' Ali Khan, respondent, was tried along with others for having caused the murder of Malik Yaran Khan, Advocate, on 17-1-1972 by the learned Sessions Judge, Mianwali and vide judgment dated 19- 4-1975 Ali Khan was sentenced to death whereas two of his co-accused were sentenced to imprisonment for life and the remaining two were acquitted. This Court, on appeal, maintained the conviction and sentence of Ali Khan, respondent, but giving the benefit of doubt to the other two convicts, acquitted them. The matter was taken to the Supreme Court by Ali Khan, respondent, by filing a petition for special leave to appeal to question his conviction and sentence. The complainant also filed a petition to assail the acquittal of the other two. Convicts. The learned Judges of the Supreme Court vide judgment dated 26-11-1979, maintained the judgment of the High Court, confirming death sentence awarded to Ali Khan, respondent. The petition filed by the complainant challenging the acquittal was also dismissed. See Ail Khan v. The State (1).
' Ali Khan, respondent, thereafter, submitted a Mercy Petition dated 14-4-1980 under Article 57 of the 1973 Constitution to the President of Pakistan. A similar petition was submitted by the respondent to the Governor of the Punjab. It also appears that the complainant sent representations objecting to the grant of mercy to the respondent. The matter of grant of mercy was considered and the Governor of the Province of Punjab vide order dated 10-5-1980 commuted the death sentence awarded to Ali Khan, respondent, to imprisonment for life. The petitioner who is son of Malik Yaran Khan deceased, filed a constitution petition viz. W. P. No, 11461 of 1980, but withdrew the same with the permission to file a fresh petition. He thereafter submitted a detailed representation dated 10.12-1981 to the Home Department which was duly replied vide memo. ##TS# dated 24-12-1981. In this reply, it was stated that there was sufficient justification for treating sentence of imprisonment for life as transportation for life as offence was committed before coming into force of the Law Reforms Ordinance, 1972. In 'fact the Home Department vide letter No, 33/76. MP/DC. L. Dated 24-12- 1981 had communicated to the Jail Authorities, the decision of the Government to the effect that commutation of sentence of death of respondent to imprisonment for life be reckoned as '14 years' imprisonment. The petitioner, feeling aggrieved of the aforesaid communication, filed the present constitution petition praying that the aforesaid communication be declared illegal, inflective and without lawful authority.
2. Learned counsel for the petitioner in support of the petition argued that the word "commutation" means "conversion, to change, to exchange" and that the act of commutation is an act of sabstitution so the order of commutation passed in 1980 commuting the death sentence to imprisonment for life would make the respondent liable to serve imprisonment for '25 years' in terms of the provisions of section 57, P. P. C. As amended by Law Reforms Ordinance, 1972.
Elaborating the submission, it was urged that act of awarding or passing the sentence and act of commuting the sentence stand on different premises and are regulated by different principles. By raising this argument, learned counsel for the petitioner, in fact, wanted to distinguish the case of Abdur Rehman v. The State (2). In this case, the appeal of convict Abdur Rehman was accepted by the Supreme Court to the extent that the {{FOOT NOTE}}
(1) PLD 1980 SC 109 (2) 1978 SCM R 292 {{FOOT NOTE}} 'death sentence awarded on two counts was commuted to imprisonment for life. The convict filed a review petition praying that his sentence of life imprisonment be treated as "transportation for life" on the ground that sentence. Of life imprisonment could not be awarded as the offence for which he was to be awarded the penalty was committed in 1964 when punishment for the offence of murder was death or transportation for life, which under section 57, P. P. C. Meant imprisonment for a period of 20 years. It was argued before their Lordships of the Supreme Court that the amendments introduced in the Pakistan Penal Code w,e,f, 14-4-1972 by the Law Reforms Ordinance, XII of 1972, whereunder imprisonment for life according to section 57, P. P. C. Meant imprisonment for 25 years, was not retrospective. The learned Judges accepted the review petition observing as under :- "According to Article 12 of the Constitution no law could authorise punishment of a person for an offence by a penalty greater than the penalty prescribed by law for the offence at the time the offence was committed. The accused could not, therefore, be sentenced to life imprisonment. He had to be sentenced to transportation for life."
' Ch. Khurshid Ahmad, learned counsel for the petitioner submitted that a Court while awarding a sentence could punish the culprit with the penalty provided for the offence at the time of the commission of the offence and, as such, learned Judges of the Supreme Court in the aforesaid case converted the life imprisonment to transportation for life, as that was the punishment provided' by section 302 of the Pakistan Penal Code for the said offence in 1964. He argued that while commuting the sentence, the power given under section 402, Cr. P. C. Was being exercised and such power was to be exercised with reference to the law then in force and for the exercise of this power, the punishment which might have been inflicted for the offence committed is of no relevance. He submitted that in section 402, Cr. P. C., sentences have been listed and only that sentence which immediately follows the other sentence can be substituted. Section 402, Cr. P. C.
May be quoted for ready reference :- "S. 402 --(I) The Provincial Government may, without the consent of the person sentenced, commute any one of the following sentences for any other mentioned after it in Death, imprisonment for life, rigorous imprisonment for a term not exceeding that to which he might have been sentenced, simple imprisonment for a like term, fine."
' According to the learned counsel if death sentence was awarded by the Court to a convict then the Provincial Government under section 402, Cr. P. C. Can only substitute it with an imprisonment for life and not with any other sentences mentioned in the said section. He argued that the Governor in his order dated 10-5-1980 having commuted death sentence to imprisonment for life, the Home Department in any case had no business to interpret it as `transportation for life' or direct the Jail Authorities to reckon the imprisonment for life as transportation for life or as a sentence of 20 years, which then according to the provisions of Prisons Act and the relevant rules, would mean "imprisonment for 14 years".
3. Learned Additional Advocate-General appearing for the State and Khawaja Sultan Ahmad, Advocate, for the respondent, argued that the Ministry of Interior States and Frontier Regions and Kashmir Affairs, in its D.
0. No, 8/26/74 dated 28-10-1974, wrote to the Provincial Secretaries that the Law Reforms Ordinance does not have retrospective effect and, as such, the punishment of imprisonment for life cannot be awarded in respect of an offence committed prior to 14-4-1972 when the said Ordinance came into force, and in accordance with this decision, the Provincial Government is treating the punishment of imprisonment for life awarded in respect of the offence committed prior to 14-4-1972 as punishment of transportation for life, with the result that such convicts are not required to undergo substantive imprisonment for a period of 15 years and but only the imprisonment for 15 years including remissions. It was argued that this view is in consonance with the constitutional mandate as interpreted by the Supreme Court of Pakistan in the similar cases. Finally, it was argued that the benefit of the rules having already been given to the petitioner and his date of final release having been determined as 23-8-1984, no power vests to recall the benefits so accrued to the petitioner, as acting on the aforesaid orders, the petitioner has already been released on parole w,e,f, 23-9- 1982.
4. Before dealing with the respective submissions of the parties, the relevant facts and the position of law obtaining before and after the amendments introduced by the Law Reforms Ordinance (Order No, XII of 1972) may be stated. The murder was committed on 17-1-1972 and at that time the punishment provided by section 302, P. P. C. Was that of death or transportation for life. The punishment of transportation for life was being reckoned as imprisonment for 20 years in view of the provisions of section 57 of the Pakistan Penal Code, as then in force. Though amendment introduced by the Law Reforms Ordinance, 1972, w,e,f, 14-4-1972, the words "transportation for life" appearing in section 53, P. P. C. Were substituted with the words "imprisonment for life" and the words- "20 years" appearing in section 57, P. P. C. Were substituted with the words "25 years" with the result that the imprisonment for life is now to be reckoned as equivalent to imprisonment for 25 years. This change so brought about in the period of substantive imprisonment is to be considered with reference to the provisions of Prisons Act, 1894, the West Pakistan Prisons (Remission of Sentences) Rules, 1965 and Rule 140 of the Pakistan Prison Rules for determining the aggregate sentence of imprisonment which a convict sentenced to life imprisonment has to undergo. This very question with reference to a convict sentenced to transportation for life as well as the question whether the rules framed by the Provincial Government under the Prisons Act, 1894, create a legal right in favour of such a convict to be released after completing 14 years of aggregate imprisonment including ordinary and special remissions of all sorts, came up for consideration before a Full Bench of this Court consisting of Inamullah Khan, S. A. Mahmood and S. Anwarul Haq, JJ. (Criminal Miscellaneous No, 987 of 1967 decided on 19-6-1967). The legal position and the answer returned by the Full Bench was summed up in para. 20 of the judgment and the same being instructive may be reproduced in extenso "The entire position may be summed up by saying that although transportation for life means a sentence for the remaining span of the natural life of the convict, yet it has been accepted as being of twenty years' duration in view of the provisions contained in section 57 of the Pakistan Penal Code. This period has not been curtailed by the rules made by the Provincial Government under section 5 of the Prisons Act,1894, and the period of the 14 years' rigorous imprisonment mentioned in the _rule, in connection with the sentence of the transportation for life is intended to serve merely as a basis for the working out of remissions system formulated by the Provincial Go\ eminent under the relevant provisions of the Prisons Act. 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 calculated on the basis that he was undergoing a total sentence of twenty years, and not fourteen years. In coming to this conclusion we have placed reliance on the definition of the term 'sentence' as given in clause (d) of rule 2 of the 1965 Rules, namely, that it means a sentence as finally fixed on appeal, revision or otherwise. In other words, it will be open to the Government either to apply the fourteen years' rule for all purposes and to release a prisoner accordingly, or to apply the twenty years' rule, but it will in no case be permissible to detain him in custody for an aggregate period exceeding twenty years as that would amount to virtual enhancement of punishment with retrospective effect as observed by the Full Bench in Farid Khan's case already mentioned."
' It therefore, be seen that the word "transportation for life" was a misnomer as the said phrase actually meant sentence for the remaining span of the natural life of the convict. It was under the Prisons Act and the Rules framed thereunder that a convict could be released after completion of an aggregate period of 14 years' R. I. Including remissions. It may be stated that the rules were also amended and now under the Pakistan Prisons Rules, Chapter VI, Rule 140, imprisonment for life means 25 years R. I. And every life prisoner has to undergo a minimum of 15 years substantive imprisonment and the case of all the prisoners sentenced to imprisonment for life are to be referred to the Government after they have served 15 years substantive imprisonment, for consideration with reference to section 401, Cr. P. C. Thus under these rules, a lifer has to undergo a minimum of 15 years' substantive imprisonment irrespective of the ordinary or special remissions earned by him or allowed to him.
5. The question that has arisen in this case is whether the order commuting death sentence to imprisonment for life is to be reckoned as imprisonment for life as is understood under the amended law, or the same is to be reckoned as transportation for life with its usual consequences as understood prior to the amendment. The answer to this question was simple, had the punishment been awarded by a Court. But would that mean that a different principle would apply because the sentence has been commuted by Provincial Head of the Executive. To find the answer, reference may appropriately be made to section 402, Cr. P. C. Where under the sentence was commuted. No doubt, in subsection (1) of the said section the words "imprisonment for life" were substituted for the words "transportation for life" by Criminal Procedure (Amendment) Act, 1974 (XXV of 1974), but subsection (2) of this very section provides that nothing in this section shall affect the provisions of section 54 or section 55 of the P. P. C. Now, section 54, P. P. C. Provides that in every case in which sentence of death shall have been passed, the Central Government or the Provincial Government of the Province within which the offender shall have been sentenced, may without the consent of the offender commute the punishment for any other punishment provided by this Code.
Admittedly, the punishment provided by this Code for the offence for which the respondent was convicted at the time of commission of the offence, was either death or transportation for life. The death sentence, if to be commuted was, therefore, to he commuted for the punishment provided by the Code i,e, transportation for life in the case of the respondent. The wording of section 54, P. P.
C., quoted above, would B bring in the principle that no law can authorize punishment of a person of an offence by a penalty greater than the penalty prescribed by law for the offence at the time the offence was committed. This principle is inherent in section 54, P. P. C. Itself and for seeking this principle, one need not look for the fundamental rights granted by the 1973 Constitution. The principle of construction of statutes looks to the standard of punishment prescribed by a statute rather to the sentence actually imposed, and any increase in the possible penalty may be a violation of the ex post facto clause regardless of C of the length of the sentence actually imposed.
See Article 356, Volume II of the American Jurisprudence. In the Corpus Juris Secundum Volume 16- A, under Article 442 at page 149 the learned author states.- "The authorities all agree that laws which change the punishment and inflict a greater punishment than the law annexed to the crime or offence when committed, or which impose a new punishment in addition to that then prescribed, are ex post facto and, therefore, unconstitutional."
In view of above, the sentence of death awarded to Ali Khan respondent was to be commuted for any other punishment provided by the Code. Admittedly, the other punishment provided by. The Code for the offence committed was transportation for life. It will, therefore, be seen that the.
Provincial Government in following the advice of the Central Government and in issuing the impugned instructions to the Jail Authorities has not acted illegally.
6. For the reasons given above, this petition fails and is dismissed with no order as to costs.