' This is a petition under section 491, Cr. P. C. By Mst. Akbari Begum, petitioner, requesting this Court to call upon the Superintendent, Central Jail, Faisalabad, to show under what lawful authority he holds her son Talib Hussain Shah, convict.
2. The brief facts of the case are that on 25-7-1979, Talib Hussain Shah, the son of the petitioner, was convicted by the Special Military Court No, 11, Faisalabad, and sentenced to ten years' rigorous imprisonment with a fine of Rupees One Thousand (Rs, 1,000). His sentence was ordered to take effect from 18-2-1979. Whilst Talib Hussain Shah was undergoing this sentence, he escaped, whilst working in the gang outside the Governor's House. The same day a case was registered against him under section 224, P. P. C. And luckily he was recaptured that very day. He was sent up to face trial under section 224, P. P. C. And was convicted under the same section on 24-4-1983, by Sardar Sher Afgan M. I. C., Lahore, and sentenced to six months' rigorous imprisonment.
3. The case of the petitioner is that during the period 18-2-1979 to 10-9-1982, her son Talib Hussain Shah had earned certain remissions, which were illegally withdrawn on 30-5-1983, and that had the said withdrawal order not been passed, he would have been released by now. It is submitted that the word "offence" used in rule 202 of the Pakistan Prisons Rules must be treated as relatable to "offences in relation to prisons", as falling in Chapter X, or to "Prison offences" as falling in Chapter XI of the Prisons Act, 1894, and not to other offences generally falling under the Pakistan Penal Code or any other law, even if committed by a person whilst he was serving his sentence in Jail. In this connection, it is submitted that if the word "offence" is used as including all offences generally falling under the Pakistan Penal Code or any other law, the rule would be ultra vires of the Prisons Act, 1894. It is further submitted that the prisoner having been convicted and sentenced for the offence under section 224, P. P. C. On 24-4-1983, he could not be punished again by having his remissions withdrawn for the same offence on 30-5-1983. In this connection, section 26 of the General Clauses Act, 1897, Article 13 of the Pakistan Constitution, 1973 and Ali Abbas v. The State (1), Niaz Ali v. The State (2), Maqbool Hussain v. State of Bombay (3), Lt.-Col. G. I. Battacharya v. The State (4) and Lt.-Gen. (Retd.) K. M. Azhar Khan v. Superintendent, Kot Lakhpat Jail, Lahore (5) have been referred. Lastly, it is submitted that Talab Hussain Shah, convict, had a right to show cause, before the remission were withdrawn by the Inspector-General of Prisons on 30-5-1983.
4. On behalf of the State it is submitted that the word "offence", used in rule 202 of the Pakistan Prisons Rules, refers to any offence committed by .a. Prisoner whilst he is serving his sentence and for which he is convicted by a competent Court and that the said rule is not ultra vires of the Prisons Act. In this connection it is submitted that if the meaning, as desired by the learned counsel for the petitioner, is given to the word "offence", it would imply that for misfeasance and malfeasance by a prisoner during the tenure that he is in Jail serving out his sentence, as contemplated in sections 42 and 45 of the Prisons Act, he could have his remissions withdrawn, but for major offences committed by him during his term in Jail, he would have the advantage of securing their benefit. It is submitted that such an interpretation was neither intended nor can be given to the said rule. As regards the second submission of the learned counsel for the petitioner, it is submitted that the withdrawal of remissions under rule 202 does not amount to a conviction or a punishment for an offence in the criminal jurisdiction. In these circumstances, no question of double jeopardy arises, nor does the principle of autre fois convict apply in the case. As regards the third and last submission, it is submit-led that no show-cause notice is required to be given to a prisoner under rule 202 of the Pakistan Prisons Rules and the absence of such a notice does not effect the validity of the cancellation order passed with the sanction of the Inspector-General of Prisons.
5. I have given my anxious consideration to the arguments of the learned counsel for the petitioner and the State and have also perused the record. The Superintendent of Jail, Faisalabad, who is present, submits that even if it be accepted for the sake of argument that the remissions which were earned earlier by the petitioner's son were not withdrawn, the said prisoner is still not entitled today to his release, for he has some sufficient period of sentence left still to serve out. In this view of the matter, the petitioner's son appears to be in lawful custody,
(1) PLD 1959 Kar. 56 (2) PLD 1961 Lab. 269
(3) AIR 1953 SC 325 (4) PLD 1964 SC 503
(5) PLD 1977 Lah. 629 Even otherwise, this is not proper method to agitate intricate legal issues. A constitutional petition should have been filed. This petition, therefore, is liable to instant dismissal on this short ground.
6. Notwithstanding the above, in view of the lengthy arguments that have been addressed, in this case by the learned counsel for the parties on subtle and intricate questions of law, I would take the liberty of giving my findings thereon.
7. With regards to the first submission, the ' rules relating to the remission system applicable to prisoners in the Punjab Jails are contained in Chapter VIII of the Pakistan Prisons Rules (approved by the Punjab Government vide Home Department Memo No, Prs. I(M)15/72 dated 6th January, 1977, as contained in the common Jail Manual). The remission system is an arrangement by which prisoners sentenced to imprisonment may, by good conduct and industry, become illegible for release when certain portions of their sentences ordinarily not exceeding one-third of the whole have yet to run out. The rules relating to the cancellation of the remissions earned by prisoners and their readmission to the remission system, are contained in rules 202 and 203, which may be reproduced here with advantage :- ' Rule 202. If a prisoner is convicted for an offence committed after admission into prison or for an assault committed after admission to prison on a warder on other officer, the remission of whatever kind earned by him excluding remission awarded by Government under section 401 of Criminal Procedure Code, awarded for blood donation, surgical sterilization and for passing examinations, up to the date of the said conviction may in part or whole be cancelled with the sanction of the Inspector-General.
' Rule 203. The Superintendent may, with the previous sanction of the Inspector-General, re-admit to the remission system any prisoner who has been removed therefrom as punishment for prison offences. Any such prisoner shall earn remission under these rules from the commencement of the month following such re-admission."
There cannot be any doubt that the word "offence" in rule 202 can cover an offence under the Penal Code committed by a prisoner after he has been admitted into prison and for which he is convicted by a competent Court or tribunal. Where reference to a "prison-offence" is desired, the said expression is used expressly. As appears in rule 203, The word 'offence" `used in rule 202 is used in the general sense. Prison-offences are but a special specie, which are covered by section 45 of the Act, read with rules 571 and 572 of the Pakistan Prisons Rules. When certain offences covered by the Pakistan Penal Code, other than prison-offences, are committed by a prisoner, cases can be registered by the Superintendent Jail at the local, police stations concerned for judicial trial of the same before the normal criminal Courts. [See rules 573, 610(0, etc.]. Rule 202, therefore, cannot be treated as relatable only to "offences in relation to prisons', as falling in Chapter X, or to "Prison offences" as falling in Chapter XI of the Prisons Act, 1894. Section 59 of the Prisons Act permits the Provincial Government to make rules inter alia (a) defining the acts which may constitute prison- offences, (b) determining the classification of prison-offences into serious and minor offences, (c) fixing the punishments admissible under the Prison Act which can be awarded for commission of prison-offences or classes thereof, (d) declaring the circumstances in which acts constituting both prison-offences and offences under the Pakistani Penal Code may or may not be dealt with as prison-offences, (e) for the award of marks and the shortening of the sentences, (f ) for reward for good conduct, etc. The remission system contained in Chapter VIII arises out of the delegation granted to the Provincial Government by subsections (5) and (23) of section 59 of the Prisons Act.
The power to refer offences, other than prison-offences, to the local police for trial, arises out of the power conferred by the general law under the Code of Criminal Procedure and to such of the rules in the Pakistan Prisons Rules as relate to that matter. The fact that Chapters X and XI of the said Act define the acts which constitute prison-offences and fix their punishments, does not make rule 202 ultra vires, for the word "offence", as contained in this rule, is used in a general sense.
8. With regard to the second submission covering Article 13 of the Pakistan Constitution, the Fundamental Rights conferred by Chapter I of Part II of the Pakistan Constitution stand suspended by Article 2(3) of B the Laws (Continuance in Force) Order, 1977. See Alamdar Hussain Shah v. Addul Baseer Qureshi (1). Article 13, therefore, does not help the petitioner.
9. Notwithstanding the above, there is no force in this submission, even if I were to assume for a matter of argument that the Article is applicable. The withdrawal of the remission under rule 202 of the .Pakistan Prisons Rules and that under section 46(4) of the Prisons Act stand on a totally different footing. The withdrawal of the remission under rule 202 is by way of disciplinary action, involving withdrawal of a concession; that under section 46(4) of the Act is by way of a penalty for an offence. The first is in the administrative jurisdiction. The second is in the criminal jurisdiction, as it deals with the fixation of the guilt of a crime or misdemeanour i,e, a wrong which the State has noticed as injurious to the public and for the breach of which the offender has to make satisfaction to the State. The proceedings under section 46 of the Act are not strictly judicial, for though rule 578 permits the prisoner to be present during the proceedings, to cross-examine the officers or witnesses who appear against him and to call witnesses in his defence, if the Superintendent of Jail so permits, in his discretion, neither the Act nor the Rules compel the Jail Superintendent to strictly hold a trial i,e, to frame a charge, record evidence on oath, permit both parties to lead their respective evidence, hear full-fledged arguments, etc.
10. Article 13 of the Pakistan Constitution states that no person shall be prosecuted or punished for the same offence more than once. Article 20(2) of the Indian Constitution states that no person shall be prosecuted and punished for the same offence more than once. The word "offence" used in Article 13 of the Pakistan Constitution is obviously referable to an act or omission in the nature of a crime or misdemeanour infringing public, as distinguished from mere private, right and which is j made punishable by a law which is legally in force. All criminal offences are offences, but, all offences by way of infringement of the law, are not criminal offences. What is intended by this Article is that the offence is one for which procedure in the criminal sense is provided. What is necessary to determine whether the two offences involving the two punishments are the same, is to see whether their ingredients are identical. See
(I) PLD 1978 SC 121 State of Bombay v. Apte (1). In the Indian jurisdiction, since Article 20(2) of the Indian Constitution uses the words "prosecuted and punished", even if proceedings are taken for an offence, the said Article is held applicable only if the proceedings strictly constitute a prosecution, that is to say, an initiation of proceedings of a criminal nature before a Court of E law or a judicial Tribunal in accordance with the procedure prescribed in the statute which creates the offence and regulates the procedure. See Magbool Hussain v. State of Bo nbay (2) and Thomas Bata v. The state of Punjab (3). Where a tribunal does not act judicially or does not possess the trappings of a judicial tribunal, Article 20(2) is held not applicable. However, in Article 13 of the Pakistan Constitution, the words "prosecuted or punished" appear. In the Pakistan jurisdiction, where a person has been prosecuted for an offence and a decision has been given by the Court or the tribunal, then, even if the same strict view is taken, as in the Indian jurisdiction, a second prosecution in the same sense for the same offence would be barred. However, the Supreme Court 'of Pakistan in A lamdar Hussain Shah v. Abdul Baseer Qureshi has not treated F the word "prosecution" as being used in any strict sense, as has the Indian Supreme Court. It has treated the word as indicating the act of conducting or waging a proceeding in Court. But Article 13 also provides that where a person has been punished for an offence, he shall not be punished for the same offence again. Here, no reference to the word "prosecution" arises, whether in the strict or in any loose sense. What the article only provides is that if for any offence, that is to say, an act constituting a crime or a misdemeanour, a person has been punished, for the same offence he shall not be punished again.
Thus loose proceedings in the criminal sense for fixing the guilt of a person, as in the case of section 46 of the Prisons Act, is not ousted. In the second case reported in Magbool Hussain v. The State of Bombay, where a Jail Superintendent had imposed a punishment himself on certain persons, who had resorted to hunger strike, the Indian Supreme Court held that he was debarred from sending the case again to a Magistrate for the trial of the same jail offence. If one reads the Punjab Government Detention Rules, the same provided the prisoner with nothing more than a fair inquiry. What is sufficient, therefore, is that some procedure is provided for the determination of the person responsible for the commission of the offence. The words ''prosecuted or punished" in the said Article, therefore, show that the offence must be one for which a prosecution or some proceeding is provided in reference to the law which creates the offence, that the offence is triable by a Court of law or tribunal, that the proceedings are in the nature of criminal proceedings, necessarily strict, but not too summary or unfair (as in the case of section 45 of the Act), and that the punishment is in accordance with what the law prescribes. The word "punishment" in Article 13 means a penalty legally imposed for the commission of an offence. Disciplinary action in the case of a public servant [Suresh v. Himangsh (4) and Bashir Ahmad v. TheState (5)], imposition of a penalty for jail indiscipline under disciplinary rules of Jails or under the Prisons Act [Prithish v. The State (6)], imposition of a penalty under section 28(1) of the Income-tax Act for disclosing
(1) AIR 1961 SC 578 (2) AIR 1953 SC 325
(3) AIR 1959 SC 375 (4) (1951) 55 C W N 605
(5) PLD 1967 Lah. 1126 (6) AIR 1952 Cal. 319 incorrect particulars [Abdul Rashid v. Special Judge Central (1)], cancellation of a ration depot in departmental proceedings under the Foodstuffs Control Act, 1958 [Abdul Ghafoor v. The State (2)J, confiscation of goods and imposition 01 a penalty by the customs staff in departmental proceedings [Khurshid Mir v. The State (3)], Mosam Khan v. The State (4), Adam v. The Collector (5)j, and an administrative order by a Magistrate under section 173, Cr. P. C. Cancelling a challan Abdul Hakim v. Bashir Ahmad (6), do not constitute penalties imposed for offences. It cannot be denied that the cancellation of the remission under rule 202 was by way of disciplinery action and constituted a civil penalty under the disciplinary rules contained in the Pakistan Prisons Rules. The punishment awarded under section 224, P. P. C. For escaping from Jail custody was, however, a judicial penalty, arising out of a prosecution in criminal jurisdiction. In the case of cancellation of remission, he breach of good conduct, if that be treated as an offence, was the fact that the petitioner's son, after his admission into prison, had committed an offence and was convicted for the said offence. In the case of conviction under section 224, P. P. C., the offence was that the petitioner's son had lawfully been detained for an offence and that he had escaped from such H lawful custody. The offence which was the subject-matter of proceedings for the cancellation of remission, was not the same as was the subject of the earlier proceedings under section 224, P. P.
C. For all these circumstances, neither both the transgressions were offences, neither both the proceedings were before a Court or a tribunal acting to determine whether an offence was committed, nor both the punishments awarded were by way of penalty for offences committed, nor the transgressions, which were the subject of the two proceedings, one and the same offence.
Both the cases are not relatable to each other as to attract the doctrine of autre fois convict or double jeopardy, contained in Article 13 of the Pakistan Constitution.
11. Learned counsel for the petitioner has not relied upon section 403 of the Code of Criminal Procedure, but section 26 of the Punjab General Clauses Act. This is obvious, because section 403 of the Code refers to prosecutions in the normal criminal Courts and since the disciplinary action taken under rule 202 of the Pakistan Prisons Rules cannot be treated as an action taken by a Court, the said section is of no help. As regards section 26 of the Punjab General Clauses Act, the words "prosecuted and punished" appear. This matter has already been dealt with in para. 10 above.
Since the petitioner's son was not prosecuted twice, this section does not apply either.
12. In view of my observations contained in paras. 8 to 11 above, the second submission of the learned counsel for the petitioner is rejected.
13. As regards the third submission raised on behalf of the petitioner, I agree with the learned counsel for the petitioner that the petitioner's son was entitled to a show-cause notice by the competent authority before any final order was passed under rule 202 cancelling any remissions earned by him. Where remission is withdrawn under section 46(4) of the Prisons Act for any of the prison-offence, as detailed in the said Act or the Pakistan Prisons Rules, the withdrawal of remission is by way of penalty and, therefore, no entitlement in favour of the prisoner arises to show cause against
(1) PLD 1977 Lab. 145 (2) 1978 P Cr. L J 262
(3) 1977 P Cr. L J 430 (4) 1969 SCMR 108
(5) PLD 1969 SC 446 (6) 1978 P Cr. L J 394 the imposition of the same. However, as already held by me, the word "offence", appearing in rule 202, is used in a general sense. Thus, a prisoner, after he is admitted into prison and is yet serving his sentence is convicted for an offence or for an assault on a warder or any other officer, the remission of whatever kind earned by him, excluding that awarded by Government under section 401 of the Code of Criminal Procedure, or allowed for blood donation, or for surgical sterilization, or for passing an examination, can, in part or whole, be cancelled, with the sanction of the Inspector- General. Since the person on whom the penalty of withdrawal is to be imposed is one who has earned a second punishment through a second conviction, which he also has to serve, rule 202 shows that a discretion is available in the matter. The prisoner is thus entitled to a show-cause notice. The cancellation of valuable rights earned by a prisoner, which entail his earlier release, should not be affected without giving him an opportunity to show cause against it. If any authority is required for this view, Malik Iftikhar Ahmad v. Ali Akbar (1), may be referred. In the instant case, a discretion was available with the competent authority. The prisoner was, therefore, entitled to a show-cause notice, so that the competent authority could have taken into consideration such circumstances as the prisoner may have put forth in support of his case. Such a notice was not given. The withdrawal order, is, therefore, invalid on this account.
14. The upshot of the above discussion is that though the order withdrawing the remissions stands nullined, because the prisoner was not given a show-cause notice, it does not effect the present case, because, as stated in para 5 above, even if all the remissions earned by the petitioner's son are calculated in his favour, the said prisoner has still to serve out some sufficient period of his cumulative sentence, which yet remains. In these circumstances, the prisoner is in lawful custody.
This petition is, therefore, dismissed.
15. I had orally announced the dismissal of this petition on 2-10-1984, but at that time I was not sure whether the withdrawal of the remissions was invalid, by virtue of the show-cause notice not having been served on the prisoner. Had I been sure of this position that day, I would have orally intimated that the withdrawal of the remissions, on this ground, was invalid and I would have directed the Superintendent Jail, that if he so desired, he could review the matter by withdrawing the earlier order and, after giving the prisoner a show-cause notice, pass a fresh order in that matter. Had such an oral direction been given that day, the Superintendent Jail, if he had wanted to comply with that direction, would have been protected, as the prisoner had still some period of detention left to serve out as a convict. If on the date this decision is released to the office, the date of which is given below, the prisoner has served out his total period of sentence, taking into account the remissions earned by him, then the Superintendent of Jail would be placed in a difficulty. In such an eventuality, I would hold that the Superintendent of Jail shall have the right, within fifteen days from the date of release of this judgment, to review the matter, as stated above, if he so desires, and to pass a fresh order in the Case, as may be permitted to him under the Rules.
P D 1981 SC (A J & K) 47