2004 PLP 1026 (YLR)

The record of the main case has not been produced before this Court. However, the learned counsel for the petitioner as well as learned A.A.-G. are in agreement that the date of arrest of Irshad Ahmad is not in dispute and has been mentioned in both the judgments passed by the learned trial Court as well as by the learned Appellate Court. Thus, I am inclined to proceed with this matter. This matter would be treated as a Pacca case.

2. Through this petition a prayer has been made for issuance of direction to respondent No. 1 to release Irshad Ahmad convict prisoner from jail as his detention had become improper.

3. The relevant facts leading to the instant petition are; that Irshad Ahmad son of Abdul Salam was convicted by the learned Judge, Accountability Court, Bahawalpur vide judgment dated 23-5-2001 for an offence under section 10 of the National Accountability Bureau Ordinance, 1999 and was sentenced to undergo imprisonment for a period of seven years. A fine of Rs.5,00,000 was also imposed upon the convict who was to further undergo imprisonment for one year in case fine was not paid. It was also mentioned in the judgment that the convict would suffer the consequences as provided by section 15 of the National Accountability Bureau Ordinance, 1999. Feeling aggrieved Irshad Ahmad challenged his conviction and sentence by filing an appeal which was decided by a learned Division Bench of this Court on 11-9-2003 in the following terms:-- "Accordingly, we reduce the sentence of imprisonment from seven years to three years' R.I. and also the sentence of fine from Rs.5 lac to Rs.2 lac. In case of default in the payment of fine, the aforesaid amount shall be recovered by initiating proceedings under section 386, Cr.P.C. of the Criminal Procedure Code. In case of recovery/payment of fine, an amount of Rs.1,08,000 shall be paid to the aggrieved persons i.e. Muhammad Razzaq and Zulfiqar sons of Jamil (P.Ws.6 and 7) in equal shares as compensation. The accused-appellant shall also be entitled to the benefit under section 382-B. Cr.P.C.

4. The learned counsel for the petitioner has argued that Irshad Ahmad convict has already served out the sentence of imprisonment of three years and his detention in jail had become improper. The learned A.A.-G., under instructions, has submitted that according to jail record the convict Irshad Ahmad was sent to judicial lock-up on 21-2-2001, as is evident by mark `A' filed by the respondent and, therefore, he had not served out the sentence of three years of imprisonment.

5. I have heard the learned counsel for the parties and with the able assistance of the learned A.A.-G. as well as the learned counsel for the appellant, have gone through the relevant portion of the judgments cited above. It has been clearly mentioned in para. No.28 of the judgment passed by the learned trial Court that Irshad Ahmad was apprehended on 23-11-2000 and he was produced on the same date before the learned trial Court who allowed physical remand of Irshad Ahmad for a period of 90 days. In the judgment passed by the learned Division Bench of this Court it has been mentioned in para. No.7 that Irshad Ahmad was arrested on 23-11-2000; that clearly means that Irshad Ahmad convict whose sentence was reduced to three years R.I. and was given benefit of section 382-B, Cr.P.C. has already served out his sentence. A perusal of section 382-B, Cr.P.C. which is reproduced here for ready reference reveals that the period which is to be taken into consideration would start from the day the accused was taken into custody as the words used. by the Legislature are; detained in custody for such offence which does not mean detention in jail alone:-- "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." According to Black's Law Dictionary detention means "the act of keeping back or withholding either accidentally or by design a person or thing" while custody means "he care and control of a thing or person-

6. As noted above there is no controversy that Irshad Ahmad was arrested on 23-11-2000 and was allowed to remain, in the custody of police for 90 days by the learned trial Court, however, on 21-2-2001 an application was moved before the learned trial Court with a prayer that Irshad Ahmad may be sent to judicial lock-up. Apparently, respondent No.1 has not taken into account the period which the petitioner remained in the custody of police i.e. from 23-11-2000 to 21-2-2001. In the circumstances, I allow this petition and direct respondent No. 1 to release Irshad Ahmad detenu as he has served out his period of corporeal sentence. However, it is made clear that directions of the learned Appellate Court relating to the sentence of fine would remain unaffected. The learned A.A.-G. who is present in Court is directed to inform respondent No. 1 about the passage of this order. N.H.Q./A-7/L Petition allowed. Normal Normal Heading 1 Heading 1 Default Paragraph Font Default Paragraph Font muzammal=C:\Documents and Settings\muzammal\My Documents\2004L4188.doc 䀁 Unknown ！ Times New Roman Times New Roman Symbol Symbol 2004 Y L R 1026 2004 Y L R 1026 muzammal muzammal muzammal muzammal 2004 Y L R 1026 muzammal Normal muzammal Microsoft Word 9.0 Oratier Technologies (Pvt) Ltd. 2004 Y L R 1026 Root Entry 1Table 1Table WordDocument WordDocument SummaryInformation SummaryInformation DocumentSummaryInformation DocumentSummaryInformation CompObj CompObj ObjectPool ObjectPool Microsoft Word Document MSWordDoc Word.Document.8