' Inayat Bibi wife of Ghulam Qadir through this Constitutional petition has assailed the remission/commutation or suspension of portion of sentences awarded to Amjad Ali son of Nazir Ahmad respondent No,1 and Amer Jamshaid son of Abdul Ghani respondent No,2, by respondents Nos.3 and 4 and prayed that the same be declared illegal, null and void ab initio as being contrary to the amendment after promulgation of Qisas and Diyat Ordinance which came into being on 13th August, 1990. It is further prayed that any remission/commutation or suspension of sentence awarded to respondents Nos.1 and 2 without the consent of legal heirs of victim/ deceased be declared to be contrary to law as contained in section 402-C, of the Code of Criminal Procedure.
Lastly it was urged that the President, Federal Government or Provincial Government may be restrained henceforth to award remission in the sentence awarded to respondents Nos.1 and 2 without consent of legal heirs of the victim/deceased.
2. Javaid Iqbal real son of the petitioner was stated to be murdered by respondents Nos.1 and 2 which gave rise to a criminal case registered vide F.I.R. No,386, dated 13-6-1995 with Police Station Civil Lines, Gujrat. The trial ended in the conviction of respondents Nos.1 and 2 who were sentenced to life imprisonment on 3.1-8-1998. Revision for enhancement of sentence from life imprisonment to death penalty is pending in the Lahore High Court alongwith appeal filed by respondents Nos.l and 2.
3. Learned counsel contended that remissions details of which were given in the second para. Of the petition were allowed either by the President of Pakistan or by the Provincial Government through its Chief Minister from time to time and to the best knowledge of the petitioner eight years remission has been granted to respondents Nos.l and 2 in view of the various notifications issued by the referred to authorities. The grounds urged in support of his prayer was that offence affecting human body contained in Chapter XVI of Pakistan Penal Code were suitably amended through the Qisas and Diyat. Ordinance promulgated on 13-8-1990 alongwith section 402-C, of the Code of Criminal Procedure which barred remission/ suspension or commutation of any sentence without the consent of the heirs of the victim or the Walies of the deceased, as the case may be. The remission mentioned above, awarded therefore, was prayed to be declared as illegal and void ab initio.
4. Mr. Saadat Ali, Deputy Secretary (Home) alongwith Mr. Abdul Saboor, Assistant Superintendent, Jail, Gujrat put in appearance after submitting their comments, they were assisted by Mr. Nasim Sabir Chaudhry, , learned Additional Advocate-General, Punjab whereas respondents Nos.1 and 2 were represented by Mr. Ijaz Hussain Batalvi, Advocate. The parawise comments submitted on behalf of Government of Punjab through its Home Secretary detailed the following remissions awarded to all the prisoners confined in Punjab Jail by the President of Pakistan on different occasions by virtue of his powers under Article 45 of the Constitution of Islamic Republic of Pakistan:-
(1) On 14-8-1996 (3) Three months
(2) On 28-8-1997 1/5th of the total sentence.
(3) On 26-1-1999 (1) One year
(4) On 28-3-1999 (1) One year (5)One 31-5-1999 (6) Six months.
' Besides the remission granted by the President of Pakistan detailed above the Provincial Government also extended special remission, the detail of which was given as under:--
(1) On 28-4-1996 (2) Two months
(2) On 27-2-1997 (2) Two months
5. Learned counsel for the petitioner in view of the judgment of the Honourable Supreme Court reported in the case of Hakim Khan and 3 others v. Government of Pakistan through Secretary, Interior and others, reported in PLD 1992 SC 595 has no cavil with the proposition that the President while exercising his powers under Article 45 of the Constitution of Islamic Republic of Pakistan, 1973 can grant remission in cases punishable under sections 302-B and 302-C, P.P.C. By way of Ta'zir as the said Articles of the Constitution override the provision of Pakistan Penal Code or the Code of Criminal Procedure. He has specifically called in question the validity of sixty months remission granted on 28-8-1997 alongwith three months remission granted on 14-8-1996 by the President of Pakistan on the ground that such remissions can only be held to be valid to whose convicts who were undergoing life imprisonment and since respondents Nos.1 and 2 were convicted and sentenced to life imprisonment by a competent Court of law on 31-8-1998, the Notifications, dated 28-8-1997 and 14-8-1996 respectively, would be inapplicable to the sentences awarded to respondents Nos.1 and 2. Similarly, the remission granted by the Provincial Government either under the Code of Criminal Procedure or in pursuance of some Notifications was termed as invalid on the ground that after Qisas and Diyat Ordinance which was promulgated on 13-8-1990, such remissions were repugnant to the law and has to be struck down. He relied upon the case of Muhammad Ameer and another v. Abdul Qadir and 2 others of a Division Bench judgment reported in 1998 PCr.LJ 921 and the case of Habib-ul-Wahab Alkhairi and others v. Federation of Pakistan, reported in PLD 1991 FSC 236.
6. Learned counsel appearing for respondents Nos.1 and 2 argued that the notification issued by the President of Pakistan on 28-8-1997 was on the basis of a general principle which was applicable to all times to come, as substantive punishment commences from the date of arrest and not from the date of conviction, therefore, the provision of law contained in section 402, Cr.P.C.
Would be applicable.
7. There is no cavil with the proposition that the President in exercise of his powers under Article 45 can grant remissions or pardon to any prisoner who has been convicted and sentenced under any offence contained in general law or any special law. Learned counsel for the petitioner has conceded this proposition in view of the dictum of the apex Court in case of Hakim Khan and 3 others, (supra), however, he has assailed the validity of Notification issued by the President of Pakistan, dated 28-8-1997 whereby 1/5th of the total sentence was waived by way of remission. I have gone through this Notification and the reason for awarding the remission was due to the occasion of Golden Jubilee i.e, Independence Day of 1997. The remission was for particular purpose awarded by way of celebrating the Golden Jubilee of the Independence of the State of Pakistan.
This remission was only applicable to those prisoners who were undergoing the sentence in the month of August, 1997. The date of Notification which is 28-8-1997 itself suggests that it was issued after 14th August, i.e, the Independence day and was only applicable to the convicts who were undergoing sentence on 14-8-1997 and immediately thereafter. The operative part of the Notification reads as under:-- ' "In exercise of powers under Article 45 of the Constitution the President has been pleased to grant permission in the sentences on the occasion of Golden Jubilee Independence Day, 1997."
' To argue that the remission was a general one and was applicable thereafter to all the convicts irrespective of the date of conviction is a total misnomer. The grant of remission was only applicable to convicts undergoing sentences particularly life imprisonment on the day when the notification was issued by way of commemorating the Golden Jubilee Independence Day of 14th August, 1997. The commencement and end of Golden Jubilee celebration by any mode of interpretation would not exceed one year. Therefore, if it commenced on 14th August, 1997 it came to end on 13th August, 1998. After this date the award of remission through referred to notification would not benefit respondents Nos.1 and 2 because they were not convicted till 31-8-1998.
Reference is invited to the case of Habib-ul-Wahab Alkhairi and others, (supra), wherein while discussing the impact of Qisas and Diyat Ordinance it was held, surely not by way of obiter dicta, that the question of remission and sentence comes in only when the trial is over and judgment is delivered. The Notification, dated 28-8-1997 in unequivocal terms, in order to remove any doubts, states that remissions would be admissible to prisoners undergoing sentence for offence other than....
8. Section 382-B of the Code of Criminal Procedure now makes it mandatory after the amending Ordinance LXXI of 1979, by the introduction of word "Shall" to take into consideration the pre- conviction period of detention. The argument that substantive imprisonment commences from the date of arrest which is on or after 13-6-1995 in the present case and the notification granting remission is dated 28-8-1997, therefore, on the basis of referred to analogy, benefit of remission would be extendable to the case of respondents Nos.1 and 2, is totally devoid of force. Conviction of a prisoner proves his culpability, but before that, he is incarcerated either due to the gravity of the offence, where it is feared he may not repeat, or may not abscond or suborn the witnesses to earn acquittal. But once being convicted, law now, counts the pre-conviction period of detention as part of his sentence, in all fairness. However, by no stretch of imagination can the benefit of remission, granted by an authority be extended to him, by way of reduction from his term of imprisonment.
Sentence is always preceded by conviction. Notification granting remission, speaks of its applicability to convicts undergoing sentence. For the first time respondents Nos.1 and 2 were convicted on 31-8-1998. How could the benefit of Notification, dated 28-8-1997 be extended to respondents Nos.1 and 2 boggles the mind. Merely because the pre-conviction period of detention is deducted from the sentence?
' To urge that substantive punishment commences from period of detention and not from date of conviction is rank misnomer. Punishment, be it imprisonment, fine or lashes only commence when the Court is of the belief that a person made guilty of an offence has committed the offence on the basis of evidence brought before it. In other words Court is convinced of his culpability that it convicts him. It is only thereafter, that ramification of a conviction takes effect, which is imprisonment and fine. Question, which thereafter comes to mind is, about the period of detention which the convict has undergone prior to his conviction. Prior to amending Ordinance LXXI of 1979 such a period could be subtracted from his imprisonment or considering the gravity of offence Court could decline to deduct it from the term of imprisonment. However, after the amendment, the law giver not only considered this detention is a safeguard, referred to the purposes earlier, but to be just and fair to the convict, introduced the word "shall" making it mandatory for Courts to deduct the period from his substantive imprisonment commencing from the date of his conviction.
This is the only meaning which a prudent mind can assign to the wording of section 382-B, Cr.P.C.
The universal rule in construing is that the grammatical and ordinary sense of the words is to be adhered to unless that would lead to some absurdity, or some repugnancy or inconsistency with the rest of the enactment. Where the meaning of an enactment is clear, to apply that meaning is to give it a literal construction. If the language of a provision is clear and unambiguous, it should be accepted as such without hesitation or demur. Words themselves alone in such a case best declare intention of the Legislature. Importing any remissions granted, by any authority competent under the law to do so, to the provisions of section 382-B, Cr.P.C. Would be doing violence to the said provisions. Permission granted by the President derives its origin under Article 45 of the Constitution whereas counting the period of detention before conviction is contained in section 382-B, Cr.P.C. There is no clash whatsoever between two provisions of law, each are independent provisions, conferring powers on independent authority to grant benefit to convicts in the matter of their sentences, therefore, the argument that since the substantive sentence commenced from the date of arrest as such benefit of the remission through the Notification dated 28-8-1997 be extended to respondents Nos.1 and 2, is devoid of force, as provision of section 382-B, Cr.P.C. Only comes into being once conviction takes place followed by sentence to be awarded. Same discussion applies to the remission of three months granted by the President vide Notification, dated 14-8-1996.
9. As regards the remission granted by the Provincial Government on 28-4-1996 for two months and again on 27-2-1997 for two months, this is clearly violative of the provisions of sections 54 and 55 of the Pakistan Penal Code and sections 410, 402, 402-A and 402-B of the Code of Criminal Procedure alongwith relevant parts of its schedule and have to be struck down being repugnant to the amendments made in the referred to provisions of law on 13-8-1990. Reference is made to the case of Muhammad Ameer and another (supra).
10. The upshot of the discussion is that the grant of remission to Respondents Nos.1 and 2 vide Notification, dated 28-8-1997 to the extent of 1/5th of the total sentence, three months vide Notification, dated 14-8-1996 by the President of Pakistan and Notification, dated 28-4-1996 followed by another Notification, dated 27-2-1997 granting two months' remission each by the Provincial Government is declared to be inapplicable and contrary to law, therefore, the same are set aside by partly accepting the writ petition. The benefit of these notifications shall not be extended or awarded by way of remissions to the imprisonment to which respondents Nos.1 and 2 were sentenced on 31-8-1998 by a competent Court of law. There shall be no order as to costs. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.