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Civil Appeal No. 35‑D of 1963, decided on 4th May 1964.

(On appeal from the judgment and order of the High Court of East Pakistan, Dacca, dated the 1st February 1963, in Mis cellaneous Case No. 76 of 1962).

, S. 401‑Remission of sentence becomes effective when duly communicated to Super intendent of Jail who is duly bound to give effect to the remission in accordance with provisions of S. 3, Prisoners Act (III of 19001‑[Deshpande v. King‑Emperor A I R 1938 Nag. 513 ref. and Shahbaz v. The Crown P L D 1955 F C 46 distinguished].

, S. 15‑Special Military Court constituted under Martial Law Regulation (C. M. L. A.s No. 1‑.4)‑May be assumed to be set up under the authority of the "Central Government" within meaning of S. 15, Prisoners Act.

, Ss. 3 & 17‑Duty of Super‑intendent of Jail to receive and "detain" or to "discharge" or "remove" a prisoner committed to his custody by Court, "according to exigency of any writ, warrant or order "Press‑note" cannot take the place of such "writ, warrant or order"‑Super intendent of Jail giving effect to a "Press‑note" may be held in dereliction of his duty‑Efficacy of a "cypher" message from President of Pakistan questionable.

, Art. 18‑President's power of granting, "pardons" and "reprieves" or "remit", suspend or commute any sentence‑Does not include power to "reduce" Function of "determining" a sentence exclusively a "judicial function , so also reducing or enhancing a sentence‑"Presi dent's order calculated to "reduce" a sentence passed by a Special Military Court, held, not to be an order under Art. 18 but an executive order‑Provincial Government entitled to carry out such order in exercise of its powers under S. 401, Criminal Procedure Code (V of 1898)‑Such powers extend to sentences passed by a Special Military Court and are not curtailed by S. S or S. 6, Martial Law (Pending Proceedings and Protection) Order (26 of 1962) (by majority: Cornelius, C. J., Fazle‑Akbar and Hamoodur Rahman, JJ., S. A. Rahman and Kaikaus, JJ., contra) Maxim "expressio unius"‑---Article 18 does not detract from Provincial Government's powers under S. 401‑Order passed by Provincial Government under S. 401, Criminal Procedure Code (V of 1898), having become effective, cannot subsequently be cancelled.

‑Order an "existing law"‑Not repealed by Art. 225, Constitution of Pakistan (1962)‑Sentences of Special Military Courts continue their effect by virtue of S. 6 of Order (26 of 1962), as well as by Art. 250, Constitution of Pakistan (1962).

Siddarth Ray Senior Advocate Supreme Court of India (Badrul Haider Chowdhury and Abdur Rahman Chowdhury Advo cates Supreme Court of Pakistan with him) instructed by M. A. Rab Attorney for Appellant.

Maksumul Hakim Advocate‑General East Pakistan (Mahbubur Rahman Advocate Supreme Court with him) instructed by S. M. Abbas Attorney for Respondents Nos. 1 and 2.

Respondent No. 3 : Ex parte.

Dates of hearing: 11th and 12th, March 1964.

----‑This appeal by special leave calls in ques tion the refusal by a Full Bench of the High Court of a writ of habeas corpus to the appellant, Lt.‑Col. G. L. Battacharya, who is in prison undergoing a sentence of imprisonment imposed on him on the 11th November 1961. The sentence was awarded by a Special Military Court set up under Martial Law Regulation No. 1. The appellant was tried and convicted on charges under Martial Law Regulation No. 20, the Arms Act, the Control of Entry Act, and the Official Secrets Act. He is an Indian national, and holds the rank of Lieutenant‑Colonel in the Indian Army.

The prayer for a writ was made in the following circum stances. The appellant had been sentenced to undergo eight years' rigorous imprisonment. In April 1962, he had submitted a petition for review of his case and remission of the sentence to the President and Chief Martial Law Administrator. He had seen in two newspapers a press‑note dated the 20th June 1962, to the effect that "the President had remitted four years" of his sentence. Later, by resolution of the 26th June 1962, the Gover nor of East Pakistan purporting to exercise powers under section 401, Cr. P. C., "was pleased to remit four years". He submitted that the remission by the Governor was "separate and independent of any granted by the Head of State by virtue, presumably, of Article 18 of the Constitution". Believing that his entire sentence had been remitted, he prayed that he should be released from his detention forthwith, and "may also be per mitted to leave Pakistan". The petition was instituted on the 12th September 1962, and on the 19th September 1962, a further petition was filed which made reference to a resolution of the Government of East Pakistan dated the 3rd September 1962, pur porting to cancel the earlier resolution of the 26th June 1962, by which a remission of four years had been granted to him. He submitted that the cancellation was entirely illegal and that no effect should be given to it. He repeated his prayer to be released forthwith, and added a prayer for compensation for illegal detention.

The High Court made the State the respondent to the petition, adding two officials, namely, firstly, the Chief Secretary to the Government of East Pakistan, and secondly, the Superintendent of the Dacca Central Jail in which the petitioner was undergoing his imprisonment. Two affidavits in reply were filed on behalf of the opposite‑party, one on the 27th November 1962, sworn by a Section Officer in the Law Department of the Provincial Government and the other dated the 4th December 1962, sworn by the Secretary in the said Department. The first affidavit stated that in response to the detenu's petition of the 19th April 1962, the President had "remitted 4 years" of his sentence, and "directed the Provincial Government to communicate this order of remission to the petitioner". It went on to say that "in pursuance of the order of the President" the Provincial Government's resolution of the 26th June 1962, "gave effect to the‑said order of the President", but, while the intention of the resolution was so to give effect to the Presi dential order "unfortunately through misconception the said resolution dated 26th June 1962, has mentioned that the remission was given by the Governor in exercise of power under section 401 of the Code of Criminal Procedure." It was contended that the remission granted by the President on the 20th June 1962, and the resolution of the Provincial Government dated the 26th June 1962, were not "two different, independent and valid orders, but in effect the resolution‑mentioned through misconception that the remission was given by the Governor" and it was "simply to give effect to the Presidential Order passed on 20th June 1962". It was for this reason, in order to correct the mistake that on the 3rd September 1962, a further resolution was made and cancelling the earlier resolution of the 26th June 1962, the petitioner was informed that "the President of Pakistan ha; remitted 4 years". It was repeated that the intention of the Provincial Government's resolution of the 26th June 1962, was simply "to give effect to the Presidential order of the 20th Jim, 1962". The affidavit went on to raise a further contention, namely, that the sentence in question being awarded by a Special Military Court was validated by President's Order No. 26 of 1962, described as the Martial Law (Pending Proceedings and Protection) Order, and under the provisions of this Order, the power of remission of any sentence exceeding 7 years' imprison ment was reserved to the Commander‑in‑Chief of the Pakistan Army, and thus the Provincial Government had no power to grant remission in respect of such a sentence under section 401, Cr. P. C. Consequently, the remission which the Provincial Government purported to give by its resolution of the 26th June 1962, was "not legal and was completely without jurisdiction and has no legal validity apart from its validity derived from the aforesaid Presidential order."

The second affidavit of the 4th December 1962, mentioned that the "Secretary Home Affairs, Central Government sent a cypher message dated 20‑6‑62, to the Secretary Law Department informing (sic) of the remission of 4 years out of 8 years rigorous imprisonment of the petitioner and requesting the Secre tary Law Department to inform the petitioner accordingly". The "remission" referred to was that said to have been ordered by the President. The affidavit went on to explain that when the cypher message was received, the Law Department was not aware of the President's Order No. 26 of 1962, and so "it was wrongly thought that the said order of remission of sentence can only be given effect to under section 401 of the Criminal Procedure Code". It was therefore that the resolution of the 26th June 1962, was made and it was submitted that it was "wholly mistaken, illegal and without jurisdiction" and that the intention behind the resolution was merely to give effect to the President's order, and further that "it was never intended to give a further remission of four years over and above the same granted by the President of Pakistan". The plea was repeated that the Provin cial Government had "no power to grant any remission of any sentence passed by a Special Military Court as will be obvious from the President's Order No. 26 of 1962". The rest of the affidavit explained the cancellation of the first resolution by the second resolution of the 3rd September 1962, and repeated that only a single remission was granted, in pursuance of the Central Government's cypher message and even that was illegal, since in the submission of the deponent the power to grant such remis sion in respect of a sentence awarded by a Special Military Court was reserved to the Commander‑in‑Chief.

At the hearing of the petition, it was contended before the Full Bench that the President had reduced the sentence acting under Article 18 of the Constitution of 1962, by a period of four years and the Provincial Government having granted a remission of four years by its resolution of the 26th June 1962, the sentence awarded to the petitioner had been totally remitted and he was entitled to be released. A further legal ground of a far reaching character was raised on behalf of the petitioner at the hearing, namely, that upon the coming into force of the Constitution of 1962, the Martial Law Regulation under which the petitioner was tried and sentenced had ceased to have legal effect and the sentence awarded thereunder had become void and of no effect in the newly created conditions. The Full Bench found no difficulty in holding that the contention raised by the Provincial Government by way of a legal plea in its affidavits that power to order remission of a sentence awarded by a Special Military Court exceeding seven years was reserved to the Commander‑in‑Chief was without force. They found that section 401, Cr. P. C.,, enabled the Provincial Government to grant a remission in respect of any sentence awarded by any Court or tribunal, provided that the sentence was being under gone within the jurisdiction oh the Provincial Government. A plain reading of section 401 aforesaid will show that this view is clearly correct, and it follows that the order of remission made by the Provincial Government was a valid order. I find that it was duly communicated to the Superintendent of the Dacca Central Jail through the Inspector General of Prisons. There is an entry to that effect in the "history ticket" of the appellant dated the 2nd July 1962, which gives a reference to the Provincial Government's resolution as well as to the forwarding letter of the Inspector General of Prisons and notes as follows:‑

"sentence remitted to R. 1. 4 years from 8 years".

A point argued before the Full Bench was as to the point of time from which an order of this kind becomes effective so that it cannot later be withdrawn. The learned Judges dealt with the question at some length, referring to two cases where the point had earlier been considered. The first was that of Deshpande v. King‑Emperor (A I R 1938 Nag. 513), where the facts were that the order of remission made by the Provincial Government which had the effect of entitling the prisoner to be released on a parti cular date was duly communicated to the Jail authorities and was entered in the prisoner's "history ticket". The High Court at Nagpur held that the order of remission had thus been acted upon so that a later order by an officer of the Law Department of that Provincial Government to the jailor not to release the prisoner was ineffective. This case was cited by the Federal Court of Pakistan in its decision in the case of Shahbaz v. The Crown (P L D 1955 F C 46=(1955) 2 F C R 87), where however, the facts were somewhat different. The Full Beach of the East Pakistan High Court came to the conclusion that by communicating the Provincial Government's order of remission to the Superintendent of the Central Jail, and the Superintendent receiving the order and recording it in the prisoner's history ticket, a "decisive step" had been taken with regard to the order of remission of which the petitioner was entitled to claim the benefit. The Full Bench rejected the plea raised before it by the Advocate‑General, based upon certain observations in the case of Shahbaz aforesaid that until the actual date of release, as fixed by the order of remission, it had not become effective. They expressed the view that it was imma terial whether the prisoner had been actually released or not, and that "the important consideration is that the petitioner had acquired a right to claim the benefit of the remission granted by the Provincial Government." They distinguished the decision in the case of Shahbaz on the ground that the right of release in that case was fixed to take effect ‑upon a particular date, and could not be claimed until that date arrived, so that the order could be withdrawn by a fresh order of the Provincial Govern ment before that date.

In my view, the governing consideration in a case of remis sion, where the question arises as to whether effect has been given to it in circumstances such as those of the present cases and the case of Deshpande aforesaid, is to be found in the obligation imposed upon the prisoner by the sentence awarded to him, and the obligation of the officer upon whom the duty is placed by the law of executing the punishment, regarding it in the light of a penal servitude. To ascertain the precise duty of the Jail Super intendent, it is necessary to make reference to certain provisions in the Prisoners Act, 1900. Section 3 of that Act requires the officer‑in‑charge of a prison to "receive and detain all persons duly committed to his custody‑by any Court, according to the exigency of any writ, warrant or order by which such person has been committed, or until such person is discharged or removed in due course of law". By section 4 a duty is laid upon the afore said officer to return the writ, warrant or order to the Court by which it was issued, when it has been duly executed, together with a certificate of such execution, showing also where necessary "why the person committed thereby has been discharged from custody before the execution thereof". Section 15 specifies the Courts and tribunals whose sentences may be executed by officers- in‑charge of prisons, and this includes any "tribunal acting-under the general or special authority‑of the Central Govern ment". By section 16, it is provided that a warrant under the official signature of an officer of such Court or tribunal as is referred to in section 15 shall be sufficient authority for holding any person in confinement in pursuance of the sentence passed on him. Section 17 provides for cases where the officer‑in‑charge of a prison doubts the legality of a warrant or order sent to him for execution, or the competence of the person whose official signature is affixed, thereto to pass the sentence. It is provided that in such a case the aforesaid officer shall refer the matter to the Provincial Government by whose order he shall be guided "as to the future disposal of the prisoner".

In the present case, it is clear that the prisoner was duly com mitted to the custody of the Superintendent of the Central Jail at Dacca by a warrant issued by the Special Military Court, which had sentenced him. Such a Court may be assumed to be set up under the authority of the Central Government of Pakistan, viz., under the Chief Martial Law Administrator's Martial Law Regulation No. 1. By that warrant the Jail Superintendent was required to keep the prisoner under rigorous imprisonment for a period of eight years. In the ordinary course, it would only be when that period had been completed (subject to such remissions as could be earned by good conduct in prison) that the prisoner could be discharged from custody by the Jail Super intendent. The reduction of the period by virtue of the good conduct remission would of course take effect in due course of law. As has been seen a remission of a different kind was communicated to the Jail Superintendent on the 2nd July 1962, this being a formal order of the Governor of East Pakistan remitting four years out of the 8 years' sentence imposed upon the prisoner. The Jail Superintendent duly gave effect to this order by noting the remission of four years in the history ticket. The remission was not worded so as to take effect upon any future date. It was not a remission to be earned from day to day such as a good conduct remission. The order did not say that the prisoner should be released on a particular date. In these circumstances, in my opinion, the true effect of the remission was to waive the performance of the penal servitude imposed upon the prisoner by the sentence, to the extent of four years. The order was a clear direction to the Jail Superinten dent to execute the original sentence as if, from the balance, four years had been excused, and he acted accordingly. It still remained of course for the Jail Superintendent, while holding the prisoner in custody, to calculate the date of the prisoner's release, and this could only be in relation to any further remis sion by virtue of good conduct that he might earn from day to day under the rules. But it is clear that as from the date of the order of the Governor, which was expressed in proper form wit due reference to the sentence awarded to the prisoner, and to the power under section 401, Cr. P. C., which was being exercised and which bore a valid official signature, the Jail Superin tendent upon receipt of that order was obliged, as part of his duty under the Prisoners Act, immediately to give effect to it, so that the unexpired portion of the original sentence was immediately to be reduced by a period of four years.

The case for the prisoner is that the order of the President dated the 20th June 1962, was an equally effective order, which reduced his sentence by a separate period of four years. It is clear that that order was never communicated as it stood to the Jail Superintendent. Mr. Ray arguing the case for the appellant pointed out that the fact of the President having reduced the prisoner's sentence by four years was made a matter of general public information by the issue of a press‑note, and he seemed to argue that thereby a duty was placed upon the Jail Superin tendent to take note of the President's order and conduct himself accordingly. It is true that when by a new law or legal instrument an obligation of a general character not previously in existence or it may be a new facility or a grant is published for general information, there may be in consequence a legal effect produced so that e.g., all citizens affected by the new law should conduct themselves in conformity therewith, on pain of incurring penalties. There are cases for instance of general notifications enabling citizens to apply by a certain date in order to gain a fresh facility, and such publication has been held effective as a starting point of limitation for the purpose of application of the new law. But the principle cannot be invoke 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 beheld in dereliction of his duty under the Prisoners Act.

That is one ground, and a major ground, for the view that the President's order was without direct effect in relation to the sentence which the officer in charge of the prison was executing, in terms of penal servitude from the prisoner. If the cypher message had been sent as it stood to the Jail Superintendent, he would have been obliged to question its efficacy, as against hi clear duty to act upon the warrant he had received with the prisoner, by reason of its lack of form, and again because it licked authentication by official signature or otherwise. There is no doubt that if the President had chosen to make an order tinder Article 18 of the Constitution, he could have done so, an the form of the order would be expected to contain a reference to the said Article, and further the language employed would also be in conformity with that contained in the said Article. It is plain that the order was made without reference to that Article, for it states that the President had been pleased "to reduce the sentence", while Article 18 gives power "to grant pardons, reprieves and respites, and to remit, suspend or commute any sentence passed by any Court, tribunal or other authority", but does not empower the President to reduce a sentence. In fact, the function of determining a sentence is exclusively a judicial function, and equally, it is a purely judicial function to enhance or reduce a sentence. It was said in the course of argument that the President's decision in the present case was taken at a time when the new Constitution had not yet been brought into force and might be relatable to the plenary power exercised by him in the period of Martial Law. That however would not alter the position that on the 20th June 1962, 12 days after the new Constitution had come into force and nearly four months after the promulgation of that Constitution, the cypher telegram actually sent spoke of reduction of the sentence, and this being entirely outside the powers available to the President on that date, it is necessary to examine whether the purport of that telegram was not other than to be, in itself, an order under) Article 18.

That in fact was the stand taken at one stage by the Provin cial Government in its affidavits placed before the Court, and it is regrettable that that Government should have later found it necessary to describe this appreciation of the President's order as being based upon a misconception. The cypher telegram was clearly not worded as an order under Article 18. Equally clearly, it was worded as an executive order issued to a subordi nate executive authority, and the Provincial Government appear to have treated it as such and to have thought that it required legal action by the Provincial Government to give effect to the executive direction of the President, which it proceeded, formally to do, in the exercise of powers vested in itself, by the Criminal Procedure Code. Such an action was perfectly proper, and was clearly based upon a true appreciation of the nature of the direction communicated by means of the cypher telegram. It seems that under some legal advice, which was distinguished neither by clarity nor by consistency, the Provincial Government reached the opinion that its powers of remission under section 401, Criminal Procedure Code did not extend to sentences awarded by Special Military Courts. The words of subsection (1) of section 401, if read in their plain sense, clearly do not sustain any such conclusion. The Provincial Government is empowered to remit the whole or any part of the punishment of any person, and there are no words of limitation as to the source of that punishment. It is sufficient that such person should have "been sentenced to punishment for an offence" in order to attract the power of remission vested in the Provincial Government: The ground put forward for the belief that despite the very wide expressions used in section 401, Cr. P. C., the Provincial Govern ment was without power to remit a sentence awarded by a Special Military Court is the existence in President's Order No. 26 of 1962, of a section, namely, section 5, which enables a person who regards himself as "aggrieved by the finding or sen tence of a Martial Law authority" and who has not submitted any petition against such finding or sentence before the coming into force of the said order, to submit a petition to the Com mander‑in‑Chief of the Pakistan Army where the sentence is one H of seven years' rigorous imprisonment or more, and in other cases to designated Military authorities in West Pakistan and East Pakistan respectively. It further empowers the Commander- in‑Chief or the said authorities to "grant pardon or remit, reduce commute or suspend any sentence" with or without any condition. It may be convenient to mention at this place that by section 6 of this Order, it was provided that subject to the provisions o the order, all sentences passed during the Martial Law period, by a Military authority, shall be deemed to have been lawfully passed, and shall be carried into execution according to their tenor. It was provided that a sentence of death passed by such an authority during the Martial Law period could be execute after the close of that period under an order of the Central Government and every sentence of imprisonment passed by such an authority which had not been "put into execution during the Martial Law period" could be put into execution under the District Magistrate's warrant. There was a special provision regarding sentences of fine passed by a Martial Law authority during the Martial Law period, in subsection (4) of section 6, namely, that recovery of such fine could be made by the District Magistrate under provisions contained in the Code of Criminal l Procedure, but it was expressly provided that such a sentence of l fine should not be subject to the "provisions of Chapter XXIX) of the aforesaid Code" and section 401, providing a power of i remission to the Provincial Government falls in that Chapter.

It should have been clear on several grounds that the provi sions of section 5 of the President's Order No. 26 of 1962, did not operate to curtail the powers of the Provincial Government under section 401, Cr. P. C. One clear ground is to be found in the particular exclusion of the said power in respect of fine awarded by Martial Law authorities during the Martial La period. The rule of expressio unius immediately becomes operative to confine that exclusion to fines so that with reference to all other sentences, the power of remission under section 401, Cr. P. C. would clearly remain unaffected. Secondly, it is clear upon the petition, as well as on the affidavits of the Provincial Government, that the prisoner in this case had actually submit ted "a mercy petition to the President of Pakistan for a direction of review of his case by the Deputy Chief Martial Law Administrator for remission of his sentence" so that the condi tion that no petition should earlier have been submitted against the finding or sentence, which is applicable to the making of a petition to the Commander‑in‑Chief after the close of the Martial Law period under section 5, was clearly not satisfied in this case. Thirdly, the power of remission was clearly, and within the contemplation of the Provincial Government exercisable by more than one authority in respect of the same sentence. That is plain from the view later formed by the Provincial Govern ment, namely, that the remission which it had granted to the petitioner had in fact been given by the President. The exist ence of Article 18 in the Constitution does not in any way detract from the power conferred upon the Provincial Government by section 401, Cr. P. C. Equally, there should have been no doubt whatsoever that the power conferred by section 5 of the Presi dent's Order No. 26 could exist side by side with the Provincial Government's own power of remission, and neither provision could be thought to have the effect of curtailing the power exercisable under the other provision. That is a rule which derives from the fact that the powers conferred by Article 18, b section 401, Cr. P. C. and by section 5 of the President's Order No. 26 of 1962, are in each case stated in affirmative terms, so that none of these provisions has the effect of operating an implied repeal of any other of these provisions.

The Provincial Government's case throughout was that a remission of four years had been granted. But on the argument taken in the affidavits‑in‑opposition, and at the hearing in the High Court, namely that the Provincial Government's order was "wholly mistaken, illegal and without jurisdiction" and had therefore been cancelled, the result must follow that there was no remission granted at all. At one stage, indeed, it was pleaded that the order had "no legal validity apart from its validity derived from the (aforesaid) Presidential Order"‑. But later, this position was altered, and it was said that only one remission was given, in pursuance of the Central Government's cypher message, and even that was illegal. The purport would appear to be that in complying with the cypher message, the Provincial Government had been led into a violation of President's Order No. 26 of 1962. As has been seen above, that was a baseless fear, which has led to the adoption of an anomalous position by that Govern ment.

It is clear that the order made on the 3rd September 1962, b the Provincial Government, cancelling the remission granted by the earlier order of the 26th June 1962, was wholly misconceived. It was also entirely ineffective for the simple reason that effect had already been given to it in respect of the sentence which the prisoner was undergoing i.e., that the unserved balance of that sentence at once stood reduced by a period of four years on the date on which that order was received and effect was given to it in proper form by the Jail Superintendent in the "history ticket" of the prisoner. It should be mentioned that in the "history ticket", the note of the 12th September 1962, made in consequence of the second order of Provincial Government, is merely to the effect that the remission already granted "has actually been allowed by the President". The Jail Superintendent did not purport to replace the previous order of remission by a fresh order, or to incorporate a fresh order of remission. The words he used are precisely apt to indicate that there was only a difference in the source, and that the remission to which he had given effect in the "history ticket" on the 2nd July 1962, qua the sentence to be undergone by the prisoner remained factually unaffected.

On a correct appreciation of the few facts upon which the writ of habeas corpus was claimed, in relation to the relevant legal instruments, I am satisfied that the learned Judges in the High Court took the correct view of the matter when, in esti mating the effect of the order of the President taken in conjunc tion with the Provincial Government's order of remission, they observed:‑

"There can be no manner of doubt that the Provincial Government wanted to give a legal clothing to the President's order and not to grant an independent remission . . . It is, therefore, clear that all along the line the Provincial Government only intended to give effect to the President's order."

Earlier in their judgment, the learned Judges had said however that they proposed to treat the two orders as separate orders, each being effective according to its specific terms. They thought that by the cypher telegram the President had "reduced the sentence of eight years passed on the petitioner to one of four years' rigorous imprisonment."

Thus leaving "a residuum of four years which is the unremitted portion of the sentence imposed upon the petitioner." Turning to the Provincial Government's order of remission, they observed that "the remission granted is with reference to the original sentence f eight years' rigorous imprisonment," and that read in its proper context, the order of the Provincial Government "cannot but mean that the four years remission granted to the petitioner is to be taken out of the' original sentence of eight years' rigorous imprisonment," and "thus this order also leaves a margin of an unremitted period of four years." They came to the conclusion that since each order remitted only a part of the original sentence, therefore the whole of the sentence had not been wiped out, and concluded that

"if the two orders . . . . . are considered separately and given effect to in accordance with the specific terms in which the said orders were passed, the result must be that both the President and the Provincial Government have, in fact and in substance, passed one and the same order."

Mr. Ray's best argument for the prisoner was based upon this conclusion which in his submission was the contrary of what it should clearly be upon the premises. A remission operating as a waiver of performance of the penal servitude involved in the sentence, if each of the two authorities, namely, the President and the Provincial Government had independently of each other waived four years of the period of servitude, it involved no difficult process of argument to come to the conclusion that the entire period of servitude had been thereby foregone by compe tent authorities. Indeed, if the President's order be regarded as in itself an effective reduction of the sentence, coming into opera tion immediately upon the making of the order, then the sentence or servitude remaining for the prisoner to perform was less than the period of four years remission granted six days later by the Provincial Government and therefore on the argument which the learned Judges in the High Court had adopted, the conclusion should have been that the prisoner was entitled to immediate release. The idea that the order of remission could operate only on the same portion of the sentence was, in Mr. Ray's submission, impossible to accept.

It is clear that this line of argument adopted by the learned Judges in the High Court was one which it was not difficult to confute. As we have seen, the President's Order was not in term an order under Article 18, but was an executive order or direc tion, containing an expression of a desire that implementation should be carried out by the Provincial Government. It was not intended to be sent to the Jail Superintendent, so as to operate directly in respect of the prisoner's sentence. The case against the prisoner relating to defence and security of the country, the function of mercy lay peculiarly within the responsibility of the Central Government, and therefore the issue of such a direction by the President to the Provincial Government was entirely understandable. Consequently, there was never more than one operative order of remission issued.

It remains to consider a short argument presented at the close by Mr. Badrul Haider Chowdhury on behalf of the prisoner, to the effect that the sentence awarded by the Special Militar Court did not survive the expiry of the period of Martial Law. As has been seen already, by section 6 of President's Order No. 26 of 1962, continuing effect has been given to sentences awarded in the Martial Law period by Special Military Courts. That order was made on the 7th June 1962, and on the following day the new Constitution came into force. Mr. Badrul Haider Chowdhury attempted to construe subsection (2) of Article 225 of the Constitution as if it operated as a repeal of President's Order No. 26 of 1962. This can only have been based on misreading of that subsection, for it is worded so as to specific, five instruments which are revoked or repealed with effect fro the commencing day, namely, firstly, the Presidential Proclama tion of the 7th October 1958, which was revoked, an four Presidential Orders, namely, Orders Nos. 1 and 2 of 1958; No. 2 of 1959 and No. 8 of 1959, which were repealed. But it is common knowledge that besides these four Orders which were expressly repealed by subsection (2) of Article 225, there were great number of Presidential Orders made during the Martial Law period, and it is clear that those Orders were not repealed b, virtue of the Constitution. One of these Orders is President' Order No. 26 of 1962, viz., the Martial Law (Pending Proceedings and Protection) Order. Under subsection (1) of Article 225, all existing laws are to continue in force subject to the Constitution, so far as applicable, and it is clear that one of these laws President's Order No. 26 of 1962. Therefore, there can be n doubt of the effect of the sentence awarded to the prisoner being continued after the termination of Martial Law by virtue of the President's Order aforesaid. Indeed, even if that Order had been repealed, by virtue of Article 250 such repeal would not "affect the previous operation of the law or anything duly done o suffered under the law," and consequently, the sentence would continue in effect after the coming into force of the Constitution until it was served out. But as has been seen, President's Order No. 26 of 1962, was never repealed and is still in force as law which was existing immediately before the Constitution came into force, and which has been continued in its effect by virtue or Article 225.

For these reasons, I dismiss this appeal.

.---‑I concur in the order proposed to be passed by my Lord the Chief Justice in this case and agree general with the reasoning by which it is supported, subject to the reserva tion that, with respect, I am inclined to take a different view of the effect of President's Order No. 26 of 1962, (hereinafter referred to as the Order) on the powers of the Provincial Govern ment to grant remission of sentences passed by a Martial La Authority, under section 401 of the Code of Criminal Procedure. M In my humble judgment, if sections 5 and 6 of the Order are read together, the conclusion is irresistible that after the promulga tion of this Order, sentences passed by a Martial Law Autho rity must be carried into execution according to their tenor, subject only to the provisions of the Order itself. The only authority that can grant remission of such sentences under the Order would be the Commander‑in‑Chief of the Pakistan Arm in cases where the sentence is not less than seven years' imprisonment and the power of the Provincial Government to deal with the matter would be excluded, by necessary implication. The Order came into force with effect from the 6th June 1962, whereas the relevant order passed by the Provincial Government bears the date, the 26th of June 1962. The President's Order reducing the sentence of the appellant to 4 years' imprisonment was stated to have been signed on the 3rd of June 1962, and ma be attributed to his plenary powers which included supra‑constitu tional powers under the Laws (Continuance in Force) Order, 1958, and consequently it must be given full effect. The Provincial Government was made the channel of communication of that Order to the Jail authorities and that Government on an erroneous assumption, gave it the form of an independent order proceeding from themselves. The correct position was late realized and intimation was sent to the Jail authorities for com munication to the appellant that the source of the remission o reduction of sentence was the President's Order and not the Provincial Government.

‑I have had the advantage of reading the judgment of my Lord the Chief Justice. He has covered the whole ground and I agree with his reasonings and conclusions.

1 would however, like to add some observations of my own with regard to the President's Order No. 26 of 1962.

One of the questions raised in the appeal was: Does the above Order create a total bar to the application of section 401 of the Code of Criminal Procedure in respect of sentence passed by the Martial Law Authority Section 6 (1) says that

"Subject to the provisions of this Order, all sentences passed during the Martial Law period by a Martial Law Authority shall be deemed to have been lawfully passed and shall be carried into execution according to their tenor."

These words are enough to warn any body that the provision of the Order are not absolute but it is going to be qualified in some way by what is mentioned in the Order itself. These quali fications will be found in subsections (2), (3), (4) of section 6 an also in section 5.

Subsections (2), (3) and (4) provide how a sentence of death o a sentence of imprisonment or a sentence of fine which was passed during the Martial Law period but was not executed during that period should be executed.

Subsection (4) which deals with a sentence of fine however, specifically excludes application of section 401 of the Code o Criminal Procedure in these words:

"Provided that the provisions of Chapter XXIX of the afore said Code shall not apply to any such sentence."

It may be noticed that no such proviso has been added to subsections (2) and (4) which deal with a sentence of death or sentence of imprisonment.

Section 5 provides for annulment and commutation of sentence in these terms

"5 (1) Any person who deems himself aggrieved by the find ing or sentence of a Martial Law Authority may, where no petition has been submitted against such finding or sentence, submit a petition against such finding or sentence to the Commander‑in‑Chief, Pakistan Army, if the sentence is one of rigorous imprisonment for a term of not legs than seven years, and in all other cases, to Commander of Crops No.1 of the Pakistan Army known technically as Commander 1 Crops, if the case relates to the Province of West Pakistan or to the Commander of the 14th Division of the Pakistan Army, known technically as the Commander 14 Division, if the case relates to the Province of East Pakistan.

(2) On such a petition, the aforesaid authorities may, with or without any conditions grant pardon or remit, reduce, commute or suspend any sentence."

I have underlined the words "where no petition has been submitted" to indicate that application of this provision was meant to be confined to those cases where no previous application for commutation or remission was pending.

Hence in view of the clear language of section 5 there is no room for thinking that by implication this Order also excluded application of section 401 of the Code of Criminal Procedure to the pending petitions. Now the intention of a Legislature is no G to be judged by what is in its mind, but by its expression of that mind in the statute itself. If the intention was to exclude application of section 401, Cr. P. C. even in respect of pending petitions the President could have easily said so as he did while dealing with the sentence of fine in subsection (4) of section 6.

It is thus fairly obvious that this is a transitory order pro viding for a change over of proceedings in respect of commu tation and remission of sentences passed during Martial Law period from those exercising power under the Code of Criminal Procedure to the Military Authorities. It however, does not say that the pending petitions should be treated as freshly commenc ed. What it clearly says is that only those cases where no petitions had been submitted would be dealt with under section 5. There is thus nothing in the Order to indicate even by implica tion that any taking away of a right under the pending petition was intended for the reasons stated above it seems to me that there is nothing in section 5 or 6 of President's Order No. 26 of 1962, to justify the view that they were intended to create a bar to the application of section 401, Cr. P. C. to the petitions for commu tation and remission which had been filed before promulgation of the said Order.

I agree that this appeal must be dismissed.

---‑I am in agreement with my Lord the Chief) Q Justice except with respect to the jurisdiction of the Provincial Government under section 401, Cr. P. C. Section 6 of President's Order No. 26 of 1962 runs:‑

"6 (1) Subject to the provisions of this Order all sentences passed during the Martial Law period by a Martial Law Authority shall be deemed to have been lawfully passed an shall be carried into execution according to their tenor."

The plain meaning of this provision is that a sentence awarded by a Martial Law authority has to be executed in accordance wit its tenor unless the sentence is interfered with in accordance wit the provisions of this Order. Section 6 does not say that the sentence shall be subject to the provisions of the Criminal Pro cedure Code. If the sentence is to be executed unless interfered with in accordance with the provisions of this Order obviously any exercise or power by the Provincial Government is excluded there being no provision in the Order itself as to the exercise o such power.

A constitutional provision may override this Order and, there fore, the President may in spite of what is contained in this Order have the power of remission of sentence by virtue of a constitutional provision, but the Criminal Procedure Code cannot override section 6 of this Order.

It appears to me that the appeal before us was concluded by section 6 of President's Order No. 26. I had pointed out to learned counsel for the appellant at the very commencement of his argument that unless he could get over section 6 of President's Order No. 26 any argument put forward would be of no avail. He preferred to argue the rest of the points and at the end of his argument referred to section 6 of Order 26 but said nothing as to how he could get over its wording. His junior who too was allowed to argue simply contended that Order 26 was no longer in force. This contention did not deserve any serious attention. In fact in the amendment of the Constitution by which fundamental rights have been made justiciable President's Order No. 26 has expressly been mentioned as one of the laws which cannot be attacked on account of violation of fundamental rights.

‑I have read the judgment of m Lord the Chief Justice and am in full agreement with him that the only formal and operative order of remission that was mad in this case was the order of the Provincial Government date the 26th Jute 1962, which was communicated to the Superinten dent of the Jail and duly given effect to on the 2nd July 1962. No formal order issued by the President was ever communicated to the Jail Superintendent. Indeed no such formal order purporting to have been made under Article 18 of the Constitution was ever issued under the signature of the President but al that the Provincial Government received was a "cypher message." This was nothing more than an executive direction to the subordinate Provincial Government to grant a remission of sentence of four years. It was in implementation thereof that the Provincial Government made the order in the purported exercise of its powers under section 401 of the Criminal Procedure Code.

It is suggested that the Provincial Government could not grant such a, remission, for, the power under section 401 of the Criminal Procedure Code could not be invoked in respect of sentences passed by Military Courts under the Martial Law Regu lations. During the course of arguments it has also been canvassed that the exercise of any such power had been impliedly excluded by clause (1) of Article 6 of President's Order No. 26 of 1962.

Upon a careful examination of the provisions of the said Presidential Order it seems to me that the same is not applic able in the case under consideration. It was made to provide for the disposal of cases pending before the Martial Law Authorities. Thus Article 3 makes provision for transferring them to Criminal Courts to be there tried under the ordinary law. Article 4 deals with cases pending for confirmation and prescribes the authority which will deal with pending review applications. Article 5 deals with annulment and commutation of sentences but only in respect of those cases where "no petition has been submitted" already before the coming into force of the Order. In the present case such a petition had been submitted to the Chief Martial Law Administrator before the 5th June 1962, on which date the Order No. 26 of 1962, came into force.

Next coming to Article 6 it will be seen that although clause (1) thereof is in general terms and says that all sentences passed by Martial Law Authorities "shall be carried into execu tion according to their tenor" its other clauses clearly seek to make provision for the execution of sentences not yet put into execution. It is worth noting that although in clause (1) the language employed is "shall be carried into execution", the other clauses merely say that the sentences "may be" executed, put into execution or carried out by the order of the Central Govern ment in the case of a sentence of death and the District Magis trate of the District in which the person sentenced is found in other cases. This difference in language can only be explained on the basis that the possibility of commutation or remission of the sentence is not excluded. Obviously if a commutation o remission is granted under Article 5 the sentence cannot b intended to be carried out according to its original tenor, in spite of the compelling words used in clause (1) of Article 6. Bu Article 5 is only applicable where no petition has already been made before the 5th June 1962, to the then competent authority. Where such a petition has been made, can it be said that there was after the 5th June 1962, no authority competent to grant the remission or commutation I cannot impute to the Legislature such an intention to discriminate unfairly. Obviously the inten tion was that cases which did not come within the ambit o the President's Order No. 26 would be dealt with according to the general law unless the application of such law was expressly excluded as in clause (4) of Article 6. The express exclu sion in this clause of the provisions of Chapter XXIX o the Criminal Procedure Code can only lead one to the inference that but for such exclusion the provisions of that Chapter, in which section 401 occurs, would have been applicable even in the case mentioned, in clause (4). If this be so, then its non‑exclu sion from the other clauses of Article 6 would indicate that the provisions of that Chapter applied in those cases.

If, on the other hand, the argument is that recourse to other provisions outside the Order itself was excluded by the force of the so‑called mandatory provisions of clause (1) of Article 6 itself, then the express exclusion of Chapter XXIX of the Criminal Procedure Code in clause (4) would have been wholly unnecessary. The fact, therefore, that such express exclusion ha been made indicates that the law‑maker considered that the pro visions of that Chapter would apply if not so excluded.

For these reasons I respectfully agree that as the present case was not covered by President's Order No. 26 of 1962, the Provin cial Government had acted rightly in granting the remission under section 401 of the Criminal Procedure Code of four years from the sentence of the appellant in implementation of the Pre sident's direction and that was the only remission that was granted to him. I, therefore, concur with the order that this appeal should be dismissed as also with the reasons given for such dismissal by my Lord the Chief Justice.

A. H. Appeal dismissed.

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