PESHAWAR, Jan 29: A two-member bench of the Peshawar High Court on Thursday ruled that a convicted prisoner could not be given remission for the period he was under trial.

The bench, comprising Justice Tariq Pervez and Justice Dost Muhammad Khan, dismissed a writ petition filed by a prisoner, Nazeem Khan, requesting the court that he should be granted remissions for his pre-conviction period he had spent in prison.

The bench disagreed with a recent judgment of the PHC's Abbotabad Circuit bench whereby that bench had extended remission to a prisoner for the period he spent in jail before his conviction.

The bench held that the said judgment was contrary to the consistent view of the high court in such cases. The judgment delivered by the circuit bench on Dec 12 last year had created problems for the NWFP Prison Department as hundreds of prisoners had been seeking the same remission on the ground of the precedent-setting judgment.

The prisoners say that as the court has allowed remission to the petitioner for the period when he was under-trail, therefore all of them should also be granted remissions for the period they spent in jail during the trial.

Since the judgment of the high court in May 2002, the prison department has stopped allowing remissions to the convicted prisoners. The judgment was delivered by a two-member bench headed by Justice Nasirul Mulk in a habeas corpus petition filed by a former additional secretary, Housing and Physical Planning Department Akber Khan Marwat.

An appeal against that judgment is still pending before the Supreme Court. Previously, when the prisoners were granted benefit of Section 382-B of the Criminal Procedure Code, the prisons' authorities used to grant remissions to prisoners for the detention period before their conviction. Under Section 382-B of the CrPC the trial court is empowered to consider the period spent by a convict in prison before his conviction in his prison term.

Advocates Sattar Khan and Noor Alam appeared for the petitioner in the present case whereas deputy advocate-general Akhter Naveed represented the provincial government.

The petitioner's counsel referred to the Abbotabad Circuit Bench judgment and argued that when benefit of Section 382-b of the CrPC was extended to a prisoner by the trial court he should also be entitled to the remission.

The counsel contended that as the trial court had extended the benefit of Section 382-B of the CrPC to the petitioner, therefore he should also be granted remissions for the period he spent in prison before his conviction.

It is worth mentioning that the high court continued to follow the judgment of Justice Nasir's bench in different cases. However, the circuit bench in Abbotabad headed by Justice Abdur Rauf Lughmani in December last deviated from that judgment and ruled:

"The moment benefit of Section 382-B CrPC is given to a convict, the period during which he remained in detention as under trial prisoner, would be counted towards his substantive sentence. Legally, he would be deemed to be in jail as a convict since the date of his arrest and would certainly be entitled to benefit of remissions granted by competent authorities to the convicts after the said date."