2023 PLP 1545 (MLD)

Through this petition filed under section 561-A of the Code of Criminal Procedure, 1898 it has been prayed that the benefit provided under section 382-B of the Code of Criminal Procedure, 1898 be extended to the petitioner.

2. Brief facts of the case are that the petitioner namely Muhammad Aslam son of Noor Muhammad was tried by the learned Additional Sessions Judge, Multan, in the case FIR No. 494 of 2012 dated 03.09.2012 registered at Police Station Mumtazabad, District Multan in respect of an offence under section 302, P.P.C. for committing the Qatl-i-amd of Waqas Aslam (deceased). The learned trial court vide judgment dated 31.07.2015, convicted the petitioner namely Muhammad Aslam son of Noor Muhammad and sentenced him to Death under section 302(b), P.P.C. as Tazir for committing Qatl-i-amd of Waqas Aslam (deceased) and directed the petitioner to pay Rs.1,00,000/- as compensation under section 544-A, Cr.P.C. to the legal heirs of the deceased and in case of default thereof, the convict was directed to further undergo six months of simple imprisonment. The petitioner was ordered to be hanged by his neck till dead. Feeling aggrieved, the petitioner namely Muhammad Aslam son of Noor Muhammad lodged Criminal Appeal No.496-J of 2018 through jail, assailing his conviction and sentence. The learned trial court submitted Murder Reference No.127 of 2018 under section 374, Cr.P.C. seeking confirmation or otherwise of the sentence of death awarded to the petitioner, namely Muhammad Aslam son of Noor Muhammad. This Court decided the Criminal Appeal No.496-J of 2018 and answered the Murder Reference No.127 of 2018 vide judgment dated 14.09.2022. The conviction of the petitioner namely Muhammad Aslam son of Noor Muhammad, as awarded by the learned trial court, under section 302(b), P.P.C. was set-aside, however, the petitioner namely Muhammad Aslam son of Noor Muhammad, was convicted under section 302(c), P.P.C. and sentenced to rigorous imprisonment for fifteen years. This Court did not consider the aspect of extending or not extending the benefit provided under section 382-B of the Code of Criminal Procedure, 1898 to the petitioner, hence, the petition.

3. The learned counsel for the petitioner contended that the Court had the power to refuse the benefit provided under section 382-B of the Code of Criminal Procedure, 1898 but in such eventuality, the said discretion should have been exercised judicially on sound judicial principles. The learned counsel for the petitioner further contended that this Court, while disposing of the appeal as lodged by the petitioner, had not given any findings to withhold the benefit provided under section 382-B of the Code of Criminal Procedure, 1898 to the petitioner.

4. The learned Deputy Prosecutor General has fairly conceded to the contention of the learned counsel for the petitioner.

5. We have heard the learned counsel for the petitioner, the learned Deputy Prosecutor General and perused the record of the case.

6. It is not denied that this Court, while disposing of the appeal as lodged by the petitioner, had not considered this aspect to withhold the benefit provided under section 382-B of the Code of Criminal Procedure, 1898 to the petitioner and the judgment in this behalf is silent on the point. Under section 561-A, Cr.P.C., the Court has the inherent power to extend the benefit provided under section 382-B of the Code of Criminal Procedure, 1898, in appropriate cases even after the decision of the appeal. The only determining factor was to consider whether there existed any reason to withhold the benefit provided under section 382-B of the Code of Criminal Procedure, 1898, to a convict awarded sentence of imprisonment. As the issue pertains to the interpretation of section 382-B, Cr.P.C., the same is reproduced below:- "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 an accused was detained in custody for such offence." Section 382-B, Cr.P.C. was added by the Law Reforms Ordinance, 1972. The word "shall" was substituted for the word "may" by the Code of Criminal Procedure (Second Amendment) Ordinance (Ordinance No. LXXI of 1979). This substitution by the word shall mean that this provision was mandatory and it was obligatory on the Courts to give this benefit to the accused who was awarded the sentence of imprisonment. This benefit was also available to a person who was awarded death sentence by the trial court but subsequently the same was reduced. A legal valuable right has been conferred upon the accused after the amendment of section 382-B, Cr.P.C., and this right cannot be ignored or refused. Needless to add that the object of granting this benefit under section 382-B, Cr.P.C is to compensate the accused for the unnecessary delay that had been caused in the commencement and the conclusion of his trial. Therefore, the Courts must take into consideration the period that the accused spends in jail prior to his conviction. The present petitioner, therefore, after the sentence of death awarded to him under section 302(b), P.P.C. was set-aside and the petitioner was convicted under section 302(c), P.P.C. and sentenced to rigorous imprisonment for fifteen years, was entitled to get the benefit provided under section 382-B of the Code of Criminal Procedure, 1898, from this Court. The provisions of section 382-B, Cr.P.C., have undergone scrutiny by the superior Courts and have been interpreted in a plethora of cases. In Qadir v. State (PLD 1991 SC 1065), the august Supreme Court of Pakistan has held that' section 382-B, Cr.P.C., is a beneficial provision and is to be construed liberally. Relevant observation reads as under:- "It may be noted that the mandatory provision has been introduced because of the realization that an accused person is entitled to be put to trial or released on bail. If he is riot to be released on bail, he must be put to trial. If for any reason the State is unable to put him up for trial it is only fair that during the period he is detained to await his trial that period is taken into consideration in computing the sentence of imprisonment given to him. Another point to be noted is that the provision occurs in a criminal statute which requires strict construction as far as it imposes restrictions and punishments. Beneficial provisions need to be construed liberally. These are axiomatic principles." In the case of Ramzan v. State (PLD 1992 SC 11), the august Supreme Court of Pakistan adhered to the exposition of law made in Qadir's case (supra). In the case of Liaqat Hussain v. State (PLD 1995 SC 485), it was noted that the trial Court and the Federal Shariat Court had not pointed out any circumstance which would justify the denial of the extension of the benefit of section 382-B, Cr.P.C., to the appellant in the said case. Thus, while maintaining the conviction and sentences of the appellant awarded by the trial Court and affirmed by the Federal Shariat Court, the august Supreme Court of Pakistan directed that the benefit of section 382-B, Cr.P.C. would be extended to the appellant. In the case of Muhammad Rafiq v. The State (1995 SCMR 1525), the august Supreme Court of Pakistan discussed the provisions of section 382-B, Cr.P.C. After considering the corresponding provisions in the English Act (section 67) and the Indian Act (section 428), the august Supreme Court of Pakistan held as under:- "

9. Section 67 of the English Act and section 428 of the Indian Act provide expressly that the sentence of imprisonment imposed by the Court: shall stand reduced by the pre-sentence period spent in jail (the English Act) or which is the same thing, that the pre-sentence period shall be set off against the term of imprisonment imposed on him (the Indian Act). The English and the Indian Acts do not, therefore, leave, as regards the pre-sentence period spent in jail, anything to be done by the sentencing Court. Instead, they direct that the period so spent in jail shall automatically count towards the sentence of imprisonment imposed by the Court and the sentence of imprisonment shall stand reduced accordingly.

10. We wish that section 382-B of the Code was also couched in language as clear and unambiguous as the sections in the Indian and the English enactments are. If it were, then it would be right to say, as has become customary to do, that the convict should get the benefit of that section. But unfortunately it does not.

11. The stage for the application of section 382-B of the Code is "when the Court decides to pass a sentence of imprisonment on an accused for an offence". That is the stage when the Court asks the crucial question: what length of sentence shall be regarded as appropriate? When the Court has asked and answered that question, then "it shall take into consideration the period, if any, during which such accused was detained in custody for such offence". What the section does, therefore, is to require the sentencing Court to take into consideration the pre-sentence period spent in jail. That the word `shall' here was intended to make the provision mandatory in the sense that it imposes a duty to do what is prescribed admits of no doubt whatever: The matter relates to the liberty of person. As was held in "Qadir v. State" (PLD 1991 SC 1065), where the question was whether section 382-B applies to cases of life imprisonment, "the provision occurs in a criminal statute which requires strict construction as far as it imposes restrictions and punishments. Beneficial provisions need to be construed liberally". In any event, the fact that when the section was first enacted the word used was `may' and later it was substituted by the word `shall' provides the clearest possible evidence that the intention was that the Court must take the pre-sentence period of detention in jail "into consideration". Section 382-B of the Code is, therefore, a statutory limitation upon the Court's discretion to determine the length of imprisonment. It must `take into consideration' the pre-sentence period spent in jail." In the case of Mukhtiar-ud-Din v. State (1997 SCMR 55) the august Supreme Court of Pakistan, held as under:- "(i) That strictly speaking section 382-B, Cr.P.C. is attracted to, when a Court decides to pass a sentence either in the trial or appellate or revisional proceedings against an accused for the offence charged with. In other words, if the sentence has already been passed by a trial Court and the matter is brought before an Appellate Court, strictly speaking, section 382-B, Cr.P.C. is not applicable. However, there is no legal bar and that an Appellate Court is competent to grant the benefit of the above provision to a convict. Furthermore, a convict will be entitled to agitate before the Appellate Court the question, that the trial Court had failed to consider the above provisions while imposing the sentence on him or that he was wrongly denied the benefit of the same, in such a case, the Appellate Court would be bound to examine the above question and to rectify the error/mistake, if any, committed by the trial Court. (ii) That if an Appellate Court substitutes death sentence to that of imprisonment for life or rigorous imprisonment for a certain period, it is obligatory on its part to take into consideration above section 382-B, Cr.P.C., for example, if a High Court in a murder appeal/reference alters conviction from section 302, P.P.C. to that under section

304. Part I, P.P.C. and substitutes death sentence to that of rigorous imprisonment of 7 or 10 years, it is mandatory for it to advert to the question of extending the benefit of the above provision to the convict while imposing above sentence. (iii) That though under section 382-B, Cr.P.C. the Court has discretion not to grant the benefit of the same to a convict, but this discretion is to be exercised judiciously on sound judicial principles inter alia as explained hereinabove in Para 9. (iv) That since the provision of section 382-B, Cr.P.C. is mandatory, in the absence of express manifestation of the application of the mind by the Court that it has addressed itself to the above provision at the time of imposing sentence on the convict concerned, no presumption can be raised in favour of the Court of having adverted to the same." In the case reported as Ghulam Murtaza v. State (PLD 1998 SC 152), the question before the august Supreme Court of Pakistan was whether the benefit of section 382-B, Cr.P.C., could be extended to the appellant, who was awarded life imprisonment by converting the sentence of death awarded by the trial court. After a survey of the case law, the august Supreme Court of Pakistan answered the question in the affirmative as under:-- "Unless there are any exceptional circumstances in a case which the Court considers sufficient for the purpose of denying the benefit of section 382-B, Cr.P.C., to the accused, the Court in all other cases, while awarding sentence, will take into consideration the period during which the accused remained in detention during his trial, and this period will normally be adjusted in the sentence awarded to the accused by allowing him the benefit of section 382-B, Cr.P.C." In the case of Javed Iqbal v. State (1998 SCMR 1539), the august Supreme Court of Pakistan dealt with the issue from yet another angle. The judgment introduced a new concept when it held as under:- "It may be noted that the mandatory provision has been introduced because of the realization that an accused person is entitled to be put to trial or released on bail. If he is not to be released on bail, he must be put to trial. If for any reason the State is unable to put him up for trial it is only, fair that during the period he is detained to await his trial that period is taken into consideration in computing the sentence of imprisonment given to him. Another point to be noted is that the provision occurs in a criminal statute which requires strict construction as far as it imposes restrictions and punishments. Beneficial provisions need to be construed liberally. These are axiomatic principles." In the case of Ehsan Ellahi v. Muhammad Arif (2001 SCMR 416), the august Supreme Court of Pakistan approved the earlier decisions on the admissibility of the benefit of section 382-B, Cr.P.C. In the case of Government of Khyber Pakhtunkhwa through Secretary Home and Tribal Affairs Department Peshawar and others v. Mehmood Khan (2017 SCMR 2044) the august Supreme Court of Pakistan held as under:- "In the present case, as has been rightly pointed out, while partly accepting the appeal against death sentence awarded under section 302, P.P.C. to the respondent, it was reduced to life imprisonment, however, the learned Division Bench of the High Court conveniently ignored the mandatory provision of section 382-B, Cr.P.C., which was an omission of technical nature and not substantive one, which would not attract any bar to amend the original judgment but through the impugned judgment the omission made was rectified and the command of the law was given effect in letter and spirit.

6. It is the obligatory duty of the Judges to apply the correct law to a lis, and not of the litigant to point out the law applicable. Even the parties to a lis are under no obligation to hire the services of a lawyer/counsel for pleading their case because the primary duty to do the justice and to apply the correct law to the facts of a case, is the exclusive duty of the Judges. This principle has a legitimate background based on well entrenched "MAXIM" that 'law is written on the sleeves of the Judges and they are supposed to know each and every law by heart', thus any inadvertent omission on the part of the Court/Judges shall not deprive the party entitled to any relief if the law directs in clear language to be granted.

7. As highlighted and explained above, now extension of benefit of pre-conviction detention period be deducted from the sentence awarded is mandatory and for refusal to grant the same, cogent, strong and convincing reasons are to be recorded. In the instant case it was a simple omission on the part of the learned Bench of the High Court to look at the substance of the mandatory provision of section 382-B, Cr.P.C., thus it can be rectified at any stage and even the Jailer in whose custody the prisoner is undergoing sentence, is bound to award such benefit even if the judgment is silent unless the Court for cogent and convincing reasons has expressly refused to grant such benefit." In the case of Sajjad Ikram and others v. Sikandar Hayat and others (2016 SCMR 467) the august Supreme Court of Pakistan held as under:- "In section 382-B, Cr.P.C., earlier word "may" was used which was subsequently substituted to word "shall" through the Cr.P.C. (Second Amendment) Ordinance (71 of 1979). The word "shall" in the said section bound the Court to take into consideration the pre-sentence period spent by the convict in the jail. This enactment requires the Court to take into consideration the period for which accused remained confined as an under trial prisoner. It is the duty of the Trial Court to take into consideration the said provision. However, the benefit of section 382-B, Cr.P.C. is also available to a person whose sentences of death under section 302(b), P.P.C. have been subsequently converted to imprisonment for life (as in this case). While passing the sentence, it is the duty of the Court to take into consideration the pre-sentence period which he had spent in connection with the offence for which he was convicted. The said pre-sentence period should not go uncounted for. This Court in the case of Shah Hussain v. The State (PLD 2009 SC 460) had extended the said benefit to the convict whose sentence of death was subsequently converted to life imprisonment." In the case of Shah Hussain v. The State (PLD 2009 Supreme Court 460) the august Supreme Court of Pakistan held as under:- "

26. Some of the propositions expounded in the above judgments are noted here so as to adequately highlight the implications of, and bring home the manner, in which the provisions of section 382-B, Cr.P.C., were to be applied. They are:-- (1) While passing sentence, the Court, in the absence of special circumstances disentitling the accused to have his sentence of imprisonment reduced by the period spent in jail during the trial, exercise its discretion in favour of the accused by ordering that such period shall be counted towards his sentence of imprisonment or that the sentence of imprisonment shall be treated as reduced by that period; (2) The discretion has to be exercised with the intention to promote the policy and objects of the law; (3) Indeed, the Court will use its good sense in determining the circumstances in which the discretion will not be exercised in favour of the accused. But as the discretion is a judicial discretion, the order of the Court must show that the pre-sentence period has been taken into consideration and if the Court thinks that the sentence should not be reduced by the period spent in prison during the trial, the Court must give reasons for so thinking; (4) The word `shall' is intended to make the provision mandatory in the sense that it imposes a duty to do what is prescribed admits of no doubt whatever; (5) The provision occurs in a criminal statute which requires strict construction as far as it imposes restrictions and punishments. Beneficial provisions need to be construed liberally". In any event, the fact that when the section was first enacted the word used was `may' and later it was substituted by the word `shall' provides the clearest possible evidence that the intention was that the Court must take the pre-sentence period of detention in jail "into consideration". Section 382-B of the Code is, therefore, a statutory limitation upon the Court's discretion to determine the length of imprisonment. It must `take into consideration' the pre-sentence period spent in jail; (6) The benefit of section 382-B is also available to a person whose sentence of death under section 302, P.P.C. has been subsequently altered to imprisonment for life; (7) As the accused is put in jail for the very offence for which he is convicted and sentenced to imprisonment, the pre-sentence period spent by him in jail is not in vain and must, therefore, be taken into account; (8) It explodes the notion that such period can be ignored because it is not spent in jail by way of `punishment'. Not to treat that period as punishment, will be a play on the meaning of the word `punishment'. Whether the detention in jail was punitive or non-punitive, the consequence, as regards the person detained was the same, namely, deprivation of liberty and that is certainly punishment. ..

41. In view of the above discussion, our conclusions and directions are as under:-- (1) After the use of word "shall" for the word "may" in section 382-B, Cr.P.C., at the time of passing the sentence, it is mandatory for the trial Court to take into consideration the pre-sentence custody period in the light of the principles discussed above; (2) The refusal to take into consideration the pre-sentence custody period at the time of passing the sentence is illegal inasmuch as if a Court sentences a convict to imprisonment for life, which is the alternate but maximum sentence for the offence of murder, but does not make allowance for the pre-sentence custody period, it would be punishing the convict prisoner with imprisonment for life plus the pre-sentence custody period, that is to say, more than the maximum legal punishment; (3) The convict-prisoners who are granted the benefit of section 382-B, Cr.P.C., shall be entitled to remissions granted by any authority in their post-sentence detention or during their pre-sentence detention in connection with such offence. However, the same shall not be available to the convicts of offences under the National Accountability Bureau Ordinance, 1999, Anti-terrorism Act, 1997, the offence of karo kari, etc, where the law itself prohibits the same; (4) The law laid down in Abdul Malik's case that wider Article 45 of the Constitution, the President enjoys unfettered powers to grant remissions in respect of offences and no clog stipulated in a piece of subordinate legislation can abridge this power of the President, is hereby reaffirmed." (emphasis supplied)

7. This Court did not consider the aspect of extending or not extending the benefit provided under section 382-B of the Code of Criminal Procedure, 1898 to the petitioner while awarding him sentence of imprisonment. Thus, by invoking the inherent power under section 561-A, Cr.P.C., we have no hesitation in observing that this Court, while passing the judgment dated 14.09.2022, did not give any reason for not extending the benefit provided under section 382-B of the Code of Criminal Procedure, 1898 to the petitioner. In view of what has been discussed above, this petition is allowed and it is hereby, directed that the petitioner, namely Muhammad Aslam son of Noor Muhammad, would be entitled to the benefit provided under section 382-B of the Code of Criminal Procedure, 1898. The petitioner shall also be entitled to the remissions granted by any authority during his post-sentence detention or during his pre-sentence detention in this case. JK/M-10/L Petition allowed.