2011 M L D 1788
[Quetta]
Before Jamal Khan Mandokhail and Abdul Qadir Mengal, JJ
MUSSA KALEEM ---Petitioner
Versus
THE STATE ---Respondent
Constitutional Petition No.392 of 2011, decided on 21st July, 2011.
(a) Pakistan Prison Rules ---
----Rr. 32, 33, 34 & 198 ---Control of Narcotic Substances Act (XXV of 1997), S.9(c) ---
Constitution of Pakistan, Arts.199 & 45 ---Constitutional petition ---Possessing narcotic ---
Sentence, reduction in ---Special remission from President ---Trial Court convicted
petitioner and sentence d him to suffer 14 years' R.I. ---Appellate Court, in appeal, reduced
sentence of 14 years to 10 years and rest of the sentence was maintained ---During
pendency of appeal, President of Pakistan, awarded "Special remission" in sentences of
convicted prisoner s to the extent of one forth of total sentence awarded by the court ---
Petitioner/ convict claimed that at the time, when the remission was awarded by the
President, his sentence being 14 years, he was entitled to get his one forth remission on
the basis of 14 years sentence ---Superintendent jail declined his request ---Validity ---
Sentence awarded to the petitioner by the Trial Court could be considered as final, when
it was not challenged in higher forum, whereas in the present case it was challenged in
appe al---Final verdict of the last higher forum/Appellate Court, with its variation, if any,
would be considered as sentence ---Sentence had been reduced by the Appellate Court on
the request of petitioner from 14 years to 10 years and the petitioner had not pr essed his
appeal on merits, which would mean that he had accepted the conviction awarded by the
Trial Court with a variation and reduction in the quantum of sentence ---Final sentence of
the petitioner, in circumstances was 10 years' R.I. and not 14 year s, unless varied by
the higher forum ---After reduction of sentence from 14 years to 10 years, sentence
of 10 years having attained finality, petitioner was entitled for one forth remission on
his reduced sentence of 10 years, which ha d attained finality ---Jail authorities were
justified in calculating the Special Remission on the basis of 10 years sentence
instead of 14 years ---Constitutional petition was dismissed.
(b) Words and phrases ---
---'Sentence' defined and explained.
Muhammad Riaz Ahmed for Petitioner.
Atiq Ahmed Khan, D.P. -G. and Syed Abdul Razaq, Superintendent Central Jail
Mach for the State.
Date of hearing: 7th June, 2011.
JUDGMENT
JAMAL KHAN MANDOKHAIL, J .---Facts in brief are that the petitio ner was
convicted and sentenced under section 9/C of the Control of Narcotic Substances Act,
1997 to suffer 14 years' R.I. with fine of Rs.50,000. The petitioner filed a Criminal
Appeal No.145 of 2009 before this Court, which he did not press on merits and requested
for a moderate reduction in the quantum of the sentence. The request was accepted by
means of the judgment dated 24 -5-2011, resultantly, the sentence of 14 years' R.I.
awarded to the petitioner was reduced to that of 10 years R.I, however, rest of the
sentence regarding fine was maintained and the appeal was dismissed.
During the pendency of the appeal, the President of the Islamic Republic of
Pakistan, in exercise of power conferred upon him under Article -45 of the Constitution of
the Islamic R epublic of Pakistan, 1973 awarded "Special remission" to the convicted
prisoners by means of a letter dated 9th April, 2010. The Government of Balochistan
acted upon said letter in the following terms: --
No.SO(Prs;)2 -37/2010/1289 -1302 . In pursuance of Gov ernment of Pakistan
Ministry of Interior, Islamabad's Letter No. 8/2/2010 -Ptns, dated Islamabad, the 9th April,
2010, his Excellency, the President of the Islamic Republic of Pakistan, in exercise of
Powers conferred under Article -45 of the Constitution of the Islamic Republic of Pakistan
1973, has been pleased to grant "Special Remission" in sentences of convicted prisoners
on the occasion of "Passing of the 18th Amendment Bill by the National Assembly of
Pakistan". Except those convicted of murder, espio nage, subversion, anti -state activities,
terrorist acts (as defined in the Anti -Terrorism (Second Amendment) Ordinance 1999,
kidnapping/ abduction for ransom, robbery (section 394, P.P.C), Dacoity (sections
395-396 P.P.C.) and those undergoing sent ences under the Foreigners Act, 1946: --
(1) One fourth of total sentences awarded by the Courts to all convict prisoners.
(2) Total remission to female convict prisoners who are 60 years of age or above and
have undergone at least 1/3rd of substantive sent ence of imprisonment.
(3) Total remission to male convict prisoners who are 65 years of age or above and
have undergone at least 1/3rd of substantive sentence of imprisonment.
The petitioner claimed that, at the time, when the remission was awarded, his
sentence was for 14 years, as such, he is entitled to get his one fourth remission on the
basis of 14 years sentence. The Superintendent, Central Jail Mach, declined his request,
hence this petition.
The learned counsel for the petitioner stated that the jail authorities issued a
history ticket to the petitioner, wherein, he was awarded the one forth special remission
on the basis of 14th years, therefore, once the remission is awarded on the basis of the
presidential order, it cannot be withdrawn. He sta ted that on earning the remission already
calculated on the basis of 14 years' sentence and reducing the sentence by the Court, the
petitioner is entitled to be released, but the jail authorities are reluctant to do so, which act
is without jurisdiction.
In response to the notice, the learned A.A. -G. submitted para -wise comments and
stated that the special remission are to be awarded to the petitioner on the basis of the
sentence which attained finality. According to them, until the sentence was reduced, o ne
fourth remission was calculated on the 14th years sentence, whereas after reduction of the
sentence from 14 years to 10 years its one fourth comes to 2 years and six months, as
such, the petitioner has not completed his substantial sentence, therefore, he was not
released.
We have heard the learned counsel for the parties and have perused the record.
The petitioner seeks his release on the basis of the Presidential order, awarding remission
of one fourth of the total sentence to the convicted prisoners. To implement the subject
order it would be appropriate to understand as to what does sentence means. The sentence
has been defined in the Black Law Dictionary as under: --
A court's final determination of the rights and obligations of the parties in a cas e.
The term judgment includes a decree and any order from which an appeal lies.
Similarly under the rule 198 of Pakistan Prison Rules the sentence has been
defined as under: -
Rule 198....
(a) ……..
(b) ……..
(c) "sentence" means a sentence as finally fixed on appeal, revision or otherwise, and
includes an aggregate of more sentence than once, and an order of committal to
prison in default of furnishing security to keep the peace or be of good behaviour.
In view of above, it is clear that the sentence award ed by the trial court could be
considered as final when it is not challenged in higher forum, but in case it is challenged,
the final verdict of the last highest forum with its variation, if any, would be considered
as sentence. In present case, at the re quest of the petitioner, the sentence has been reduced
to 10 years and did not press his appeal, meaning thereby that he accepted the conviction
awarded by the trial court with a variation and reduction in the quantum of the sentence,
therefore, his final sentence at present is 10 years R.I, unless varied by the Hon'ble
Supreme Court of Pakistan.
Now, considering the issue as whether the special remission awarded by the
President of Pakistan was to be counted in favour of the petitioner on the basis of 14t h
years sentence or on the basis of 10 years sentence. It is important to mention here that
the remissions are of two types, one is ordinary remission and the other is special
remission. The procedure for awarding the ordinary remission is governed by the
Rules 32, 33 and 34 of the Prison Rules. At the time of the admission the prisoner in jail,
he is provided with a history ticket, which exhibits such information as is required in
respect of each prisoner by the Act or the rule, containing the entry o f special remission,
ordinary remission and pendency of the appeals etc. The convicted prisoner is also
informed about the tentative date of his/her release after the calculation of the actual
remissions earned. The history sheet is prepared by the Assista nt Superintendent Jail or
the other officer entrusted by the Superintendent.
Under Rule 32(ii) of the Pakistan Prisons Rules, the Assistant Superintendent Jail
has a power to change the date of release either by the imposition of additional
imprisonment, or by reduction of the sentence by a Court. The Assistant Superintendent
in such eventuality has to enter in the register and in the entry sheet a new date of release,
and the old entry should be scored through with red ink, and a reference made against it
to the new date fixed. Under Rule 33 it is the duty and responsibility of the
Superintendent Jail to see that necessary alterations are made in the register, when a
sentence is enhanced or reduced on appeal, revision, etc.
It reflects that the dates of r elease of the prisoner mentioned in his/her history
ticket is purely subject to the final settlement of his/her sentence. The date of release
could be changed on the enhancement of the sentence or on the reduction of the sentence.
Hence, the Assistant Supe rintendent Jail and the District and Sessions Judge have the
authority to calculate the remissions on the basis of sentence attained finality.
It is clear that the special remission in the sentences awarded to the convicted
prisoner by the President of Pa kistan, vide letter dated 9th April, 2010, shall be applicable
to those convicted prisoners whose sentences attained finality.
Admittedly, at the time of passing of the order by the President of Pakistan, the
petitioner was convicted by the trial court, b ut his sentence did not attain finality, for the
reason that his appeal was pending. At the request of the petitioner, his sentence has been
varied and reduced from 14 years to 10 years R.I., which attained finality, therefore, he is
entitled for one forth remission on his reduced sentence of 10 years. The jail authorities
are justified in calculating the special remissions on the basis of 10 years sentence instead
of 14th years sentence.
Thus, in view of what has been stated and discussed hereinabove, the petitioner is
hereby dismissed.
H.B.T./68/Q Petition dismissed.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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