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Criminal Miscellaneous No. 987 of 196 7.

Ss. 53, secondly & 57, read with Prisons Act (IX of 1894), S. 59 (5), (21), and West Pakistan Prisons (Remission of Sentences) Rules, 1965, r. 22 (2) Sentence of transportation for life‑Means for remaining span of natural life" of convict, accepted, however, as being of twenty years' duration‑Period not curtailed by Rules of 1965‑Fourteen years' period is merely to serve as basis for calculating remissions Convicts who have completed 14 years "including remissions of all kinds" are released by Provincial Government in exercise of powers conferred by Criminal Procedure Code (V of 1898), S. 401‑Convict cannot be detained for aggregate period exceeding twenty years‑No vested right in convict to be released after completion of fourteen years aggregate imprisonment‑Rule 22(2) taken to apply to all convicts whether they have earned special remissions or ordinary remissions.

Although transportation for life means a sentence for the remaining span of the natural life of the convict, yet it has been accepted as being of twenty years' duration in view of the provisions contained in section 57 of the Pakistan Penal Code. This period has not been curtailed by the rules framed by the Provincial Government under section 59 of the Prisons Act, 1894, and the period of fourteen years' rigorous imprisonment mentioned in those rules in connection with the sentence of transportation for life is intended to serve merely as a basis for the working of the remission system formulated by the Provincial Government under the relevant provisions of the Prisons Act. Therefore, under sub‑rule (2) of rule 22 the rolls of all life con victs 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 Govern ment 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 im prisonment, it shall be assumed that the prisoner has to undergo an aggregate imprisonment of twenty years, and in that eventu ality all the remissions earned by him, whether ordinary or special, will have to be calculated on the basis that he was undergoing a total sentence of twenty years, and not fourteen years. In coming to this conclusion reliance is placed on the definition of the term "sentence" as given in clause (d) of rule 2 of the 1965 Rules, namely, that it means a sentence as finally fixed on appeal, revision or otherwise. In other words, it will be open to the Government either to apply the fourteen years rule for all purposes and to release a prisoner accordingly; or to apply the twenty years, rule, but it will in no case be permissible to detain him in custody for an aggregate period exceeding twenty years as that would amount to virtual enhance ment of punishment with retrospective effect as observed by the Full Bench in Farid Khan's case.

Farid Khan v. The State P L D 1965 Pesh. 31 ; Kishori Lal v. Emperor A I R 1945 P C 64 ; G. L. Bhattacharya v. State P L D 1964 S C 503 ; Gopal Vinayak Godse v. The State of Maharashtra and others A I R 1961 S C 600 and Indian Penal Code ref.

In framing these rules for the working of the remission system the Provincial Government clearly has the power to prescribe that the sentence of transportation for life shall be reckoned as equivalent to rigorous imprisonment for fourteen years, and that the case of a life convict shall be considered for release under the provisions of section 401 of the Criminal Procedure Code when such a convict has completed an aggregate period of fourteen years imprisonment, including remissions of all kinds. The rules cannot, however, be interpreted as meaning that after the expiry of fourteen years' imprisonment the further detention of a life convict would be illegal.

After the completion of fourteen years' aggregate imprison ment no vested right accrues in favour of a life convict to be released automatically and unconditionally, and he pan be released only in the exercise of the power conferred on the Government by section 401 of the Criminal Procedure Code.

Sub‑rule (2) of rule 22 should be taken to apply to all cate gories of life convicts whether they have learned special remissions or only ordinary remissions, and the intention and purpose of the rules would be achieved if the rolls of all such prisoners are considered by the Provincial Government for action under section 401 of the Criminal Procedure Code.

Altaf Sikandar for Petitioners.

G. Safdar Shah, Additional A.‑G. with Sh. Riaz .Ahmad for the State.

Date of hearing : 12th May 1967.

This judgment will dispose of Cr. Misc. Applications Nos. 987, 1006 and 1094 of 1967 which have been referred to this Full Bench for disposal on the ground that the questions raised therein are of public importance. In none of these cases has any specific question been formulated by the learned referring Judges, but it appears to us that the main questions arising for determination in these cases may be worded thus:

What is the correct legal position regarding the aggregate sentence of imprisonment which a convict sentenced to transportation for life has to undergo; and whether the rules framed by the Provincial Government on the 3rd of August 1965 under clauses (5) and (21) of section 59 of the Prisons Act, 1894 (IX of 1894) create a legal right in favour of such a convict to be released after completing fourteen years of aggregate imprisonment, including ordinary and special remissions of all kinds.

2. In order to appreciate the context in which these questions have arisen, it is necessary to refer, in the first instance, to a letter issued by the Secretary to Government of West Pakistan in the Home Department to the Inspector‑General of Prisons, West Pakistan, Lahore, on the 11th of November 1958 (bearing Memo. No. 7014‑H (Jails‑11/58), which endeavoured to lay down uniform rules relating to submission of rolls of long‑term prisoners by directing that the rolls of prisoners sentenced to transportation for life or those sentenced to imprisonment for more than fourteen years should be forwarded to Government on the completion of ten years sentence exclusive of remissions, and the rolls of prisoners sentenced to terms between twelve and fourteen years imprisonment should be forwarded on their completion of eight years' sentence exclusive of remissions. There were some other directions as well to the Prison authori ties, but for our present purpose it is not necessary to refer to them, except to say that in the concluding paragraph it was mentioned that these new directions would necessitate amendment of the rules in vogue in different pre‑integrating units.

3. On the 22nd of May 1961, fresh instructions were issued by the Provincial Government by way of Memo. No. HD‑JLS‑II‑4 (53) 61/1591 to the following effect:‑-

"Government have decided that transportation for life will mean fourteen years' rigorous imprisonment and that every lifer must undergo a minimum of ten years substantive imprisonment and the remissions, both the ordinary and special, will not exceed four years. In this behalf paras. 141 (i) and (ii) of the Punjab Jail Manual will be amended accordingly and the provisions contained in para. 218 and note to para. 216 (Correction Slip No. 4) of the said Manual regarding remissions being not in excess of one‑third of the total sentence will be inapplicable in the case of lifers. Necessary draft correction slips may please be forwarded to Government for approval and notification."

4. A copy of this memorandum was endorsed to the Regis trar of the High Court with the following remarks :‑--

"Government observe that in view of the fact that transpor tation for life will be equal to fourteen years' rigorous imprison ment the recommendation of the trying Judge regarding the number of years which a person sentenced to transportation for life should undergo in lieu of that sentence would be unnecessary. It has, therefore, been decided that instructions conveyed to the Sessions Judges vide Circular Memo no. II‑927‑GI, dated the 11th of February 1919, issued by the late Punjab Chief Court may be withdrawn."

5. This memorandum was followed by Letter No. JD‑JLS -II‑U(53)/61, dated the 17th of November 1962, and Memorandum No. 2(23)‑H(SO1II) PRS‑62, dated the 21st of February 1963, clarifying the position that the provisions of the memorandum of the 22nd of May 1961 will have retrospective effect, as the sentence of transpiration for life had been reduced to fourteen years' rigorous imprisonment. It was added that "consequently the award of amnesty remission on the occasion of Republic Day and Revolution Day will be affected even if the convicts were sentenced to transportation for life before the 22nd of May 1961. This effect on the amnesty awards by the policy letter should please be made clear to all superintendents of Jails for necessary calculation of remissions in sentence on 14 years instead of 20 or 25 years."

6. It appears that pursuant to the memoranda, referred to above, the West Pakistan Prisons (Remission of Sentences), Rules, 1965 were ultimately promulgated by the Provincial Government in the Home Department on the 3rd of August 1965, in exercise of the powers conferred on the Governor of West Pakistan by clauses (5) and (21) of section 59 of the Prisons Act, 1894 in super session of existing rules on the subject contained in the Punjab Jail Manual, the Baluchistan Jail Manual and the Bombay Jail Manual in so far as they were applicable to the various pre‑integrating units of West Pakistan, and also of any other rules on the subject. In these rules a life convict is defined in clause (c) of rule 2 as meaning "a convict sentenced to transportation for life, such sentence shall mean fourteen years' rigorous imprisonment". The term "sentence" is defined in clause (d) of the same rule as meaning "a sentence as finally fixed on appeal, revision or otherwise and including an aggregate of more sentences than one, and an order of committal to prison in default of furnishing security to keep the peace or be of good behaviour". Rule 3 lays down that remission under these rules may be ordinary or special. Rules 4 and 5 mention certain cases in which no ordinary remission is earned or is earnable and rule 7 lays down a scale of ordinary remission for thoroughly good conduct and scrupulous attention to all prison regulations, for industry and due performance of the prescribed daily task, and for prison services such as convict night watchman, convict Overseer/Monitor, convict Warder, convict Educational Teacher, Sweeper, Mason, Barber, Hospital Attendant and Cleaner etc. Rules 8 to 14 contain further elaboration of the system of ordinary remissions. Rule 15 contemplates an extra remission of fifteen days for donating blood and lays down that such remission shall not be liable to forfeiture like ordinary remission and shall be exclusive of the limit of one‑third remission prescribed under rule 19.

7. The subject of special remissions is dealt with in rules 16, 17 and 18 and it is prescribed that special remission may be given to any convict whether entitled to ordinary remission or not for special services and for passing examinations. In rule 18 the powers of the various authorities to grant special remissions are mentioned. In rule 19 it is stated that the total remission, both ordinary and special, awarded to a convict under these rules (other than remission for donating blood awarded under rule 15 and for passing an examination awarded under rule 17) shall not exceed one‑third of his sentence, provided that Government may, on the recommendations of the Director, grant remission beyond the one‑third limit in very exceptional and deserving cases. In sub‑rule (2) of rule 19 it is laid down that remission, both ordinary and special, earned by a life convict shall not exceed four years under any circumstances.

8. The provision embodied in rule 19(2) is in line with the instructions contained in the memorandum of the 22nd of May 1961, but in rule 20 there is a departure to the effect that "special remission is awarded by Government on occasions of public rejoicing. It is granted unconditionally under section 401 (1) of the Criminal Procedure Code, 1898, and is not governed by these rules". The second departure from the rules of 1961 is embodied in sub‑rule (2) of rule 22 to the effect that "when a life convict has earned special remission as would entitle him to release, the Superintendent shall report accordingly to the Govern ment in order that his case may be considered with reference to section 401 of the Code of Criminal Procedure". As against this provision, sub‑rule (1) of the same rule, dealing with convicts other than life convicts, lays down that when a convict has earned such remission as entitles him to release, the Superintendent shall release him unconditionally.

9. The contention raised on behalf of the petitioners in these cases is that Government having decided that transporta tion for life shall mean imprisonment for fourteen years, the petitioners were entitled to be released on completing this aggre gate period, including special and ordinary remissions earned by them under the rules as well as granted to them on occasions of public rejoicing. Under the old rules the sentence of transpor tation for life was construed as meaning imprisonment for twenty years, and accordingly special remissions granted by Government under section 401 of the Criminal Procedure Code on occasions of public rejoicing were calculated on that basis and entered as such in the history ticket and remission sheet of each convict. It is submitted that the amount of special remission so calculated and entered in the history ticket cannot be interfered with by the Jail authorities and has to be given effect to in full. It is finally submitted that once the aggregate period of fourteen years has been completed, a life convict becomes automatically entitled to be released from custody, and his detention beyond the period of fourteen years must be held to be without lawful authority.

10. On behalf of the Provincial Government the position taken up by the learned Additional Advocate‑General is that transportation for life means transportation across the seas for the remaining span of life of the convict, and that in the event of non‑transportation it means imprisonment for the rest of his life, and, therefore, there is no legal sanction behind the definition contained in the memorandum of the '.:2nd of May 1961 and the rules of 1965 that transportation for life will mean rigorous imprisonment for fourteen years. It is submitted by Mr. Safdar Shah that the rules made under section 59 of the Prisons Act cannot supersede the substantive provisions contained in the relevant sections of the Pakistan Penal Code with the result that no legal right is created in a life convict to be released after completing an aggregate imprisonment of fourteen years, and all that he can claim is that after a prescribed period his case might be considered by the Provincial Government for release under section 401 of the Criminal Procedure Code. In other words, the' argument is that even if a life convict is detained in custody beyond an aggregate period of fourteen years, such detention cannot be described as being without lawful authority, for the convict is under a liability to remain in custody until the last day of his natural life.

11. We shall first examine the position with reference to the substantive provisions contained in the Pakistan Penal Code. Section 53 of the Code lists the punishments to which offenders are liable, and these include death and transportation. Section 54 prescribes that the Central or the Provincial Government may, without the consent of the offender, commute a sentence of death for any other punishment provided by the Code and section 55 lays down that " in every case in which sentence of transporta tion for life shall have been passed, the Provincial Government of the Province within which the offender shall have been sentenced may, without the consent of the offender, commute the punish ment for imprisonment of either description for a term not exceeding fourteen years". Section 55‑A saves the right of the President to grant pardons, reprieves, respites, or remissions of punishment. Then comes section 57, which has an important bearing on the question under consideration, namely, "in calculat ing fractions of terms of punishment, transportation for life shall be reckoned as equivalent to transportation for twenty years". The next section, i.e., section 58 lays down that "in every case in which a sentence of transportation is passed, the offender, until he is transported, shall be dealt with in the same manner as if sentenced to rigorous imprisonment, and shall be held to have been undergoing his sentence of transportation dur ing the term of his imprisonment".

12. The term "transportation for life" has not been defined anywhere in the Pakistan Penal Code and accordingly it will have to be given its ordinary dictionary meaning to the effect that its duration will be for the remaining span of the natural life of the convict. In Kishori Lal v. Emperor (AIR 1945 P C 64) their Lordships observed, with reference to section 58 of the Penal Code, section 368 (2) of the Criminal Procedure Code and sections 29 and 31 of the Prisoners Act of 1900, that "at the present day transportation is in truth but a name given to a sentence for life and, in a few special cases, for a lesser period, just as in England the term imprisonment is applied to all sentences which do not exceed two years and penal servitude to those of three years and upwards. A convict sent to penal survitude may nowadays serve his sentence either in a prison known as a convict establishment or in an ordinary local prison and in the latter he will be subject to exactly the same discipline, conditions of labour and treatment generally as those sentenced to imprison ment. So, in India, a prisoner sentenced to tranportation may be sent to the Andmans or may be kept in one of the jails in India appointed for transportation prisoners where he will be dealt with in the same manner as a prisoner sentenced to rigorous imprisonment . . . . . ." However, having said this, their Lordships proceeded to observe that "assuming that the sentence is to be regarded as one of twenty years, and subject to remis sion for good conduct, he (the petitioner) had not earned remission sufficient to entitle him to discharge at the time of his application, and it was, therefore, rightly dismissed, but in saying this their Lordships are not to be taken as meaning that a life sentence must and in all cases, be treated as one of not more than twenty years or that the convict is necessarily entitled to remission".

13. While commenting on the sentence of transportation for life the authors of the Indian Penal Code observed, inter alia, that "the separation resembles that which takes place at the moment of death. The criminal is taken for ever from the society of all who are acquainted with him, and conveyed by means of which tire Natives have but an indistinct notion over an element which they regard with extreme awe, to a distant country of which they know nothing, and from which he is never to return. It is natural that this fate should impress them with a deep feeling of terror. It is on this feeling that the efficacy of the punishment depends, and this feeling would be greatly weakened if transported convicts should frequently return, after an exile of seven or fourteen years, to the scene of their offences, and to the society of their former friends". From these obser vations it would appear that the sentence of transportation for life was intended to be for the remainder of the life of the convict. Only in section 59 of the Penal Code was it provided that in lieu of imprisonment for a term of seven years or upwards the Court might award the sentence of transportation for a term not less than seven' years, but in that case it would not be a sentence of transportation for life.

14. The same question came up for examination by the Supreme Court of India in Gopal Vinayak Godse v. The State of Maharashtra and others (AIR1961SC600) and it was held that a sentence of transportation for life, or a sentence of imprisonment for life under the newly inserted section 53‑A of the Indian Penal Code, was a sentence for an indefinite period, namely, for the whole of the remaining period of the convicted person's natural life. It was further observed that "as the sentence of transportation for life or its prison equivalent, the life imprisonment, is one of indefinite duration, the remissions so earned do not in practice help such a convict as it is not possible to predicate the time of his death. That is why the rules provide for a procedure to enable the appropriate Government to remit the sentence under section 401 of the Code of Criminal Procedure on a consideration of the relevant factors, including the period of remissions earned. The question of remission is exclusively within the province of the appropriate Government".

15. In the same case the scope of the rules framed under section 59 of the Prisons Act of 1894 was also discussed and the observations made appear to us to be directly relevant in the present context:

"The Prisons Act does not confer on any authority a power to commute or remit sentences it provides only for the regulation of, prisons and for the treatment of prisoners confined therein, Section 59 of the Prisons Act confers a power on the State Government to make rules, inter alia, for rewards for good conduct. Therefore, the rules made under the Act should be construed within the scope of the Act. For the working out of the said remissions . transportation for life is ordinarily to be taken as fifteen years actual imprisonment. The rule cannot be construed as a statutory equation of fifteen years actual imprisonment for transportation for life. The equation is only for a particular purpose, namely, for the purpose of 'remission system', and not for all purposes."

16. Considering the substantive provisions of the Pakistan Penal Code as well as the views expressed by judicial authorities in this behalf, we are inclined to agree with the learned Additional Advocate‑General that a sentence of transportation for life means a sentence for the remaining span of the natural life of the convict, and section 59 of the Prisons Act, 1894 does not confer any power on the Provincial Government to alter this statutory position. However, it is also clear that for all practical purposes a sentence of transportation for life has generally been regarded as equivalent to twenty years imprisonment in view of the provisions contained in section 57 of the Penal Code and it is significant that in Kishori Lal's case their. Lordships of the Judicial Committee did make this assumption while considering the question of release of the convict, although they did not wish to be understood as laying down any inflexible rule in this behalf. As long as, therefore, the sentence of transportation for life is not commuted into a sentence of imprisonment of either description under section 55 of the Penal Code, it should generally be assumed to be a sentence for twenty years. It is also clear that this sentence may be carried out at any place within the province as appointed by the local Government under section 32 of the Prisoners Act of 1900, and it is not necessary to actually transport M the prisoners across the seas.

17. The 1965 Rules framed under section 59 of the Prisons Act, 1894 have reference to clauses (5) and (21) of that section, namely, "for the award of marks and the shortening of sentences", and "for rewards for good conduct", and cannot be interpreted as overriding the substantive statutory provisions discussed above. In framing these rules for the working of the remission system the Provincial Government clearly has the power to prescribe that the sentence of transportation for life shall be reckoned as equivalent to rigorous imprisonment for fourteen years, and that the case of a life convict shall be considered for release under the provisions of section 401 of the Criminal Procedure Code when such a convict has completed an aggregate period of fourteen years' imprisonment, including remissions of all kinds. The rules cannot, however, be interpreted as meaning that after the expiry of fourteen years imprisonment the further detention of a life convict would be illegal. That position would arise only if a specific order of commutation is passed under section 55 of the Penal Code, as in that case the sentence of imprisonment in lieu of transportation for life cannot exceed fourteen years.

18. On this view of the matter, it is clear that after the completion of fourteen years aggregate imprisonment no vested right accrues in favour of a life convict to be released automatically and unconditionally, and he can be released only in the exercise of the power conferred on the Government by section 401 of the Criminal Procedure Code. It seems to us that sub‑rule (2) of rule 22 of the 1965 Rules was intended to bring out this position, although curiously enough the sub‑rule is so worded as to deal only with a case where "a life convict has earned special remission as would entitle him to release", thus leaving out the case of a life convict who has earned only ordinary remissions entitling him to release. As already pointed out, sub‑rule (1) of the same rule deals with a convict other than a ‑life convict and there does not appear to be any provision in the rules dealing with the case of a life convict who has merely earned ordinary remissions. We consider, therefore, that on a reason able interpretation of the rules, sub‑rule (2) of rule 22 should be taken to apply to all categories of life convicts whether they have earned special remissions or only ordinary remissions, and the D intention and purpose of the rules would be achieved if the rolls of all such prisoners are considered by the Provincial Govern ment for action under section 401 of the Criminal Procedure Code.

19. One last question still remains to be considered, namely, that if for any reason the Provincial Government decides not to release a life convict after fourteen years aggregate imprisonment, then how long can he be kept in custody, and on what basis will the special remissions granted by Government on occasions of public rejoicing be calculated This question is important for the reason that special remissions on occasions of public rejoicing etc, have in the past been granted on the basis of a specified period for every year of sentence imposed, and in the case of life convicts the remissions have been calculated on the assump tion that the total sentence imposed was twenty years. It was rightly pointed out by Dr. Tasaddaque Hussain, appearing for one of the petitioners, that these remissions which have already been granted by the Central or the Provincial Governments and entered in the history tickets of the prisoners could not be taken away in view of the dictum of the Supreme Court in G. L. Bhatta charya v. State (P L D 1964 S C 503). In such cases the rule laid down by a Full Bench of this Court in the case of Farid Khan v. The State (P L D 1965 Pesh. 31) will have to be followed, namely, that for all purposes the aggregate sentence will have to be treated as twenty years and remissions will also have to be allowed on that basis. In that case the Court was considering the applicability of the 1961 Rules which, as already pointed out in an earlier part of this judgment, were different in some respects from the 1965 Rules now in force.

20. The entire position may be summed up by saying that although transportation for life means a sentence for the remaining span of the natural life of the convict, yet it has been accepted as being of twenty years duration in view of the provisions contained in section 57 of the Pakistan Penal Code. This period has not been curtailed by the rules framed by the Provincial Government under section 59 of the Prisons Act, 1894, and the period of fourteen years' rigorous imprisonment mentioned in those rules in connection with the sentence of transportation for life is intended to serve merely as a basis for the working of the remission system formulated by the Provincial Government under the relevant provisions of the Prisons Act. 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 A 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, and in that eventuality all the remissions earned by him, whether ordinary or special, will have to be calculated on the basis that he was undergoing a total sentence of twenty years, and not fourteen years. In coming to this conclusion we have placed reliance on the definition of the term "sentence" as given in clause (d) of rule 2 of the 1965 Rules, namely, that it means a sentence as finally fixed on appeal, revision or otherwise. In other words, it will be open to the Government either to apply the fourteen years rule for all purposes and to release a prisoner accordingly; or to apply the twenty years rule, but it will in no case be permissible to detain him in custody for an aggregate period exceeding twenty years as that would amount to virtual enhancement of punishment with retrospective effect as observed by the Full Bench in Farid Khan's case already mentioned.

21. All the three petitions shall now be placed before a Single Bench for disposal in accordance with the legal position explained above

A.H. Reference answered.

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