W.P.No.

23836-2010

M. Aslam Mouvia Home Secretary etc.

09.03.2011 Qazi Misbah ul Hassan, Advocate for the petitioner.

Mr. Munawar Hussain Sandhu, learned Assistant Advocate
General.
Niaz Nazir, Assistant Superintendent Jail from I.G. Office.
Wajahat, Assistant Superintendent Jail, Central Jail, Lahore.

The petitioner assails denial by respondent No.3 of the

benefit of remissions to which he claims to be entitled under

the provisions of Pakistan Prisons Rules, 1978.

2. The facts necessitating filing of this petition are that

the petitioner was convicted on 23.11.2002 by

Accountability Court No.1, Lahore in case FIR No.187/1997

dated 09.08.1997 under Section 302, 148/149 PPC,

registered with Police Station Warbartun, District

Sheikhupura. He was sentenced under Section 7 of the Anti

Terrorism Act, 1997 (ATA) for life imprisonment. The

benefit under Section 382 (b) Cr.P.C was also extended to

him. The conviction and sentence of the petitioner were

maintained by this Court as well as the Honourable Supreme

Court of Pakistan.

3. The petitioner was taken into custody by the police on

17.01.2000. Since then he is behind bars. It is claimed that

the petitioner had been getting remissions under the Pakistan

W.P.No.23836-2010 2

Prisons Rules, 1978 till 26.01.2006. However, thereafter the

respondents stopped giving him the benefit of remissions.

Hence this petition.

4. The learned counsel for the petitioner submits that by

virtue of Anti Terrorism (Amendment) Ordinance (XXXIX),

certain new sections including Section 21-F were inserted in

the ATA, whereby remissions were withdrawn from the

sentence awarded to any person convicted under the Anti

Terrorism Act, 1997. He submits that in view of the fact that

the amendment in law was subsequent to registration of FIR

against the petitioner as well as his arrest, the benefit

available to him at the time of registration of the case and his

arrest could not have been withdrawn under the newly

inserted Section 21-F. He further submits that the petitioners

trial had commenced before insertion of Section 21-F of

ATA and the same could not have retrospective effect to take

away rights, which had already accrued in favour of the

petitioner. He argues that it is a settled principal of law that

where a provision of law is altered during pendency of an

action, rights of parties are to be decided according to the law

as it existed when the action was initiated and not under the

law prevailing on the date of the judgment/order. In this

regard, the learned counsel has placed reliance on PLD 1971

SC 252 and PLD 1975 SC 01.

W.P.No.23836-2010 3

5. It is further argued by the learned counsel for the

petitioner that according to Pakistan Prisons Rules, 1978, the

types of remissions are ordinary remissions, special

remissions, remissions for rendering special services and

educational remissions. He submits that these remissions are

akin to the earnings of a convict, which are awarded in view

of some act done by the convict and the same cannot be

withdrawn without express sanction of law. He, therefore,

prays that the benefit of remissions under the Pakistan

Prisons Rules, 1978 may be allowed to him since their

discontinuation in 2006.

6. The learned Law Officer has opposed this petition. He

submits that in terms of Section 21-F of the ATA, prisoners

convicted for sentences under any Section of ATA are not

entitled to grant of any remissions. He points out that the

petitioner was extended all kinds of admissible remissions

upto 26.01.2006, which have not been withdrawn. However,

on the said date, the respondents received notification

regarding the aforesaid amendment in the Anti Terrorism

Act, whereafter grant of remissions was stopped. It is further

argued that Section 21-F of ATA is being given prospective

effect, which is evident from the fact that remissions granted

upto 26.01.2006 have not been withdrawn.

7. We have heard the learned counsel for the parties and

have examined the relevant law on the subject.

W.P.No.23836-2010 4

8. The Anti Terrorism Act was promulgated in 1997. By

virtue of an amendment by way of Anti Terrorism

(Amendment) Ordinance (XXXIX), 2001 dated 15.08.2001,

Sections 21-A to 21-M were added to the ATA. For ease of

reference, Section 21-F, as amended in 2001, is reproduced

below:-

Notwithstanding anything contained in any

law or prison rules for the time being in
force, no remission in any sentence shall be
allowed to a person, other than a child, who
is convicted and sentenced for any offence
under this Act unless granted by the
government.

9. It may be clarified that by virtue of further

amendment introduced through Ordinance XXI of 2009

dated 01.10.2009, Section 21-F has further been amended in

the following terms:-

a) The words and comma other than a

child, and the comma and words
unless granted by the Government
shall be omitted;

b) For the full stop at the end, a colon

shall be substituted and thereafter the
following provisions shall be inserted
namely:--
W.P.No.23836-2010 5

provided in case of a child convicted

and sentences for an offence under
this Act, on satisfaction of
government, may be granted
remission, as deemed appropriate.

10. The main question that arises for consideration of this

Court is whether the provisions of Section 21-F would have

retrospective effect so as to deprive convicts, who had been

arrested, charged and were under custody before 15.08.2001

when the amendment by way of insertion of Section 21-F

was made. It may be noted that FIR No.187/97 was

registered against the petitioner on 09.08.1997 and the

petitioner has been in custody since 17.01.2000. It is

common ground between the parties that Section 21-F was

inserted in ATA during pendency of trial of the petitioner.

11. In the case of Sheikh Muhammad Sharif reported as

PLD 1978 Lahore 15, while dealing with a similar question,

this Court has held that the sentence of an accused is to be

governed by the previous existing law and not the amended

law. In PLD 2009 SC 809, the Honourable Supreme Court of

Pakistan, while dealing with grant of benefit of Section 382,

has held as follows:-

Once the benefit of section 382-B has been

given to any of the accused as the time of
awarding conviction/punishment then it
W.P.No.23836-2010 6

deems to be effected on the date of arrest that

is why the period he had remained in jail
during the period of trial before the
announcement of his conviction would be
deducted otherwise it would not be possible.
The insertion of section 382-B is based on
principles of equity and justice on the basis
of which the detention period undergone by
him as under-trial prisoner was deducted
from his sentence. The purpose and object of
the provisions of law/Act for which it was
enacted must be kept in mind at the time of
interpretation of the same. It is settled
principle of law that court can supply an
obvious omission in a particular provision of
statute or omit the same which is apparently
redundant in the context of the provision
keeping in view to advance object of the Act
and not to frustrate the same. There are
several guiding principles laid down by the
superior Courts qua supplying of omission
such as one interpretation is possible
construction should be preferred which
carries into effect the object of the statute.

12. In the case of Pakistan Steel Mills corporation Vs

Muhammad Azam Katper and others (2002 SCMR

1023), it has been held that :-

It is settled proposition of law that

legislation concerning procedural matters
would operate retrospectively. However,
W.P.No.23836-2010 7

legislation not concerning mere procedure

but more than a matter of procedure and
touching a right in existence at the time of its
passing will not operate retrospectively
unless Legislature either by express
enactment or by necessary intendment has
given legislation retrospective effect,
considering that the dispute having become
past and closed transaction having created a
right in ones favour could not be taken away
by giving retrospective operation to the
amended statutory provision.

13. In the case of Commissioner of Income Tax,

Karachi Vs Eastern Federal Union Insurance Co. (PLD

1982 SC 247), it was held:-

Legislation not concerning procedure only

but more that a matter of procedure and
touching a right in existence at time of its
passing would not operate retrospectively
unless Legislature either by express
enactment or by necessary intendment gives
legislation retrospective effect. Assessment
for year in dispute having become a past
and closed transaction, assessees right,
could not be taken away by giving
retrospective operation to amended
statutory provision.
W.P.No.23836-2010 8

Likewise in the case of Kumir Mondal and others Vs

Paramatha Nath Chowdhury and others (PLD 1963

Dacca 886), it was held by learned court that:

Retrospectivity not to be inferred unless

clearly arising from the Act and it would not
impair existing rights so also vested rights
cannot be affected by amending Act.

14. Maxwell in his Interpretation of Statutes, 9th Edition,

at page 223 has made the following observation:-

Every statue , it has been said, which takes

away or impairs vested rights acquired
under existing law, or creates a new
obligation, creates a new duty, or attaches a
new disability in respect of transactions or
considerations already past, must be
presumed, out of respect to the Legislature
to be intended not to have a retrospective
operation. Where vested rights are affected
prima facie it is not a question of
procedure.

15. In the case of Mian Rafi ud Din and others Vs

The Chief Settlement and Rehabilitation Commissioner

(PLD 1971 SC 252) the Apex Court has held:-

W.P.No.23836-2010 9

It is well-settled that when the law is

altered during the pendency of an action,
the rights of the parties are decided
according to the law as it existed when the
action was begun and not the law that
existed at the date of the judgment or order.
This is, however, subject to the exception
that the new law shall apply if it is a mere
rule of procedure or if it has been applied
retrospectively to pending proceedings. This
rule, as stated in Craies on Statue Law,
Sixth Edition, page 400 is as follows:--

It is a general rule that when the

Legislature alters the rights of parties
by taking away or conferring any
right of action, its enactments, unless
in express terms they apply to pending
actions, do not affect them. But there
is an exception to this rule, namely,
where enactments merely affect
procedure and do not extend to rights
of action

At page 313 learned author elaborates

as under:--

No legislative enactment, according

to the universally accepted principle,
should be held to be redundant or
superfluous, and effort must be made
by Courts to give effect to every
enactment.
W.P.No.23836-2010 10

16. In the case titled Hassan and others Vs Fancy

Foundation (PLD 1975 SC 1) the Honble Supreme Court

of Pakistan has held that:--

It is well-established principle, that in

general, when substantive law is altered
during the pendency of an action, the rights
of the parties are decided according to the
law as it existed when the action was begun,
unless the new statute shows a clear
intention to vary such rights.

In Pir Bakhsh and another v. The State

(PLD 1965 (W.P.) Lahore 308) it was
observed that:--

Amendment in procedural law can

affect the pending cases provided new
procedure does not, in its application,
work to prejudice accrued rights
under old procedure.

In Sakhi Muhammad v. Wajid Ali and

others (PLD 1964 (W.P.) Lahore 426) it was
held that :-

Amendment of procedural nature in

statue would apply to pending matters
but not to matters past and closed.
Any new provision made with regard
to the orders of the Industrial Court
by the amending Ordinance of 1961
cannot, without necessary legislative
intendment, be said to have
retrospective effect so as to govern
orders passed before the amendment
was introduced. There is no doubt that
amendments of procedural nature
have been consistently held to be
W.P.No.23836-2010 11

retrospective in character, but that

only means that the altered procedure
will apply to pending matters, and not
that matters which are closed and
completed shall be re-opened so as to
be governed by the new procedure.

In Nagina Silk Mill, Lyallpur v. The

Income Tax Officer and another (PLD
1963 SC 322) it was observed:--

Court would lean against giving

retrospective operation where vested
rights or past transactions
prejudicially affected or existing
contracts impaired.

In Commissioner of Income-tax (West),

Karachi, v. Messrs Kruddsons Ltd. (PLD
1974 SC 180) at page 184 it was observed
that:--

It is well-settled proposition that a

notification by Provincial Government
cannot operate retrospectively to
impair an existing right or to nullify
the effect of a final judgment of a
competent Court even if the
notification be expressly so designed.

17. In Adnan Afzal Vs Capt. Sher Afzal (PLD 1969

SC 187) it was held as under:--

Matter retrospective if it is merely

procedural in nature such matter, however,
would not operate retrospectively if it
W.P.No.23836-2010 12

touches any right in existence at the time of

passing of legislation.

In Central Exchange Bank v. Ch. Dilawar

Ali Khan and others (PLD 1965 (W.P.)
Lahore 628) it was observed that:--

Statute not to be construed to have

greater retrospective operation than
its language permits.

In State v. Maulvi Muhammad Jamil

and others (PLD 1965 SC 681) at
page 685, it has been observed:--

The general principle is that when

the law is altered during the pendency
of an action, the rights of the parties
are decided according to the law as it
existed when the action was begun
unless the new statue shows a clear
intention to vary such rights. Where
the Legislature has made its intention
clear that the amending Act should
have a retrospective operation, there
is no doubt that it must be so
construed even though the
consequences may entail hardship to a
party. But even without express words
to that effect, retrospective effect may
be given to an amending law if the
new law manifests such a necessary
intendment. With regard to procedural
laws, the general principle seems to
be that alterations in procedure are
retrospective unless there be some
good reason against such a view.

18. In the case titled Commissioner, Sindh Employees

Social Securities Institution and another Vs Messrs E.M.

W.P.No.23836-2010 13

Oil Mills and Industries and 2 others (2002 SCMR 39),

the Honourable Supreme Court of Pakistan has held that:-

As a general rule every statute is deemed to

be prospective unless by express is
provisions or necessary implication it is
given retrospective effect. The acid test for
ascertaining whether a statue or an
amendment operates prospectively or
retrospectively is the legislative intent. The
language of the amending Ordinance and the
Act and their terms neither make it manifest
that the Legislature intended the amendments
to operate retrospectively nor the intention
can be gathered by necessary implication.
The rationale is obvious inasmuch as the
amendments have affected vested rights and
created new obligations.

19. In the case of Molasses Trading & Export (Pvt.)

Ltd. Vs Federation of Pakistan (1993 SCMR 1905),

while dealing with the question of accrued rights, the

Honourable Supreme Court of Pakistan held that:-

it has also been laid down

(Province of East Pakistan v. Sharafatullah
PLD 1970 SC 514) that a statute cannot be
read in such a way as to change accrued
rights, the title to which consists in
transactions past and closed or any facts or
events that have already occurred.
W.P.No.23836-2010 14

20. The trial of the petitioner commenced before insertion

of Section 21-F of the ATA. Certain rights had already

accrued in favour of the petitioner by way of his entitlement

to the benefit of remissions in accordance with law in the

field at the relevant time i.e. the time that the alleged offence

was committed, FIR was registered against him, he was

arrested and his trial commenced. Any subsequent changes in

law would not have the effect of depriving him of the rights

which were available to him at the time when the offence

was committed and the trial commenced. In addition, there is

nothing in Section 21-F of ATA to indicate even remotely

that it has retrospective operation or that it has the effect of

taking away the rights that were available to certain convicts

under the prevalent law when the offence was committed, the

FIR was registered or the trial commenced. Looked at from

this point of view, the provisions of Section 21-F are

prospective in nature and, therefore, cannot take away or

affect the rights which were available to the petitioner at the

relevant time. In support of this contention, reliance may also

usefully be placed on the dictum of the Honourable Supreme

Court of Pakistan in the case of Commissioner Sindh

Employees etc. (2002 SCMR 39).

21. In the case of Pakistan Steel Mills (2002 SCMR

1023), the Honourable Supreme Court of Pakistan has held

that any amendment in law will not take away, empower,

W.P.No.23836-2010 15

nullify or destroy a vested right, which has attained finality

and has become past and closed transaction. Admittedly,

registration of the case against the petitioner, his arrest and

initiation of his trial were all prior to the insertion of Section

21-F. As a result, the dictum of the Honourable Supreme

Court of Pakistan in the aforesaid cases is clearly applicable

to the facts and circumstances of the present case. In

Muhammad Rafi ud Dins case reported as PLD 1971 SC

252 and Hassans case reported as PLD 1975 SC 1, it has

clearly and unambiguously been laid down that where a law

was altered during pendency of an action, the rights of the

parties are to be decided according to the law as it existed

when the action was initiated and not under the law

prevailing on the date of the judgment/order. Looked at from

this angle also, the act of the respondents whereby the

petitioner has been denied the benefit of remissions under the

Pakistan Prisons Rules is neither legally justified nor

sustainable.

22. During the course of arguments, the learned counsel

for the petitioner has laid emphasis on the fact that the

petitioner is only claiming remissions under the Pakistan

Prisons Rules, 1978. We notice that such remissions are

granted under special circumstances and are in-fact earned by

the convict on the basis of some acts specified in Rules 214

and 215 of the aforesaid rules. Such remissions are in the

nature of earning and cannot be withdrawn arbitrarily unless

 W.P.No.23836-2010 16

provided in the relevant law. Had Section 21-F been attracted

to the facts and circumstances of the case, denial of

remissions could have been justified in view of the words

notwithstanding any thing contained in any law or prison

rules . However, as held by us above, the provisions

of Section 21-F have no retrospective effect and are not

applicable to the case of the petitioner.

23. The learned counsel for the petitioner has not pressed

his case on the question of special remissions announced

either by the Provincial Government under Section 401

Cr.P.C. or the President of Pakistan under Article 45 of the

Constitution of Islamic Republic of Pakistan, 1973.

24. For the reasons recorded above, we hold that the

petitioner is entitled to remissions available to him under the

provisions of Pakistan Prison Rules, 1978.

25. As a result, while allowing this petition, we direct the

respondents to grant such remissions to the petitioner as he is

entitled to under the provisions of Pakistan Prison Rules,

1978 with effect from 26.01.2006. Order accordingly.

(IJAZ AHMAD CHAUDHRY) (IJAZ UL AHSAN)

CHIEF JUSTICE JUDGE

*Aamer