1982 P Cr (PLP)

ABDUL HAYEE KURESHI, ACTG. C. J.‑This petition was submitted before one of us on administrative side. Since a case was sought to be made out whether the petitioner was serving a sentence in violation of law or the order of the Court, it was directed that the petition may be laid in Court before a Division Bench so as to be treated as a Constitutional Petition. We had issued notice to the A.‑G. who has appeared before us. The Deputy Superintendent of Khairpur, Jail is also present and he has produced the record. The Superintendent, Central Jail has also communicated the details in regard to the sentence that has been served by the petitioner. The petitioner was arrested on l1th September, 1968 on a charge under section 302 and allied provisions of the Penal Code. On trial he was acquitted by the Sessions Judge, Khairpur on 26th February, 1970. There was an appeal against the acquittal which was decided on 12th October, 1973. The petitioner was sentenced to transportation for life and R. I. for one year and five years ptu different counts. The sentences were directed to run concurrently. On computation we are informed that the petitioner has served out a sentence of 7 years 3 months and 22 days and has earned remissions totalling 1594 days. Such period of remission when rounded up would be 4 years 9 months and 24 das. The total sentence therefore that the petitioner has served inclusive' of the remissions would roughly be 12 years. Mr. M. I. Memon states that the Jail authorities are construing the sentence of transportation for life as one imprisonment for life so that the total period which the petitioner has to serve is 25 years and not 20 years. Suffice to say that it is wrong if the Jail authorities construe the sentence as imprisonment for life for more than one reason. Firstly the petitioner has been sentenced to transportation for life and not imprison ment for life and secondly the sentence of imprisonment for life was introduced in the Penal Code only in 1973 while the offence has been committed in 1968. We therefore direct the Jail authorities who are detaining the petitioner that they shall keep in view the fact that the sentence which the petitioner has to serve is transportation for life as distinct from imprisonment for life and as was existing before amendment of the Penal Code by the Law Reforms Ordinance, 1972. The next question that arises is in regard to the period of detention undergone by the petitioner as undertrial prisoner under section 382‑B of the Code of Criminal Procedure the Court has to take into consideration the period which a petitioner has spent in custody as an undertrial prisoner. Mr. M. I. Memon would like us to clarify whether this period has to be specified by the Court or even the Jail authorities could take that into consideration. The learned Additional Advocate‑General has placed before us two judgments of the Supreme Court. namely that of Ali Sher v. the State (P L D 1980 S C 317) and Manzoor Ahmed v. the State (1981 S C M R 260). In the latter case the earlier case was taken notice of and the Supreme Court observed that the relevant authorities may take into consideration the period spent in Jail by the accused as undertrial prisoner from the late of his arrest uptil the date of announcement of sentence for imprisonment for life against him in the light of recent amendment under section 382‑B of the Cr. P. C." The passage quoted above would seem to convey that the Supreme Court having taken notice of the fact that the prisoner had remained an undertrial prisoner for some time gave a direction to the Jail authorities to compute such period for which the prisoner was an under trial prisoner and deduct the same from the period which the accused had to serve in consequence of the sentence imposed upon him. We will s respectfully follow the dictum of the Supreme Court. In the result we dispose of this petition with the directions to the Superintendent Jail holding the custody of the petitioner that he shall construe the sentence imposed on the petitioner as one of transportation for life and he shall also take into consideration and compute the period that the petitioner had remained in custody as undertrial prisoner. Subject to these two directions this petition stands disposed of. Order accordingly.