1984 P Cr (PLP)

13. In another case of Falaksher v. State (P L D 1981 Lah. 143), it was held "By a recent amendment of section 382-B, the word `may' has been substituted by the word shall'. In view of this amendment, the period of detention for an offence has to be taken into considera tion. The appellants are in jail for the last five years. Keeping this fact in view, I reduce the sentence of imprisonment of the appellant to already undergone."

14. In the case Sultan Ahmed and 2 others v. The State (1981 P Cr. L J 602), following observations were made: - "Since the trial Judge has not taken into consideration the provision of section 382-B, Cr. P. C. in the case of Akbar and Umar Hayat appellants, which is an error of law, we proceed to do so in their case as well."

15. In the recent case of this High Court, Saleh v. Superintendent, Central Prison, Hyderabad (P L D 19 82 Kar. 542), it was held: - "It may also be observed that now section 382-B is a mandatory provision as the word `may' has been substituted by the word `shall' by Ordinance LXXI of 1979 (published in P L D 1980 Federal Statutes 19)."

16. In another case of this High Court reported as Muhammad Sidik v. The Province of Sind and 2 others (1982 P Cr. L J 190), a constitution petition was filed under Article 9 of the Provisional Constitution Order, 1981 with prayer that the Jail authorities be directed that while computing the sentence of imprison ment awarded to the petitioner, the period of detention undergone by him during trial proceedings and subsequently under the orders of the Supreme Court during the pendency of appeal in that Court be included. Relying on the case of Ali Sher referred to above the Division Bench directed the jail authorities to include the said period of detention of the petitioner in his sentence of imprisonment.

17. In the case of Muhammad Younas v. The State (1982 S C M R 1022), the Supreme Court has observed: - "He submitted next that the petitioner has not been given the benefit of the provisions of section 382-B, Cr. P. C., although the peti tioner had remained as an under-trial prisoner for quite some time. We have considered the aforementioned contentions. We do not consider this to be a fit case for reappraisal of evidence but in the circumstances of this case, we feel that, he is entitled to relief under section 382-B, Cr. P. C."

18. Reverting to the case of Saleh it was further held by the D. B. of this Court: - "Section 382-B, Cr. P. C. contemplates the application of mind of the Court expressly to the question as to whether adjustment of the detention period during trial is to be given or not or the Court may expressly observe while awarding lesser sentence, that lesser sentence has been awarded after taking into consideration the provision of section 382-B, Cr. P. C. or the long detention period during the trial of the case. In absence of an order of competent Court neither the jail autho rities nor the Home Secretary, Government of Sind, can give adjustment for any detention period during the trial under the above provision, as it does not authorize them to extend the benefit of the same provision." It was further observed in the same case: - In our view this Court is competent under section 561-A. Cr. P. C. to consider a Miscellaneous application for determination as to whether the convict was entitled to the benefit of section 382-B, Cr. P. C. The consideration of the above question does not involve any alteration/modification of the sentence as referred to in section 369, Cr. P. C. It is a question of granting of adjustment/remission for the undertrial period alongwith other remissions, which a convict is entitled to under the Jail Rules for the detention period."

19. The same view was expressed in Noor Akbar Bucha v. State (1982 P Cr. L J 944), in the following words: - "It is open to this Court to allow benefit of statutory provisions under section 382-B, Cr. P. C. as has been done in the precedent cases and in exercise of the jurisdiction of this Court under section 561-A, Cr. P. C. It is directed that the period during which the petitioner had remained in custody during his trial shall be counted in computing the period of sentence imposed by this Court on him in his appeal."

20. The next important case in the series is of Abdul Majid and others v. Superintendent, Jail Khairpur (1982 P Cr. L J 1), in which the petitioner was arrested on 11th September, 1968 on a charge under section 302 and allied provi sions of the Penal Code. On trial he was acquitted by the Sessions Judge, Khairpur on 26th February, 1970. There was an appeal against the acquittal, which was decided on 12th October, 1973. The petitioner was sentenced to transporation for life and R. I. for one year and five years on different counts. While considering the application under section 382-B, Cr. P. C. the question arose whether the period of detention as under-trial prisoner is to be specified by the Court or leave the jail authorities to take that into consideration. In this connection reliance was placed on Ali Sher v. The State (P L D 1980 S C 317), and Manzoor Ahmad v. The State (1981 S C M R 260). In the latter case the earlier case was taken notice of and the Supreme Court observed: - "that the relevant authorities may take into consideration the period spent in jail by the accused as undertrial prisoner from the date of his arrest uptill the date of announcement of sentence for imprison ment for life against him in the light of recent amendment under section 382-B of the Cr. P. C. Following these authorities a direction was given to the Superintendent Jail to compute the period that the petitioner had remained in custody as undertrial prisoner.

21. It would be noticed from above authority that the benefit of section 382-B, Cr. P. C. was extended in the case, which was finally closed long before the section had become operative. On the retrospective application of section 382-B, Cr. P. C. the view taken in the above case as well as in the case of Saleh of this High Court is contrary to the view of the High Court of Azad Jammu and Kashmir in the case of Iqbal Hussain Shah v. The State (PLD 1982 Azad J & K 77). 1n this case the prisoner was convicted and sentenced to death under section 302, P. P. C. by the trial Court and on appeal to the High Court the sentence was commuted to life imprison ment by order dated 15th July, 1978. It was held that since section 382-B was enforced on 20th February, 1980, the section was not available to the Court while awarding sentence and as such it cannot be said that while passing sentence on the petitioner, the Court ignored section 382-B. It was further held that P L D 1980 S C 323 had no bearing on the instant case. It was also held that section 382-B has no application in the cases which were finally determined by the Courts prior to its enactment.

22. In the case of Saleh referred to above it was observed; - "We are inclined to hold that section 382-B, Cr. P. C. is a procedural provision and, therefore, it is to be given retrospective effect as it relates to the computing of the period of sentence."

23. The, other cases worthy of mention in respect of section 382-B, Cr. P. C. are: Muhammad Aslam v. State (1982 S C M R 709), Nazar Muhammad and another v. The State (1982 S C M R 628), Muzaffar Mustafa v. State (1982 S C M R 695) and Muhammad Arif v. The State (1979 P Cr. L J 602). In the case of Muhammad Aslam, the Supreme Court was pleased to observe: - "It may be mentioned that accused (petitioner in D. P. No. 85/81) filed a belated application that they should be given the benefit of section 382-B, Cr. P. C. But considering the severity of the attack and the number of injuries caused by them to the deceased and the fact that they have already been dealt with leniently, we do not consider it a fit case for granting the relief prayed for by them."

24. In the case of Nazar Muhammad it was held: -- "Before us the counsel for the appellants did not contest on merits but only submitted that the learned High Court had omitted to reconsider the provisions of section 382-B, Cr. P.' C. which provides that the Court sentencing the accused to imprisonment is required to take into consideration the period during which he (the accused) was detained in custody for the offence is question. On going through the last paragraph (para. No. 7) of the impugned judgment we find that the learned Judge in Chamber had, in fact considered this question while reducing the sentences of the appellants under section 325/34, P. P, C. from 7 years' R. I. to 4 years' R. I." 25, In the case of Muzafar Mustafa it was observed by the Supreme Court: - "Learned counsel has urged for reduction of sentence of death in view of the decision of this Court in Muhammad Bashir v. State P L D 1982 S C 139 and for giving the appellant benefit of section 382-B, Cr. P. C. This is not opposed by Mr. Nemat Khan, learned counsel appearing for the State. Considering the circumstances of the case, we are satisfied that lesser sentence will suffice the ends of justice. We accordingly reduce the sentence of death to that of imprisonment for life with benefit under section 382-B, Cr. P. C."

26. In the case of Muhammad Arif it was held: - "Applying section 382-B, Cr. P. C. the sentence already undergone comes to more than four years. This is sufficient to meet the ends of justice."

27. In view of the case law noticed in the forgoing paragraph, I am inclined to hold: firstly, that after substitution of the word 'shall' in the place of the word 'may' in section 382-B, Cr. P. C., it is now manda tory for Courts passing sentence of imprisonment on the accused to take into consideration the period, if any, during which the accused was detained as undertrial prisoner; secondly that the Court has to apply its mind expressly for deciding whether adjustment of period of detention as undertrial prisoner be allowed or not and in absence of such order the Jail authorities are not authorised to give such adjustment ; thirdly, that this Court is competent under section 561-A, Cr. P. C. to consider a miscellaneous application for determination as to whether the convict is entitled to the benefit of section 382-B, Cr. P. C. fourthly, that it may not be necessary for the Court allowing the benefit of section 382-B, Cr. P. C. to specify the actual period undergone by the accused as undertrial prisoner which can be left to be computed by the Jail authorities; and fifthly, that section 382-B, Cr. P. C. being a procedural provision, it can be applied retrospectively to cover even the cases decided before its enforcement. 28. 1n the instant case, as is disclosed in the judgment of the learned Sessions Judge, the accused/appellant was arrested on 11th March, 1980, while he was convicted on 24th February, 1981. In view of the principles enunciated in the authorities reviewed above the benefit of section 382-B, Cf. P. C. is to be allowed to the appellant who by short order dated 4th October, 1982 has been granted the benefit. Above are the reasons for the said decision. M. Y. H. Appeal accepted.