SARMAD JALAL OSMANY, J.--Miscellaneous Applications Nos.524 and 525 of 2001 as well as Miscellaneous Application No,5 of 2002 have been filed by the appellant for suspension of his sentence, which was awarded to him vide the impugned judgment viz. R.I. For 8 (eight) years and a fine of,Rs,150 million in default where of the appellant was to undergo simple imprisonment for two years more. In M.A. No,230 of 2002 it has been prayed that as the appellant is seriously ill he may be hospitalized. Earlier on 4-2-2002 vide a short order, we had allowed the foregoing applications' for suspension of the appellant's sentence. The following are the reasons for the same.
2. In support of these applications Choudhry Aitezaz Ahsan, learned counsel for the appellant, has firstly submitted that vide the Jail Roll filed in this Court on 21-1-2002 by the Superintendent, Central Prison Karachi, the appellant has already earned remission of five years, six months and 29 days in his sentence. However, vide letter dated 30-1-2002 addressed to the Registrar of this Court by the Superintendent, Central Prison, the remission earned has been shown to be only six months and 24 days, which is based upon another letter dated 22-12-2001 from the Ministry of Interior and Narcotics Control whereby it has been directed that remissions in the cases of those convicts who are passing sentences for crimes committed under the NAB Ordinance should not be proposed. Per learned counsel, the letter from the Ministry of Interior which is dated 22-12-2001 cannot operate retrospectively in order to deprive the appellant of the remissions, which he has already earned viz. Up to 15-12-2001 per his Jail Roll. Secondly, learned counsel has submitted that the letter from the Ministry of Interior is only recommendatory in nature and does not have any sanction of law whereas the remissions are given by the President of Pakistan under Article 45 of the Constitution and hence the latter cannot be displaced by mere letters of recommendation from a Government Department. Thirdly, learned counsel has submitted that per the letter from the Ministry of Interior only corruption cases have been singled out whereas the appellant has been convicted for willful default as defined in section 5(2) of the NAB Ordinance.
3. Next learned counsel has submitted that once a remission has been recorded on the history ticket of a prisoner, it cannot be taken back as this would amount to retrospective punishment, which is prohibited by Article 12 of the Constitution. In support of this proposition learned counsel has cited Lt.-Col. G.L. Bhattacharya v. The State PLD 1963 Dacca 422 and Farid Khan v. The State PLD 1965 Pesh.31.
4. Next learned counsel has submitted that the sentence of two years in lieu of fine is not a substantive one. He has relied upon Criminal Appeal No,1682 of 2000 entitled Air Marshal (Retd.)
Waqar Azeem v. The State wherein a learned Division Bench of the Lahore High Court had suspended the, sentence of the appellant viz. Two years' R.I. For non-payment of the amount of fine appellant had already undergone the substantive portion of his sentence viz. Four years' R.I. On the basis that although the substantive sentence had been served out by the appellant, his appeal had not so far been decided. In this regard, learned counsel has prayed that the rule of consistency be followed since it would amount to gross injustice if in similar circumstances the suspension of sentence was granted by the learned Lahore High Court and refused by this Court for which proposition he has cited Fida Hussain v. The Stare PLD 2002 SC 46.
5." Finally, learned counsel has urged that per the appellant's medical history, he is suffering from various ailments and his continued detention in prison would result in further deterioration of his health.
6. On the other hand, Mr. Raja Qureshi, the learned Advocate-General, has submitted that in fact the appellant had forged the blood cards of Messrs Fatimid Foundation in order to earn some of the remissions in his sentence which has been determined by the Superintendent, Central Prison, Karachi, and consequently an F.I.R. Has been filed against the appellant bearing No,39 of 2002 of Police Station P.I.B. Colony, Karachi. The learned A.-G. Has placed on the record the letter of the Superintendent, Central Prison, Karachi, dated 30-1-2002 addressed to the I.-G. Of Prisons in this regard. Learned A.-G. Has also submitted that as per rule 217 of the Prison Rules the total remission awarded to a prisoner is not to exceed 1/3rd of his sentence including remission for donating blood surgical sterilization and for passing an examination under rules 212, 213 and 215 of Rules respectively. Hence as the remissions as originally reported by the Superintendent, Central Prison, Karachi, viz. Five years, six months and 29 days exceed 1/3rd of the appellant's sentence i,e, eight years, the same cannot be justified. For this proposition, the learned A.-G. Has relied upon: Muhammad Afzal v. Home Secretary Government of Sindh PLD 1989 Kar. 7 and Lt.-Cola G.L.
Bhattacharya v. The State PLD 1964 SC 503.
7. In rebuttal Choudhry Aitezaz Ahsan, learned counsel for the appellant, has submitted that per rule 218 of the Prison Rules special remissions awarded by the Government on occasion of public rejoining viz.Eid-ul-Fitr etc. Are granted unconditionally under section 401 (1) of the Cr.P.C. And are not governed by the Prison Rules. In the present case the remission earned by the appellant are due to public holidays, Eidul-Fitr, Eidul-Azha and Eid-e-Milad-un-Nabi as well as Independence Day, etc., hence the limitation stated in Rule 217 of the Prison Rules would not apply in the case of the appellant.
8. We have heard learned counsel as well as the learned A.-G. Our conclusions are as follows.
9. It would be seen that per Article 45 of the Constitution, the President of Pakistan has the power to grant a pardon, reprieve and respite and to remit, suspend CT commute any sentence passed by any Court, Tribunal or other, authority. A perusal of the appellant's Jail Roll would show that the remissions which have been recorded therein are based on the orders of the President of Pakistan while exercising his prerogative under Article 45 of the Constitution. These remissions were granted on the occasion of public celebrations/holidays viz. Eid-ul-Fitr, Eid-ul-Azha and Eid-e-Millad-un- Nabi, etc. The said orders were communicated by the Home Secretary, Government of Sindh, to the I.-G. Prisons, Sindh, Karachi, and were acted upon by the Superintendent of Prisons who recorded the same on the history ticket of the appellant. In this view of the matter, in our opinion, once the remissions were recorded on such history ticket, these could not be cancelled unless there were compelling circumstances viz. Bona fide mistake etc. For this proposition reference can be made to Lt.-Col. G.L. Bhattacharya v. The State (supra) where in a Division Bench of the learned Dacca High Court opined that although there may be a locus poenitentiae with the Provincial Government to cancel the remission, this could not be done after the orders of the remission had been acted upon. The decision of the learned Division Bench was upheld in the Honourable Supreme Court.
10. It would further be seen that only that Government Functionary, which had issued the original remission has the power to withdraw/cancel the same and consequently the remission already earned by the appellant could not be withdrawn/cancelled on a mere letter written by the Ministry of Interior, Government of Pakistan to the Home Department, Government of Sindh. Even otherwise, we are of the opinion that such letter is not an order given under any sanction of law but a mere directive to the Provincial Government not to recommend the cases of those persons who have been convicted under the NAB Ordinance for the purpose of remission etc. Hence the same could not in any case operate to cancel the appellant's remissions. As regards learned counsel's submission that the letter under consideration could not operate retrospectively so as to cancel the remissions already earned and recorded on the history ticket of the appellant, in our view this question becomes an academic one as we have already held that the said letter cannot be the basis for treating the remissions as cancelled. However, as the same has been raised we propose to answer it. In our view assuming that the directive/letter in question was a valid one and could be treated as having simpliciter recalled the remissions earlier granted to the appellant under the doctrine of locus poenitentiae, this could not amount to retrospective punishment which has been prohibited under Article 12 of the Constitution. The reason is quite simple viz. Once the remission is simpliciter lawfully recalled, it could never be treated as having been validly earned and hence there could be no question of retrospectively in the circumstances of the case. However, we would also add that whether or not alteration/cancellation of a remission would amount to retrospective punishment would depend on the peculiar facts and circumstances of the case and as amply illustrated in Farid Khan v. State (supra) where such alteration amounted in effect to extend the prison term originally awarded to a prisoner, this would in effect amount to retrospective punishment.
11. As regards the learned Advocate-General's submissions that the remissions earned by the appellant should not be acted upon as he had fraudulently obtained the same by. Forging certain documents etc., suffice it to say that as already held, once such remissions were entered on the history ticket of the appellant viz. Were acted upon, they cannot be recalled on this score. Even otherwise, an F.I.R. Has been filed against the appellant for the alleged act of forging; he would face his trial and if convicted be accordingly punished. We also cannot agree with the learned Advocate-General that per rule 217 of the Prison Rules, no remission exceeding one-third of the appellant's sentence can be given as rule 218 of the Rules clearly lay down that remissions awarded by the Provincial Government on the occasion of public rejoicing, as in the appellant's case are without any limitation or exception. Although the majority of the remissions in question were granted by the President of Pakistan, we are of the opinion that the provisions of rule 218 of the Rules can and should be applied to such remissions since to hold otherwise would result in an anomaly, viz. No limitation could be placed on the Provincial Government while in like circumstances the Federal Government would be so limited. This would militate against the golden principle enshrined in Article 25 of the Constitution i,e, equality before the law. Finally, as regards' the case of Muhammad Afzal v. The Home Secretary, Government of Sindh (supra) cited by the learned A.-G. In support of his arguments, with respect, this does not advance his case. To the contrary, there a Diviskin Bench of this Court came to the conclusion that per rule 218 of the Prison Rules special remissions on the occasion of public rejoicing etc. Are not governed by the limitation placed under July 217.
12. Consequently, as the appellant has served out the major portion of his sentence viz. 7 years and eight months and now a balance of only 2 years and 4 months is left, and considering that he is suffering from various ailments per his medical history, we are of the view that the same should be suspended. Moreso, as the main application would take some time before it is decided. We had accordingly vide short order allowed the aforementioned applications for suspension of his sentence in which event M.A. No,230 of 2002 praying for the appellant's hospitalization has become infructuous and is dismissed as such.