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Petitioner: AFTAB ALI VS Respondent: THF STATE AND 2 Other
Court Name: Sindh High Court Judge(s): G.M Shah, Z. A. Channa Title: AFTAB ALI vs THF STATE AND 2 Other Case No.: Criminal Miscellaneous No. 679 of 1977 Constitutional Petitions Nos. 486 of 1 Date of Judgment:1978-04-29 Reported As: PLD 1978 Karachi 807 Result: H.
JUDGMENT
JUDGMENT Z. A. CHANNA, J.----These 9 Constitutional Petitions and one habeas corpus application under section 491, Cr. P. C., all involve a common question, namely, whether the re-arrest of the detenus, in respect of whom these petitions have been filed and their consequent incarceration for undergoing the un-expired portions of their sentences, in pursuance of the orders of the Government of Sind, in the Home Department, despite the orders for their release passed by the Acting Chief Minister, Sind, have any legal sanctity or are unlawful and void. 2. The facts giving rise to these petitions, shortly stated, are that on 13-4-1976, Mr. Katpar, who was then Acting Chief Minister of Sind, visited the Open Jail, Badin, alongwith the I: G., Prisons, and passed the following order :- "The Superintendent, Open Jail, Badin, has submitted a list of 64 prisoners wherein recommended their premature release on the grounds of having served a large period of imprisonment and having earned remission earlier apart from good conduct. 0. 2. 180.8.27 respectively more than six years. As a special case the remaining portion of 2 months 18 days and 8 months and 27 days is also granted. This disposes of case of 64 prisoners. Prisoner Bashir son of Akbar Khan has bilateral catract. I sprang my both fingers into his eyes suddenly but there was no reaction in his eyes as the man is nearly totally blind. It is .No use keeping a blind man in prison. Released. Those who complete 14 years including remission granted today shall also have likewise benefit. (Sd.) (A. A. KATPAR),
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Badin. D/13-4-76 ENDST : No. Copy forwarded for information and necessary action, to :- (3) The Superintendent, Open Jail, Badin." 3. In pursuance of the said order, prisoner Bashir, who according to the aforesaid order was specifically directed to be released, as well as 64 other prisoners, whose names appeared in the list referred to in the order of the Acting Chief Minister and which list has been signed by him, were released by the Jail Authorities. Additionally, 127 more prisoners were released by the Jail Authorities presumably on the basis of the last sentence in the above order of the Acting Chief Minister that "those who complete 14 years including the remission granted today shall also have likewise benefit." A copy of the aforesaid order of the Acting Chief Minister was forwarded by the I.- G., Prisons to the Government of Sind, which took the positron that the said order was apparently forged as the Acting Chief Minister had denied passing such orders, and further even if the orders of release had been passed by the Acting Chief Minister, they could not be implemented without the approval of the Governor and authentication of the orders by officers of the Home Department. The Government accordingly registered cases under section 202/109, P. P. C. And section 5 of the Prevention of Corruption Act, 1947, against the L-G., Prisons and the then Superintendent and Asstt. Superintendent of the Open Jail, Badin, and ordered the re-arrest of the prisoners who had been released. In pursuance of those orders, the detenus and the other prisoners have been re-arrested and are being made to undergo the balance of the sentences which had been imposed upon them. It is this action of the Government, ordering the re-arrest of the detenus and their being made to undergo imprisonment in spite of their release under the orders of the Acting Chief Minister, which has been challenged by the petitioners in these petitions. 4. Mr. Muzaffar Hassan, the learned counsel for the petitioner in Petition No. 486/76, addressed the main arguments in the case not only on behalf of the detenu in the aforesaid petition but also on behalf of the detenus in the other connected petitions. He submitted that section 401, Cr. P. C., gives extremely wide powers to the Provincial Government to suspend or remit sentences or punishments, in whole or in part, subject only to the fact that where the President of Pakistan has passed any orders in exercise of his Constitutional powers or section 402-A, Cr. P. C., granting pardon, reprieve, respite, remission, suspension or commutation of any sentence, the Provincial Government can exercise its powers of granting remission or suspension of sentences only with the approval of the President. The learned counsel further submitted that the powers of the Provincial Government, including its powers under the Cr. P. C., are to be exercised through the Chief Minister, either directly or through the Provincial Ministers or officers to whom powers may have been delegated, as provided in Article 129 of the Constitution, and inasmuch as the release of the detenus was ordered by the Acting Chief Minister, who is empowered to perform all the functions of the Chief Minister in the latter's absence, as provided in Article 135 of the Constitution, the remission granted to the detenus and their release from Jail was legal and their re-arrest and incarceration is void and contrary to law. 5. In support of his submission that the orders for the release of the detenus had been passed by the Acting Chief Minister, the learned counsel relied upon the photostat copies of the order and the list of 64 prisoners referred to in the order of the Acting Chief Minister, which list not only bears the signature of the Acting Chief Minister, but also his initials on each page. The name of detenu Azhar A.I in Petition No. 486/76 appears at Serial No. 23 of that list, that of detenu Khurshid in Petition No. 679/76 at Serial No. 24, of detenu Mohammad A.I in Petition No. D-444/7 ) at serial No. 7, of detenu Mohd. Saleh in Petition No. D-446/73 at serial No. 32, of detenu Gul Mohammad at Serial No. 56 and of detenu Sher Mohammad in Const. Petition No. 450/78 at Serial No. 51. So far as detenu Bashir
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Ahmed is concerned, in respect of whom Petition No. 448/78 has been filed, his name appears in the order of the Acting Chief Minister itself. 6. Mr. Usman Ghani Rashid, the learned Additional Advocate-General, who appeared for the State in all the Petitions, opposed the petitions on various grounds. His first submission was that there was no tangible evidence to show that the orders of the release of the detenus were in fact passed by the Acting Chief Minister. In support of his contention he relied upon a note recorded by Mr. Katpar on 31-5-1976, on a reference made to the latter by the then Home Secretary. In that note, the Acting Chief Minister in fact confirmed the position that he had ordered the release of one blind man and had also considered the case for the release of 64 prisoners who were said to have undergone more than 14 years substantive sentence. He, however, took the plea that the orders were only in respect of the prisoners who had undergone 14 years substantive sentence, excluding remis--sion, and that further he had not specially authorised any Jail Officer to sign or authenticate the orders for the release of the prisoners but on the contrary the cases of the prisoners in question were to be put up to the Secretary, Home Department for processing under the Rules of Business. The Acting Chief Minister also stated in his note that the orders passed by him appeared to have been tampered with in that the word `including' had been substituted at 2 places instead of the word "excluding" to facilitate the illegal release. 7. We regret that we find no substance in this contention. In the order of release, the word "including" appears, not at two places as stated by the Acting Chief Minister in his note, but at 3 places, twice in type and once in hand. The hand-written portion, which appears at the end of the order, has been side-lined and signed by the Acting. Chief Minister. We have carefully examined the order and find no possibility of its having been tampered with. However, in order to clarify the position beyond doubt, Mr. Katpar, the then Acting Chief Minister, was examined on oath and be categorically stated that the order of release bore his signature and was in conformity with the orders passed by him for the release of the prisoners. He was also shown the list of 64 prisoners referred to in the order of release and admitted that he had initialled and signed the same. Mr. Katpar explained that the assertion made in his note, dated 31-5-1976, to the effect that the word "including" in the order of release had unauthorizedly been replaced by the word "excluding", was not correct and that he had made this assertion due to confusion and in the circumstances of the case. Mr. Katpar has stated that he recorded the note at the suggestion of the then Home Secretary in order to facilitate the arrest of the prisoners. Although Mr. Katpar has not specifically stated that he was pressurised in recording this note and making the allegation that the order of release was tampered with, the impression left in our mind from his evidence is that this apparently was the case. This impression is strengthened by the following endorsement recorded by the Home Secretary on the communication received from the I.-G., Prisons, enclosing a copy of the order of release passed by the Acting Chief Minister and stating that as a result of the said order, 127 prisoners bad been released as per list attached :- "This appears to be the biggest scandal in the Jail Department. Please examine at once and give your comments." 8. It was next submitted by the learned Additional Advocate-General that as Mr. Katpar was not incharge of the Home Department, he was not competent to exercise the powers of the Provincial Government under sec--petition 401, Cr. P. C. This contention too, in our opinion, is without substance. We have already referred to Article 129 of the Constitution according to which the executive authority of the Province is to be exercised in the name of the Governor by the Provincial Government, either directly or through his Ministers. The Constitutional position thus appears to be that the Chief Minister may exercise any of the powers of the Provincial Government. Reference may also be made to sub-rule (1) of rule 6 of the Sind Government Rules of Business, which have been framed under Article 139 of the Consti--tution. The said sub-rule reads as follows :-
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"(1) The Chief Minister may allocate to a Minister one or more Departments or part of a Department, but the Chief Minister shall have power to pass orders in any case concerning any Department without consuiting the Minister of that Department." 9. As such, even if there was another Minister incharge of Prisons, the Chief Minister was competent to pass orders for the release of prisoners. ' 10. It was next contended by the learned Additional Advocate-General that since Mr. Katpar was only the Acting Chief Minister, he was not competent to exercise the powers of the Chief Minister. This contention too, in our opinion, is without force. Clause (3) of Article 135 of the Constitution provides that when the Chief Minister is unable to perform his functions, the most senior Provincial Minister for the time being is to perform the functions of the Chief Minister. The expression "most senior Provincial Minister" has been defined in the said Article as the Provincial Minister for the time being designated as such by the Chief Minister. It was not disputed by the learned Additional Advocate-General that Mr. Katpar was designated the most senior Minister and in consequence had become the Acting Chief Minister. He, however, tried to draw a distinction between the performance of functions and the exercise of powers and submitted that the Acting Chef Minister was only empowered to perform the functions, but had not been authorised to exercise the powers of, the Chief Minister and consequently the orders of release in the instant case, which was an exercise of the powers of the Chief Minister, could not be passed by the Acting Chief Minister. The learned Additional Advocate-General, however, was unable to substantiate his contention with any authority. In our opinion, performance of functions of an Authority would necessarily include the exercise of powers of the Authority, otherwise the performance of functions of that Authority would in most cases become impossible. "Governor" doubt, Article 260 of the Constitution has defined Chief Justice". Governor and President as including the Acting Chief Justice, the ActingGovernor and the Acting President, but has not defined Acting Chief Minister. However, it may be pointed out that except in the case of the absence of the President from Pakistan or his inability to perform his functions, the phraseology employed with reference to the Acting President, the Acting Governor and the Acting Chief Justice is different from that used in Article 135 with reference to the Acting Chief Minister. Articles 49 (1), 104, 180 and 196 provide for specified persons or persons appointed by the President to act as President, Governor or Chief Justice, as the case maybe, but not to perform the functions of those offices, as in the case of the Acting Chief Minister, and hence in the case of Acting President, Acting Governor and Acting Chief justice it was necessary to include them in the respective definitions of president, Governor and Chief Justice. On the other hand, it was not necessary to include the Acting Prime Minister or the Acting Chief Minister in the respective definitions of Prime Minister or Chief Minister as under the Constitution the Acting Prime Minister and Acting Chief Minister are empowered to perform the functions respectively of the Prime Minister and the Chief Minister. 11. It was next submitted by the learned Additional Advocate-General that the orders for the release of the prisoners required the approval of the Governor and inasmuch as this approval was not obtained, these orders have no legal force. The learned counsel, however, was unable to substantiate his submission with reference to any law, rule or authority. As already pointed out, though the executive authority of the province is to be exercised in the name of the Governor, but it is to be exercised by the Provincial Government through the Chief Minister, the other Ministers or the officers to whom powers of Provincial Government may have been delegated under clause (2) of Article 139 of the Constitution. Rule 5 of the Sind Government Rules of Business provides that the cases enumerated in Schedule III of the Rules shall be submitted to the Governor for approval. The learned Addi--tional Advocate-General conceded that this Schedule does not include cases of remission and suspension of sentences granted by the Provincial Govern--ment under section 401, Cr. P. C. In venkatesh Yeshwant Deshpande v. Emperor (AIR 1938 Nag. 513), Deshpande had prayed
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to the High Court for an order for being set at liberty on the ground that in view of the remission earned by him, including the remissions granted by the Local Government and the Premier of the Province, he was entitled to be released but was nevertheless being illegally detained. It was contended on behalf of the Government that though, in view of the remissions earned by Deshpande, he was entitled to be released, but two days before the date of his release, the Local Government had varied its previous order and directed that he should not be released until further orders, Deshpande mainly relied, in support of his claim for release, on an order remitting one year of his sentence. This order was made in the name of the Governor but was not issued or approved by him. A Full Bench of the Nagpar High Court held the order of remission to be valid and observed as follows :- "It is perhaps necessary to explain that though the order is in the name of the Governor, that is the Constitutional form it has to take. It is in reality an order of the Provincial Government. In view of the general misunderstanding on this point the Provincial Government felt it necessary, after it had issued its order of cancellation dated 28th May, 19; 8, to issue a press communiqu-- explaining this difference. It should be understood that what is here involved are the acts, powers and privileges of the Provincial Government and not of His Excellency the Governor." 12. The Full Bench in the above case also considered the question whether an order of unconditional remission or sentence could subsequently be rescinded by the Government and it could restore the sentence. It held that it was not open to Government, after remitting a sentence uncondi--tionally and after the order had been acted upon to extent of altering the history ticket of the prisoner, to cancel or amend the order, in the absence of fraud or mistake and restore the sentence, on the point of locus poenitentiae, that is the power of receding till a decisive step is taken, the leading cases in Pakistan are Shahbaz v. State (PLD 1956 SC (Pak.) 46), Lt: Col. G. Bhattacharia v. State (PLD 1964 SC 503) and Pakistan v. Mohd. Himayatuhah (PLD 1969 SC 407). The dictum laid down in these authorities is that the authority having the power to make an order has also the power to undo it, but subject to the important exception that where an order has taken legal affect, and in pursuance thereof certain' rights have been created in favour of any individual, such an order cannot be rescinded to the detriment of those rights. In Bhattacharia's case, it was held that remission of sentence becomes effective when duly communicated to the Superintendent of Jail, who is duty bound to give effect to it in accordance with the Prisoners Act. In Mohd. Himayatullah's case, the Supreme Court rejected the contention made on behalf of the State that since the Order of the President accepting Muhammad Himayatullah's representation regarding revision of his salary was made without consulting the Ministry of Finance, is required by rule 10 of the Rules of Business, it suffered from an infirmity. 13. It was next contended by the Additional Advocate-General that section 401, Cr. P. C., contemplates the passing of separate Orders in respect of each prisoner and not a blanket Order covering a number of prisoners, as in the instant case. No doubt, the said section refers to remission and suspension of sentence of a person, but under section 13 of the General Clauses Act, 1897, words in the singular are to include the plural and vice versa and therefore a remission order under the said section could cover and be made in respect of a number of persons or an individual person, as may be considered appropriate. The fact that a general Order of remission can be granted by Government finds support from rule 20 of the West Pakistan Prisons (Remission of Sentences) Rules, 1965, which rule provides that as the remission is awarded by the Government on occasion of Public rejoicing and that such remission is granted under section 401 (1) of the Criminal Procedure Code, such remission obviously would be to a class or classes of prisoners and not in individual cases. We are, therefore, of opinion that under section 401, Cr. P. C., the Provincial Government has power not only to grant remission or suspension in individual cases but also to grant general remission or suspension of sentences.
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14. It was next submitted by the learned Additional Advocate-General that the order of release relied upon by the petitioners is not in conformity with the provisions of section 401, Cr. P. C., in that the order directs the premature release of the detenus but not the remission or suspension of their sentences and punishments, as required by the aforesaid section. A perusal of the order in question leaves no room for doubt that the Acting Chief Minister was considering the question of "premature releases" of the prisoners' on the basis of remissions. The order uses the word "remission" at not less' than 3 places. The fact that the order specifically directs the release of the detenus clearly shows that the un-expired portions of their sentences were being remitted. In our opinion, nothing turns upon the word `remission' or `release' in the circumstances of these petitions. The mere fact that the exact phraseology employed in section 401 was not used in the order in question does not mean that the order was invalid if otherwise the Acting Chief Minister had the authority to pass the order, which authority we have held that he did have. 15. It was next argued by the learned Additional Advocate-General that the order of the Acting Chief Minister stipulated that releases of the prisoners would be subject to the condition that they execute a bond of good conduct before the Superintendent, Open Jail, Badin, and since there was no evidence to show that such bond had been executed by the detenus, the orders of their release were contrary to the orders of the Acting Chief Minister. In the first place, the order does not provide for the execution of a bond of good conduct by all the prisoners who were to be released but only such prisoners who had cleared 14 years, including remission, and had yet to, clear 6 more years, were required to execute bonds. An examination of the list of 64 prisoners, which has been referred to in the order of the Acting Chief Minister and signed by him, shows that detenu Syed Azhar in C. P. No. D-486/1976, had undergone sentence of 16 years, 5 months and 22 days; detenu Khurshid Ahmad in Cr. Misc. Application No. 679/1976 had undergone imprisonment of 15 years, 2 months and 5 days; Detenus Mohammad A.I in C. P. No. D-444/1978, Mohammad Saleh in C. P. No. D- 446/1978 and Gul Mohammad in C. P. 447/1978 had each undergone imprisonment for 11 years. Detenu Sher Mohd. In C. P. No. D-450 had undergone imprisonment of over 15 years while the prisoner with the cataract, Bashir Ahmad, was specifically ordered to be released with--out a bond. As such, in the case of all these detenus, the execution of bond was not a pre-condition to their release. Even if such a condition had been a pre-condition, it was for the Jail Authorities to see that this condition was fulfilled. It has not been asserted in the counter-affidavit on behalf of the Government that such a bond was not executed by any of the detenus. As such, it is to be presumed that before release, the necessary bonds were taken from such prisoners as were required to execute them, in view of the provisions of section 114 (c) of the Evidence Act under which it is to be presumed that official acts have been regularly performed. 16. It was finally urged by the learned Additional Advocate-General, and this was the submission on which he laid the greatest stress, that the order of release by the Acting Chief. Minister not having been authenticated, as required by Article 139 (1) of the Constitution, it has no legal effect and consequently the orders of the re-arrest and incarceration of the detenus cannot legally be questioned. Clause (1) of Article 139, upon which the learned Additional Advocate-General has sought to rely, reads as follows;---- "139.-(1) Orders and other instruments made and executed in the name of the Governor shall be authenticated in such manner as may be specified in rules to be made by the Provincial Government, and the validity of an order or instrument which is so authenticated shall not be called in question on the ground that it is not an order or instrument made or executed by the Governor." 17. The learned Additional Advocate-General argued that the aforesaid constitutional provision makes authentication mandatory and inasmuch as the order of release in the instant case was not authenticated, it has no legal or binding force. Before considering the effect and the purpose of the
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aforesaid clause, it would be appropriate to examine the connotation and the scope of the word "authenticate". Since this word has not been defined in the Constitution, it is to be understood in its ordinary dictionary sense. They Oxford English Dictionary defines the word `authenticate' as: "to give legal validity to; to render valid, establish the validity of". The Dictionary gives an example of an order from His Majesty authenticated by his kingly seal. In Black's Law Dictionary, the word `authentication' has been defined in law as: "the act or mode of giving authority or legal authenticity to a Statute, record, or other written instrument, or a certified copy thereof, so as to render it legally admissible in evidence." In Wharton's Law Lexicon, the word "authentication" has been defined as: "an attestation made by a proper officer by which he certifies that the record is in due form of law, and that the…
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