2013 P Cr (PLP)

Criminal Miscellaneous No.2715-M of 2012 Ahmad Raza-petitioner and his co-accused Azhar Hussain was held guilty under section 302(b)/34, P.P.C. by the learned Additional Sessions Judge, Gujrat, vide judgment dated 5-10-2004, for committing murder of Ali Imran and sentenced to death and imprisonment for life, respectively, with direction to pay a sum of Rs.1,00,000 each to the legal heirs of the deceased as compensation under section 544-A, Cr.P.C. or in default whereof to undergo simple imprisonment for six months each. Benefit of section 382-B, Cr.P.C. was, however, extended to Azhar Hussain-convict. They challenged their conviction/sentence by filing Criminal Appeal No.1670 of 2004 and Criminal Appeal No.1671 of 2004, respectively. The appeal filed by Azhar Hussain (Criminal Appeal No. 1671 of 2004) was allowed by this Court vide consolidated judgment dated 30-7-2009 and he was acquitted of the charge, whereas the petitioner's appeal (Criminal Appeal No.1670 of 2004) was dismissed with a modification in his conviction from 302(b), P.P.C. to 316, P.P.C. and sentence from imprisonment for life to rigorous imprisonment for fourteen years along with Diyat, to be paid to the legal heirs of the deceased. He was ordered to be kept behind the bars after serving the sentence of imprisonment till such time, he would pay the amount of Diyat. No order with regard to benefit of section 382-B, Cr.P.C. was passed by this Court while converting his conviction/sentence, as it was not prayed for on behalf of the appellant. 3(sic.) Through this miscellaneous application (Criminal Miscellaneous No.2715/M of 2012), the petitioner, however, has invoked extra-ordinary inherent jurisdiction of this Court under section 561-A, Cr.P.C. for grant of benefit under section 382-B, Cr.P.C.

4. Learned counsel for the petitioner confidently submits that he did not approach the august Supreme Court of Pakistan after dismissal of his appeal by this Court; the provisions of section 382-B, Cr.P.C. have been made mandatory by the Code of Criminal Procedure (Second Amendment Ordinance No.LXXI of 1979); the omission to grant the said relief by this Court militates against the law and it was liable to rectification, as envisaged by the relevant provisions of section 561-A, Cr.P.C.

5. Learned counsel for the State does not oppose the prayer made on behalf of the petitioner.

6. After hearing learned counsel for the parties and perusing the record, it is observed that the petitioner was convicted under section. 302(b), P.P.C. and awarded sentence of death, as noted above, by the learned trial Court. His conviction and sentence, however, was modified by this Court vide judgment dated 30-7-2009 passed in Criminal Appeal No.1670 of 2004, in terms that he was held guilty under section 316, P.P.C. instead of offence under section 302(b), P.P.C. and capital punishment awarded to him during trial was altered, to rigorous imprisonment for fourteen years, but no order with regard to benefit of section 382-B, Cr.P.C. was made. In order to appreciate the prayer of the petitioner in its true perspective, it is worthwhile to reproduce the provisions of section 382-B, Cr.P.C. and section 561-A, Cr.P.C., which read as follows:-- I. SECTION 382-B Cr.P.C.: "Period of detention to be considered while awarding sentence of imprisonment.- Where a Court decided 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. Appellate Court has power to apply this section." II. SECTION 561-A Cr.P.C.: "Saving of inherent power of High Court.- Nothing in this Code shall be deemed to limit or affect the inherent power of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or ' otherwise to secure the ends of justice." The use of word "shall" in section 382-B, Cr.P.C. renders it mandatory that pre-sentence period of imprisonment must be taken into consideration by the trial Court, before awarding sentence, other than capital punishment, to an accused. The appellate Court has essentially been empowered to extend benefit of prejudgment incarceration to a convict, if not so done by the trial Court, owing to some error or omission or due to some compelling reason. The aforementioned relief is not to be extended to an accused by way of grace, rather, it ought to be granted as a matter of right. The refusal to take into account the pre-judgment imprisonment may be a patent illegality in the eyes of law. The Hon'ble Supreme Court of Pakistan while dealing with an identical situation in case, Shah Hussain v. The State (PLD 2009 SC 460) has elaborated that:-- "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;" The afore-referred relief has not been extended to the petitioner by this Court, probably inadvertently, while passing judgment dated 30-7-2009 in Criminal Appeal No.1670 of 2004. The benefit of section 382-B, Cr.P.C. is certainly available to the petitioner, which is accordingly extended to him in express terms.

7. So far as, reckoning at the period of incarceration of the petitioner is concerned, it would be the of the Jail-Superintendent(s), to make necessary calculations, by keeping in view the relevant record of the jail(s), where the petitioner stood lodged as an under trial prisoner and/or a convict. The judgment passed by this Court in respect of the petitioner on 30-7-2009 in Criminal Appeal No.1670 of 2004 (supra) shall be deemed to ingrain the benefit of section 382-B, Cr.P.C.

8. The instant petition stands disposed of in terms mentioned hereinabove. HBT/A-44/L Order accordingly.