This writ petition is directed against the order of respondents 1 to 3 by which the sentence of the Convict Abdul Hamid, respondent No. 4, has been reduced immensely by giving him occasional remissions.
2. This writ petition arises out of the fact that the writ petitioner, Shelkh Muhammad Sharif is the father of Muhammad Farooq deceased who was murdered by the convict respondent No. 4. The latter was triad for officers under sec Ion 302 of the Pakistan Penal Code for the murder of Muhammad Farooq deceased and under section 307 of the Pakistan Penal Code for causing injuries to Muhammad Ashiq. The learned Additional Sessions Judge, Rawalpindi, vide his judgment dated 13-10-1969, convicted the accused-respondent No. 4 under section 302, P. P. C. For the murder of Muhammad Farooq and sentenced him to death and also sentenced him to three years rigorous imprisonment under section 307, P. P. C. For the attempted murder of Ashiq Hussain P. W.
Respondent No. 4 filed an appeal (bearing Cr. A. No 784 of 1969) against his conviction in the High Court, which was dismissed by a Division Bench on 7-7-1971 and the conviction and sentence of respondent No. 4 was confirmed. Respondent No. 4 filed a Petition for Special Leave to Appeal (bearing P. S. L. A. No. 197 of 1971) in the Supreme Court but the same was dismissed on 10-11-1971 and Criminal Review Petition (bearing No. 13 of 1971) moved by the respondent also failed and was dismissed on 6-3-1972.
3. On 22-12-1971, the then President and Chief Martial Law Administrator ordered commutation to transportation for life of all death sentences which were pending execution, but on 24-12-:971, the Home Secretary issued a clarification which was to the effect that orders of commutation following amnesty granted by the President were to be issued in such death cases only as had passed through all the judicial stages in the Appellate Courts and were pending before the Provincial/Central Government on mercy side under section 402 of the Criminal Procedure Code.
4. Consequent upon Issuance of the above-mentioned notification by the Home Department, the death sentence of respondent No. 4 was not commuted. It appears that respondent No. 4 submitted a mercy petition to the then Governor of the Punjab which was accepted on 29-4-1975 and the death sentence of respondent No. 4 was commuted to life imprisonment.
The following remissions have been given to respondent No. 4 ; According to Jail rules, convict Abdul Hamid will undergo total sentence as under Imprisonment for life under section 302, P. P. C.14 years' R. I.
Sentence under section 307,3 years' R. I.
P. P. C.
17 years' R. I.
Out of 17 years' R. I. He will undergo (10 years -1- 2 years) = 12 years substantive sentence and after earning 5 years jail remission ho will be released from jail. Remission awarded by Government under section 401, Cr. P. C. Will be counted towards his substantive sentence. The detail of remission earned by convict so far is given below ; Date of sentence 13-10-1969Y,-M.-D.
1.Substantive sentence served up to 26-11-19756-1-11 2.General amnesty remission awarded by the Government under section 401, Cr. P. C. On 5-1-1972 by Governor of Punjab and 14-8-1973 by Central Government (to be counted towards substantive sontenco)4-3--W 3, Other jail remission earned up to Y.-M.-D.
26-11-1975.2-5-24 Total sentence served, including remission.12-1005c Unexpired portion of sentence on 26-11-1975. 4-1-25
5. The petitioner has challenged the remission given by the respondents and has contended that under section 57 of the Pakistan Penal Code life imprisonment is to be reckoned a9 equivalent to 25 years arid not 14 years and most of the remissions granted by the Provincial and Central Ministers are unwarranted. In the alternative, total substantive sentence of 10 years for a life convict will have to be served and it cannot be reduced by any other remission.
6. Since the matter involved was of much importance and might be having a very far-reaching effect and deals with the jurisdiction of the Provincial and Central Ministers as to whether they are competent to order remission under the remission rules, the Joint Secretary (Home), Government of the Punjab, respondent No. 2, was summoned and the Advocate-General, Punjab was also given notice to address the Court.
7. As far as the first contention is concerned, it is correct that the petitioner was sentenced to death on 13-10-1969 and the death sentence was commuted to imprisonment for life on 29-4-1975 by the Governor of the Punjab. Section 57 of the Pakistan Penal Code has been amended by the Law Reforms Ordinance, 1972 wherein the term "imprisonment for life" is to be reckoned as equivalent to 25 years. The sole question for determination will be whether the amended section 57, P. 1'. C. Will be applicable in such cast or not? Para. 34(d) of the Punjab Jail Manual specifically states that "If a sentence of death is commuted to transportation or impri3onment, the sentence of transportation or imprisonment shall be deemed to commence from the date on which the sentence of death was passed." .
By introducing the words "shall be deemed." it will be considered that although actually the order of the Governor is dated 29-4-1975 but it will be made applicable from the date of sentence I.e. 13-10- 1969 and on the interpretation of clause (d) the date of commutation is to be considered as 13-10- 1969. The amendment has been made in the Sear 1972. It will not be applicable with retrospective effect and it is to be governed by the previous existing law and not the amended law.
8. In the previous section 57, P. P. C., "life imprisonment" is to be reckoned equal to 20 years.
9. On 3-8-1965 the West Pakistan Prisons (Remission of Sentences) Rules, 1965 were framed under section 59 of the Prisons Act, 1894. Under rule 2, sub-rule (c), "life convict" has been defined as meaning a convict sentenced to transportation for life. Such sentence shall mean 14 years' R. I.
Under section 57, P. P. C., "transportation for life" is to be construed as 20 years, whereas under the Rules it is to be construed as 14 years. Apparently there appears to be anomaly in the section and the Rules but when examined the same there does not appear to be any such inconsistency.
The period of 14 years as defined in the Rules is primarily intended to serve as a basis for working of the remission system formulated by the Provincial Government under the provisions of the Prisons Act. Under rule 22(2) it is laid down that :- "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 in accordance with section 401, Cr. P. C."
The bare reading of this Rule would indicate that when the life convict ha completed the aggregate period of 14 years, Including remissions of all kinds worked out on the basis of 14 years, the matter will have to be referred to the Provincial Government under section 401, Cr. P. C. If the Provincial Government does not want to release a life convict after be bag completed B 14 years' rigorous imprisonment it will be presumed that the convict is to undergo an aggregate imprisonment of 20 years. In that eventuality all the remissions earned by him whether special or ordinary will have to be calculated on the basis that he will be undergoing a sentence of 20 years and not 14 years. So, in the present case, it appears that the Jail Authorities have calculated remissions on the basis of 14 years -f- 3 years under section 307, P. P. C. And when the life convict hag completed 17 years' R. I., including 5 years remissions, the matter will be referred by the Jail Authority to the Provincial Government under section 401, Cr. P. C. If the Provincial Government did not agree to release the convict then the convict will have to remain in jail for a total aggregate period of 20 years, including all the remissions. Reliance can be placed on the Full Bench authority of that Lahore High Court titled Muhammad Hussain etc. v. The State (PLD 1968 Lah. 1), which reads :- "'Therefore, under sub-rule (2) of rule 22 the rolls of all life convicts who have completed an aggregate period of fourteen years including remissions of all kinds, worked out on the basis of fourteen years, have to be forwarded to the Provincial Government for appropriate action under section 401 of the Criminal Procedure Code. In those cases, however, where the Provincial Government does not wish to release a life convict after he has completed an aggregate period of fourteen years rigorous imprisonment, it shall be assumed that the prisoner has to undergo an aggregate imprisonment of twenty years."
10. In view of this authority the contention of the learned counsel is devoid of force and according to law the convict-respondent No. 4 after completing 14 years imprisonment, including remissions, the matter will have to be considered by the Provincial Government and if the Provincial Government did not agree to release the convict then the convict-respondent will have to remain in jail for a total period of 20 years, including remissions.
11. As far as the other remissions are concerned, the convict-respondent No. 4 is entitled to ordinary and special remissions permissible under the Jail Manual and some remissions independent of the Jail Manual under the Rules.
Under para. 203 of the Punjab Jail Manual the convict-respondent No. 4 is entitled to ordinary remissions at the rate of two days per month for thoroughly good conduct scrupulous attention to all Prisons Regulations and from 11-12-1969 to 4-5-1975 will earn ordinary remissions to the extent of four months and fourteen days. The convict-respondent No. 4 appears to have been promoted as Monitor in June 1975 under para. 468 of the Punjab Jail Manual and he is entitled to ordinary remission of seven days per month under rule 7 of the Remission Rules. He has earned ordinary remission at the rate of seven days per month from June 1975 to June 1977 in accordance with rule 7 of the Remission Rules, 1965. In addition to these remissions he has been awarded good conduct remission of 15 days per year in accordance with para. 210 of the Jail Manual read with rule 14 of the Remission Rules, 1965. He has also been granted Superintendent---s special remission under para. 217 of the Jail Manual read with rule 18 of the Remission Rules, 1965.
Rule 18 of the West Pakistan Prisons (Remission of Sentences) Rules, 1965 has been vehemently attacked by the learned counsel on the ground that for the Government the Ministers are not competent to grant remission. Rule 18 reads as under ; "18. Extent of special remission.-(I) Special remission may be award by the following authorities up to the extent mentioned against each Authority awarding remission Extent of award
1. Superintendent Not exceeding thirty days in one year.
2. Director Not exceeding sixty days in one year.
3. Government Not exceeding sixty days in one year.
The word "Director" has been substituted by the words "Inspector-General of Prisons" by a Government notification and the Inspector-General under this rule can award special remission of sixty days per year which has been awarded in the case of the convict-respondent No. 4. The following special remissions were awarded by the Ministers to the convict-respondent No. 4 Visit of the provincial Remission awarded Minister to Jail onto the convict (1)17-7-197260 days (2?5-5-197360 days (3)13.5-197460 days (4)25-6-197560 days (5)28-10-197560 days
(6) Government special remission through the Central Minister for Jails awarded on 29-7-1972 60 days.
12. The learned counsel for the petitioner has contended that the Ministers are not competent to grant remission because under rule 18 of the West Pakistan Prisons (Remission of Sentences) Rules, 1965, only the word "Government" is mentioned. Government is not Minister hence the Ministers are not competent to grant the remission.
13. In order to appreciate the contention of the learned counsel I have to refer to the Interim Constitution which is applicable for the three entries (1), (2) and (6). Remission at (1) and (2) above were grunted by the Provincial minister and at (6) by the Central Minister. The word "Government" has been defined in the General Clauses Act, 1897. Under section 3(21), "Government" shall include both the Central Government and the Provincial Government. "Provincial Government" is defined in Article 290 of the Interim Constitution. According to this definition it shall mean Executive Government of a Province and under Article 102 of the Interim Constitution such authority vests in the Governor. On the basis of this interpretation it is only the Governor who is competent to award remission, but according to Article 102 of the Interim Constitution, the executive authority of the Province shall be exercised either by the Governor directly or through Officers subordinate to him.
Now, it is to be ascertained whether a Minister is an Officer subordinate to the Governor. Under Article 104 of the said Constitution, Ministers are appointed and removed from office by the Governor on the advice of the Chief Minister. Since the Governor is the appointing and removing authority, the Ministers will have to be considered as Officer subordinate to the Governor. Reliance is placed on Emperor v. Sibnath Banerji etc. (AIR1945PC156), wherein in a corresponding provision of section 49(1) of Act of 1935 received interpretation and the sole question for determination was whether the Home Minister was an Officer subordinate to the Governor. Reliance can also be placed on .The Crown v. Muhammnd Afzal Bangash (PLD1956FC1), wherein it has been hold that Minister is an Officer subordinate to the Governor. On the basis of these two authorities it becomes clear that the Governor who in exercise of the powers conferred upon him under section 401,1 Cr. P.
C. Is competent to award remission can act through the Ministers. Under Article 106 (3) and (4) the Governor is competent to frame rules oil business of the Provincial Government for allocation amongst Ministers of the said business. In the West Pakistan Government Rules of Business, 1962, "Minister" is defined as Minister incharge of the Department to which a particular case pertains and under rule 5, the "Minister" is responsible for policy matters concerning his Department. So in view of these two provisions by which a Minister is responsible for policy matters concerning his Department and he is also incharge of his Department and by virtue of business E rules he is competent to award remission under section 401, Cr. P. C. And ii will be presumed that he has done it on behalf of the Governor. Similarly corresponding provision is Article 54 wherein the executive authority of the Federation is to be exercised by the President either directly or through Officers subordinate to him. Under Article 63, Ministers are to be chosen by the President and they are to hold office during the pleasure of the President. As a result of it a Central Minister will be considered as a subordinate Officer of the President. Under Article 66 of the Constitution the President shall make rules for the transaction of business of the Central Government and for the allocation amongst Ministers and Ministers of State of the Federal Government. By virtue of rules of business framed by the President, a Minister can exercise the power of granting remission under Article 262 of the Interim Constitution read with section 401 (5), Cr. P. C and as such the power exercised by the Central Minister in granting remission is also not open to any exception.
14. Constitution of the Islamic Republic of Pakistan came into force on 14-8-1973. Under Article 129 of the Constitution the executive authority of the Province is to be exercised In the name of the Governor by the Provincial Government consisting of the Chief Minister and the Pr3vincial Ministers and in the performance of his functions the Chief Minister may act either directly or through a Provincial Minister. A Minister is appointed under Article 132 by the Chief Minister and can be removed by him.
According to Article 129 of the Constitution, the "Provincial Government" means the "Chief Minister and the Provincial Ministers". The 'Governor' appears to have been eliminated from the definition of the "Provincial Government". In sub-Article (2), it has been stated that in the performance of his functions under the Constitution, the Chief Minister may act either directly or through the Provincial Ministers meaning thereby that even Ministers can act on behalf of the Provincial Government.
Under Article 139(2) of the Constitution, "the Provincial Government may regulate the allocation and transaction of its business and may for the convenient transaction of that business delegate any of its functions to officers or authorities subordinate to it".
The Provincial Government has framed Rules of Business, 1974 and rule 6 deals with the functions of the "Minister" wherein be is made responsible for policy matters and for the conduct of the business of his Department, and "Minister Incharge" is defined as Minister holding charge of his G Department to which a particular case pertains. On the basis of this delegation of powers, a Minister even under the New Constitution can exercise the power of the Government conferred under section 401, Cr. P. C. Dealing with remission. As a result of this discussion the Ministers even under the Interim Constitution and the present Constitution are competent to grant remissions by virtue of the powers conferred on them under section 401, Cr. P. C.
I stand fortified by the Full Bench decision of the Lahore High Court reported as Lt.-Gen. (Reid.) K. M.
Azhar Khan v. Superintendent, Kai Lakhpat Jail. Lahore etc. (PLD 1977 Lah. 629), wherein remissions were granted by the Minister for Jails under the present Constitution although the same point was not in dispute but their Lordships upheld the remission given by the Minister for Jails.