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Petition for Special Leave to Appeal No. 31‑D of 1970, decided on 23rd June 1970.

(On appeal from the judgment and order of the High Court of East Pakistan, Dacca, dated the 24th March 1970, in Criminal Miscellaneous Case No. 37 of 1970).

S. 491 Habeas corpus ‑Petition for release of friend from illegal detention in prison on ground that prisoner earned such remissions as added to period of imprisonment already undergone covered period of sentence inflicted and as such he was entitled to release‑Petitioner, however, unable to submit proof of remissions and praying for withdrawal of petition with permission to bring fresh one in High Court‑With drawal allowed‑Detention if illegal, held, would be a continuing wrong and petition for release from illegal detention can be filed at any moment.

Aminul Haq, Advocate‑on‑Record for Petitioner.

Nemo for Respondents.

Dates of hearing : 22nd and 23rd June 1970.

‑This petition for special leave arises out of an application under section 491, of the Code of Criminal Procedure moved by toe petitioner Mazhar Hussain Bhuiya in the High Court at Dacca calling in question the continued detention of his relative and friend Hussain Ali who was lodged in the Central Jail, Dacca, as a convict under section 302 of the Pakistan Penal Code. It was alleged in the petition under section 491, of the Code of Criminal Procedure filed on the 24th March 1970, that the aforesaid Hossain Ali, who was convicted on the 15th August 1959, under section 302/34 of the Penal Code and sentenced to transportation for life, had served the sentence of imprisonment for about ten years and 6 months in jail at the time of the filing of the petition and that during this period he had earned a remission of 1201 days under the Jail Code and of another remission of 1200 days by the orders of the Provincial Government under section 401 of the Code of Criminal Procedure, and that adding the period of remissions to the substantive sentence of imprisonment already undergone, his imprisonment has already exceeded more than 17 years. It was submitted that under the combined effect of sections 55 and 58 of the Penal Code, sentence of transportation, if not executed in terms, is equivalent to a sentence of 14 years' rigorous imprisonment in the maximum which the convict has over‑served if the remissions earned by him are included, but in spite of this he is not being released by the Jail authorities owing to a misconception of the legal position. It was submitted that the Government of East Pakistan has not framed any rules on the subject, although in West Pakistan, under the West Pakistan Prisons Remissions of Sentences Rules, 1965, a life convict has been defined as a convict sentenced to transportation for life to mean 14 years' rigorous imprisonment. It is further urged that the Jail authorities are putting varied interpretation of rule 751 (f) of the Jail Code as meaning 25 years in some cases and 20 years in others. The learned Judges in the High Court have dismissed the petition by a single sentence order saying there is no substance in this appli cation which is summarily rejected'.

We feel that the matter required a deeper thought and consideration than that which has been bestowed upon it by the learned Judges of the High Court, as it involved a serious question of interpretation of the relevant provisions of the Penal Code and the vires of the rules in the Jail Manual which are apparently in conflict with them, as pointed out on behalf of the petitioner. We adjourned the case yesterday and asked the learned counsel for the petitioner to adduce proof regarding the period of remissions allegedly earned by the petitioner, particularly the one under section 401 of the Code of Criminal Procedure which must be based on some order of the Provincial Government. This we did, to discover whether a factual basis was furnished in the case to entitle us to proceed with the examination of the legal issue involved. The learned counsel for the petitioner has submitted that no proof of the remissions has been made available to him so far, although he h is made all efforts to get it. He has prayed that he may be allowed to withdraw this petition with permission to bring a fresh one in the High Court after ascertainment of the factual position.

We permit the withdrawal of this petition and dismiss it as such. The petitioner shall be at liberty to file a fresh petition in the High Court after ascertainment of the correct factual position, if so advised. If the detention of Hussain Ali is illegal, as alleged by the petitioner, it is a continuing wrong, and there can be no bar to the making of afresh petition, under section 491 of the Code of Criminal Procedure, or to the moving of a petition for a writ of habeas corpus, to set right that wrong. We order accordingly.

A. H. Order accordingly.

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