2005 P Cr (PLP)

I intend to dispose of Criminal Appeal No.301 of 1991, filed by Muhammad Alla-ud-Din appellant against his conviction and sentence and Criminal Revision No.224 of 1999 filed by Muhammad Amin-ud-Din for enhancement of sentence together as both :lave arisen out of a common judgment rendered by Additional Sessions Judge, Chichawatni, District Sahiwal on 28-7-1999, through which; the appellant Allah-ud Din having been found guilty under section 302(b), P.P.C. was sentenced to life imprisonment with the direction to pay Rs. 1,00,000 as compensation to the legal heirs of the deceased under section 544-A, Cr.P.C. or in default of payment whereof to further undergo S.I. for six months. However, the benefit of section 382-B, Cr.P.C. was not extended.

2. Briefly the facts of the case are that case F.I.R. No.402 of 1996, dated 29-12-1996 was registered under section 302, P.P.C. at Police Station Saddar Chichawatni, District Sahiwal, with the allegation that on 29-12-1996 at about 11-45 a.m. the appellant while armed with a pistol had committed Qatl-e-Amd of Naeem Khalid deceased by firing at him in the area of Chak No.41/12-L falling within the jurisdiction of abovesaid police station. After completion of the investigation, the appellant was sent to face the trial. The prosecution examined as many as. 10 witnesses whereas in his statement under section 342, Cr.P.C. the appellant, denied the allegations and took a specific plea that in fact the deceased was aggressor, who wanted to make fire-shot at him, which hit he deceased himself during struggle.

3. At the very outset learned counsel for the appellant does not challenge the conviction and sentence of the appellant on merits but only prays for calculation of the period served by him as under-trial prisoner towards his sentence as it is mandatory under section 382-8, Cr.P.C. Also relies upon the judgment of Honourable Supreme Court of Pakistan reported as Aloo v. The State 2000 SCMR 1655, in support of his contention.

4. Learned counsel for the State assisted by the learned counsel for the complainant, on the other hand, opposes this appeal on the ground that not only the conviction is liable to be maintained but the sentence of life imprisonment awarded to the appellant is liable to be enhanced to death sentence as the appellant/convict committed Qatl-e-Amd of the deceased by firing in a pre-planned manner.

5. I have heard the learned counsel for the parties at length and also gone through the impugned judgment as well as the evidence on record with due care and caution. After perusal of statements of the prosecution witnesses, which are supported by the medical evidence, the conviction and sentence, which even otherwise is not challenged by the learned counsel for the appellant on merits, is maintained. However, the appellant was not granted benefit of section 382-B, Cr.P.C. by the learned trial Court on the ground he had been hampering with the disposal of the case by adopting delaying tactics. The provisions of section 382-B, Cr.P.C. are mandatory in nature, as word "shall" has been used. The appellant admittedly had served out certain period in jail as `under-trial prisoner' since his arrest till the disposal of the case by the learned trial' Court and section 382-B, Cr.P.C. empowers the Court to consider said period while awarding sentence to the accused person. The Honourable Supreme Court of Pakistan in 2000 SCMR 1655, while relying upon certain case-law held as under:-- "....Held that section 382-B, Cr.P.C. is a statutory limitation upon Court's discretion to determine the length of imprisonment. Court must take into consideration the pre-sentence period spent by accused in jail. The object is to compensate accused for the delay in conclusion of his trial because of various factors generally not attributable to him as the State is supposed to provide speedy justice. in this case two Courts below while awarding sentence of imprisonment by upholding the same had not taken into consideration the mandatory provision of section 382-B, Cr.P.C. No reasonable cause is found from the merits of the case for denial of such benefit." Moreover, it is settled principle of law that an accused person cannot be bound, to serve the sentence more than provided for the offence by the law and. life imprisonment is the maximum alternate sentence provided under section 302, P.P.C. It cannot be said that while awarding him the maximum sentence, the period already undergone by him was considered by the, learned trial Court.

6. I am of the view that in cases where an accused person is sentenced to maximum period of imprisonment provided for the offence, the period undergone by him as under-trial prisoner should have been counted towards his sentence awarded by the Court after conclusion of the trial as denial of the same would amount to bound the accused to serve more sentence provided for the offence by the law. The same cannot be disallowed for the reason that the accused was responsible for delay in the trial because what purpose was derived by him out of it except that he remained behind the bars. As such, the appellant shall be awarded benefit of section 382-B, Cr.P.C. and with this modification only, the impugned judgment of conviction and sentence is maintained and this appeal stands dismissed.

7. So far as Criminal Revision No.224 of 1999 filed by the complainant for enhancement of sentence is concerned, I am of the view that the learned trial Court has given valid reasons for awarding lesser punishment of life imprisonment that the occurrence appeared to be result of sudden flare up and without premeditation on the part of the appellant, who was aged about 24/25 years. He fired single shot. There was no previous enmity between the appellant and the deceased and instead they were closely related to each other. As such, I do not find any reason for enhancement of sentence and Criminal Revision No.224 of 1999 being devoid of any merit is dismissed. N.H.Q./M-1165/L Order accordingly.