1997 P Cr (PLP)

Ss. 382-B & 561-A

Prohibition (Enforcement of Hadd) Order (4 of 1979), Art.4

Benefit of S.382-B, Cr.P.C., grant of

Provision of S.382-B, Cr.P.C. being mandatory accused was entitled to its benefit unless the same was refused for cogent reasons

Superintendent of jail concerned was consequently directed to compute the period of confinement undergone by the accused during trial towards his substantive term of imprisonment. Mukhtiar-ud-Din v. The State 1997 SCMR 55 ref. Nafees Ahmad Ansari for Appellant. Humera Khand for the State. Date of hearing: 2nd April, 1997. Through this application the petitioner has prayed that benefit as envisaged under section 382-B, Cr.P.C. should be extended to him.

2. I have been taken through the concluding paragraph of the judgment, dated 17-3-1996 passed by Magistrate Section 30, Multan whereby the petitioner has been convicted under Article 4 of Prohibition Order IV of 1979 and awarded sentence of five years' R.I., 20 stripes and a fine of Rs.10,

000. The application is opposed by learned counsel appearing on behalf of State on the ground that it has not been specified as to how much time was spent by the petitioner as under trial prisoner and also whether the delay was caused by the petitioner himself or was occasioned on account of some other exigency. In support of her contention she has cited Mukhtiar-ud-Din v. The State 1997 SCMR 55 whereby their Lordships of the Supreme Court declined to interfere because the learned trial Judge had refused to, extend benefit under section 382-B, Cr.P.C. The cited case has no bearing on the present case because the learned trial Magistrate did not make any observation with regard to extension or non-extension of benefit under section 382-B, Cr.P.C. For reference section 382-B, Cr.P.C. is reproduced as follows:-- "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." The only reasonable interpretation of the section is that the said provision is mandatory and the learned trial Court has to assign reasons that although section 382-B, Cr.P.C. was taken into consideration but the convict is not entitled to receive its benefit. My view is further fortified by the fact that initially in this section the word "tray" existed but afterwards the word "may" was substituted by the word "shall" on account of amendment incorporated in that section by virtue of Ordinance LXXI of 1979 Hence, the said provision being mandatory, the petitioner is entitled to its benefit unless the same is refusal for cogent reasons.

3. For the foregoing reasons, this application is allowed and the Superintendent, District Jail, Multan is directed that the period of confinement undergone by the petitioner during trial shall be computed towards his substantive term of imprisonment. N.H.Q./R-31/L Petition allowed.