1995 PLP 1218 (MLD)

(c) Criminal Procedure Code (V of 1898)

S.382-B

Penal Code (XLV of 1860), S.302/34

Sentence of death awarded to accused by Trial Court for three murders had been converted to imprisonment for life by High Court after taking into consideration over all circumstances of the case including the feasibility of extending the benefit of S.382-B, Cr.P.C. to them which in the peculiar circumstances of the case was not found practicable

Application was dismissed accordingly. Muhammad Aslam Khan, A. A. G. for the State. SALEEM DIL KHAN, J:

The petitioners/applicants convicted under section 302, P.P.C. and sentenced to death, which sentence stand; converted to life imprisonment by this Court, have moved from the Jail /a petition seeking benefit of section 382-B of the Criminal Procedure Code.

2. As per petition, the applicants claim to have remained in prison as undertrial from 17-3-1990 to 20-10-1991.

3. After hearing the learned A. A.-G., we have gone through the relevant record and the provisions of law.

4. It is pertinent to point out that section 382-B, Cr.P.C. merely enjoins upon a Court, while passing a sentence of imprisonment, to take into consideration the period during which the accused was detained in custody as an undertrial prisoner. A plain reading of the aforesaid provisions of law would indicate that the connotation "it shall take into consideration" does not mean that the Court has no choice and its hands are fettered and must of necessity reduce the substantive sentence by the period an accused has remained in custody as an undertrial prisoner. The phraseology used in the aforesaid clause of law vividly indicates that the Court should not ignore while awarding the sentence, the period of detention of the accused as an undertrial prisoner and should determine the length of imprisonment accordingly. Therefore, we find that a Court, when awards a sentence, must be presumed to have taken into account the provisions of section 382-B, Cr.P.C.

5. As stated above, the petitioners/applicants were sentenced to death and this sentence was altered to life imprisonment which means that we had already taken into consideration the period during which the applicants remained in custody as -- undertrial prisoners in accordance with the spirit of provisions contained in section 382-B, Cr.P.C. We are of the considered view that benefit under section 382-B, Cr.P.C. does not necessarily mean that the period of detention as an undertrial prisoner must of necessity be counted towards the period of substantive sentence of imprisonment awarded to an accused person. It is pertinent to reiterate that three persons were murdered in this case and four persons including the applicants were sentenced to death out of whom one has been acquitted and sentences of the rest of the three have been converted to life imprisonment. We have also taken into consideration the overall circumstances of the case and find that under the peculiar circumstances of this case, such period is not to be deducted from the sentences of the applicant.

6. In view of the aforesaid observations this Criminal Miscellaneous petition is, therefore, dismissed. The petitioners/applicants be informed. N.H.Q./N-1748/P ?????????????????????????????????????????????????????????????????????????????? Petition dismissed.