' By a short order, dated 8-7-2002 bail was granted in the sum of Rs,2 millions to the detenu Yousuf Dada. The following are the reasons thereof.
2. Vide the instant petition, it is prayed that the respondent No,3 viz. Superintendent, Central Prison, Karachi, should be directed to produce the detenu before this Court as the petitioner wanted to satisfy herself that she was not being held illegally. She also prayed that the detenu should be released forthwith if he was not required in any case warranting his detention.
3. It seems that the detenu was arrested on 22-5-2000 and was tried as a co-accused alongwith one Zakaria Ghani in Accountability References Nos.4 of 2000, 7 of 2000 and 26 of 2000 before the Accountability Court No,1 . In References Nos.4 and 7 of 2000, he was acquitted whereas in Reference No,26 of 2000 the detenu was arrayed as a guarantor and he was convicted vide judgment, dated 13-5-2002 under section 5 read with section 9(a)(viii) of the NAB Ordinance and sentenced to undergo R.I. For two years and also pay a fine of Rs,6,73,581,162. In case of default he was to undergo simple imprisonment for two years more. He was given the benefit of section 382- B, Cr.P.C. After conviction the detenu on reaching the jail was informed that he had completed the entire term of his sentence including the term in lieu of fine as he had to undergo a total sentence of 1460 days inclusive of sentence in lieu of fine but had remained in jail for 2215 days after taking into consideration remissions etc. And in fact over stayed for 704 days as he was arrested on 25-2- 2000 but was shown by error to have been arrested on 25-5-2000. Per the petitioner once this error is corrected he had remained in custody for 810 days in excess and hence he was, entitled to be released on 14-5-2000. However, as he was not so released an application was moved by Mr. Taufeeq Dada nephew of the petitioner before the Accountability Court. The Court took action and addressed a letter to the Superintendent, Central Prison, Karachi, who was directed to appear in Court alongwith the complete record. The Superintendent appeared in Court and submitted the entire record. He, however, stated that the detenu had not been released as instructions from the Government had not been obtained. He also undertook to release the detenu on 17-5-2002. Again, however, the detenu was not released upon various flimsy excuses. It is the contention of the petitioner that the release roll has been prepared, remissions have been earned and granted and undertakings have also been obtained that the detenu would be released but in spite of all this he has not been released and hence the petition.
4. We have heard both the counsel for the petitioner as well as the learned A.A.-G. We have also gone through the record and seen the letter of the Superintendent Central Prison as well as the release roll. The gist of the learned A.A.-G.'s case is that remissions can only be available to the accused after he is convicted as he cannot claim these from the date of his arrest. Hence, if remissions are counted from the date of the detenu's conviction viz. 13-5-2002, he has still not undergone the prison term handed down to him which is R.I. For two years alongwith a fine of Rs,6,73,58,162 in default whereof he was to undergo R.I. For two more years. He has relied on the unreported judgment of Muhammad Mobeen Khan v. The State (Criminal Miscellaneous No,275 of 2001) wherein a Division Bench of this Court has held as much. He has also referred to Rules 198, 206 and 216 of the Prison Rules which also contemplate that remissions only accrue from the date of conviction. Mr. Rashid A. Rizvi on the other hand has relied on the case of Mian Muneer Ahmed v.
The State (Criminal Accountability Appeal No,4 of 2001) wherein bail was granted by a Division Bench of this Court on the basis that remissions once earned and conveyed to the convict cannot be reversed except on the ground of bona fide mistake. In the present case, per learned counsel not only was this done but also the detenu's release roll prepared whereby it is recorded, that, he in fact, had served out more time in jail than required per the judgment convicting him. He has also relied on the case of Muhammad Rafeeq v, The State 1995 SCM R 1525 and Ghulam Murtaza v. The State PLD 1998 SC 152 in both of which cases the Honourable Supreme Court has discussed section 382-B, Cr.P.C. At length and observed that once this benefit is granted to an accused then his conviction would start from the date of his arrest.
5. We have heard both the learned counsel as well as learned A.A.-G. And our conclusions are as follows:--
6. It would be seen that section 382-B, Cr.P.C. Provides that "where a Court decides to pass a sentence of imprisonment on an accused for an offence it shall take into consideration the period, if any, during which the accused was detained in custody for offence. In Muhammad Rafiq v. The State (supra) the Honourable Supreme Court has considered the scope and object of section 382- B, Cr.P.C. And held, inter alia, that it was in pari meteria with section 428 of Indian Code of Criminal Procedure and section 67 of the English Criminal Justice Act, 1967. It was observed by the Honourable Supreme Court that the spirit which inspired the enactment of section 382-B, Cr.P.C.
Had also inspired the Indian and English Legislatures to enact sections 428 and 67 respectively. To quote the Honourable Supreme Court, "it is symptomatic of the growing recognition by the law- makers of a more rational treatment of the pre-sentence period in jail, as the accused was put in jail for the very offence for which he was convicted and sentenced to imprisonment, the pre- sentence period spent by him in jail was not in vain and must, therefore, be taken into account. It explodes the notion that period can be ignored because it was not spent in jail by way of "punishment". Not to treat that period as punishment, will be a play on the meaning of word "punishment". Whether the detention in jail was punitive or non-punitive, the consequence, as regards the person detained was the same, namely deprivation of liberty and that is certainly punishment."
7. The Honourable Supreme Court thus held the sentencing Court is bound to. Take into consideration the period, if any, during which the accused was detained under custody for such offence. As regards the word "shall take into consideration" the Honourable Supreme Court was of the view that this was a discretion to be exercised by the sentencing Court according to well- settled principles according to which the Court would be entitled to inquire into the conduct of the accused and the circumstances of the case in order to ascertain whether it was proper or not to refuse the grant of discretion. Consequently, only in those cases where the Court had applied its mind and come to a reasoned decision that the benefit of section 382-B, Cr.P.C. Should not be granted, ordinarily, such benefit should be granted.
8. The Honourable Supreme Court in the case of Ghulam Murtaza v. The State (supra) has further clarified, inter alia, that the discretion conferred upon the Court shall be exercised in favor of the accused unless there were special circumstances disentitling the accused to have his sentence of imprisonment reduced for the period spent in jail during the trial. Consequently, if the Court was of the view, that such discretion is not to be exercised in favor of the accused, it must pass a reasoned order in this regard. In our opinion, therefore, it is quite clear that per the Honourable Supreme Court the period spent in jail by an under-trial prisoner cannot be called, by any other term except punishment and consequently not to give benefit of such period while sentencing the accused would be quite irrational since admittedly his liberty has been taken away which amount to punishment. The Honourable Court has further confirmed that benefit of section 382-B, Cr.P.C.
Must be extended to the accused unless there were compelling circumstances not to do so. This displays the legislative intent as the words used is "shall" and not "may". In this view of the matter we find no compelling reason to hold that the benefit of remissions etc. Which are normally to a convict should not be extended to an under-trial prisoner as admittedly his liberty has been taken away. The Honourable Supreme Court in the case of Muhammad Rafiq v. The State (supra) has also observed that not to consider the period as punishment will be a play on the meaning of the word punishment. This in our opinion means that the conviction for the offence with which the accused is charged would then begin from the date of his arrest and hence such accused should be treated at par with the other accused who have been convicted and are being given benefit of remission etc. Not to do so would be violative of Article 25 of the Constitution of Pakistan which guarantees equality before the law to all citizens?
9. In the case of Muhammad Mubeen v. The State in Criminal Miscellaneous No,275 of 2001 a D.B. Of this Court came to the conclusion that under all eventualities remissions are to be counted from the date of conviction. Since we have reached the contrary conclusion, therefore, we would direct that this matter alongwith foregoing case be placed before the Honourable Chief Justice in order to seek his direction whether a larger Bench be constituted so that the matter of remissions being counted from the date of arrest or from the date of conviction could be resolved. As far as the present case is concerned we had deemed it fit to suspend the sentence of the detenu in the circumstances as discussed above.