2002 PLP D744 (MLD)

Zahid Farani Sheikh, A.A.-G. The petitioner through this Constitutional petition has sought release 9f his brother Sardar alias Saddu, on the ground that he had undergone sentence of 10 years' R.I. awarded to him by a Division Bench of this Court vide judgment, dated 13-8-2001 passed in Criminal Appeal No.6-14 'of 1996 and Murder Reference No.228 of 1996. Learned counsel for the petitioner had argued that since the benefit of section 382-B, Cr.P.C. has been extended to the accused taking into account the remissions available to him, he had already undergone his sentence. However, since he had not paid the compensation of Rs.50,000 according to the judgment of the learned Additional District Judge, Shorkot dated 9-7-1996, therefore, he was not being released by the Jail Authorities.

3. The learned A.A.-G. had undertaken to inquire from the Jail Authorities whether the brother of the petitioner had already undergone his sentence. The report has been received from the Superintendent of the District Jail, Jhang to the effect that after grant of the benefits available to Sardar Ali a ins Saddu under section 382-B, Cr.P.C., he had undergone his sentence on 14-9-2001 but he was being detained-on account of non-payment of compensation of Rs.50,000 to the legal heirs of the deceased.

4. Learned counsel for the petitioner has argued that once the conviction of brother o the petitioner for offence under section 353, P.P.C. had been speci ically set aside by the High Court vide its judgment dated 13-8-2001, the sentence would go alongwith the conviction and fresh conviction of the accused was under section 302(c), P.P.C., and sentence of 10 years was imposed on him without any stipulation as to the payment of fine or compensation to the legal heirs of the deceased.

5. Learned A.A.-G. has argued fiat the conviction and sentence of the accused had merely been modified by the judgment of the High Court, death sentence having been set aside and sentence for 10 years' R.I. having been awarded, nothing was mentioned about the sentence of fine or compensation of Rs .50,000 payable to the legal heirs having been set aside, the conclusion could be drawn that this sentence still holds the field. He has further argued that the writ petition would lie before the same Division Bench which passed the judgment and convicted and sentenced the accused and a miscellaneous application should have been filed in this behalf under section 561-A, Cr.P.C. and no separate writ petition is maintainable in this behalf.

6. I have heard the learned counsel for the petitioner as well as the 'learned A.A.-G. The appeal of the accused was accepted by toe Division Bench of this Court and his conviction under section 353, P.P.C., was specifically set aside vide judgment dated 13-8-2001. Once the conviction was set aside the logical conclusion would be that the sentence which has been awarded would no longer hold the field. The fresh conviction of the accused under section 302(c), P.P.C., would hold the field, and it has been found by the Court that the accused had not killed the deceased with prior intention and the deceased was partly responsible for his own death, since the accused was surrounded by the Police Party who was trying to take away his licensed gun, he had fired on the Policed Since he had exceeded his right of self-defence, it was considered that sentence of 10 years' R.I. was adequate to meet the ends of justice.

7. In view of the above discussion, it appears that the accused having served out his sentence as recorded in the judgment dated 13-8-2001, wherein there has been no stipulation as to the payment of compensation of fine, he cannot be detained any further. The petition is, therefore, accepted. Superintendent Jail, Jhang is directed to release Sardar alias Saddu if he is not required in any other criminal case. N.H.Q./G-142/L Petition accepted.