAQAS ALI Versus The STATE" (2013 P Cr. LJ 305); "IROKO MERCY CHIMIZIE Versus The STATE" (2019 P Cr. LJ 489); "SAJJAD IKRAM and others Versus SKINDAR HAYAT and others" (2016 SCMR 467); "MUHAMMAD ZAHIR alias TIKO Versus The STATE" (2011 SCMR 38); "ABDUL SHAKOOR Versus The STATE" (2006 SCMR 1506); "MUHAMMAD RAFIQ Versus The STATE" (1995 SCMR 1525); "EHSAAN ELLAHI and others Versus MUHAMMAD ARIF and others" (2001 SCMR 416); "GHULAM MURTAZA Versus The STATE" (PLD 1998 Supreme Court 152); On the strength of above judgments, he concluded as under; 1) In the light of above discussion, the clear legislation in this issue is required from concerned quarter, meanwhile judgments/orders passed by Honourable Supreme Court of Pakistan in present case be implemented in letter and spirit.
2) In the light of supra judgments, it can safely be concluded that section 382-B Cr.P.C is a beneficial provision needs to be construed liberally and mandatory in nature, its applicability to multiple or consecutive sentences requires judicial determination.
3) The benefit of section 382-B Cr.P.C. can be extended to all sentences collectively, as they are treated as one combined sentence for the purpose of deduction.
4) The benefit of section 382-B Cr.P.C. is generally applicable to only one sentence unless specifically mentioned otherwise by the Court. The rationale is that consecutive sentences are treated as separate penalties.
Above opinion which has been relied upon by the Prison Department seeks judicial intervention to determine the benefits of Section 382B Cr.P.C. in situations like the present case until the proper legislation.
8. Learned amicus curiae submitted that consecutive sentences are always regarded as separate sentences to make the offenders realized that mercy of the Court depends upon the nature of act and circumstances of committing the offence, and as per scheme of law and practice such benefit must be reckoned according to nature of sentence, consecutive or concurrent. When the sentences under different offences are ordered to run concurrently, it shall be dealt with compositely to calculate the undertrial detention period once but when the sentence are ordered to run consecutively, they being separate sentences must be scoped for counting undertrial detention period for more than once depending upon the counts of sentences. He was of the view if this interpretation is not accepted then being separate sentences, first sentence of 25 years would be counted while subtracting the undertrial detention period and on completion thereof, 2nd sentence of 25 years and so on would be served by the prisoner for full term which is against the principle of consistency and parity. He further urged that remissions awarded to the prisoners by jail authorities are also to the same effect, because since year 1989 to October, 2024, prisoner/petitioner has served out a period of 35 years in the jail which means that he was in second term of his imprisonment for life, therefore, remission must have been less than 35 years (as it apportioned under the Prisons Rules) but remissions of almost 59 years show that his ordinary and special remission were being counted for four times against the sentence of imprisonment for life on four counts, which had not been objected from any corner.
9. Learned Deputy Prosecutor General Stated that section 382B Cr.P.C. talks about `any offence' and not the `offences', therefore, such relief can only be granted once for one offence only and even otherwise under section 35 of Cr.P.C., consecutive sentences are considered as one combined sentence; therefore, undertrial detention period shall be counted once in sentence of 100 years' imprisonment.
10. Argument heard; record perused.
11. Section 382B was inserted in the Code of Criminal Procedure 1898, through Law Reforms Ordinance 1972 as per entry No.128 of the Schedule wherein it was directed that Court `may' take into consideration the undertrial detention period while passing a sentence on an accused, later the word `may' through the Code of Criminal Procedure (Second Amendment) Ordinance, 1979 (LXXI of 1979), (s. 2.) was replaced with `shall' and final version of such section is as under; 382-B. Period of detention to be considered while awarding sentence of imprisonment. __ Where a Court decides to pass a sentence of imprisonment on an accused for an offence, it shall take into consideration the period, if any, during which such accused was detained in custody for such offence.
No doubt section 382B Cr.P.C., talks about offence only and not the offences but it is not a big deal because Section-9 of the Pakistan Penal Code 1860 (PPC) dealing with definition of Number' says as under; "Unless the contrary appears from the context, words importing the singular number include the plural number, and words importing the plural number include the singular number."
And section 4(2) of Cr.P.C., says as under
(2) Words referring to acts. Words which refer to acts done, extend also to illegal omissions; and Words to have same meaning as in Pakistan Penal Code. All words and expressions used herein and defined in the Pakistan Penal Code (XLV of 1860), and not hereinbefore defined, shall be deemed to have the meanings respectively attributed to them by that Code.
But before dilating upon the issue that benefit of section 382B Cr.P.C. would be counted more than once or otherwise in case of consecutive sentences, let's see in what manner the Prisons Rules identify the imprisonment for life and how it is counted. Following Rule of the Pakistan Prisons Rules 1978 ("the Prisons Rules") is relevant in this respect; Rule 140. (i) Imprisonment for life will mean twenty-five years rigorous imprisonment and every lifer prisoner shall undergo a minimum of fifteen years substantive imprisonment.
(ii) The case of all prisoners sentenced to imprisonment for life shall be referred to Government, through the Inspector General, after they have served fifteen years substantive imprisonment for consideration with reference to section 401 of the Code of Criminal Procedure.
(iii) The cases of all prisoners sentenced to cumulative periods of imprisonment aggregating twenty-five years or more shall also be submitted to Government, through the Inspector General, when they have served fifteen years substantive sentence for orders of the Government.
12. Above Rule explains that an imprisonment for life shall be rigorous imprisonment of twenty-five years, thus entitles the prisoner to obtain benefit of remission system under the Prisons Rules which consists of ordinary and special remissions, and further when the death sentence is commuted to imprisonment for life, such remissions are counted from the date of sentence of death as explained in Rule 205 (iii) of the Prisons Rules as under;
(iii) A prisoner under sentence of death whose death sentence is subsequently commuted to imprisonment for life or rigorous imprisonment for any period on appeal or otherwise shall be entitled to award of ordinary remission under sub-rule (i) of rule 204 from the date of award of such death sentence.
However, as per Rule 217 of the Prisons Rules, remission cannot exceed one third of total sentence, that is why it is mentioned in above rule and Rule 217 that lifer prisoner shall undergo a minimum of fifteen years substantive imprisonment. Rule 217 of the Prisons Rules is also referred as under; Rule 217. (i) The total remission, both ordinary and special awarded to a prisoner under these rules (other than remission for donating blood awarded under rule 212, surgical sterilization under rule 213 and for passing an examination under rule 215) shall not exceed one third of his sentence; Provided that Government may, on the recommendations of the Inspector-General, grant remission beyond the one-third limit in very exceptional and deserving cases.
(ii) Remission, both ordinary and special, earned by a lifer shall be so much that a sentence of imprisonment for life is not shortened to a period of imprisonment less than fifteen years (Emphasis supplied)
13. Thus, if above expression is applied on the present case then imprisonment for life on four counts would require the petitioner and other accused to serve out at least 60 years substantive sentence, then their case would be referred to Government under Rule 140(ii) of the Prisons Rules for remitting the remaining period of sentence while exercising powers conferred under section 401 of Cr.P.C. But it has been observed that the prisoners who have been sentenced to cumulative period of imprisonment, they have their remedy for remission under Rule 140(iii) of the Prisons Rules, which is as under;
(iii) The of all prisoners sentenced to cumulative periods of imprisonment aggregating twenty- five years or more shall also be submitted to Government, through the Inspector General, when they have served fifteen years substantive sentence for orders of the Government.
(Emphasis supplied)
It means if the aggregate sentence is twenty-five years or more, then after serving out of 15 years substantive sentence, Inspector General of Prison must refer the case of prisoner to the Government for relief under section 401 of Cr.P.C. Proviso to Rule 217 of the Prisons Rules also talks about like as under; "Provided that Government may, on the recommendations of the Inspector-General, grant remission beyond the one-third limit in very exceptional and deserving cases."
Rule 218 of the Prisons Rules says that remission under section 401 of Criminal Procedure Code is a special remission which is awarded by Government on occasions of public rejoicing. It is granted unconditionally under section 401 (i) of the Criminal Procedure Code, 1898, and is not governed by these rules. Therefore, what criteria, the Prison Department has adopted for counting remissions of 59 years in favour of the petitioner can well be checked by the Inspector General of Prisons, who is ultimately responsible for strict observance of the Prisons Rules and law on the subject. Thus, stance of learned amicus curiae that jail authorities have counted remissions four time for the petitioner against the sentence of imprisonment for life on four counts is not supported with any material on record.
14. As per facts of the case, petitioner and others though were sentenced to death on three counts yet they were primarily serving out sentence of imprisonment for life under section 460 of PPC when from the Supreme Court their sentence of death under section 302/34 PPC was altered to imprisonment for life on three counts which by all means would be construed that they were sentenced to further imprisonment later. Thus, section 397 Cr.P.C. shall come into play which says as under;
397. Sentence on offender already sentenced for another offence. When a person already undergoing a sentence of imprisonment, imprisonment for life, is sentenced to imprisonment, imprisonment for life, such imprisonment, imprisonment for life shall commence at the expiration of the imprisonment, imprisonment for life, to which he has been previously sentenced, unless the Court directs that the subsequent sentence shall run concurrently with such previous sentence.
Supreme Court has not directed concurrent running of subsequent sentences of imprisonment for life on three counts under section 302/34 PPC with sentence of imprisonment for life already undergoing by the petitioner and others under section 460 of PPC, rather direction of Supreme Court for consecutive sentences on three counts raised the period of detention for the petitioner and others to 100 years.
15. Section 35 (3) of Cr.P.C. says that aggregate of consecutive sentence shall be deemed to be a single sentence for the purpose of appeal, which is as follows;
(3) For the purpose of appeal, the aggregate of consecutive sentences passed under this section in case of convictions for several offences at one trial shall be deemed to be a single sentence.
Similarly, Rule 40 of Prisons Rules explains the date of release when two or more sentences are running consecutively; Rule 40. When a prisoner is sentenced two or more terms of imprisonment to be served consecutively, the date of release shall be calculated as if the sum of the terms was awarded in one sentence.
(Emphasis supplied)
From the above discussion, it is clear that sentence of imprisonment for life on four counts passed against the petitioner and other accused, aggregate whereof is 100 years, would be considered as single sentence, for which benefit of section 382B of Cr.P.C. shall be counted only once which is logical and in accordance with scheme of consecutive running of sentences.
16. However, Prison Department can refer the case of petitioner and others to the Government for remission of remaining period of sentence as authorized under Rule 199 of the Pakistan Prisons Rules 1978 which is as under; "Rule 199. Remission system 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."
On such referral the Government is empowered under Section 401 of Cr.P.C., to remit the remaining sentence of imprisonment but of course such power cannot be exercised without the consent of legal heirs of the deceased persons of the case.
17. Consequently, this writ petition being devoid of any merit, is dismissed.