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Criminal Miscellaneous Nos. 2466 to 2472 of 1968, decided on 15th July 1968.

S. 401‑Remission of sentence‑Fixation of "substantive sentence" by Government Substantive sentence means sentence not subject to variation or reduction on account of remissions‑Remissions already earned by convict, held, deemed to have been taken into account by Govern ment while fixing period sentence"‑Convict not entitled to deduct period remissions from substantive sentence fixed by Government in absence of any specific reference in release order to the inclusion of remission.

Rajey Shah v. State and another 1968 P Cr. L J 355 and Lt.‑Col. C. L. Bhattacharya v. The State P L D 1964 S C 503 ref.

S. 402‑Commuta tion of sentence of transportation‑Convict entitled to benefit of remissions in addition to period of sentence commuted.

Ss. 401 & 402 aGovernment orders purported to have been issued in exercise of powers under S. 401 containing, expression "commutation roll" Use of expression "commutation roll" in such order, held, mislead ing ‑ Commutation of sentence as envisaged by S. 402 Precise reference to S. 402 should be made in release order to avoid confusion.

Pir Altaf Hussain Shah for Petitioner.

Abdus Samad Hashmi for the State.

Criminal Miscellaneous Nos. 2466 to 2472 of 1968, are connected matters and have been filed by different petitioners, who are life convicts, under section 491, Cr. P. Code. Challeng ing the legality of their continued detention in Jail on the ground that taking into account the remissions earned by them and the reduction of their sentences ordered by the Provincial Government, they should have been released much earlier.

2. The case of Nazar Shah and Ahmad Shah petitioners is that they along with five other petitioners were convicted by the Additional Sessions Judge, Sargodha on 25th of May 1959 and were awarded a sentence of transportation for life under section 302, P. P. C. and two years' R. I. under section 148, P. P. C. and three years' R. I. under section 307/149, P. P. C. bringing the aggregate to a consecutive sentence of 25 years' R. I. vide Memorandum No. 5(240)‑H (S. O. 111) Prs./67, dated 8th February 1968, issued by the Home Department of the Provincial Government, Ahmad Shah was directed to be released on completion of ten years' substantive sentence including war remissions on condition of executing a bond in the sum of Rs. 5,000 to keep the peace and to be of good behaviour and further to undergo five years' R. I. subject to 1/3rd remission as envisaged by rule 19 of the relevant Rules. vide Memorandum No. 5(458)‑H(S. O. III) Prs./67 dated lstof June 1968, Nazar Shah was to be released on completion of thirteen years and four months substantive sentence on furnishing personal bond in the sum of Rs. 5,000. As regards Jafar Shah, Bulleh Shah, Akbar Shah, Mahtab Shah and Walayat Shah, in addition to a total sentence of 25 years' R. 1. awarded to each of them by the Additional Sessions Judge, Sargodba on 25th May 1959, they were earlier sentenced to two years' R. I. each under sections 325/326/149 and 148, 1'. P. C. by Ch. Jamshed Ahmad Magistrate First Class. Sargodha vide his order dated 20th of January 1959. They have thus to undergo a total sentence of twenty‑seven years' R. 1. each. Vide Memorandum No. 5(347) H(S. O .111) Pry./67, dated 25th of May 1967, Jafar Shah petitioner was ordered to be released unconditionally on completion of fourteen years' and eight months' substantive sentence. Bulleh Shah, Akbar Shah, Mahtab Shah and Walayat Shah petitioners who were sentenced to an aggregate of twenty‑seven years' R. I. each were directed by stereo‑typed orders dated 1st of February 1968 to be released on completion of ten years' substantive sentence each including war remissions and on executing a bond in the sum of Rs. 5,000 each to keep peace and to be of good behaviour and further to undergo seven years' R. I. subject to 1/3rd of remission of seven years. The latter part obviously is relatable to the provision contained in rule 19, which restricts the total remission to 1/3rd of sentence. The remissions earned by them on the dates when their respective rolls were submitted to the Government, correctness whereof has not been challenged by the learned counsel for the petitioners, are as follows

3. In support of his contention that the substantive sentence fixed by the Government in respect of each petitioner is exclusive of the remissions earned the learned counsel for the petitioner has relied on Rajey Shah v. State and another (1968 P Cr. L J 355) and Lt.‑Col. C. L. Battacharya v. The State (P L D 1964 S C 503). It may be observed that incidentally Rajey Shah petitioner in the former authority in which the judgment was delivered by my learned brother Shaukat Ali J., was one of the co‑3ccused of the present petitioners. It is argued that a remission once earned by a convict cannot be withdrawn by the Government and as such every convict must invariably be entitled to the benefit of the remissions earned by him.

4. On the contrary, it is contended by the learned counsel for the State, assisted by Mr. Bashir Ahmad Khan, Assistant Superintendent, Camp Jail, Lahore that while fixing the period of substantive sentence to be undergone by each petitioner before he is entitled to release, the Government has already taken into consideration all the remissions earned by him. It is argued that in fact the cases of the petitioners were forwarded to the Government under paragraph 141 of the Punjab Jail Manual which lays down inter alia that :‑"

"a convict sentenced under section 121, 222, 302, 311 or 396, Pakistan Penal Code to transportation for life and of every convict sentenced to cumulative period of rigorous imprisonment aggregating more than fourteen years who has served fourteen years including remissions shall be submitted to the Government through the Inspector‑General for proper orders,"

and as such wile fixing the dates of release of each convict in term of the substantive sentence to be undergone by him, tie Government takes into account remissions earned by him. Yet another argument raised in support of the contention is that in regard to the case of Buleh Shah, Akbar Shah, Mahtab Shah and Walayat Shah petitioners, while fixing ten years' substantive sentence to be undergone by each one of them to earn his release it has been clearly specified that this would include war remissions, which in other words would be counted towards substantive sentence and since no reference has been made to the inclusion of other remission in regard to these petitioners or to any kind of remission including war remissions in respect of their co‑petitioners, it would be clear that remissions are not to be computed towards or in other words deducted from the substantive sentence to be undergone by each one of them.

5 The sole question that falls for determination is whether the term "substantive sentence" as employed in the various orders passed by the Government in respect of the petitioners may be deemed to have included the remissions earned by each one of the convicts, and it is on the determination of this question that the legality or otherwise of the detention in each case will depend. From the provision contained in paragraph 141 of the Punjab Jail Manual, reproduced earlier, it is clear that the case of a life convict and of every convict sentenced to ‑cumulative period of rigorous imprisonment exceeding fourteen years is to be submitted to the Government only when he has undergone fourteen years' R. I. including remissions.

Under sub‑rule (2) of rule 19, remissions both ordinary and special earned by a convict may not exceed four years under any circumstance. But to this general rule, there is an exception in favour of special remissions awarded by Government under section 491 (1), Cr. P. C. on occasions of public rejoicing. These remissions are not subject to the rules as envisaged by rule 20. Sub‑rule (2) of rule 22 lays down that "when a life convict bas earned special remissions as would entitle him to release, the Superintendent of the Jail shall report accordingly to the ‑Government in order that his case may be considered with reference to section 401 of the Code of Criminal Procedure," presumably with the object of the imposition of conditions before passing an order of remission of sentence if considered necessary.

6. It is well‑settled that a remission once allowed to a convict cannot be withdrawn or cancelled except as provided in rule 5 which reads as follows :‑

"5. Ordinary remission not earnable for certain offences committed after admission to prison. If a convict is convicted of an offence committed after admission into prison or for an assault committed after admission to prison, on a warder or other officer, the remission of whatever kind earned by him (excluding remission awarded by Government and awarded for blood donation under rules 15, 17 and 18) up to the date of the said conviction may in part or whole be cancelled with the sanction of the Director."

In the absence of any such order of cancellation passed in regard to any of the petitioners, it is clear that each one of them is entitled to the benefit of the remissions earned by him. All the orders passed in respect of the seven petitioners are purported to have been made under section 101, Cr. P. Code relating to remission of sentences by the Provincial Government.

7. It appears that two different forms have been used in the communications addressed by the Home Department to the Superintendent, Jail in regard to the release of the seven petitioners. i The two forms, one common to Nazar Shah and Jaffar Shah and the other common to the remaining five petitioners are reproduc ed below in order to appreciate the difference between them :‑

"From

The Secretary to Government of West Pakistan, Home Department.

To

The Superintendent, Camp Jail, Lahore. Memorandum

No. Section (240) H‑SO III‑Prs./67

Dated the 8th February 1968.

Subject:

Commutation roll of Convict No. 265, Ahmad Shah son of Muhammad Shah, at present confined in Camp Jail, Lahore.

The Governor of West Pakistan has been pleased in exercise of the powers conferred on him by section 401, Cr. P. C. to order the release of Convict No. 265, Ahmad Shah son of Muhammad Shah, Police Station Muhammad Tulla, Jaurianwala, district Sargodha, at present confined in District Jail, Lahore on completion of ten years' substantive sentence including war remissions and after that he should undergo five years including war remissions, on the condition that he executes a personal bond in the sum of Rs. 5,000 only to keep the peace and to be of good behaviour for the unexpired portion of his sentence.

2. The date of release of the prisoner in question may be intimated to Government.

(Sd.) S. Parvaiz

Officer on Special Duty (Prisons)"

"From

The Secretary to Government of West Pakistan, Home Department.

To

The Superintendent, Central Jail, 5ahiwal. Memorandum No. 5 (458) H‑S O III‑Prs./68.

Dated the 1st of June 1968.

Subject:

Premature release of Prisoner No. 3452 Nazar Shah son of Mahtab Shah at present confined in Central Jail, Sahiwal.

Reference correspondence resting with your memorandum No. 1076 dated 4‑3‑1968 on the subject noted above addressed to the Director of Prisons, Bahawalpur.

2. The Governor of West Pakistan has been pleased in exercise of the powers conferred on him by section 401 of the Code of Criminal Procedure to remit the unexpired portion of the sentence passed on convict No. 3452, Nazar Shah son of Mahtab Shah, resident of Muhammad Tulla, Police Station Jaurian, district Sargodha, at present confined in Central Jail, Sahiwal, and order his release on completion of 13 years 4 months' sub stantive sentence on the condition that he furnishes a personal bond in the sum of Rs. 5,000 (Five thousand) to keep peace and be of good behaviour for the unexpired period of his sentence.

3. The date of release of the prisoner in question may be intimated to Government.

4. Please acknowledge receipt."

A comparative study of the two forms would show the following points of difference :‑ ,

(1) The one relating to Nazar Shah and Jafar Shah mention ed the "subject" as "premature release of prisoners," whereas the one relating to the remaining petitioners mentioned the "subject" as "commutation roll of convict."

(2) the former makes a specific reference to the remission of unexpired portion of sentence on completion of a specified term of substantive sentence whereas the latter does not specifically refer to the remission of unexpired portion of sentence.

Although the expression "commutation roll" has been used in the second type of form yet it may be observed that all the release orders were passed by the Governor in exercise of the powers conferred on him by section 401, Cr. P. C. which is confined only to the suspension or remission of sentence, and has nothing to do with commutation as such which is provided for in the next section 402, Cr. P. C. As such it appears to me that nothing would really turn upon the two discrepant forms employed in respect of the petitioners both of which have been prescribed by the Home Department.

8. From the perusal of the orders it is clear that in all cases the expression "substantive sentence" has been used. In the case of Jafar Shah and Nazar Shah there is no reference to war remissions, whereas in the case of the rest, the period of war remission is also to be included in the specified period of substantive sentence in each case. Having taken me through various types of release orders issued by the Government from time to time, Mr. Bashir Ahmad Khan, Assistant Superintendent, Camp Jail, Lahore, argued and I am grateful to the assistance rendered by him, that usually three types of orders are issued by the Govern ment. In the first category of cases instead of using the expression "substantive sentence" the order would refer to the completion of a certain specified period Including remissions. Documents Annexures R/1 and R/2 relating to the cases of some other convicts, namely, Khan son of Murad and Bachhu son of Mughal placed by the respondent on the record belong to this category. The second category is the one with which we are concerned in the instant case. Although in these orders, the expression "substantive sentence" is common to all, yet a specific reference is made to the inclusion of war remission only. The third category of orders is one in which it is clearly Indicated that the sentence of transportation for life is commuted to that of ten years. Obviously in the latter category on commutation of the sentence of transportation which is presumably ordered under section 402, Cr. P. C. notwithstanding an erroneous reference to section 401, Cr. P. C. a convict would be entitled to the benefit of remissions of all kinds earned by him. My learned brother Shaukat Ali, J., had to deal with a case of this nature in Rajey Shah v. State and as such the ruling given by my learned brother with which I am in respectful agreement would' not be applicable to the case of the petitioners, notwithstanding the fact that Rajey Shah petitioner in that case had been simultaneously convicted with them.

9. As stated earlier, the sole point that falls for determina tion is whether the expression "substantive sentence" means a sentence including remissions as contended on behalf of the petitioners or whether it is to be construed as having already taken into account the remissions earned by the petitioners. Unfortunately this expression is not defined any where, and as such we have to fall back upon, on its ordinary dictionary meaning. According to Oxford English Dictionary, Vol. I, 1961 Edition "substantive" means, "solid, self‑contained, essential, actual, independent, self‑sufficient, not dependent upon, subsidiary to or referable to something else." From this, it becomes abundantly clear that the expression "substantive sentence" means a self‑contained, independent sentence which is not subject to variation or reduction on account of remissions. In other words, it appears that while fixing a certain period of "substan tive sentence" in respect of life convict the Government has already taken into account remissions earned by him. Further support could be lent to this view from the fact that as stated earlier in the case of Bulleh Shah, Akbar Shah, Mahtab Shah, Walayat Shah and Ahmad Shah, the expression "substantive sentence" has been qualified by the addition of the words "including war remissions". This would indicate that while calculating the period of substantive sentence, all other remissions except war remissions have been taken into consideration by the Government. The stage at which the case of a life convict under section 302 is to be submitted to the Government, i.e. after he has served fourteen years including remission as envisaged by paragraph 141 of the Punjab Jail Manual referred to earlier would also indicate that in the absence of any specific reference in the release order to the inclusion of remissions, the latter may be deemed to have been included in the fixation of a substantive sentence.

10. The case of commutation of a sentence of transportation to a lesser term of imprisonment under section 402, Cr. P. C. in contradistinction to the remissions envisaged by section 401, Cr. P. C. stands on a different footing. Obviously, therefore, in a case of commutation in the absence of anything contained to the contrary, a convict would be entitled to the benefit of remissions in addition to the period of sentence commuted. It may be observed that the cases of all the petitioners were submitted by the jail authorities to the Government, a couple of months before they had completed fourteen years including remissions. It was stated by the Assistant Superintendent Jail, that this margin was deliberately left with a view to make allowance for the time taken in processing the case. Another pertinent fact to be mentioned in this regard that in the fixation of the term of substantive sentence to be undergone by each of the petitioner before he is to be released, the authorities concerned have been fully alive to the remissions earned by each one of them of which they have been otherwise given the fullest benefit.

11. On the above view of the matter, none of the petitioners is entitled to release at the moment and in consequence the petitions fail and are hereby dismissed.

12. Before parting with this case, however, I would like to take this opportunity to point out that the expression "commutation roll" employed in regard to the forms of the five petitioners is rather misleading in the sense that here too an order of release like all other cases is passed by the Governor in exercise of the powers conferred on him by section 401, Cr. P. C. which refers to suspension and remission of sentence, if, however commutation of sentence as envisaged by section 402, Cr. P. C. is contemplated by the authorities then more precisely a reference to section 402, Cr. P. Code should instead be made in the release order to avoid any possible confusion.

A. H. Petition dismissed.

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