' M. S. H. QURESHI, J.-Muhammad Mukhtar Rana was convicted under Martial Law Regulation Nos.
16-A and 89 and sentenced to imprisonment for five years, on 10th April 1572. Petitioner Muhammad Ajmal Khan, who is his brother, filed this writ petition on 27th June 1975, stating that the convict, after adjusting for the remissions earned by him, has already undergone his sentence; that he was due for release 17 days before; that his further detention was without lawful authority, and praying that he be directed to be set at his liberty forth wt.
2. The total period of remission earned under the various rules, as claimed in the petition, was 664 days. In the written statement filed on 7th July 1975, by the respondent Superintendent District Jail, Kot Lakhpat, the period of remission, calculated upto November 1975 (subject to good conduct), came to 471 days. On the basis of this calculation the prisoner was not due for release until 19th December 1975. After going through the written statement and the history ticket of the convict, a re-joinder was filed on behalf of the petitioner claiming a revised total remission of 778 days.
During the hearing of the petition, the petitioner filed an application on 23rd July 1975, claiming a further special remission of 60 days said to have been awarded to all the prisoners of Kot Lakhpat Jail by the Provincial Minister for Jails on 10th July 1975.
3. A comparison of the remission earned by the prisoner as claimed by the petitioner and as calculated by the respondent is given in the Table below TABLE Particulars As claimed As allowed of by prisoner by Remarks.
Remission respondent as Urdu Teacher under Rule 7(2). do do do do 21 Respondent allowed five days from September 1973, onwards as task of opening of yarn ( ) was assigned from 17-8-1973 which was covered by rule 7(1) and not 7(2). Respondent allowed five days p.m. Under rule 7(1) as task of (t.Bk-sr ct,-) was assigned from 17-8-1973. task of Urdu Teacher restored from 31-1-1974 but according to the respondent, case was covered by R. 8(3) as prisoner remained in hospital. Do do do A. Ordinary Remission.
2nd Quarter 1972 16 16 3rd Quarter 1972 24 24 4th Quarter 1972 24 24 1st Quarter 1973 24 24 2nd Quarter 1973 24 24 3rd Quarter 1973 24 8 x 8 x 5.
4th Quarter 1973 24 15 1st Quarter 1974 24 15 2nd Quarter 1974 24 15 3rd Quarter 1974 24 15 4th Quarter 1974 24 15 Particulars of Remissions As claimed As allowed by prisoner by Remarks. respondent.
1st Quarter 1975 24 13 2 days deducted by respondent for punishment awarded on 1-3-1975.
2nd Quarter 1975 24 15 3rd Quarter 1975 24 15 For October and 10 November 1975.
B. Good conduct and other Remissions under the Rules.
1st Annual on 1-5-1973 15 15 Superintendent's special No comments offered by the respondent. Remission for 1973. 30 2nd Annual on 1-5-1974 15 15 Superintendent's special remission for 1974. 30 30 Superintendent's Annual good conduct remission do do do do on 1-5-1975. 15 Superintendent's special remission on 1-1-1975 30 3rd Annual on 1-5-1975. 60 For regular prayers, under rule 16 for 1973, 1974 and 1975. 45 B. Other special Remissions Government announcement on 16-8-1973. 150 150 Awarded by Minister in 1973 on inauguration of Transistor The award was ac :or-ding to the respondent not applicable to prisoner. Plant. 60 Total : 778 471 D. Special Remission Awarded by Minister on 10-7-1975 on the inauguration of T. V. Plant. 60 Announcement not given effect to by the Provincial Government. {{TABLE}}
4. Remission of sentence of prisoners is governed by the West Pakistan Prisons (Remission of Sentences) Rules, 1965 (hereinafter called the Rules), which came into force on 3rd August 1965, in supersession of Chapter VIII of the Punjab Jail Manual 1953 Edition. Ordinary remission is regulated by rule 7. A convict other than a convict employed on prison service earns remission of two days per month for thoroughly good conduct under sub-rule (1)(a), and three days per month for industry and due performance of prescribed jail tasks under sub-rule (1)(b). A convict employed on prison service however, is governed by sub-rule (2) which prescribes 8 days' remission per month for a convict educational teacher. According to the history ticket of the convict Muhammad Mukhtar Rana, he was initially given the task of Urdu Teacher on 11th April 1972. Since remission is earned, under rule 9, from the month next following the date of the convict's sentence, 16 days have been claimed and the same conceded for the two months of the 2nd Quarter 1972. Ordinary remission at the same scale has been claimed till the end i,e, the 3rd Quarter of 1975 but the Department has conceded at that scale upto the 2nd Quarter 1973. The convict's task was changed to opening of yarn (URDU TEXT) on 17th August 1973. The department has, therefore, allowed remission at the rate of 8 days for the first two months of the 3rd Quarter 1973, but at the rate of 5 days for the third month of that quarter and thereafter. The convict was re-assigned the task of Urdu Teacher on 31st January 1974, but as he has remained in hospital eversince, the department has allowed him remission at the rate of 5 days a month or 15 days per quarter under rule 8.
5. It has been contended on behalf of the petitioner that the assignment of the inferior task of opening of yarn (URDU TEXT) was not in conformity with the requirement of para. 251 of the Punjab Jail Manual. The relevant portion of this para. Reads :- "The task shall be allotted with due regard to the capacity, character, previous mode of life and antecedents of the prisoner."
' It was also urged that the convict had not been informed of the change in the task. We have given careful consideration to the contention. It appears that the convict was transferred to Bahawalpur Jail on 15th August 1973, and on 17th August 1973, he was given the new task of Soot Khulai there The fact remains that this change in the task on 17th August 1973, is duly entered in the history ticket and according to rule 11(2) and the jail routine the prisoner is presumed to have been informed or have known of this change in the task. He did not make any representation to the authorities against it and impliedly acquiesced in it. There is also nothing to show that he actually performed the task of Urdu Teacher after 17th August 1973. In the circumstance, it is not possible for us to go into the question of the validity of the change in the task in the present writ petition.
4. The convict was re-assigned the task of Urdu Teacher on 31st January 1974, but as he remained in hospital since then, the department has given him remission under rule 8. It was urged on behalf of the petitioner that rule 8 did not apply to a convict who is in prison service as the present prisoner was. Rule 8 reads as follows :- "8. Scale of award of remission when convict is unable to labour through causes beyond his control.--(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--
(1) 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.
(1) 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."
(2) 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."
The above rule, as can be seen, applied to all convicts and there is nothing contained in it express or implied to create an exception in respect of convicts in prison service. Since the prisoner has been unable to perform the task of Urdu Teacher after it was re-assigned to him on 31st January 1974, on a account of his remaining in hospital, the remission was to be calculated under rule 8. He could, therefore, only claim the maximum of 5 days per month Le. 2 days for good conduct under sub-rule (1) and 3 days under sub-rule (3) of that Rule, which the department has conceded.
7. It was however, pointed out to us that the Department had actually entered remissions from 1st Quarter 1974 at the rate of 24 days per quarter I.e. 8 days per month. This was done presumably on the basis of the task of Urdu Teacher having been re-assigned to the prisoner on 31st January 1974, (on which date the prisoner was also admitted into Mayo Hospital). Remission at this rate continued to be shown up to and including 2nd Quarter 1975. The department took no steps upto 4th July 1975, to rectify what they call an error in calculation. As the present writ petition had already been filed by then, the Department had tried to rectify their error on receipt of notice of the writ petition. It was contended on behalf of the petitioner that the remissions so entered and acted upon could not be withdrawn subsequently. Support for this was drawn from the authority in Rajab Shah v. The State (1). In this case the convict had been sentenced to transportation for life which was reckoned equivalent to 20 years, and in addition to R. I. For 7 years, under different counts, but laters his sentence of transportation for life had been commuted by the Provincial Government to R.
1. For 10 years. On a question whether the remission already entered in the ticket of the convict on the basis of his previous sentence of 27 years could be withdrawn, a learned Single Judge had, relying on G. L. Battacharya v. The State (2) held that :- "the remission of sentence passed by the Provincial Government and
(1) 1968 Law Notes (Lab.) 1 (2) PLD 1964 SC 503 ' entered in the history ticket of the convict and acted upon could not be recalled by them."
' In G. L. Battacharya's case, where he had been sentenced to R. I. For 8 years, the President and Chief Martial Law Administrator had remitted four years of the sentence and had directed the Provincial Government to communicate the order to the prisoners; and, the Provincial Government, for the purpose of implementing the President's Order and not being aware of the powers of the President under President's Order No, 26 of 1962, had remitted four years of the sentence under section 401, Cr. P. C., but later realising the mistake had cancelled the earlier order, G. L. Battacharya had claimed that he was entitled to remission of four years by virtue of the President's order and of another four years by virtue of the Provincial Government's order which he termed to be an independent order, and had asked for his release. As the President's order had not been communicated to the jail authorities, G. L. Buttacharya's prayer was refused by the High Court which refusal was affirmed by the Supreme Court. It is thus clear that the nature of remissions in the cited cases was not the same as under discussion here. Nor, did the remission in Rajab Shah's case, calculated previously suffer from any error. The view taken in Rajab Shah's case, therefore, has no application to remission governed by rule 7 or 8 of the Rules.
8. As already discussed, the present convict's case, after 31-1-1974, was governed by rule 8 and not rule 7(2). The department, upon realising the error, had rectified the same in time. We are of the view that for the purpose of obtaining discretionary relief, the convict cannot assert a right based on an entry which was not according to the Rules. This position is not affected by the mere fact that the entries had remained in the ticket and had been acted upon until 4-7-1975. The convict can thus claim remission for the period from 31-1-1974 under rule 8 only. For the reasons which we presently discuss the deduction of two days in the 1st Quarter 1975 is however, not justified and the same must be restored.
9. We may now advert to the remissions claimed for good conduct etc. Shown in category 'B' of the Table. Under rule 14 of the Rules, a convict who has not committed any prison offence is to be awarded 15 days' ordinary remission known as Annual Good Conduct Remission. For the second year of remaining in prison he is, on the same condition, entitled to another 15 days. But where he completes three years of his sentence, then, subject to the same condition, he is to be awarded remission of 30 days in addition to the remissions earned for the previous two years. Under rule 16 a special remission may be given to a convict for special service. One of such special services mentioned at clause (ix) is "regular prayers and observance of fasts during Ramazan." Rule 18 prescribes the authority for and the extent of the grant of the special remission. Under this rule 18 the Superintendent can award remission not exceeding 30 days and the Director/ Government not exceeding 60 days to a prisoner in one year. It is under these rules that the remissions specified under category '13' of the Table have been claimed. The respondent has conceded the first and the second annual good conduct remissions of 15 days each due on 1-5-1973 and 1.5-1974, respectively. The respondent has also allowed the prisoner Superintendent's special remission of 30 days for 1974. No reason has been given for denying the prisoner Superintendent's special remission for 1973. The remaining remissions claimed for good conduct have been refused for the stated reason that the prisoner had been punished on 1-3-1975.
10. The said punishment awarded on 1-3-1975 whereby the privilege of interview of the prisoner had been stopped for one month, requires some scrutiny. It is to be recalled that the present petitioner had earlier, on 22-3-1974, filed Criminal Misc. No, 182/H of 1974 wherein he had prayed that "his (prisoner's) relatives and friends should be permitted to see him, attendance allowed and the proper jail facilities be given." Our learned brother Ataullah Sajjad, J., had allowed the prayer and had directed the Government to implement the provisions of rule 264 of the Punjab Jail Manual, and with this direction had disposed of the miscellaneous application on 24-4-1974. Upon the award of the punishment on 1-3-1975, the petitioner had moved Criminal Original No, 18 of 1975 in which a grievance had been made of the said punishment and it had been prayed that the punishment be suspended and the respondent be dealt with for contempt of the Court. The Superintendent of the jail (Mr. Hameed Asghar) made a statement in that petition to the effect that on receipt of letter from the Provincial Home Secretary complaining that the prisoner had attempted to interview an unauthorised person, he had held an inquiry and had imposed the punishment under para. 550 of the Punjab Jail Manual. The Superintendent Jail in that proceeding had earlier taken up the plea that he had not been aware of the High Court's order dated 24-4- 1974. Upon this a notice had been issued to him for showing cause against punishment for contempt of the Court. He had not contested that notice as he had thrown himself at the mercy of the Court, had tendered unqualified apology and had prayed for forgiveness. The learned Judge (Ataullah Sajjad, j.) who dealt with the petition found the Superintendent jail to have not been very careful in sending the reply to the High Court and accordingly warned him to be careful in future, but discharged the contempt notice. His Lordship however, held that the question of mala fide or legality of the punishment could not be gone into in that proceeding.
11. In deciding about the prisoner's entitlement to remission for good conduct, a scrutiny of the circumstance under which the punishment had been awarded is inescapable because the punishment had been made the basis for refusal to him of certain remissions otherwise admissible to him under the Rules. It appears from Memo. No, Prs. I(M)/26/72 (Provisional) dated 24-7-1975 addressed by Joint Secretary (Home), Government of the Punjab, to the Assistant Advocate- General and filed in this writ petition, that a report was received from D.I.-G. Special Branch that Ajmal Rana (present petitioner) with two unauthorised persons had come to see the prisoner in his room in Albert Victor Hospital on 1-2-1975, that the Medical Officer Dr. Muhammad Siddiq, had asked the attendant of the prisoner to inform him about the arrival of those persons, that on the receipt of the information the prisoner had come to the doctor's room but that due to constant presence of the Special Branch Staff, the prisoner could not enter into dialogue with the visitors. The Superintendent District Jail Lahore had been directed by the Government to take action against the convict for "attempting" to interview unauthorised persons. It was ostensibly under this direction that Mr. Hameed Asghar, Superintendent Jail, had gone to the hospital for making the inquiry. As stated by him in Criminal Original No, 18 of 1975, he had made oral inquiries from the police guard whose names he did not know, from the official incharge of the special police party, from the guards detailed by the jail and also from the prisoner. According to him he was told" that the prisoner had gone to the office of the doctor where he had "tried" to have an unauthorised interview. Upon this finding he had recorded the punishment on the history ticket of the prisoner on 1-3-1975.
12. It is obvious that the punishment awarded was not only in conflict with the direction of the Court given on 24-4-1974 in Criminal Misc. No, 182/H-74, but, as we will presently see, was also not warranted under the law. The prisoner had not yet communicated with the strangers. At the best he could be said to have attempted at that. Section 45 of the Prisons Act 1894 declares certain acts to be prison offences. In addition to these offences, a larger number of other offences are listed in Para. 577 of the Punjab Jail Manual. Section 49 of the Act enjoins that "no punishment shall be inflicted on any prisoner otherwise than in accordance with the provisions of those sections." The sections are obviously the sections of the Act defining the offences, prescribing punishments and the manner of award of the punishments for the same. We have gone through the offences prescribed in the Act and the Manual, but we do not find an attempt to have unauthorised interview to be an offence. That being so, the prisoner cannot be said to have committed an offence within the meaning of the Act and the Rules, and as such the punishment awarded to him is on the face of the record, a nullity and of no effect in regard to the entitlement of the prisoner to remission under the law.
13. It was however contended by the respondent that some of the remissions claimed under category are discretionary with the Department and could not be claimed as a matter of right. This contention is not relevant to remissions claimed under rule 14 where the word used is "shall". The word used in rules 16 and 18 is "may". This word, used in the context of discretionary power in various laws, has come up for interpretation from time to time and it has been held that where the requirements prescribed for invoking the discretion have been fulfilled, the word "may" will have the same force as "shall" and that it will no longer be open to the authority to refuse the discretion. In Muhammad Saleh v. Chief Settlement Commissioner (1) their Lordships dealt with the point in the following words :- "This argument proceeds on the assumption that while the word "shall" clearly connotes a compulsive obligation, the word "may" merely suggests a recommendatory directive. It is now well settled that the words "may" and "shall" in legal phraseology are interchangeable, depending on the context in which they are used, and are not to be interpreted with the rigidity which is attributed to them in ordinary parlance. But it is not necessary to define the exact scope of the word "may" as used in the relevant sub-para. Of the press note mentioned above. Even if this directive is not to be taken as a mandatory one, it does not make much difference to the appellant's case. Since he had satisfied all the conditions of the press note, it would be an abuse of authority to withhold from him the relief as granted by it, unless the issuance of the press note be deemed to be a futile exercise."
14. The convict has claimed Annual Good Conduct Remission under rule 14 of 15 days for the first year, 15 days for the second year and 60 days for the third year. The said Rule however permits, and the learned counsel for the petitioner conceded, only 30 days for the third year. The respondent has allowed the remission claimed for the first and the second year only and has refused the remission for the third year on account of the punishment awarded on 1-3-1975, which as already held, is of no effect to the
(1) PLD 1972 3 C 326 convict's entitlement to remission. The convict has therefore, to be given 301 days of remission for the third year under rule 14. Claim has also been 1 aid to Superintendent's Annual Special Remission of 30 days for the three years i,e, 1973, 1974 and 1975 under rule 18 and to a special remission of 45 days under rule 16. A perusal of these two Rules shows that they are complementary and not independent. For, while rule 16 prescribes the special services for which a special remission will be deserved, rule 18 prescribes the authority which will grant and the extent to which it will grant such remission. The two Rules as they stand individually are incapable of being implemented unless read together. For this reason the claim for special remission for regular prayers under rule 16 is not tenable. As regards the Superintendent's special remission claimed under rule 18, it was urged by the respondent that the remission could be earned only on the performance of some special service as described in rule 16, but that as the convict had no such performance to his credit, the claim had no merit. We however, find that the respondent had allowed such remission of 30 days for 1974. No reason has been given for not allowing the same for 1973. As for 1915, the reason was obviously the aforesaid punishment dated 1-3-1975. If the respondent found the convict deserving of the remission for 1974, we see no reason or justification for denying the remission for the other two years. It will seem highly arbitrary on the part of the respondent to allow remission for one year but to disallow the same for the other years without any special reason. We are therefore, satisfied that the convict was entitled to the Superintendent's special remission for 1973 and 1975 at the rate of 30 days per annum. The learned counsel for the respondent did not press the remaining item of remission of 15 days in this category 'B'.
15. As regards the remissions claimed under categories 'C' and 'D' of the Table, we find that these are remissions which fall under section 401, Cr. P. C. The respondent has conceded the remission of 150 days declared by the Government on 16-8-1973. The second remission which is of 60 days has been claimed on the basis of an announcement said to have been made by the Minister in 1973 on the occasion of the inauguration of the Transister Plant. The respondent explained in writing that remission announced by the Minister on 15-3-1973 was for the prisoners who had worked in the Fortress Stadium and as such it did not extend to the present convict and that the remission on the occasion of the inaugration of the Transister Plant had been announced by the Governor on 4-2- 1973 for the prisoners of Kot Lakhpat Jail but that the convict was not eligible to the remission because on that date he was an inmate of the New Central Jail, Multan. He pointed out from the jail records that the convict had been transferred to that jail from Central Jail Sahiwal on 18-12-1972 and had remained there until his transfer to the New Central Jail Bahawalpur on 9,3-1973. These facts not having been rebutted, there is no merit in the claim to the remission. The other remission claimed during the hearing of the present petition, is on the basis of some announcement said to have been made by the Provincial Minister on 10-7-1975. The claim has been denied on the ground that no formal order had been received by the jail authorities. Memo. No, Prs. I(M)26-Vol. II, dated 7- 8-1975 addressed by the Joint Secretary (Home) of the Provincial Government to the Advocate- General Punjab, has been furnished to say that the Minister's order granting special remission cannot be given effect to unless authenticated under rule 11 of the Rule of Business and that the announcement said to have been made by the Minister had neither been received by the Home Department nor by the Superintendent Jail. It was urged on behalf of the petitioner that the postponing of the implementation of the announcement was mala fide and only with the set intention of delaying the release of the prisoner. Since the jail authorities are not to act except upon formal orders received by them, the stand taken by the respondent can hardly be questioned. In G.
I. Battacharya's case, cited earlier, the Supreme Court had repelled, in the following words, the plea to give effect to a Presidential Order dated 20th June 1962, which had not been communicated to the Jail Superintendent :- "But the principle cannot be invoked to vary the very clear duty imposed upon an officer-in-charge of a prison by the Prisoners Act. He is to obey a writ, warrant or order according to its exigency in relation to each prisoner entrusted to his custody. Such writ, warrant or order must come from proper authority with an official signature, and after due resolution of any doubt that may be felt by the said officer in regard to the legality of any such warrant or order or as to the competence of the person issuing it to make such order or to issue such warrant or to pass such sentence. An officer- in-charge of a prison who gives effect in the history ticket of a prisoner to something which he has read in a newspaper would be held in dereliction of his duty under the Prisoners Act."
' The remission on the basis of the Minister's announcement dated 10-7-1975 cannot therefore, be claimed yet.
16. To sum up the convict is found entitled to the following remissions upto 3rd Quarter 1975. {{TABLE}} A. 2nd Quarter 1972 ,.. ... 16 3rd Quarter 1972 0 ... ... 24 4th Quarter 1972 ... I ... 24 1st Quarter 1973 ... ... ... 24 2nd Quarter 1973 ... ... ... 24 3rd Quarter 1973 .,. ... ... 21 4th Quarter 1973 ... ... ... 15 1st Quarter 1974 ... ... ... 15 2nd Quarter 1974 4 lie ... 15 3rd Quarter 1974 ... ... ... 15 4th Quarter 1974 ... ... ... 15 1st Quarter 1975 ... ... ... 15 2nd Quarter 1975 ... ... 15 3rd Quarter 1975 ... ... 15 B. 1st Annual Good Conduct Remission on 1-5-1973 .44 ... 15 2nd Annual Good Conduct Remission on 1-5-1974 ... 15 3rd Annual Good Conduct Remission on 1-5-1975 ... 30 Superintendent's special remission for 1973 ... ... ... 30 Superintendent's Special remission for 1974 30 Superintendent's special remission for 1975 ... 30 C& D Special remission announced by Govt. on 16-8-1975. ... ... ... 150 Total 553 {{TABLE}} ' The remissions claimed are therefore, accepted to the extent of 553 days as detailed above but as the convict, on the basis or these remissions, is not yet due for release, a direction for setting him at liberty as prayed for, cannot be issued. The writ petition is disposed of accordingly.