' K. E. CHAUHAN, J.-Sarwar Mahmood Azhar, hereinafter called the detenu,who, at the relevant time, was a Captain in the Pakistan Army, was tried by a General Court martial and convicted for offence under section 59 of the Pakistan Army Act XXXIX of 1952 read with section 121-A, P. P. C., on 1-1-1974 and sentenced to a rigorous imprisonment of three years. The aforesaid conviction and sentence was confirmed by the relevant authorities on 2-3-1974 with effect from 1-1-1974. The present petition has been filed by his father Lt.-Gen. (Rtd.) K. M. Azhar Khan under Article 199 of the Constitution pleading that according to the various remissions earned by and granted to the detenu he was eligible for being released from Jail on 14-11-1975, but the authorities concerned had not released him and had refused to honour certain remissions, the details of which will follow shortly, with the result that his detention in jail was without lawful authority. The learned Deputy Attorney-General gave a chart in his written arguments showing the details of various remissions.
This chart is as follows:- "Let.-Gen. K. M. Azhar v. Superintendent Jail etc. {{TABLE}} W. P. No, 31 of 1975 5-4-1973 Detenu was arrested.
1-1-1974 Detenu was sentenced to 3 years' R. I. #TBS 10 17 15 15 15 15 15 15 #TBE #TBS 2-3-1974 26-6-1974 26-6-1974 Remission granted; Quarters Ist Quarter, 1974 Feb: & March 74 H Quarter, 1974 April to September IIIrd Quarters, 1974 July to September #TBE Sentence was confirmed and promulgated with effect from 1-1-1974.
Tjpto this date he remained in Campbellpur Jail and worked as munshi hospital. Detenu was transferred to Kot Lakbpat Jail Lahore and allotted task on R. G.-A. Radio Assembly.
Remission Earned Remarks Months Days He is not entitled for remission for the month of January 74 vide rule 9 of the Remission Rules, 1965.
Six days each for April and May, 74 vide rule 7 and five days for June, 74 vide rule 9 sub-para. 9(3) of the Remission Rules, 1965.
Ordinary remission on R. G. A. Transistor assembly plant as it does not involve labour on Sundays and other closed holidays fall under rule 7 (a) & (b) of the Remission Rules, 1965.
IV Quarter, 1974 October to December.
Ist Quarter, 1975 January to March II Quarter, 1975 April to June IIIrd Quarter, 1975 July to September Ist Annual Good Conduct - Remission due on 1-2-75 Edudcation Remission 3 Minister for Jails special 2 remission dated 23.6-1974 8 27 Remission refused/withheld 15 IV Quarter, 1975 (Sept. To Dec.)
T. G. Prisons on his visit to Jail 60 on 6-12-1975 special remission granted. Minister for Jail Punjab special 60 remission granted on his visit to Jail on 6-12-1976", Vide rule 14 of the Remission Rules, 1965.
Home Department Govt. Of the Punjab Memo No, 14-5/Prs-IIHD/70 dated 26-8-1974. days days ) Withheld and sent for ) approval to Federal Govern.. ) went according to Rule days ) 5-A.
The Superintendent, District Jail supplied his own chart, which is to the following effect:- "Remission Sheet If upto date remission is granted till his final date of release. Name of Convict.- Sarwar Mehmood Aahar. Father's Name-Lt. Gen. (Retd.) K. M. Azhar.
Section 59, Pakistan Army Act. Sentence: 3 years R. I. Date of Sentence. 01-1-1974 Quarters Etc. Remission Progressive Remarks total #TBS M. D.
1st Quarter 74 0 10 Feb. & March, 74 #TBE M. D.
0 10 Fie is not entitled for remission for the month of January 74 vide rule 9 of the Remission Rules, 1965. #TBS 1Ind Quarter, 74 0 April to June #TBE 27 Six days each for April and May vide rule 7 and five days for June, 74 vide rule 9(3) of the Remission Rules, 1965. #TBS IIIrd Quarter, 74 0 15 July to September #TBE 1 12 Ordinary remission on R. G. A Transistor Assembly Plant as it does not involve labour on Sundays and other closed holidays falls under rule 7 (a & b) of the Remission Rules. #TBS IVth Quarter, 75 0 15 9 12 Oct. To December #TBE #TBS 5 27 Awarded on 23-6-1974 3 8 27 Home Department Govt. of the Punjab, Memo. No, 14- 5/Prs-II-HD/7 dated 26.8-74. #TBE #TBS Conduct remission due on 1-2-75 Minister of Jails 2 Special remission Education remission #TBE IVth Quarter, 74 Oct. To December Ist Quarter, 75 January to March lied Quarter, 75 April to June IIIrd Quarter, 75 July to September Ist Annual Good 0 15 1 27 #TBS Viute rule 14 of the Remission Rules, 1965. #TBE 0 15 2 12 0 15 2 27 0 15 12 0 15 3 27 M. D.
'Ind Annual Good 0 15 9 27 Conduct remission due on 1-2-76 Itit Quarter, 76 0 15 10 02 No remission for Feb.
Only January 76 1976 (Being month of release)
Total Remission M. D.
10 02 D. S. 01-1-1976 N. D. R. 31-12-1976 Remission. -2-10- F.D.R. 29-2-1976.
(Sd.)
Superintendent. {{TABLE}} ' The precise remissions which, at the time the writ petition was filed were the subject of controversy, were three in number; (1) one was a remission of sixty days granted by the Punjab Government (or to be more precise the Provincial Minister for Jails) on 6-12-1975; (ii) the second was a remission of a similar number of days granted by the Inspector-General of Prisons on the same date; and (iii) the third was a routine remission of fifteen days for the fourth quarter of year 1975 I e. For the period October to December 1975 which is earned by every prisoner in the normal course. These remissions have been shown in the table filed by the learned Deputy Attorney- General under the heading "remissions refused/withheld". According to the chart filed by the Superintendent, District Jail, and as later conceded by all concerned, remission of fifteen days for the fourth quarter i,e, October to December 1975 was a routine remission granted to every convict prisoner. The Superintendent of Jail in his chart, however, has not shown the disputed remissions of 135 days. It was later on conceded that if these remissions were available to the detenu under the law then the date of his release would be 14-11-1975. We would make a simpler chart below in the form of a summary of the above two charts:-
(1) Normal date of release 31-12-1976,
(2) Date of release after taking into account undisputed remission of 8 months 27 days 3-3.1976.
(3) Date of release after allowing disputed remissions of 135 days : 14-11-1975 ' The writ petition was filed on 19-12-1975. The stand of the respondents was two-fold. (a) Firstly they submitted that due to the Withdrawal of Remission of Sentences Ordinance X of 1976 promulgated on 13-2-1976 the detenu cannot be released, inasmuch as, the aforesaid Ordinance has with- drawn all the remissions granted to or earned by convict prisoners of the present kind and (b) secondly in any case on 17-10-1975 there was added rule 5-A in the West Pakistan (Remission of Sentences Rules, 1965 which laid down that "no remission of sentence would be allowed to prisoners confined in a civil jail for undergoing sentences awarded by a Court Martial under section 59 of the Pakistan Army Act, 1952 or for offence falling under-Chapter VI of the Pakistan Penal Code, 1860 unless such remission is approved by the Federal Government". It was argued that since the remissions which, were being claimed pertained to a period subsequent to 17th October, 1975, and as the same were not approved by the Federal Government, therefore, the detenu was not entitled to reap their benefit. On factual plane it is not disputed that the Provincial Government and the Inspector-General of Prisons did each grant 60 days remission respectively to all the prisoners in the District Jail, Lahore and that the said remissions otherwise were not withdrawn but were being refused to the detenu solely due to the pro habitation contained in Ordinance X of 1976 and rule 5- A, to both of which we would presently attend.
Re: Withdrawal of Remission of Sentences Ordinance
2. Taking up the Withdrawal of Remission of Sentences Ordinance X of 1976 it will be useful to reproduce the same in extenso. It reads as follows:- "ORDINANCE No, X OF 1976 ' An Ordinance to withdraw the remission of sentences granted to, or earned by, certain prisoners ' Whereas it is expedient to withdraw the remission of sentences granted to, or earned by, certain prisoners; ' And whereas the National Assembly is not in session and the President is satisfied that circumstances exist which render it necessary to take immediate action; ' And whereas the Proclamation of Emergency referred to in Article 280 of the Constitution of the Islamic Republic of Pakistan is in force; ' Now, therefore, in exercise of the powers conferred by clause (1) of Article 89 of the Constitution of the Islamic Republic of Pakistan, the President is pleased to make and promulgate the following Ordinance:-
1. Short title and extent.-(1) This Ordinance may be called the Withdrawal of Remission of Sentences Ordinance, 1976.
(2) It extends to the whole of Pakistan.
2. Withdrawal of remission of sentences.-Notwithstanding any remission of sentences granted to, or earned by, a prisoner awarded punishment by a Court Martial for an offence under section 55 or section 59 of the Pakistan Army Act, 1952 (XXXIX of 1952), or by any Court or Tribunal under the High Treason (Punishment) Act, 1973 (LXVIII of 1973), the Suppression of Terrorist Activities (Special Courts) Act, 1975 (XV of 1975), the Criminal Law Amendment (Special Court) Ordinance, 1975 (XXIX of 1975) under Chapter VI of the Pakistan Penal Code (Act XLV of 1860), or the Defence of Pakistan Rules, such prisoner shall undergo full term of his imprisonment and sentence and the remission shall be deemed to have never been granted or earned, irrespective of any other law or the judgment or order of any Court.
3. Repeal.-The Punjab Withdrawal of Remission of Sentences Ordinance, 1976 (Punjab Ordinance No, II of 1976), is hereby repealed."
' The learned Deputy Attorney-General and the learned Assistant Advocatetioneral argued that even if under the West Pakistan (Remission of Sentences) Rules, 1965 the detenu was eligible to reap the benefit of remissions granted to, or earned by him, the said benefit has been statutorily taken away by the aforesaid law. They further argued that the terms of the above Ordinance were retrospective and operated not only to prohibit future grant to or earning of remissions by prisoners of the kind mentioned therein, but also took away any remission granted to, or earned by them in the past with the result that all the remissions granted to or earned by the detenu after his lodgement in jail have been statutorily forfeited and he shall now have to undergo the full term of his imprisonment Of three years without a claim for remission of any kind. This puts us to scan the scope of the provisions of the Ordinance. If we paraphrase the Ordinance it states that-
(I) notwithstanding any remission of sentence granted to, or earned by a prisoner-
(a) awarded punishment by a Court Martial for an offence under section 55 of the Pakistan Army Act XXXIX of 1952 or section 59 of Pakistan Army Act; or ' a prisoner awarded punishment by any Court or Tribunal;
(i) under the High Treason (Punishment) Act ',XVII of 1973;
(ii) under the Suppression of Terrorist Activities (Special Courts) Act XV of 1975;
(iii) under the Criminal Law Amendment (Special Court) Ordinance XXIX of 1975
(iv) under Chapter VI of the Pakistan Penal Code (XLV of 1860);
(v) under the Defence of Pakistan Rules.
(II) such prisoner shall undergo full term of his imprisonment and sentence;
(III) and the remission shall be deemed to have never been granted or earned;
(IV) irrespective of any other law or the judgment or order of any Court.
A careful study of the aforesaid provisions of the Ordinance will show that it applies to a person who was a "prisoner" on the date of its promulgation, namely, 13-2-i976. If, for instance a person after reaping benefit of various remissions had been released and gone home, for example 20 years ago, the intention of the above Ordinance does not seem to bring him back to prison to undergo the remaining period of his sentence which had been reduced due to the remissions granted to, or earned by, him at the relevant time. The word "prisoner" as used in section 2 of the Ordinance is clear pointer to this effect. "Prisoner" according to Law Lexicon by Ayer (1940 Edition), page 1075 is "a person kept in prison" and as such a persor, who, for instance, had been released 20 years ago, according to the relevant law in force. And was not being kept in a prison at the time the Ordinance was promulgated would not be a prisoner. This construction of law was conceded to by the learned Deputy Attorney-General and the learned Assistant Advocate-General. We are also of the same view especially when we find that there is nothing in the Ordinance to suggest to the contrary and nor does there exist any provision in the Ordinance calling upon "gone home" convicts to surrender and nor has there been constituted any authority! Or bestowed any power on any authority to arrest them or bring they;: back to jail. Taking this aspect of the matter to its logical end if a person who has been released prior to the promulgation of the Ordinance is no within its compass then similarly a person whose, release had become due. But who without any justification was being detained, would also not fall within the clutches of this law, because, the word "prisoner" means a person lawfully being kept in a prison and not one who for no fault of his has not been released and is being illegally detained without authority of any law. In Farid Khan v. The State (1) a question arose as to when could a remission be considered to have taken effect and it was held that if after including the remissions the sentence has been duly undergone by a prisoner then hi detention thereafter is without lawful authority. Applying that test in the instant case if after taking into consideration the remissions earned by, or granted to, the detenu his period of release had fallen due before the date of the promulgation of the Ordinance then in law on the aforesaid date he no longer being validly in prison the Ordinance would not apply to him. From the data hereinbefore given, the release of the detenu bad fallen due on 14-11-1975 whereas the Ordinance came into force on 13-2-1976, and as such, it has no application to his case. Ordinance X of 1976 show that prior thereto there had been enacted a Provincial Jaw, namely, the Punjab Withdrawal of Remissions Ordinance II of 1976 which was promulgated on 4-2-1976 and was repealed on 13-2- 1976. Even the Punjab Ordinance came into force after the detenu had undergone the period of his .Sentence and after his release had fallen due. The position, therefore, both under the Punjab Ordinance II of 1976 and (the Central) Ordinance X of 1976, so far as the particular point in hand is concerned, remains the same regarding the date of release of the detenu.
3. Learned counsel for the petitioner and the detenu attempted to challenge the validity and vires of this Ordinance X of 1976 on the grounds (a) that it violated the fundamental right contained in Article 25(1) of the Constitution which guaranteed that "all citizens are equal before law and are entitled to equal protection of law". It was argued that this Ordinance was also void for creating unreasonable classification; (b) that it was violative of the fundamental right contained in Article 12(1)(b) of the Constitution where it was laid down- that "no law shall authorise the punishment of a person-for an offence by a penalty greater than, or of a kind different from, the penalty prescribed by law for that offence at the time the offence was committed; and (c) that it was violative of the fundamental right contained in Article 13 of the Constitution which guaranteed that "no person (a) shall be prosecuted or punished for the same offence more than once-". It was argued that at the time when the detenu was punished the sentence was to be counted after taking into account the remissions permissible under the relevant statutory rules on the subject but after the Ordinance the period of sentence to be undergone has increased when it has denied the benefit of those statutory remissions to the detenu. This, according to the learned counsel, amounted to increasing the sentence or punishing the detenu twice, once through a Court of law and secondly through the present Ordinance.
4. We shall deal with the each of these objections seriatim. Taking up the objection regarding violation of Article 25(1) it is to be noticed that the Ordinance does not create any unreasonable classification or discrimination. The Ordinance has made (i) convict prisoners under sections 55 and 59 of the Army Act sentenced by a Court Martial (ii) convict' prisoners sentenced by a Court or tribunal under the High Treason (Punishment) Act, 1973; (ii) the Suppression of Terrorist Activities (Special Courts) Act 1975, (iv) the Criminal Law Amendment (Special Court) Ordinances 1975; (v)
Chapter VI of the Pakistan Penal Code; or (iv) Defence of Pakistan Rules, as a group or class by themselves as a whole. This grouping o
(1) PLD 1965 Posh. 31 ' classification by itself is neither unreasonable nor arbitrary, because, it can well be supported on the grounds and justifications suggested in F. B. Ali and another v. The State (1). Moreover amongst the members of this class or group there is no further discrimination and all of them are to be treated alike, inasmuch as, there is no power in any Executive to pick and choose among them. All of them are to be given one and the same treatment without any discrimination. The Ordinance which is thus well covered by the principles laid down in F. B. AM and another v. The State cannot be taken exception to. The objection raised on the basis of violation of Article 25(1), therefore, has no merit and is hereby repelled.
5. As regards the violation of Article 12(1)(b), we may point out that it does not apply in terms to Ordinance X of 1976, inasmuch as, it does not impose greater penalty on the detenu than was prescribed by the law at the time the offence was committed. The penalty for offence under section 59 of the Pakistan Army Act etc. Whereunder the detenu was convicted is still the same as it was at the time of the commission of the offence by the detenu. The Ordinance rather emphasises the fact that the same sentence would be undergone which was inflicted on the prisoner and which penalty and sentence is and still remains quite within the scope of the law under which it was inflicted. It was argued that if not against the strict letter of Article 12(1)(b) of the Constitution, the Ordinance definitely offended at least against the spirit of that Article. For this proposition reliance was placed on Farid Khan v. The State., In our opinion the said case has no application to the facts and circumstances of the present case, inasmuch as, in that case certain persons were sentenced to transportation for life. When the sentences commenced, the sentence of transportation for life was to be reckoned as imprisonment amounting to 20 years under section 57 of the Pakistan Penal Code, as well as under clause (ii), subparagraph (6) of paragraph 196 of the Punjab Jail Manual. All remissions granted to convicts in that case or otherwise earned by them, had been calculated on the basis that the term of imprisonment was 20 years. Later on there was issued a notification, the effect of which was that whereas under the old system the condition of undergoing a substantive imprisonment of 10 years was not there, the aforesaid notification so provided, with the result that if put into practice it would make a lifer to undergo more than a sentence of 20 years in the aggregate. In that context it was held that such a stipulation would defeat the spirit of Article 4 of 1962 Constitution (which corresponds to Article 12(1)(b) of the present Constitution). It was consequently directed in one particular writ petition 467/63 where imprisonment of 20 years had been completed before the promulgation of new directions that the detenu would be eligible to be released but in the other cases where release of any convict prisoner had not become due by or before the promulgation of (if we can say so) the new rules or new directions, the said prisoners were held to be bound by the same with the only rider that the imprisonment in aggregate should not exceed the limit of 20 years under the old system and that the period of imprisonment was to be counted after taking into account such remissions which may have been duly earned and which were not competently withdrawn. Here on factual plane in the case before us we have already held that the release of the detenu had become due on 14-11- 1975 whereas the Ordinance was promulgated long thereafter on 13-2-1976, and from that point of view, the Ordinance not being so retrospective; as to effect released prisoners or prisoners whose release had become
(1) PLD 1975 SC 506 ' due prior to its promulgation, it would not apply to him. The Ordinance, therefore, seems to be quite valid, because, it does not possess the propensity of authorising the punishment of the detenu by a penalty greater than or of a kind different from the penalty prescribed by the law for the offence at the time the offence was committed. These limits on both ends remain the same.
Moreover in the case of Farid Khan v. The State the question examined was as to for how much period the sentence of transportation for life prescribed in a statute was to be reckoned. It will be seen that nobody knows about the period of life of a man or for how much period he would live in this world. The sentence for transportation for rife in reality was, therefore, a sentence of an indefinite period during which the convicts used to be transported or sent to some island or islands across the black sea. Later on it became impossible to deport all lifers outside the country for various reasons with which we are not concerned and it was, therefore, thought to retain them in the country and reckon the period of transportation for life as equal to 20 years imprisonment in jail. This was the maximum punishment and the matter was being examined in Farid Khan v. The State from that point of view. That was not the case of a prisoner who had been awarded sentence shorter than the maximum prescribed for that offence and the only question was as to how such awarded punishment was to be undergone in jail. By laying down that remissions will not be available to convict prisoners of a particular class the sentence awarded to this prisoner concerned has not been changed. If it was three years even now it is three years. By requiring such a prisoner to suffer that sentence of three years the Ordinance is not requiring him to undergo a punishment greater than that prescribed for the offence at the time of its commission. The sentence of three years when it was awarded was within the ceiling range and even today it is so.
The maximum range was far more than this and the Ordinance in the case of the present detenu does not cross that limit. The guarantee contained in Article 12(l)(b) is directed towards maximum penalty authorised by law and not about maintenance of any particular remission system in jail. To grant or not to grant remission is a subject separate from the imposition of a penalty and the only relevancy of remissions in this context is that when remission are earned and granted then after including such remissions which have p duly taken effect the sentence should not exceed the maximum prescribed by law but this does not mean that there can be no variations in the kind and scales of remissions in jail or as a matter of fact there is any vested right in the matter of non- withdrawal of the remissions before the dal of the release in accordance with law. In the case of Farid Khan v. The State a question had arisen as to when can a remission be said to have taken place and uptil what stage or for how long locus poenitentiae to withdraw the same remains. It was held by the Full Bench that remissions are said to have taken effect if after taking them into account the day of release has actually materialised or fallen due before they are withdrawn and not merely by their entry in the history sheet of the prisoner. If the day of release has not yet materialised or has not yet arrived or fallen due then the locus poenitentiae still exists and the remission can be withdrawn. It was on this ground that in one case of Writ Petition 467/63 it was held by the Full Bench that the new remission system could not apply to the prisoner involved therein as his date of release had already materialised before the promulgation of the new rule.
Keeping that principle in view G all that the Ordinance under examination according to our construction, says is that in respect of those prisoners whose release had not materialized and whose date of release had not yet arrived or fallen due before 13-2-1976 i,e, the date of the enforcement of the Ordinance their remissions were being statutorily withdrawn. This was even otherwise quite within the normal scope of the concept of remissions and the Ordinance cannot bo said to have done anything more in this field. So long as the stage or date of release has not arrived or materialised or fallen due the remissions cannot be said to have created any right in a prisoner and if the same are competently withdrawn by the Ordinance no fundamental right stands violated in that respect. In this perspective it is now quite clear that the Ordinance does not purport to punish the detenu twice for the same offence and does not come into conflict with Article 13 of the Constitution which prohibits putting a man to double jeopardy for the same offence. The Ordinance simply withdraws certain remissions (confining ourselves to the present discussion) before they had actually materialised or taken effect, though on factual plan we have already held that in the instant case they had actually taken effect and fell outside the scope of the Ordinance.
Re Rule 3-A
6. Learned counsel for the respondents submitted in the alternative that if the case did not fall within the scope of the Withdrawal of Remission of Sentences Ordinance X of 1976 it was definitely covered by rule 5-A, reproduced earlier, and as the remissions involved in this case had not been approved by the Federal Government, therefore, the detenu was not entitled to reap their benefit.
As against this learned counsel for the petitioner and the detenu argued that rule 5-A was invalid and could not stand in his way for the various reasons to be presently noted. He referred us to the preamble of the Prisons Act IX of 1894 wherein it was written that "whereas it is expedient to amend the law relating to prisons in Pakistan, anti to provide rules for the regulation of such prisons; It is hereby enacted as follows". He emphasised that the remissions in question pertained to and were concerned with the "regulation of such prisons" and were to be examined in that perspective.
Section 3(1) of the Act defined "prison" and stated that "prison" means any jail or place used permanently or temporarily under the general or special orders of a Provincial Government for the detention of prisoners, and includes all lands and buildings. Appurtenant thereto, but does not include- "(a) any place for the confinement of prisoners who are exclusively in the custody of the police;
(b) any place specially appointed by the Provincial Government under section 541 of the Code of Criminal Procedure, 1882, or
(c) acy place which has been declared by the Provincial Government, by general or special order, to to be a subsidiary jail."
' Section 3(2) defined "criminal prisoner" and stated that "criminal prisoner" means any prisoner duly committed to custody under the writ, warrant or order of any Court or authority exercising criminal jurisdiction, or by order of a Court Martial". Section 3(3) stated that "convicted criminal prisoner " means any criminal prisoner under sentence of a Court or Court Martial, and includes a person detained in prison under the provisions of Chapter VIII of the Code of Criminal Procedure, 1882, or under the Prisoners Act, 1871". Section 3(5) stated that "remission system" means the rules for the time being in force regulating the award of marks to, and the consequent shortening of sentences of, prisoners in jails". Section 3(6) laid down that " history-ticket" means the ticket exhibiting such information as is required in respect of each prisoner by this Act or the rules thereunder". He referred to the general scheme of the Act and submitted that Chapter containing sections 1 to 3 was Preliminary; Chapter II was headed as "Maintenance and Officers of prisons (sections 4 to 7); Chapter III was headed "Duties of Officers" (sections 8 to 23); Chapter IV dealt with the "Admission, Removal and Discharge of Prisoners" (sections 24 to 26); Chapter V was headed as "Discipline of Prisoners" (sections 27 to 30); Chapter VI was headed as "Food, Clothing and Feeding of Civil and Unconvicted Criminal Prisoners" (sections 31 to 33); Chapter VII dealt with "Employment of Prisoners" (sections 34 to 36); Chapter VIII dealt with "Health of Prisoners" (sections 37 to 39); Chapter IX dealt with "Visits to Prisoners" (sections 40 and 41); Chapter X dealt with "Offences in Relation to Prisons" (sections 42 to 44); Chapter XI dealt with "Prison Offences" (section 45 to 54) and the last Chapter XII was headed as "Miscellaneous" (sections 55 to 62). Section 59 which figured in the last mentioned Chapter stated that "the Provincial Government may make rules consistent with this Act - - - - (3) fixing the punishments admissible under this. Act which shall be awardable for commission of prison-offences or classes thereof - - (5) for the award of marks and the shortening of sentences so, however, that a sentence of imprisonment for life is not shortened to a period of imprisonment less than fifteen years - - (19) for the preparation and maintenance of history-tickets; - (21) for rewards for good conduct; - - (27) in regard to the admission, custody, employment, dieting, treatment and release of prisoners; and (28) generally for carrying into effect the purposes of this Act". A study of these provisions of the Act does show that the said Act is concerned mainly with the regulation and internal management of the prisons. This is further evident from the -statement of objects and reasons of this Act as published in the Gazette of India, 1894, Part V, page 14, where it is written that: "There are at present four different Acts in force for the regulation of jails in British India and for the enforcement of discipline therein. These Acts differ inter se in various important points, namely, as to the jail offences enumerated in them,, as to the punishments which might be inflicted for these offences, and as to the authorities competent to inflict these punishments. In consequence divergent system of jail Management have grown up in the several provinces, whereby there has been a sacrifice of that uniform enforcement of sentences of imprisonment which effective general administration requires. The object of this Bill is to repeal the four local Acts and to prescribe a uniform system of prison Management in India.
' The Bill is mainly (based) on Act XXVI of 1870 (an Act to amend the law relating to prisons), which is in force in the North-Western Provinces and Oudh, the Punjab, the Central Provinces, Coorg and Burma, with amendments embodying the conclusions arrived at by the Government of India on the Report of the Jail Committee of 1889 and the Report of the Prison Conference of 1892, as stated in the Resolution recorded in the Home Department of the 9th November 1892, and in the Circular letter to Local Governments and Administrations, dated the 25th March 1893, to which it appeared necessary to give legislative form."
' The other text relevant in the field which is to be taken note of is the Punjab Jail Manual. It consists of 54 Chapters. We have no intention to go into the details of each chapter and for our purpose it is sufficient that the rules and directions contained therein also fortify the view that the Prisons Act is intended for the superintendence and management of the Jails and matters ancillary therewith. In the face of all this material and text, we have no hesitation in endorsing the submission of the learned counsel for the petitioner that the Prisons Act is concerned with the regulation and internal management of prisons. This Act by itself does not contain any provision for granting remissions of the kind which are contemplated for instance in Article 45 of the Constitution, section 401 of the Code of Criminal Procedure (Act V of 1898) or section 143 of the Pakistan Army Act XXX1X. Of 1952.
The remissions which are to be granted to or earned by a prisoner under the Prisons Act read with the relevant rules to which we will presently refer are concerned with the internal management of the prisons. Actually 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 has yet to. Run.
7. This brings us to the West Pakistan (Remission of Sentences) Rules, 1965 promulgated by the Governor of West Pakistan on 3.8-1965 in exercise of the powers conferred by clauses (5) and (21) of section 59 of the Prisons Act IX of 1894 and in supersession of any other rules on the subject. Rule 3 states that remission under these rules may be ordinary or special. Rule 4 lays down the cases no ordinary remission is earned and states that "ordinary remission shall not be earned in respect of-
(i) any sentence of imprisonment amounting, exclusive of any sentence passed in default of fine, to less than four months ; and (ii), any sentence of simple imprisonment, except for any continuous period not being less than one month, during which the convict labour voluntarily" ' there were attached two explanations to this rule but we need not reproduce them). Rule 5 is headed as "ordinary remission not earnable for certain offences committed after admission to prison" and lays down that "if a convict is convicted of an offence committed after admission into prison or for an assault committed after admission to prison, on a warder or other officer the remission of whatever kind earned by him (excluding remission awarded by Government and awarded for blood donation under rules 15 17 and 18) upto the date of the said conviction may in part or whole be cancelled with the sanction of the Director". Rule 6 is headed as "Re-admission to the remission system" and lays down that "the Superintendent may with the previous sanction of the Director, re-admit to the remission system any prisoner who has been removed therefrom under rules framed under clause (3) of section 59 of the Prisons Act, 1894, and such a prisoner shall earn remission under these rules from the commencement of the month following such re- admission". Rule 7 deals with the "Scale of ordinary remission" and lays down that "(1) ordinary remission to be awarded to a convict, other than a convict employed on prison service, shall be according to the following scale :
(a) two days per month for thoroughly good conduct and scrupulous attention to all prison regulations ; and
(b) three days per month for industry and the due performance of the prescribed daily task.
(2) Ordinary remission to be awarded to a convict employed on prison service, .As specified in the table below, shall be according to the scale specified against 'each category of such service : TABLE Serial Convicts classification as Extent of award of No, per labour allotment ordinary remission per month
1. Convict official-
(a) Convict nightwatchman ... 6 days
(b) Convict Overseer/Monitor ... 7 days
(c) Convict warder ... 8 days
2. Cook ... 7 days
3. Convict Educational Teacher 8 days A. Sweeper 8 days plus Rs, 5.00 per mensum to be paid under the head "Contract Contingencies".
5. Mason, Barber, Hospital Attendant One day extra semis- and Cleaner, who work on Sundays sion for each corn- and holidays plete Calendar month during which he has been so employed, viz., six days in all. {{TABLE}} ' Rule 8 deals with the "Scale of award of remission when convict is unable to labour through causes beyond his control" and lays down that "(1) A convict who is unable to labour through causes beyond his control, such as his being in Court, in transit from one prison to another, in hospital or in an invalid gang shall-
(i) be granted remission under clause (a) of rule 7 on the scale earned by him during the previous month, if his conduct prior to and during the period in question has been such as to deserve such grant ; and
(ii) be entitled to the grant of remission under clause (b) of rule 7 on the scale earned by him during the previous month if he had been in prison during that term, and if he had not been in prison during the previous month, at the rate of three days per month.
(2) A convict whose absence from work is due to his own misconduct in prison, shall not be allowed remission under rule 7 for the period of absence. (3) A convict who is in hospital or in an invalid gang shall be entitled to remission under clause (b) of rule 7, except when the Medical Officer reports that the convict's absence from labour is due to causes within his control and is caused by action of the convict himself with a view to avoid work or to get admission into or to remain in hospital". Rule 9 is headed as "Application of remission system" and states that "(1) Remission shall be calculated from the first day of the calendar month next following the date of the convict's sentence. (2) A convict who after having been released on bail or because his sentence has been temporarily suspended is afterwards recommitted to prison shall be brought under the remission system on the first day of the calender month next following his re-admission, and shall on his return to prison, be credited with any remission which he may have earned prior to his release on bail or the suspension of his sentence. (3) Remission awarded to convict officials, teachers, sweepers and cooks etc. Shall be calculated from the first day of the next calendar month following the appointment or employment as such". Rule 10 is headed as "Power of officers to award remission and states that "ordinary remission shall be awarded by the Superintendent or subject to his control and supervision by the Deputy Superintendent, Assistant Superintendent, or any other officer, specially empowered in that behalf by him". Rule 11 is headed as "Remission to be awarded quarterly" and lays down that "(1) ordinary remission, other than annual and triennial, remission, shall be awarded quarterly, and as nearly as possible, on 1st January, 1st April, 1st July and 1st October, and shall be recorded on the history ticket of the convict concerned. (2) Convicts shall be informed of the remission they have earned and they are expected to remember it". Rule 12 lays down the "Procedure for awarding remission" and states that "(1) An officer awarding ordinary remission Shall, before making the award, consult the convict's history ticket in which every punishment awarded must be carefully recorded. (2) If a convict has not been punished during the quarter, otherwise than by a formal warning, he shall be awarded full ordinary remission for that quarter under these rules. (3) If a convict has been punished during the quarter, otherwise than by a formal warning, two days remission shall be deducted from the month in which he has been punished and the balance of remission to which he is entitled shall be awarded ; provided that not more than two days shall be deducted for one month even if the number of punishments is more than one in that month. (4) All remissions recorded on the convict's history ticket shall be entered every quarter on the remission sheet and signed by the Superintendent". Rule 13 states that there shall be no remission for the month of release and lays down that "no convict-shall receive ordinary remission for the month in which he is released provided that if in calculating the date of his release it is found that the grant of the full amount of remission for any month would bring the convict's date of release within the very month, remission just sufficient to admit of his being released on the 1st day of the following month shall be given". Rule 14 talks of "Annual good conduct remission" and lays down that "(1) Any convict eligible for ordinary remission under these rules who for a period of one year commencing from the first day of the month following the date of his sentence or re-committal to prison or the date on which he was last punished for a prison offence, has not committed any prison offence whatever, shall be awarded fifteen days ordinary remission in addition to any other remission earned under these rules. (2) A convict who completes three years of his sentence without having committed during the whole of this period any person offence whatsoever shall, in addition to the annual remission of fifteen days under sub-rule (1) for each of the first two years of his sentences, be granted, at the end of the third year of his sentence, a further remission of thirty days for good conduct ; provided that the total remission earned shall not in any case exceed the maximum, remission permissible under these rules. (5) Prison offences punished only with a warning shall not be taken into account for the award of remission under this rule". Rule 15 deals with "Remission to convicts who donate blood" and states that "(1) A convict shall be allowed to donate blood and-for such donation he shall be awarded fifteen days extra remission.-
(2) The number of times a convict shall be allowed to donate blood and earn remission therefor shall be in accordance with the table below. (We need not reproduce the aforesaid table at this place)
(3) Remission granted under this rule-
(a) is not liable to forfeiture, like ordinary remission ; and
(b) shall be exclusive of the limit of one-third remission prescribed under rule 19".
' Rule 16 deals with "Special remission" and states that "Special remission may be given to any convict, whether entitled to ordinary remission or not, for special services such as-
(i) marked diligence in teaching other convicts to read and write ;
(ii) special proficiency in learning to read and write or passing an examination with credit ;
(iii) marked success in teaching a handicraft ;
(iv) special excellence in work or greatly increased out-turn of work of good quality ;
(v) protecting a prison officer or a prisoner from attack ;
(vi) special assistance to an officer of the prison in case of an outbreak of fire or similar emergency
(vii) special economy in the use of clothes ;
(viii) assisting in detecting or preventing breaches of prison discipline or regulation ; and
(ix) regular prayers and observance of fasts during Raman."
' Rule 17 deals with "special remission to convicts who pass examinations" and lays down that "(1) a convict who passes an examination conducted by a Board of Secondary Education, a University, the Education Department of the Government of West Pakistan ; or an examination conducted by a Technical Institute recognised by the Central or the Provincial Government and also is certified by the Superintendent to have been of good character shall be entitled to remission at the following scale {{DATA MISS ARRANGED}} (1)
(2) #TBS
(3) remission.
(4) 4 months special remission.
(5) #TBE (6)
(7) #TBS
(8) ... 3 months special
(9) #TBE
(10) Those having substantive sentence upto three years
(11) Those having substantive sentence from 3 years to 7 years #TBS (3) Those having substantive sentence above 7 years ... #TBE 6 months special remission. {{DATA MISS ARRANGED}}
(2) Remission under this rule shall be granted by Government, and Provincial Certificate or Diploma shall be obtained before the case is recommended to Government for remission under this rule and shall be attached with the remission sheet. (3) Remission under this rule shall be exclusive of the limit of one-third remission prescribed in rule 19". Rule 18 deals with the "Extent of special remission" and reads as follows : "(1) Special remission may be awarded by the following authorities upto the extent mentioned against each-{{TABLE}} Authority awarding remission Extent of award Superintendent Not exceeding thirty days in one year.
Director (now I. G.) Not exceeding sixty days in one year.
Government Not exceeding sixty days in one year.
(2) An award of special remission shall be entered in the history ticket and remission sheet of the convict concerned as soon as possible after it is made and the reasons for every award of special remission by the Superintendent shall be briefly recorded thereon."
' Rule 19 deals with the "Extent of total remission" and states that "(1) The total remission, both ordinary and special, awarded to a convict under these rules (other than remission for donating blood awarded under rule 15 and for passing an examination awarded under rule 17) shall not exceed one-third of his sentence : Provided that Government may, on the recommendation of of the Director, grant remission beyond the one-third limit in very exceptional and deserving cases.
(2) Remission, both ordinary and special, earned by a life convict shall not exceed four years under any circumstances". Rule 20 refers to the "Remission under section 401 of Criminal Procedure Code" and states that the same is not governed by these rules. Rule 21 is headed as "Remission in calculating date of release" and lays down that "account of remission shall be kept in days and in calculating the date of release of a convict the number of days of remission earned shall be converted into months and days, at the rate of thirty days to a month". Rule 22 is headed as "Release of convicts on earning remission" and lays down that "( f) when a convict other than a life convict has earned such remission as entitles him to release, the Superintendent, shall release him unconditionally. (2) When a life convict has earned special remission as would entitle him to release, the Superintendent shall report accordingly to the Government in order that his case may be considered with reference to section 401 of the Code of Criminal Procedure". Rule 23 deals with "Remission to be endorsed on warrant on release" and states that "when a convict is released under rule 22 the total amount of remission earned by him shall be endorsed on his Warrant and in the "Admission Register of convicted Prisoners" in the column of disposal and the endorsement shall be signed by the Superintendent". Rule 24 is headed as "Remission to be entered on history ticket and remission sheet of convict on transfer". Rule 25 deals with "Remission sheet" and lays down that remission sheet shall be attached to the Warrant.
8. If one examines the Prisons Act, the Punjab Jail Manual and the aforesaid rules, it is evident that they constitute a complete code with regard to the internal arrangement of Jails and prisons.
Confining the discussion to the subject in hand, it is clear that the West Pakistan (Remission of Sentences) Rules, 1965 are statutory rules framed under a statute which create statutory rights in favour of the prisoners and also impose obligations and liabilities in certain relevant situations.
There are certain remissions which a prisoner can earn as of right, for example, remissions for donating blood. These remissions are not forfeitable. Similarly there are ordinary and routine remissions which are earned in normal course if the conduct of a prisoner in Jail is blotless Then there are remissions in the form of galantary awards and rendering special services or acquiring special qualifications or passing certain examinations etc.
9. After having made a deep perusal of the relevant text, stage is now ripe to attend to the question of the validity of rule 5-A. This rule, as rightly argued by the learned counsel for the petitioner and as our opinion, is, suffers from various infirmities. As the Prisons Act itself is concerned with the internal arrangements of Jails, therefore, the rule-making power conferred by section 59 shall also have to be confined within the same circumference. Remission system as contemplated in the Prisons Act is thus to be regulated with reference to the conduct or misconduct of a prisoner in Jail and not with reference to his conduct or misconduct before his' lodgement in Jail, or to be more precise, before his conviction, That conduct' is not the least under the control of Jail authorities and, therefore, they could neither regulate nor could they deny application of remission system under the Prisons Act to a prisoner due to his any earlier conduct or misconduct. Any attempt en the part of the rule-making authorities, namely, H the Provincial Government under section 59 of the Act to make a rule with regard to that conduct or misconduct will, therefore, be clearly in excess' of its jurisdiction and power. Rule 5-A which purports to place a prisoner, under a disadvantage with reference to pre jail conduct, namely, that he' committed such and such offence is outside the scope of section 59 of the Act, For that conduct or misconduct the Jail authorities possessed no jurisdiction or authority to make any rule and this is what precisely rule 5-A does, inasmuch as it is based on and is directed towards that direction. Commis. Sion of an offence on the part of a prisoner actually tantamounts to commission of misconduct which is punishable by law. To say that a person who committed a penal misconduct of one type or offence, of one kind will be eligible to remissions whereas if his penal misconduct or offence was of a different type he will not be eligible to Jail remission is an attempt to make rules with regard to pre-jail conduct of a prisoner. The jurisdiction of authorities competent to act under the Prisons Act is confined to conduct of a prisoner in Jail and not to conduct prior thereto. Examined in that light rule 5-A has the propensity of encroaching upon an alien field outside the scope of Prisons Act and is, therefore, clearly without lawful authority. It is to be noticed that the rules under the Prisons Act have statutory force.- The Prisons Act does not confer on any authority a power to commute or remit sentences in the manner in which that is done, for instance, under Article 45 of the Constitution, section 401 of the Cr. P. C. And section 143 of the Pakistan Army Act ; it provides for the award of marks and the shortening of sentences, for the preparation and maintenance of history-ticket and for rewards for good conduct. No doubt section 59 of the Prisons Act confers power on the Provincial Government to make rules Inter alia. Therefore, the rules made under the Act should be construed within the scope of the ambit of the Act. The rules are not to be construed I as a statutory equation of certain term of actual imprisonment for the one awarded by a Court of law. The equation is only for a particular purpose, namely, for the purpose of remission system and not all purposes.
' Rule 5-A purports to have been made by the Governor of Punjab in exercise of the powers conferred by clauses 5 and 21 of section 59 of the Act which have been reproduced above. Both these items pertained to award of marks in Jail and rewards for good conduct in prisons. These marks and rewards are to be earned or granted with reference to conduct and services in the prisons and not with reference to pre-prison atecedents of a prisoner or with reference to the nature of the offence for which he was convicted. Rule 5-A purports to regulars the subject with reference to extraneous considerations which do not fall within the scope of the aforesaid clauses of section 59 and is ultra vires from that point of view.
10. The next thing to be noticed is that section 59 authorised only the Provincial Government to make rules under the Prisons Act. In other words the said Act gave no authority to the Federal Government to make rules or issue any directions or pass orders thereunder. If the Legislature which enacted the Prisons Act-(or to be more precise section 59 in its present form)-in its own wisdom did not entrust any power or function thereunder to the Federal Government, the Governor of the Punjab could not do the same through the rules on the principle that which is not directly permitted cannot be permitted by an indirect manner. By placing the entire subject of remissions of the kind of prisoners mentioned in rule 5-A under the approvel of the Federal Government, the Governor of the Punjab, or as a matter of fact, the Government of the Punjab, abdicated their own authority altogether. There was no sanction in the Prisons Act to do so. Moreover rule 5-A does not give any guidelines as to how the approval of the Federal Government is to be regulated so that the prisoners may regulate their own conduct in prison in that light. Obviously the Governor of the Punjab could not lay down a guideline for the Federal Government with the result that the Federal Government would then have to make its own rules for regulating the exercise of its own powers for further regulating the conduct of the prisoners in Jail to enable them to earn that approval. Under section 59 the Legislature had delegated its powers of legislation to the Provincial Government to make statutory rules and there was no sanction for the Provincial Government to further delegate that power to another agency. What rule 5-A in essence has done is that it has further delegated that power to the Federal Government by employing a terminology intention underneath which is not too far to discern. At this stage it is pertinent to point out that section 59 earlier read as "the Governor-General-in-Council may, for any part of British India, and each local Government with the previous sanction of the Governor-General-in-Council may, for the territories under its administration, make rules consistent with this Act ". There was another section, namely, section 60 which stated that "the Local Government may, subject to the control of the Governor-General-in- Council, make rules consistent with this Act (n) for rewards for good conduct". These sections were re-cast and most rather all of the items with slight modifications were brought in section 59 and section 60 was deleted in 1937 with the result that the only authority competent to make rules left in the field was the Provincial Government. Rule 5-A which again tries to introduce the Federal Government in this sphere is clearly outside the scope of the Prisons Act in the face of the legislative history of the Prisons Act and especially the aforesaid two sections. Learned counsel forL the detenu attempted to argue with reference to Waris Meah v. The State (1) that rule 5-A violated Article 25 (1) of the Constitution but as we have held
(1) PLD 1957 SC (Pak.) 157 ' that the said rule is beyond the scope of the Act under which it was framed we need not enter into this controversy.
11. The upshot of the above discussion is that holding rule 5-A as to be invalid and ultra wires, the remissions in hand stood materialised by the date the Punjab Ordinance II of 1976 or the Central Ordinance X of 1976 came into the field and as they did not affect the prisoners whose release had become due before their promulgation, therefore, the detenu in hand who fell in that category would be entitled to be released. His detention after the accrual of the date of his release in the present case was and is without lawful authority and of no legal consequence against him. He should be set at liberty forthwith, if not required in any other case, in accordance with law. Parties shall bear their own costs.