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Petitioner: LT.-COL. G. L. BHATTACHARYA VS Respondent: THE STATE
P L D 1963 Dacca 422
P L D 1963 Dacca 422
Before Murshed, Sattar and A. M. Sayem, JJ
LT.‑COL. G. L. BHATTACHARYA‑‑--Petitioner
versus
THE STATE‑---Respondent
Criminal Miscellaneous Case No. 76 of 1962, decided on 1st February 1963.
(a) Criminal Procedure Code (V of 1898), S. 401‑Provincial Government's power to remit sentences‑May be exercised in respect of sentences passed by Special Military Court‑Such power not rendered inoperative by Martial Law Regulation (C. M. L. A's. No. 1‑A), cl. (b) or by Martial Low (Pending Proceedings and Protection) Order (26 of 1962), Ss. 5 & 6 or by Army Act (XXXIX of 1952), S. 143, or by S. 2 read with S. I (2), Military Court Sentences (Supplementary Provisions) Ordinance (LXXVIII of 1962)‑Maxim; Expressio unius est exclusio alterius.
The Martial Law Regulation (C. M. L. A's. No. 1‑A) read along with Martial Law (Pending Proceedings and Protection) Order, 1962 does not render the provision of section 401 of the Criminal Procedure Code, 1898 inoperative with regard to sentences pronounced by a Special Military Court.
The provisions of section 143 of the Army Act, 1952 are analogous to the provisions of section 401, Criminal Procedure Code, 1898. But the Martial Law Regulation incorporated only such provisions of the Army Act as relate to proceedings before a Special Military Court and not section 143 of the Army Act. Neither section 143 of the Army Act nor section 401 of the Criminal Procedure Code has anything to do with such proceedings and, therefore, it must be held that section 401 is not rendered inoperative by the aforesaid Martial Law Regulation.
Section 401 of the Criminal Procedure Code confers a mere discretionary power which may or may not be exercised at all. Section 5 of the Martial Law (Pending Proceedings and Protection) Order, 1962 deals with the manner and method by which the grievances of a petitioner may be disposed of. Section 401 of the Criminal Procedure Code deals with a different subject, namely, the power to show clemency, and the approach to it is also different. Furthermore, subsection (4) of section 6 of the Martial Law (Pending Proceedings and Protection) Order, 1962 excludes the operation of Chapter XXIX of the Criminal Procedure Code which contains section 401 with regard to a sentence of fine passed by a Martial Law Authority. But, under section 5, the said Order refrains from such exclusion of Chapter XXIX. It is, therefore, clear that, on the principle of expressio unius est exclusio alterius, Martial Law (Pending Proceedings and Protection) Order, 1962 read along with the aforesaid Martial Law Regulation does not exclude the operation of section 401 of the Criminal Procedure Code.
The Provincial Government had exercised powers under section 401 of the Criminal Procedure Code, 1898 after the 8th of June 1962, but long prior to the enactment of the Military Court Sentences (Supplementary Provisions) Ordinance of 1962 and merely because the said Ordinance has been given a retrospective effect by which it shall be deemed to have taken effect from the 8th day of June 1962, it will not have the effect of rendering nugatory a power exercised by the Provincial Government under section 401, notwithstanding the retrospective effect. Such a result cannot be spelt out of the express language of the said Ordinance nor it is the absolute requirement of its provisions. The said Ordinance invests the Commander‑in -Chief of the Pakistan Army with certain powers. Such powers can be exercised concurrently by two or more authorities. Article 18 of the Constitution (1962) and section 401 of the Criminal Procedure Code confer concurrent powers upon the President and the Provincial Government, respectively. There is thus no inherent difficulty in the concurrent exercise of such a power by several authorities.
The language of the Ordinance gives no warrant for coming to the conclusion that it must further operate so as to render nugatory a power which has been already exercised, namely, power of remission under section 401 of the Criminal Procedure Code. The powers conferred upon the Commander‑in‑Chief by the said Ordinance must have a retrospective effect because the Ordinance itself expressly says so. But, to give it a greater retrospective impli cation, not expressly given by the Ordinance, by holding that it had impliedly repealed retrospectively similar provisions in other statutes, is neither warranted by the express words of the Ordinance nor does such a result necessarily follow from the plain meaning of the provisions of the Ordinance.
Lauri v. Renad (1892) 3 Ch. 402 (421) ref.
(b) Criminal Procedure Code (V of 1898), S. 401‑Provincial Government's power to remit sentences‑Power to cancel remission (locus poenitentiae)‑Cannot be exercised after order of remission "has been acted upon" irrespective of whether prisoner has been released or not‑Communication of order of remission to relevant authorities and noting down of same on history ticket of prisoner amounts to "acting upon" the order.
Held, that an order of remission of a sentence was acted upon in the sense that the Provincial Government had done everything that was necessary for it to do to give effect to the order. A right had already accrued upon the petitioner to claim the advantage given to him under the order, whatever may be the nature of such right, when the order was communicated to the relevant authorities and was recorded in the "history ticket" of the prisoner. The criterion as to whether there is a locus poenitentiae is not dependent upon the fact whether the prisoner has or has not been released. The crux of the matter is whether the order has been acted upon, that is, whether the authority exercising such power has done that which is necessary for it to make the order effective. When such a step has been taken the order was acted upon thereby conferring a right upon the prisoner. Therefore the subsequent order of cancellation can have legally no effect whatsoever.
Shahbaz v. The Crown P L D 1956 F C 46 and Venkatesh Yeshwant Despande v. Emperor A I R 1938 Nag. 513 considered.
(c) Sentence‑" Remission " by way of clemency is not "reduction."
(d) Mistake‑Whether can avoid a contract‑Doctrine of "mistake" explained‑[Cheshire and Fifoot : "Law of Contract" 4th Edn. p. 182 ; Kerr : "Fraud and Mistake" 7th Edn. p. 155 and Chitty : "Contracts" 21st Edn. Vol. 1, p. 227 ref.]
(e) Sentence ‑ Remission ‑ Sentence of 8 years rigorous imprisonment reduced to 4 years by President on ground of mercy Provincial Government subsequently remitting 4 years "out of sentence of 8 years' rigorous imprisonment"‑Reduction and remission operate to wipe out only 4 years out of 8 years in circumstances of case‑Criminal Procedure Code (V of 1898), S. 401.
(f) Martial Law---‑Varities‑ Martial Law promulgated following a successful revolution‑Revolution of 7th October 1958 Validity of Martial Law Regulations or Orders with reference to period following cessation of revolutionary regime‑Constitution of Pakistan (1962), Arts. 225 & 250‑[Dicey's "Law of the Constitu tion," 9th Edn. pp. 287‑288; The Constitutional History of England" by Maitland pp. 281‑283; Emperor v. Chanappa Shantirappa I L R 55 Bom. 263; Muhammad Umar Khan v. The Crown P L D 1953 Lah. 528; The State v. Dosso and another P L D 1958 S C (Pak.) 533 and Kerr and Dawsons "Constitutional Law," 2nd Edn. ref.]
(g) Law‑Source‑Force as source of law‑Revolution of 71h October 1958‑[The State v. Dosso and another P L D 1958 S C (Pak.) 533; Willoughby "Government of Modern States" pp. 118‑119; "Modern Constitutions" p. 75 and "Social Contract" by Rousseau ref.]
Hamidul lluq Choudhury, B. H. Chowdhury, A. H. Mirza and H. K. Chowdhury for Petitioner.
Md. N. Huda, Dy. Attorney‑General and A. W. Malik for the State.
Maksum‑ul‑Hakim, Advocate‑General, Mahbubur Rahman S. M. Abbas, Sultan Ahmad and Akram Hossain Amin for Respondents.
JUDGMENT
MURSHID, J.‑This is an application under Article 98 (2) of the Constitution of Pakistan and section 491 of the Code of Criminal Procedure (hereinafter called the Code) for the issue of a writ or order in the nature of habeas corpus, directing that the petitioner, Gunindra Lal Bhattacharya, who is under detention in East Pakistan in pursuance of a sentence of rigorous imprison ment for eight years passed upon him by a Special Military Court in P. S. Case No. 7 of 1961, be set at liberty.
The petitioner was tried by the said Special Military Court under Martial Law Regulation No. 20, Arms Act, Control of Entry Act and Official Secrets Act and eventually, on the 11th of November 1961, he was sentenced by that Court to suffer rigorous imprisonment for the said period of eight years.
In April 1962, he submitted a review application to the President of Pakistan who was also the Chief Martial Law Administrator at that time. On the 20th of June 1962, a press note was issued to the effect that the President was pleased to reduce the sentence of rigorous imprisonment imposed upon the petitioner from eight years to four years. It appears that this reduction of the sentence passed upon the petitioner was com municated to the Government of East Pakistan. It has been stated on behalf of the respondents (and not denied by the petitioner) that the President had, in fact, passed the aforesaid order of reduction of the sentence prior to the 8th day of June 1962, that is, the day when the present Constitution came into effect. Subsequently, however, the Provincial Government by a resolution, being Resolution No. 681‑Judl. 1/2P‑62/62, dated the 26th of June 1962, remitted a portion of the aforesaid sentence passed upon the petitioner in the following terms:
"In exercise of powers conferred by section 401 of the Code of Criminal Procedure, 1898, the Governor is pleased to remit 4 years out of the sentence of 8 years' rigorous imprison ment passed upon Lieut.‑Colonel Gunindra Lal Bhattacharya by Special Military Court, Dacca in P. S. Case No. 7/1961 under Martial Law Zona `C' Order No. 121 dated the 15th July 1961.
By order of the Governor, (Sd.) M. H. Ali, Secretary to the Government of East Pakistan."
A Copy of the aforesaid resolution was forwarded for information to (1) the Deputy Commissioner of Dacca, (2) the Home Depart ment, Government of East Pakistan, Dacca and (3) the 1. G. P. (Inspector‑General of Prisons), East Pakistan, with a request that Lieut.‑Colonel Gunindra Lal Bhattacharya might be informed accordingly. Furthermore, a copy of the aforesaid resolution was forwarded to the Superintendent, Dacca Central Jail (where the petitioner is under detention) for information and necessary action and communication to the prisoner. The petitioner was apprised of this communication which was duly recorded in the "history ticket" of the petitioner maintained at the Dacca Central Jail.
Upon the aforesaid facts the petitioner has based the present petition and his contention, in substance, is, that both the President and the Government of East Pakistan have awarded separate and independent remissions of four years out of the sentence that was pronounced upon him as aforesaid. His contention, further, is that between the President and the Provincial Government a remission of eight years having been granted to him, and the entire sentence so inflicted upon him being wiped out, he has nothing further to serve. He has, there fore, submitted that he is entitled to be released from detention in jail.
On petitioner's application a rule nisi was issued by this Court calling upon the respondents to show cause as to why the petitioner should not be brought before this Court to be dealt with according to law and/or set at liberty.
At the hearing of the rule it was urged before us, on behalf of the petitioner, that the President of Pakistan, under Article 18 of the present Constitution or by virtue of a Presidential Order as well as the Provincial Government, under the provisions of section 401 of the Code, had the power to grant concurrently remissions with regard to the sentence passed on the petitioner. It was contended that the President having reduced the aforesaid sentence to four years and the Provincial Government having granted thereafter a remission of four years, the entire sentence passed upon the petitioner was thus remitted. It was, therefore, submitted that the petitioner was entitled to be set at liberty on this ground alone. In the alternative, it was vigorously argued that, in any event, upon the promulgation of the present Constitution on the 8th day of June 1962, the Martial Law Regulation under which the petitioner was tried and sentenced to suffer the aforesaid period of imprisonment, must be held to be no law, and as such, it should be further held that the said sentence imposed upon the petitioner was also illegal inasmuch as the law under which it was pretended to have been awarded had never existed as "law".
On behalf of the respondents two afii4avits have been filed in this Court, one by a Section Officer of the Law (Judicial) Department of the Government of East Pakistan, and another by the Secretary of that Department. The sum and substance of the affidavits is that by a message in cypher Code the Provincial Government received a communication, dated the 20th of June 1962, to the effect that the President was pleased to reduce the sentence of eight years' rigorous imprisonment passed upon the petitioner to a period of four years, asking the Secretary, Law (Judicial) Department to inform the petitioner accordingly. The said message gave rise ‑to some misconception with regard to the legal efficacy of the communication, with the result that, with a view to give effect to the order of the President, mentioned above, the Provincial Government passed a resolution by virtue of its powers under section 401 of the Code giving a remission to the petitioner in terms which have been fully set out above. The President's order, as stated above, was not initially com municated to the petitioner, but, instead, the aforesaid resolution of the Provincial Government under the said section 401 was forwarded to him because, as one gathers from the said affidavits, the above‑mentioned resolution was intended to be a paraphrase in legally efficacious terms of the President's order. The gist of the affidavits, filed on behalf of the respondents (and argued by the learned Advocate‑General) is, that, on a miscon ception as to the legal position with regard to the order passed by the President, the Provincial Government misled itself into making the aforesaid order of remission. It is further submitted on behalf of the respondents that, by virtue of the President's Order No. 26 of 1962, as also because of various Martial Law Regulations, the Provincial Government had, and has now no power under the said section 401 of the Code to grant any remission with regard to a sentence passed by a Special Military Court. In the aforesaid affidavits it has also been further stated that the Provincial Government having realised the import of the mistake that had been committed proceeded to cancel the prior resolution on the 3rd of September 1962, in the following terms:
"The Governor is pleased to cancel this Department Reso lution No. 681‑Judl. I/2P‑62/62 dated 26th June 1961".
The said order of cancellation was communicated to the petitioner. An intimation was also sent to the said Superintendent, Dacca Central Jail, to the effect that the President had reduced the sentence of the petitioner from eight years to four years and that the Provincial Government had, in fact, granted no such remission.
The fist point that was urged on behalf of the respondents before us is, that, in the circumstances stated above, the Pro vincial Government had no power to grant remission under section 401 of the Code, in respect of a sentence passed by a Special Military Court which had tried the petitioner. Learned ‑Advocate‑General drew our attention to the Proclamation of the 7th of October 1958, by which the late Constitution of 1956 was abrogated and Martial Law was imposed upon Pakistan, and thereafter cited the President's Order (Post‑Proclamation) No. I of 1958, which is called the Laws (Continuance in Force) Order, 1958, under which, all Martial Law Regulations had been promulgated. He then read out the following provisions of the Martial Law Regulations promulgated by the Chief Martial Law Administrator on the 7th of October 1958:
"Part I
No. 1
The whole of PAKISTAN will be considered as the Martial Law Area.
(a) The Martial Law area will be divided into the following Zones: --‑
(i) Zone A‑KARACHI Federal Area including MALIR.
(ii) Zone B‑Whole of West PAKISTAN less Zone A,
(iii) Zone C‑Whole of East PAKISTAN.
(b) The following Commanders of the Pak Military Forces are hereby appointed as Administrators of Martial Law in their respective Zones :‑
(i) Zone A‑Major General MALIK SHER BAHADUR.
(ii) Zone B‑Lieut. General MOHAMMAD AZAM KHAN.
(iii) Zone C‑Major General MOHD. UMRAO KHAN.
(c) Orders under these Regulations and additional Regula tions hereinafter known as Martial Law Orders and Martial Law Regulations may be issued by me or by any Administrator or by any officer authorised by mP.
No. 1‑A
(a) Special Courts.‑Special Courts of criminal jurisdiction shall be of the following classes :‑
(i) Special Military Courts.
(ii) Summary Military Courts.
Special Military and Summary Courts shall have the power to try and punish any person for contravention of Martial Law Regulations or Orders or for offences under the ordinary law.
The Criminal Courts as by law established shall have power to try and punish any person for offences under the ordinary law and for contraventions of Martial Law Regulations or Orders.
(b) Special Military Courts.‑An Administrator of Martial Law may convene Special Military Courts in his area of administration for the trial of any offence committed in any area to which these Regulations extend: provided that the term ordinary law as above‑mentioned shall in each case be held to include the provisions of any special law for the time being in force in that area.
Subject to the provisions of these Regulations a Special Military Court shall be constituted in the same manner, and shall exercise the same powers and follow the same procedure as a Field General Court Martial convened under the Pakistan Army Act, 1952 and the provisions of that Act and of the rules made there under shall apply to, and govern all such proceedings:
Provided that :‑
(i) Any person exercising the power of a Magistrate of the first class or of a Sessions Judge may be ‑appointed a member of the Court;
(ii) The Court may pass any sentence authorised by law or by these Regulations;
(iii) All sentences of death shall be reserved for confirmation by an appointed Administrator of Martial Law, irrespective of his rank.
The aforesaid Martial Law Regulation has provided that a Special Military Court "shall exercise the same powers and follow the same procedure as a Field General Court Martial convened under the Pakistan Army Act, 1952 and the provisions of that Act and of the rules made there under shall apply to, and govern all such proceedings." (The italicized has been done by us). It is, therefore, evident that the aforesaid Martial Law Regulation did not incorporate the entire Pakistan Army Act, 1952 (herein after called the Army Act) but only such provisions which relate to procedure of a trial in a Field General Court Martial and is confined to the proceedings before that Court and no more.
Learned Advocate‑General drew our attention to sections 80 to 89 of the Army Act, which relate to the constitution, jurisdiction and powers of Courts Martial. It is thus clear that the aforesaid sections in Chapter IX of the Army Act were incorporated into the said Martial Law Regulations and would apply to the pro ceedings before a Special Military Court. He also drew our attention to various other provisions of the Army Act in this behalf. He has, however, failed to substantiate that section 143 of the Army Act is applicable to a sentence passed by the said Special Military Court by virtue of the provisions of the aforesaid Martial Law Regulations, his contention on this point being that inasmuch as a special provision has been made in the Army Act with regard to matters provided for in section 401 of the Code, the general provisions of the Code will be inoperative and must give way to the special provisions, namely, of section 143 of the Army Act. But, section 143 of the Army Act has not been incorporated by the Martial Law Regulations with which we have to deal here. It would, however, be useful to quote the two sections upon which this point is based. Section 401 of the Code, in so far as it is material for the purpose of this case, may be quoted as follows: --‑
"401 (1) When any person has been sentenced to punishment for an offence, the Provincial Government may at any time without conditions or upon any conditions which the person sentenced accepts, suspend the execution of his sentence or remit the whole or any part of the punishment to which he has been sentenced.
Section 143 of the Army Act reads as follows: ---
143. Pardons and remissions.‑(1) when any person subject to this Act has been convicted by a Court Martial of any offence, the Central Government or the Commander‑in‑Chief or any officer not below the rank of brigadier empowered in this behalf by the Commander‑in‑Chief may‑
(i) either without conditions or upon any conditions which the person sentenced accepts, pardon the person or remit the whole or any part of the punishment awarded; or
(ii) mitigate the punishment awarded or commute such punishment for any less punishment or punishments mentioned in this Act:
Provided that a sentence of transportation shall not be commuted for a sentence of rigorous imprisonment for a term exceeding the term of transportation awarded by the Court, and a sentence of rigorous imprisonment shall not be commuted for a sentence of detention for a term exceeding the term of rigorous imprisonment awarded by the Court.
(2) If any condition on which a person has been pardoned or a punishment has been remitted is, in the opinion of the authority which granted the pardon or remitted the punishment, not fulfilled, such authority may cancel the pardon or remission, and thereupon the sentence of the Court shall be carried into effect as if such pardon had not been granted or such punish ment had not been remitted:
Provided that, in the case of a person sentenced to trans portation, rigorous imprisonment, or detention, such person shall undergo only the un-expired portion of his sentence.
It will be seen that section 401 of the Code empowers the Provincial Government to grant remission with regard to any sentence that has been awarded to a person within the jurisdiction of the said Government. The word used is "sentence" simpliciter and is not, therefore, confined to a sentence passed by a Court in accordance with the provisions of the Code. Learned Advocate- General drew our attention to the definition of "Court" as given in section 6 of the Code which includes within the said term "Courts constituted under any law other than this Code." It is clear that even a Special Military Court is a Court within the meaning of section 6 of the Code. However, this point is irrelevant by virtue of the fact, as noted above, that the word used in section 401 of the Code is "sentence" simpliciter It would have been, perhaps, possible for him to contend with reference to section 143 of the Army Act that sentences pro nounced under that Act would exclude from the operation of section 401 of the Code such sentences on the ground that when the Army Act has with meticulous care provided a complete procedural Code with regard to trial and sentences passed by a Court Martial, by necessary implication it excludes the general provisions of the Code. In fact, section 5 (2) of the Code specifically provides that its provisions will give way to any other special law with regard to the investigation and trial of an offence as also matters relating thereto.
The provisions of section 143 of the Army Act are analogous to the provisions of the said section 401. But in the present case the Martial Law Regulation to which our attention was drawn had incorporated only such provisions of the Army Act as relate to proceedings before a Special Military Court and not section 143 B of the said Army Act. Neither section 143 of the Army Act nor section 401 of the Code has anything to do with such proceedings and, therefore, it must be held that section 401 is not rendered inoperative by the aforesaid Martial Law Regulation. The learned Advocate‑General conceded that section 143 of the Army Act was not incorporated by the said Regulation and proceeded to draw our attention to President's…
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