1995 PLP 610 (MLD)

WAJIHUDDIN AHMED, J.‑In Criminal Appeal No.79 of 1982 and corresponding Confirmation Case No.11 of 1982 (Amir Bux v. The State) per judgment dated 1‑11‑1983 death sentence awarded to the appellant was converted into life imprisonment and the reference made for confirmation of the capital punishment was rejected. However, in terms of section 382‑B of the Code of Criminal Procedure the period during which the appellant was detained in custody for the offence was not taken into consideration. Such section reads thus:‑‑‑ "382‑B. Period of detention to be considered while awarding. sentence of imprisonment: ‑‑Where a Court decides to pass a sentence of imprisonment on an accused for an offence, it shall take into consideration the period, if any, during which such accused was detained in custody for such offence." It would appear that the provisions of section 382‑B are mandatory in nature requiring the issuance of a statutory direction in all cases where a Court decides to pass a sentence of imprisonment on an accused person for an offence found to have been committed. No doubt such a statutory direction should issue at the time when the sentence is handed down. Nonetheless where the error has crept in because of an inadvertent omission, the powers of this Court, if the error occurred here, can always be invoked under section 561‑A of the Code because nothing in such Code is deemed to limit or affect the inherent power of a High Court to make such orders as may be necessary to give effect to any order passed under the Code of Criminal Procedure or to prevent abuse of the process of any Court or otherwise to secure the ends of justice. It is also worth mentioning that section 369 in the Code, which precludes the alteration or review of a judgment once it is signed, is itself subject to section 561‑A aforesaid and no procedural constraints can come in the way of advancement of the ends of justice. A very useful discussion on the subject occurs in the minority judgment of Rustam S. Sidhwa, J. in Bashir v. State PLD 1991 SC 1145 but because no exception seems to have been taken to such portion thereof as pertained to the interpretation of section 382‑B, Cr.P.C., we can take that as the law declared on the point. This is how the learned Judge has expressed himself:‑‑‑ "Last but not least, the duty of the trial Court to finally address itself to the question whether the sentences awarded should run concurrently or consecutively, irrespective of the rule contained in section 35(1) of the Code, and whether the detention undergone by an accused during his trial should be treated as period spent by him as a convict, for the purposes of the benefit available under section 382‑B of the Code, are as much mandatory for determination as the question of punishment itself. Basically, they are matters ancillary to the question of punishment, but otherwise highly important. Where there is a failure on the part of the trial Court to determine these questions, difficulty would arise, because of section 369 of the Code. However, during, appeal or revision before the High Court, the High Court could itself, examine these questions, subject to limitations, if any, provided by law and principles laid down by this Court, and determine these matters. Again, where by inadvertence there is failure on the part of the High Court to determine these questions, I cannot see any reason why resort cannot be had to section 561‑A of the Code to cure the failure, in order to secure the ends of justice. Surely an attempt to cure inadvertent omissions in the nature of errors ancillary to punishment cannot be allowed to be frustrated by section 369 of the Code. Section 369 falls under Chapter XXVI of Part VI of the Code, whereas sections 424 and 430 fall in Chapter XXXI of Part VII of the Code. Under section 424; the rules contained in Chapter XXVI as to the judgment of a Criminal Court of original jurisdiction mandatorily apply, so far as may be applicable, to the judgment of any Appellate Court other than a High Court. Under section 430, judgments and orders passed by an Appellate Court upon appeal are treated as final, except in the cases provided for in section 417 and Chapter XXXII. Section 417 deals with appeals against acquittal and Chapter XXXII deals with references and revisions. In view of sections 424 and 430, the bar of section 369 only applies to judgments of the High Courts given in the exercise of their criminal original jurisdiction, but not if given in the exercise of their criminal appellate jurisdiction. In Gulzar Hasan Shah v. Ghulam Murtaza PLD 1970 SC 335 this Court, whilst dealing with the question whether an order of cancellation of bail of an accused could be recalled by the High Court, observed that "in rare and exceptional cases the High Court has inherent power to revoke, review or alter its own earlier decisions in cases which are not governed by sections 369, 424 and 430 with a view to give effect to any order under the Code or to prevent the abuse of the process of any Court or otherwise to secure the ends of justice". This view was expressed after the learned Judge expressed the rule that he was conscious of the fact that general principles of finality of judgment attached to the decisions or orders of the High Court passed in criminal cases. This view was followed in Amiruddin v. State PLD 1977 SC 602, which also related to a bail matter, and by a Full Bench of the Lahore High Court in Zulfiqar Ali v. State PLD 1984 Lah. 461, which held that the High Court under section 561‑A could grant relief under section 382‑B of the Code in a case decided by itself where inadvertently it had omitted to give relief under the latter section. Section 561‑A recognizes the inherent powers possessed by a High Court to secure the ends of justice and as a Court of law and justice the High Court has inherent jurisdiction over its own record and, to quote Muhammad Munir, C.J., from Crown v. Habibullah PLD 1952 Lah. 587 at p.600 "if any order to supply the omission of the statutory direction is necessary, I have no doubt we have jurisdiction to make such order even though we might have become functus officio after signing our judgment and therefore incompetent to alter or review it." The power of the High Court to supply the inadvertent omission cannot therefore be denied to the High Court. Finally, where by inadvertence there is failure on the part of the Supreme Court to determine these questions, its own inherent powers under Order XXXII, rule 6. of its own rules could be availed to secure the ends of justice." In another judgment of the Supreme Court, namely, Muhammad Anwar v. State 1993 SCMR 1991, the benefit of section 382‑B ibid was extended to the petitioners upon review of the earlier Supreme Court judgment. For the reasons that we have stated above the learned AA.‑G. has conceded to the grant of this criminal miscellaneous. Criminal Miscellaneous 201 of 1994 is therefore granted and, as a result, the applicant, who was the appellant in relation to our earlier judgment, shall have, the benefit of section 382‑B, Cr.P.C. in computing the sentence to be in actuality served by him. Since none of the learned Judges, who delivered a afore quoted judgment of this Court in Criminal Appeal No.79 of 1982, is vailable in this Court we have felt no constraints in granting this criminal miscellaneous application and allowing the benefit of section 382‑B aforesaid; N.H.Q./A‑1516/K Petition allowed.