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Petitioner: NUR ELLAHI VS Respondent: THE STATE
Court Name: Lahore High Court Judge(s): Rustam S. Sidhwa, Gulbaz Khan Title: NUR ELLAHI vs THE STATE Case No.: Criminal Miscellaneous No, 189/M of 1982 Date of Judgment:1982-12-17 Reported As: PLD 1983 Lahore 126 Result: Order accordingly
JUDGMENT
JUDGMENT ' RUSTAM S. S1DHWA, J.-This common order will dispose of sixteen miscellaneous petitions under section 561-A, Cr. P. C., namely:- ' 1. Cr. M. 56/M-82 in Cr. A. No, 465/78 ; 2. Cr. M. No, 175/M-82 in Cr. A. No, 451/77; 3. Cr. M. No, 189/M-82 in Cr. A. No, 588/74; 4. Cr. M. No, 226/M-82 in Cr. A. No, 64/75; 5. Cr. M. No, 255/M-82 in Cr. A. 754/77; 6. Cr. M. No, 257/M-82 in Cr. A. 832/78 ; 7. Cr. M. No, 259/M-82 in Cr. A. 276/78 ; 8. Cr. M. No, 286/M-82 in Cr. A. No, 680/76 ; 9. Cr. M. 295/M-82 in Cr. A. 337/79 ; 10. Cr. M. 306/M-82 in Cr. A. 30/75 ; 11. Cr. M. No, 412/M-82 in Cr. A. No, 954/78 ; 12. Cr. M. No, 5I3/M-82 in Cr. A. 83/74 ; 13. Cr. M. No, 523/M-82 in Cr. A. 625/76 ; 14. Cr. M. No, 374/M-82 in Cr. A. No, 1156/78 ; 15. Cr. M. 851/M-82 in Cr. A. 481/73 and 16. Cr. M. No, 822/M-82 in Cr. A. No, 92/78; filed by various persons, who stand convicted on the basis of decisions given by this Court in criminal appeals decided by it, for the grant of the benefit of the provisions of section 382-B Cr. P. C. In respect of the sentences imposed on them. Since the last seven years, this Court, when deciding criminal appeals, has been considering with care the propriety and appropriateness of the sentences passed by trial Judges or that to be imposed or altered by itself and, in appropriate cases, has been taking into consideration the periods, if any, during which the appellants have been detained in custody for the offence or offences which have been ultimately found proved against them, thereby granting them the benefit of the provisions of section 382-B, Cr. P. C.The reference of these petitions en bloc to us is, therefore, not understood; nor the reasons are available on the files of the present cases. However, we are informed by the learned Assistant Advocate-General, Punjab, that the present sixteen petitions have been marked to this Bench for the special consideration of the question as to whether section 382-B, Cr. P. C. Is retrospective and, if so, to what extent. We are informed that in some petitions before us this
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question is of relevant importance, though perhaps not in others, which have inadvertently been tagged on to the relevant cases. Since a large number .Of counsel have bestowed on us the benefit of their wisdom, not only on the legal point mentioned by the learned Assistant Advocate-General, but on the said provision of law generally, we would deal with all these submissions here. 2. Before taking up the arguments addressed in this connection, we submit below the dates of the judgments of the trial Court and of this Court in appeal in respect of the cases which are before us :- {{TABLE TEXT}} SerialNumber of petitionDate of trialDate of High No.Court judgmentCourt judgment in criminal appeal 1.Cr. M. No. 56/M-82.3-6-1978.29-12-1980. 2.Cr. M. No. 175/M-82.7-5-1978.2-9-1979. 3.Cr. M. No. 189/M-82.27-7-1974.30-5-1975. 4.Cr. M. No. 226/M-82.17-1-1975.27-10-1975. 5.Cr. M. No. 255/M-82.13-7-1977.7-10-19o0. 6.Cr. M. No. 257/M-82.19-7-1978.8-3-1981. 7.Cr. M. No. 259/M=82.27-2-1978.8-8-1979. 8.Cr. M. No. 286/M-82.12-5-1976.7-11-1977. 9.Cr. M. No. 295/M-82.22-2-1979.14-10-1981. 10.Cr. M. No. 306/M-82.28-11-1974.12-17-1975. 11.Cr. M. No. 412/M-82.24-9-1978.7-7-1980. 12.Cr. M. No. 513/M-82.18-12-1973.17-1-1975. 13.Cr. M. No. 523/M-82.30-4-1976.5-7-1978. 14.Cr. M. No. 374/M-82.14-12-1978.12-3-1980. 15.Cr. M. No. 851/M-82.5-7-1973.27-11-1974. 16.Cr. M. No. 822/M-82.7-1-1978.10-10-1979. {{TABLE TEXT}} 3. On behalf of the petitioners, it is submitted that section 382-B, Cr. P. C. Is retrospective in effect and enables the High Court to grant the benefit arising from it, through petitions filed under section 561-A, Cr. P. C., in criminal appeals in which judgments have been announced whether before or after 26-12-1975. In this connection it is submitted that since the said provision has been inserted in the Criminal Procedure Code, which is a procedural Jaw, and not in the Pakistan Penal Code, which is a substantive law, the intention is that as a procedural provision it is to have retrospective effect. It is further submitted that it does not make any difference whether the original and appellate judgments in the same case were delivered before 26-12-1975, for once the petition under seetion 561-A, Cr. P. C. Is filed even after 26-12-1975 section 382-B, Cr. P. C. Can be applied. In this connection, the learned counsel has referred to Saleh v. The Superintendent, Central Prison, Ilvderabad (1). 4. On behalf of the State, the learned Assistant Advocate-General has made a number of submissions: First, that though section 382-B, Cr. P. C. Is a procedural section, it can only be given retrospective effect to consider the appellate judgment of this Court, provided that such criminal appeal was heard or decided by the High Court on or after 26-12-1975, which was the date fixed by the Punjab Government's Notification No, Judl. I. 3(2)75 dated 23-12-1975 when this section became operative, and provided further that the Supreme Court had not granted special leave to appeal against the High Court's appellate decision, for in such a case, this Court would be functas officio- and the Supreme Court alone would have to be approached for the grant of the said benefit.
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Second, that section 382-B, Cr. P. C. Is not applicable to cases where a sentence of death, life imprisonment or imprisonment for a minimum term, where the statute so provides, is imposed. In this connection it is submitted that a death sentence cannot be equated with any form of imprisonment, from which any period of detention can be deducted. Therefore, this section does not apply to a sentence of death imposed on a convict. As regards the sentence of life imprisonment, it,is submitted that section 53 of the Pakistan Penal Code has categorised six types of punishments separately and imprisonment for life and the general form of imprisonment, which is of two descriptions, namely, rigorous and simple, are categorised as two different and distinct types of punishments and, therefore, imprisonment for life is totally a distinct and separate form of punishment as against the general form of punishment referred to in the Penal Code, which can either be rigorous or simple, Since the sentence of imprisonment for life legally has no maxima ceiling or any fixed term, it is not possible to make any deduction from the said sentence and, therefore, section 382-B, Cr. P. C. Is inapplicable to such cases. In this connection Po Kun v. The King (1) is cited. As regards section 57 of the Pakistan Penal Code, the learned counsel submits that the said provision does not lay down any maxima ceiling in respect of a sentence of imprisonment, only relates to the mode of calculating fractions of terms of punishment. Muhammad Ayub's case (2) is cited in this behalf. It is stated that this section, therefore, cannot be treated as equating a sentence of imprisonment for life with imprisonment of a rigorous nature for twenty-five years for all purposes. It is further stated that unless a sentence of imprisonment for life is commuted or remitted under the provision of the Pakistan Penal Code or the Code of Criminal Procedure, the convict is bound by law to serve his life term in prison. Since the power of suspension, remission and commutation is reserved by statute with the Provincial Government and the President of Pakistan, section 382-B, Cr. P. C. Cannot be applied to cases of imprisonment for life, as that would be giving Judicial Courts the power of partly remitting the punishment imposed for life, which the law does not permit. As regard persons sentenced to minimum terms of imprisonment, such as in cases like sections 364-A, 397, 398, P. P. C. Etc., it is submitted that the law ex- pects that the said convict should suffer the said minimum term from the date he is taken into custody after Judgment is announced and the grant of benefit of section 382-B, Cr. P. C. Would again amount to remitting the whole or part of his minimum sentence, which power the law does not give to the Judicial Courts. Third and last, it is submitted that these points have not been considered by any of the superior Courts of Pakistan, much less the Supreme Court, and the decision of the Supreme Court in Alt Sher's case (3) and Sikandar Ali's case (4) being obiter, where these important legal matters {{FOOT NOTE}} (I) AIR 1934 Rang. 124 (2) PLD 1959 Lah. 623 (3) PLD 1980 SC 317 (4) 1981 SCMR 573 {{FOOT NOTE}} ' were never canvassed or considered, the said decisions are not binding on this Court and do not stand in its way in giving its own independent judgment on this section, which, in the public interest, calls for a proper and correct interpretation. 5. We have heard the learned counsel for the petitioners and the State and have given or anxious consideration to the arguments which have been addressed before us for some days. Before we deal with section 382-B, Cr. P. C., we would like to clear the ground with regard to a few matters. 6. Prior to the Law Reforms Ordinance, 1972, section 53 of the Pakistan Penal Code described six types of punishments, of which the first was death, second was transportation for life and the fourth was imprisonment, which was of two descriptions, namely, rigorous i,e, with hard labour and simple. With the enforcement of the Law Reforms Ordinance, 1972, the second of the punishments prescribed was altered to imprisonment for life. Much stress has been laid by the Assistant
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Advocate-General on the past history of this section to show that origin:illy as transportation for life was not ordinary form of imprisonment as prescribed by the fourth part of section 53 of the Code, the same sentence under the changed nomenclature of imprisonment for life is also, therefore, not the ordinary form described in the fourth part of the section. This argument may be true for the purposes of interpreting any provision of the Penal Code, where the distinction provided carries weight, but for the purposes of section 382-B of the Code of Criminal Procedure, the same argument may not be true. The question whether an accused who was sentenced to transportation for life but was not transported over the mainland to the Andamans Islands in the Indian Ocean but kept imprisoned in some of the jails in India, could legally be imprisoned in such jails permanently and, if so, upto what term, was dealt with by the Judicial Committee of the Privy Council in Kishori Lars case (1) where the Committee, after referring to section 368(2) of the Criminal Procedure Code, 1898, and sections 29, 31 and 32 of the Prisoners Act, 1900 (as amended in 1903 and 1920) and Orders and Circulars of an administrative nature issued under the relevant law, inter alia held that a sentence of transportation was no longer necessarily a sentence of transportation beyond the seas and a prisoner convicted to transportation for life basically was a person sentenced to rigorous imprisonment for life and could be detained for the maximum period of twenty years (as then fixed) in jails in India. The actual wording of Lord Goddard in the said connection may be reproduced with advantage "But at the present day transportation is in truth but a name given in India 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 So, in India, a prisoner sentenced to transportation may be sent to the Andamans 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." This view was approved by the Supreme Court in Gopal Vinayak Godse v. The State of Maharashtra (2). The old sentence of transportation for life was, therefore, nothing more than a sentence of rigorous imprisonment for A life in jails in this sub-continerit. The amendment brought about by the {{FOOT NOTE}} (1) A1 R 1945 P C 64 (2) AIR 1960 SC 600 {{FOOT NOTE}} ' Law Reforms Ordinance, 1972, to sections 53, 56 and 57 of the Pakistani Penal Code only recognises this reality by legally changing the name of the old punishment of transportation for life to imprisonment for life. 7. It is also necessary to understand the scope and object of section 382-B, Cr. P. C. It has already been dealt with by a Division Bench of this Court in Sultan Ahmad v. The State (1). However, it may be restated. The object of this provision is to grant to the accused the benefit of a concession by reducing in appropriate cases the sentence intended to be imposed on him, by the whole or some portion of the period of detention already undergone by him as an under-trial prisoner, so as to compensate him for the unduly long incarceration to which he may have been subject as a result of the delay in the trial for any cause for which he was not responsible. In view of undue delay in criminal trials, both due B to shortage of Judicial Officers and failure in procedural working, the necessity of granting the Courts the power of relieving convicts from the full burden of the sentences proposed to be imposed on them, where they had suffered incarceration as under-trial prisoners for unduly long periods of time, was acutely felt and treated as entitling them, on principles of equity and justice, to have the whole or some fair portion of such periods remitted or deducted from their sentences. Section 382-B, Cr. P. C. Fulfils that need. This section was, therefore, introduced through the Law Reforms Ordinance, 1972, though it did not come into force in the Punjab till 26-12-1975. Initially the section enacted was follows :-
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"Where a Court decides to pass a sentence of imprisonment on an accused for an offence, it may take into consideration the period, if any, during which such accused was detained in custody for such offence." ' The use of the word "may" connoted imperative duty and not discretion. It is cardinal principle of interpretation that where a statute confers an authority to do judicial act in a certain case, it is imperative on those so authorized, to exercise that authority, when the case arises and its exercise is duly applied for by the party who is interested and has the right to call for its application. In such cases the word "may" is not treated as giving a discretion, but conferring a power upon the Court or Judge, and the exercise of such power depends, not upon the discretion of the Court or Judge, but upon the proof of the particular case out of which such power arises. Craies on Statute Law, 7th Edn., page 285 and the observations of Jervis C. J. In Macdougall v. Patterson (2) may be referred in this respect. In Fazal Hussain v. The State (3) this Court also held, where a trial Judge had neither granted the benefit of section 382-B, Cr. P. C. To the accused nor recorded any reasons for not granting the same, that on principles of equity and justice, the trial Judge should have recorded his reasons, so that the accused could have been informed of the reasons which had prompted him in not granting the concession permissible under this section. This Court further held that failure of the trial Judge in not applying the section and his total silence in the judgment in not giving reasons for not applying the same, had rendered the sentence awarded open to serious legal objection. Accordingly, it granted the benefit of the said section to the accused. However, on 22-12- 1979 the word "may" in seetion 382-B, Cr. P. C. Was substituted by the word "shall" by the Code of Criminal Procedure (Second Amendment) Ordinance, 1979. This did not change the position {{FOOT NOTE}} (1) 1981 P Cr. L J 602 (2) (1851) 11 C B 755 (3) 1979 P Cr. L J 238 {{FOOT NOTE}} ' materially, though it made the intent more certain and clear. Strictly, therefore, even before the amendment the trial Judge had an imperative duty, when passing a sentence, to take into consideration the period that an accused was detained in custody for such offence, though whether be did grant the said benefit and, if so, to what extent, were discretionary matters of which he was.0 the sole Judge. The position after the amendment is the same. Section 382-B, Cr. P. C. Is so worded that the power strictly appears to be available to a trial Judge, but the power is also available to the appellate Court, for a Court of appeal, under sections 418 and 423, Cr. P. C., is both a Court of law and of fact and whilst determining the appropriateness of any sentence passed by the trial Court or that to be imposed or altered by itself, can take into consideration the provisions of that section. Under the Explanation to section 418 of the Code of Criminal Procedure, 1898, the alleged severity of a sentence is itself, for the purposes of that section, to be deemed to be a matter of law. Section 382-B, Cr. P. C. Basically seeks to mitigate a form of latent severity on the equitable plane. Its consideration, in many cases, would itself become a question of law. The appellate Court, therefore, has power to apply E this section. The Supreme Court itself has allowed the benefit of this section when deciding criminal appeal. All Sher v. The State (1) is one of many such cases. 8. We now turn or attention to the question whether a punishment of death, imprisonment for life or imprisonment for a minimum statutory period, where the law so provides, is a punishment to which section 382-B, Cr. P. C. Can be applied. It is obvious that the punishment of death is a sentence to which section 382-B, Cr. P. C. Under no circumstance can be made applicable. There is no dispute by any party on this proposition. This, therefore, stands answered accordingly. As regards the sentence of imprisonment for life, it is stated by the learned Assistant Advocate-General that since this punishment has no maxima ceiling and cannot be equated with any particular terms of
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imprisonment, section 382-B, Cr. P. C. Cannot be applied to it. According to the counsel for the State, section 382-B, Cr. P. C. Can only be applied to a punishment provided in the fourth part of section 53 of Pakistan Penal Code namely, punishment provided for a specified period. This calls for closer examination of the section. The words "sentence of imprisonment" in section 382-B, Cr. P. C. Are used in a general sense and not in any restricted sense, so as to be only applicable to the category of imprisonment provided in the fourth part of section 53 of the Pakistan Penal Code. As far back as 1945, the Judicial Committee of the Privy Council in Kishore Lars ease (2) treated the sentence of transportation for life as sentence of rigorous imprisonment for life. If it was the intention of the framer of the law to restrict the application of section 382-B, Cr. P. C. Only to the type of imprisonment provided in the fourth part of section 53 of the Pakistan Penal Code and not to cases of imprisonment for life or to cases where a minimum term of imprisonment is provided in law, it would have so provided the necessary exceptions. The fact that it has not so provided any exception, clearly shows that the words "sentence of imprisonment" are intended to apply to all forms of imprisonment whether for life, for a determined period or any fixed minimum period, inhere the law so provides. Equity itself does not permit any exception to be grafted into section 382-B, Cr. P. C. For, whether the sentence to be imposed is fixed or indefinite, a convict who has been detained for long in prison as an under trial prisoner for no fault of his own, is in either case entitled to have the whole or some fair portion of that period remitted or set off. Section 382-B, Cr. P. C. Strictly does not provide a remission, that power {{FOOT NOTE}} (1) PLD 1980 SC 317 (2) AIR 1945 P 64 {{FOOT NOTE}} ' being specially reserved to the Provincial Government under section 401 (1) of the Code of Criminal Procedure and to the President of Pakistan under section 401 (5) of the same Code, section 55-A of the Penal Code and under Article 55 of the Constitution of Pakistan, 1973. The power of imposing, reducing or enhancing a sentence is primarily a judicial function of the Court. Basically, the object of section 382-B, Cr. P. C. Is to effect a reduction in the sentence. It is possible in cases where sentence of imprisonment for a fixed term is proposed to be imposed, to grant the benefit of this section, as in such cases the period spent by the convict as an undertrial prisoner can be deducted from the sentence proposed to be imposed. In cases of sentence of life imprisonment, a difficulty is likely to arise, as a sentence of life imprisonment cannot be equated as one of twenty-five years' rigorous imprisonment, by applying section 57 of the Pakistan Penal Code or rule 198 (b) under the chapter "Remission System" of the Pakistan Prisons Rules, 1977. The first provision of law is restricted in its application to the calculation of fractions of terms of punishment, where the Penal Code provides a fractional term of imprisonment, such as section 511. The second provision is restricted to the interpretation of the Prisons Rules for the purposes of calculating the various remissions which are available to a convict under the said chapter. These two provisions are of no avail. However, as we have already stated above, section 382-B, Cr. P. C. Is applicable to all types of imprisonments, including life imprisonment. Being a law enacted in the interest of the convict and founded with a view to relieve him from the rigours of unduly harsh prolongation of his incarceration, the same must be liberally construed with a view to promote the object in the mind of the framer of the law. This Court in Sultan Ahmad's case (1) has already held that this provision should be liberally applied. Though in cases where the sentence of life imprisonment is awarded, it may strictly not be possible for the Court to reduce the sentence, but if it considers that the convict was unreasonably detained in prison as an undertrial prisoner for no fault of his own, it can grant the benefit of that whole or some fair portion of that period, by merely stating that the benefit of the said provision may be granted to the convict when computing his sentence, leaving it to the Jail Authorities to work out the modalities as to how it will carry it into effect. This Court itself has used
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an expression, as is apparent in Sultan Ahmad's case. The Supreme Court in Ali Sher's case (2) directed the concerned authority to take into account the period of detention that the accused were in custody under the orders of the Supreme Court, when computing the total imprisonment which the convicts would have to undergo in connection with the sentence of transportation for life imposed upon them. In Sikandar Ali's case the Supreme Court directed the relevant authority to take into consideration the period spent in jail by the accused as an undertrial prisoner from the date of his arrest up to the date of announcement of sentence of imprisonment for life imposed upon him. These two decisions of the Supreme Court, even if they be treated as obiter, as suggested by the Assistant Advocate-General, would still be binding on us. They support or view that the said section has to be liberally construed, that it can be applied by the appellate Court and that it can be applied to cases where the punishment proposed to be imposed is life imprisonment. We are also informed by the learned Assistant Advocate-General that the Jail Authorities have given the necessary remissions in cases where the Courts have given the benefit of this section to convicts sentenced to imprisonment for life. This clearly shows that the Executive Government has honoured and accepted all orders passed by the Courts under this section. In this view of the matter, we have no hesitation in holding {{FOOT NOTE}} (1) 1981 p Cr. I, J 602 (2) PLD 1980 SC 318 {{FOOT NOTE}} ' that the said section is applicable to sentences of imprisonment for life. As regards the sentence of imprisonment for a fixed statutory terms, where the law provides a minimum sentence, the application of section 382-B, Cr. P. C. Does not negate the statutory object. In such a case, the minimum sentence fixed by law should be accepted as the sentence proposed to be imposed, from which reduction can be made of the period of detention that the Court considers reasonable and proper. Another way of dealing with such a case would be for the Court to impose the minimum sentence and to…
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