PLJ 1984 Cr. C. (Lahore) 407(FB)
Present : GUL MUHAMMAD KHAN , MUHAMMAD RAFIQ TARRAR & EJAZ N1SAR, JJ
Criminal Misc. No. 1024-M of 1982 (In Cr. App. No. 99 of 1976),
decided on 8-8-1984-
(i) Criminal Procedure Code (V of 1898)—
------ S. 382-B—Period of detention—Duty of court to take into con sideration—Duty cast on court to take into consideration period of detention while passing order of sentence of imprisonment for offence in question—Held : Omission on part of court to amount to failure to exercise power or to perform duty in accordance with law for whi:h accused not to suffer, [P. 431]AC
(ii) Criminal Procedure Code (V of 1898)—
----- S. 382-B—Pcilo.i of detention—Consideration of while passing sentence—Co"r i—Duty of- Held : Grant of relief being judicial duty of court, jauie to be performed after due application of mind to facts and circumstances of each case—Held further: Benefit not to be granted automatically and not only to differ from case to case but also to be delved in given situation. [P. 4311.4/Y
(iii) Criminal Procedure Code (V of 1898) —
——S. 382-B—Period of detention—Consideration of while passing judgment —Held : Result of adjudicative process must be reflected in sentence of imprisonment announced in each case and exercise of it not to be left to jail authorities. [P. 431 \AJ
(iv) Criminal Procedure Code (V of 1898)—
------ S. 382-B—Period of detention—Denial of relief for—Relief under section 382-B denied merely for reason of no request having been made in this behalf to consider provision of law or because of court having not been reminded of its power—Held : Accused not to be placed in disadvantageous position by denying him relief just for reason of same having not been urged on his behalf. [P. 431]/4£
(v) Criminal Procedure Code (V of 1898)—
------ S. 382-B—Relief under—Denial of—Held : Relief under S. 382-B not to be denied to prisoner for reason of his having not urged same before court at hearing or before announcement of sentence. [P. 431]AM
(vi) Criminal Procedure Code (V of 1898)—
------- S. 382-B—Period of detention—Taking into consideration of while passing sentence of imprisonment—Court—Duty of—Held : Court itself to pass clear order of sentence of imprisonment after taking various factors into consideration and then to leave computation of undergone sentence and remissions to jail authorities. [P. 417]/4
(vii) Criminal Procedure Code (V of 1898)—
------- S. 382-B -- Period of detention — Decision regarding — Held : Judicial powers having been conferred under S. 382-B, adjudication of court to be reflected in final sentence of imprisonment to be announced--Held further : Grant of benefit being not automatic, same not to be left to jail authorities to determine. [P. 417JB
PLJ 1980 SC 487 : PLJ 1981 SC 418 : 1981 SCMR 219 ; 1982 SCMR 709 : 1983 SCMR 1 13, 219 & 243 & PLJ 1984 SC 190 ref.
(viii) Criminal Procedure Code (V of 1898)—
—S. 382— Period of detention — Taking into consideration of — Exercise of powers of—Held : Power under S. 382-B being exercis-able by court while passing order of sentence, announcement of specific term of sentence to follow and be based on that mental process—Trial court omitting to apply section when passing order of sentence—Held : Power under S. 382-B to he competently exercised by appellate court. [P, 4171C & D
PLJ 1979 Cr, C. (Uh,; lb-4 & PLJ 1984 Cr. C. (Lab.) 438 rDBj, ref.
(ix) Criminal Procedure Code (V of 1898)-
----- S. 382-B—Period of detention—Consideration of— Court — Duty of—Held : Court being under obligation to consider factors mentioned in S. 382-B while passing sentence, inadvertance or omission of Court to consider provision not to place prisoner in disadvantageous or losing position, [P. 424]/V
(x) Criminal Procedure Code (V of 1898) —
------ S. 382-B—Period of detention—Consideration of while awarding sentence—Trial delayed because of delatory tactics of prosecution and not due to any fault of accused—Held : S. 382-B io give no benefit h case of sentence of death, forfeiture of property, fine or whipping—Held further: General benefit to every type of prisoner having not been intended, section 382-B to be applied only to cases of imprisonment other than life imprisonment, death, whipping. fine etc. rP. 4211R
Cxi) Criminal Procedure Code (V of 1898)—
------ S. 3S2-B—Life imprisonment—Sentence of—Period of detention- Taking into consideration of—Held : Object of framers of law not appearing to be to grant benefit to every person accused of any sentence or in respect of every kind of punishment, benefit not to be permissible to sentence to death, forfeiture of property, whipping, fine etc.— Held further : Section 382-B not applying to cases of life imprisonment, permitting benefit of section to such cases also to be in violation of law. -P. 428]f
<xii) Criminal Procedure Code < v of 1898)-
------ -S. 382-B—Period of detention—Consideration of while awarding sentence—Power—Exercise of—Trial court passing order of sentence on or after 23rd December 1975—Held : Trial Court to invariably exercise power under Section 382-B—Appellate or revisional court intending to interfere with order of trial Court so as to upset either conviction or sentence and to pass fresh order in either of events-Held : Power under S. 382-B to be (competently) exercised by such Court. :P. 430jr
fxiii) Criminal Procedure Code (V of 1898)—
------- S. 382-B—Period of detention—Consideration of while awarding sentence—H«ld : Date of commission of offence and its challan being not at all material, power under S. 382-B to be available to court on date when order of sentence to be passed — Order of sentence passed prior to 23rd December 1975—Held : Trial Court not to exercise power under S, 382-B—Held further : Appellate or tevisional Court, however, to be competent to interfere in case of its interference with conviction of sentence. [P 4301W
(z!t) Criminal Procedure Code (V of 1898)—
——S. 382-B—"Imprisonment"—Meaning of—Held : Word imprisonment as used in S. 382-B not to cover cases in which punishment awarded be imprisonment for life. [P. 43\]AK
(xv) Criminal Procedure Code (V of 1898)—
----- -S. 382-B—Retrospective effect of—Held : S. 382-B to be applied retrospectively provided power thereunder be available to Court on relevant date when order of sentence of imprisonment to be passed by it in any capacity—Held further : Date of commission of offenct and its challan not at all to matter in case. [P. 431W,
(xvi) Criminal Procedure Code (V of 1898)-
------ S. 382-B & 561-A—Period of detention—Omission to consider while passing sentence—High Court—Inherent powers of—Exercise of—Delay in applying—Condonation of—Petitioner applying for concession under S 382-B more than two years after decision of High Court— Held : There being so much confusion on interpretation of relevant provision of law, delay in applying for condonation to be condoned. (P. 43l]AN
(xvii) Criminal Procedure Cede (V of 1898)—
------ Ss. 382-B & 561-A—Period of detention—Consideration of—High Court—Inherent powers of—Exercise of—Order of conviction and sentence though passed prior to 23rd December 1975, High Court interfering with same on any time after that date without appl> ing provisions of S. 382-B—Held : S. 382 B being procedural provision having retrospective application, High Court to have power under S. 561-A to alter or review its previous order. [Pp. 424 & 425]0
(xviil) Criminal Procedure Code (V of 1898)—
-—Ss. 382-B & 561-A—Period of detention—Omission to take into consideration—Court omitting to take into consideration mandatory provisions of law—Held : High Court to (be competent to) remedy situation either in appeal or in revision or even under S. 561-A (in case of omission taking place in High Court itself). [P. 43\}AD
(xix) Criminal Procedure Code (V of 1898)— '
——Ss. 382-B & 561-A—Period of detention—Failure to consider while passing sentence—High Court—Inherent powers of—Exercise of— Trial Court inadvertently omitting to take into consideration provisions of S. 382-B while passing order of sentence — Held : Wrong to be remedied and omission to be supplied even by High Court to do real and substantial justice. [P. 425]Q
(XX) Criminal Procedure Code (V of 1898)—
—S. 369—Judgment—-Alteration of—Held : Section 369 having been placed in Chapter (XXVI of Code) meant for trial, proviston$ of th$ same to concern judgment delivered by Courts in their criminal original jurisdiction. [P. 418JE
PU !973 Kar. 189 ; PLD
1952 Lah. 587 ; AIR 1923
(xxi) Criminal Procedure Code (V of 1898)—
------ Ss. 369 & 424—Judgment — Alteration of—Limitation on—High Court—Exclusion of—High Court deciding matter in its appellate capacity—Held : Principle underlying S. 369, Cr. P. C. to have no application to High Court because of its exclusion. [P. 420]#
AIR 1946 Bom.. 276 (FB) : AIR 1933 Pat. 38 (DB) & AIR 1926 Sittd 275 ref.
(xxii) Criminal Procedure Code (V of 1898)—
----- Ss. 369 <ft 424— High Court—Appellate of revisional jurisdiction of—Exercise of—Control of Hela : Neither S. 369 nor S. 424 to govern or control exercise by High Court of its appellate or re-visional jurisdiction. [Pp. 421 & 424]/ & L
PLD 1963 Kar. 313 & PLD 1970 SC 335 ref.
(zxiii) Criminal Procedure Code (V of 1898)—
—S. 561-A—High Court—Inherent powers of—Held ; High Court to have inherent power to alter, review or revoke its earlier decision unless there be statutory bar. [P. 420JG
PLJ 1977 SC 466 rel.
(xxiv) Criminal Procedure Code (V of 1898)—
------ S. 561-A—High Court—Inherent powers of— Exercise of—H«W : Provisions (of S. 561-A) to override other provisions of Code and to be competently applied to secure ends of justice and to prevent abuse of process of Court—Held further : High Court also to see that orders made under Code not lose their application or effect for any omission made. [P. 42l]K
AIR 1959 All. 69 ;
AIR 1927 Lah. 139 ; AIR 1939 Lah, 244 : AIR 1933 All. 49 ; PLD 1962 Lab. 161 ; 1972 P.
Cr. L. J. 107 ; PLD 1970 SC 335 ; PLJ 1973 Kar. 189 ; 1975 P. Cr. L. J. 655 ; PLJ 1975
Cr. C. (Lah ) 173 : PLD 1961 Dae. 523 ; PLJ 1979 Cr. C. (Qta.) 342 ; AIR 1950 All. 625, AIR 1955 All.
742 ; AIR 1951 All. 441 ; AIR 1922
(ast) Criminal Procedure Code (V of 1898)—
——S. 561-A—High Court—Inherent powers of-rExercise of—Application for—Held : Application under S. 5&1-A to be made within reasonable time of order made. [P. 431]AG
(xx?i) Criminal Procedure Code (V of 1898)-
--- Ss. 561-A, 382-B & 369— Period of detention—Omission to take into consideration — High Court— Inherent powers of— Exercise of— High Court already deciding case in its appellate or revisiona! jurisdiction— Held :' Prohibition contained in S. 369, Cr. P. C. not pertaining to High Court, application under S. 561-A. Cr. P. C. to be competently entertained and relief under S. 382-B granted by Court in case. [P.
(xxvii) Criminal Procedure Code (V of 1898)—
---- Ss, 561-A & 430— High Court— Inherent powers of— Exercise ot— Held : Inherent powers of High Court to alter, review or vary its orders, to give eftect to orders made under Code, to prevent abuse of process of Court or to meet ends of justice not to be absolutely and unequivocally ousted even by S. 430, Cr. P. C.— Held further : Such power though exercisable in rare exceptional cases, High Court to recall or alter order in case of violation of any mandatory provision of law. [P. 424] A/
(xXTiil) Constitution of Pakistan, 1973-
-- Art. 189— Supreme Court— Law laid down by— Binding value of—Held ; All Courts to be bound to follow law laid down by Supreme Court. rp 420]F
(xxix) Pakistan Penal Code (.XLV of I860*—
---- S. 57— imprisonment for life— Meaning of— Held : Imprisonment for life being category apart, same to have nothing to do with imprisonment for 25 years as such. [P. 4271$
——Act of— Held : No one to be allowed to sutler for act or omission of Court. FP, 430]/4/f
-- Duty of— Held : It being duty oi coust to apply correct law, no one to claim finality to order or estoppel against other side in case of correct law not being applied. fP. 430]AB
(1900) 2 QB 240 ; (1900) 2 QB 245 ; PLD 1965 SC 690 & 1972 SCMR 359 rel,
-- Duty of— Held : Courts not to encourage multiplicity of liti* gation. [P. 4251P
(xxxiii) Interpretation of Statutes
- -- "May" & "shall"— Construction of— Enabling provision apparently of directory nature— Held '. In certain cases where power be entrusted to certain person, it becomes his dutv to exercise it [P. 430]7
(1880) 5 App. Gas. 214 : (I960) I QB 142 : (1963) 2 QB 455 & Corpus Juris Secundum (Vol. L1X, pp. 1371-1074) ref.
(xxxjy) Practice & Procedure—
------ Relief — Grant of — Law placing duty on Court to consider situation and grant relief—Held : Relief not to be devied fin such case). [P. 430JZ
-—Plea of—Held , Benefit for public promided in Act not 10 be waives in any case. [P. 430JY PLD 1964 SC 536 : (186?) LR 1 P. C, 520 & (1949) 2 All. B, R. 207 ref.
——Principle of—Applicability of in criminal cases—Law entitling accused to move court for particular relief—Held : Omission on part of accused in such case to deprive him of his right on basis of principle of waiver. [P. 42\]K
(1870L. R. 5C. P. 634 &(!890)L. R. 2 P & D 29 ref. Mr. Maqbool llahi Malik, Advocate for Appellant.
Mr. Khalil Ramdey, A. A. G. with Mr. Altaf Muhammad Khan for State,
Dates of hearing : 1424/25-4-1984.
Gu! Mohammad Khan, J.—The petitioner alongwith others was convicted and sentenced to death with a fine of Rs. 1000 - under sections 302/34 P. P. C. by the trial court. In appeal, a Division Bench of this Court altered his conviction to sections 304,34, Part I P. P. C. and sentenced him to 10 years' rigorous imprisonment, in addition to a fine of Rs 1000;-. The order of the High Court was passed on 10th February, 1977. The Court while passing the sentence of imprisonment on the relevant date, however, omitted to take into consideration, under section 382-B Cr. P. C., the period, if any, for which such accused was detained in custody during or before trial. The petitioner has now applied after about 5 years praying that as section 382-B Cr. P. C., was not con idered by this Court, at the time of passing the order of sentence, the benefit of the same be given to him. There are also a number of other connected petitions raising -the same or other questions arising out of section 382-B of the Code of Criminal Procedure. This order shall dispose them all.
2. Section 382-B Cr. P. C. reads as under :
"382-B. Where a Court decides to pass a sentence of imprison' raent 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," This provisiou attracted the attention of the Supreme Court in AH Sher v. State (PLJ 1980 S. C. 48/). The Court observed that although section 382-B was not attracted to the case in strict terms, for the reason that the court was not passing an original order of conviction and sentence, but merely restoring the judgment of the trial court, yet, the benefit contemplated by the section must clearly be available to the respondents, who had been in custody for several years under the orders of the court, after the appeal against their acquittal had been admitted to hearing by it. The precise direction was that the period of their detention shall be duly taken into account while computing the total period of imprisonment which the respondents had to undergo. In Sher Muhammad v. State (1981 S. C. M. R, 872) the Supreme Court accepted the request of the petitioner in the circumstances of the case and directed that the benefit of the periocj of jail custody undergone by him as an undertnal prisoner shall he granted. Relief under section 382-B Cr. P. C. was also allowed by the Supreme Court in Nihala v. State (1983 S. C. M. R. 219) after death sentence waa converted to life imprisonment. Similar was the case of Mahboob AH (PLJ 1984 S. C. 190), Nawab v. State (1983 S, C. M. R. 1U) and Mapzoor v. Home Secy (1983 S. C, M. R. 245). The point whether section 382-B was applicable or not in the circumstances of the case did not come up under direct discussion,
3. Again in Manzoor Ahmad v. State (PLJ 1981 SC 418) the Supreme Court dismissed the petition for special leave to appeal but in view of the compromise between the parties, observed that the relevant authorities may take into consideration the period spent in jail by the accused, as undertrial prisoner, from the date of his arrest uptil the date of announce* ment of sentence of imprisonment for life, in the light of section 382-B Cr. P. C. The learned Judges in that case followed the case of AH Sher referred to above. The Supreme Court, however, refused any relief under section 382-B in Muhammad Aslam v State (1982 S. C. M. R. 709) to the petitioners as the severity of the attack they launched against their victims and the number of injuries inflicted did not entitle them, particularly when they had already been dealt with leniently,
It will be appreciated that in AH Sber's case the Supreme Court unequivocally observed that section 382-B
would, in strict sense, apply only when the
Court was passing an order of conviction
and sentence. In the other cases the learned Judges did not interpret
the operation, scope and extent of
the provision but granted relief for the
entire period of detention, as
the circumstances of the particular
cases attracted it. This conclusion is suppoited by the refusal of the Supreme Court to
give any relief in the case of Muhammod
Aslam referred to in para. 3 above. It is,
therefore, clear that the
orders of the Supreme Court were meant
to do complete justice in the
circumstances of those particular
cases. They, therefore, fall under Article 187 and not Article 189 of the Constitution. This view is
strengthened by the fact that none of the questions arising in the cases in hand have anywhere been considered by the Supreme Court and there is no direct discussion or answer there either. No guidance from the Supreme Court is, therefore, available uptil this stage about the operation, scope and extent of application of section 382-B. Cr. P. C. It has also not been decided if the High Court after deciding a case in appeal or revision, can entertain an application and alter or review its judgment in its inherent power under section 561-A or any other provision ol' lav, i.o as to consider and grant, if any, benefit due to a prisoner, and if so, is it to be ascertained by the court itself or it can be done by the jail authorities on a reference by this Court ? Recently, a Division Bench of this Court in Aii >'. State (1982
P. Cr. L. J. 682) has held that if a Court did not discuss section 382-B Cr. P. C. while awarding the sentence, it cannot be said that the exercised the discretion one way or the other and so a direction may issue to the jail authorities to give the benefit at the time of computation of their sentence of imprisonment'. The learned Judges there also did not consider if relief could be granted after it had already decided the appeal and whether it is the Court which is to decide and grant relief or the matter can be left to be decided by the jail authorities ? The effect of section 369 Cr. P. C., was also not determined. It was also not considered if the sentence of life imprisonment would come in the ambit of section 382-B Additionally, no order of sentence had been passed by the Hsgh Court in
that case and question whether the Court could pass such an order in that situation, was also not considered.
5. It was then contended by the learned counsel that the scope and effect of section 382. B had been considered by this Court in the case of Fazal Haque v. State [PLJ 1983 Cr. C. (Lahore) 217] to hold that where a Court omitted to pass an order, the parties should not suffer and its inherent power under section 56 >-A Cr. P. C., can be invoked to supply the omission. It was further held that an order, in such a situation, would not amount to an alteration in the judgment so as to attract the bar under section 396 Cr. P. C. It appears that the effect and scope of section 3b9 Cr. P, C., was not argued before the learned Judges and the views that this provision already received, from the higher Courts, were not presented.
An absolutely, opposite view has been taken by a Division Bench of this Court at
(a) section 382-B Cr. P. C. is not a remedial provision but it only enables the Court, at the time of passing an order of sentence, on trial, appeal or revision, to take into consideration the period of custody of the accused before and during trial ;
(b) the omission to do so at the relevant time, for any reason, does not entitle the prisoner to later apply to the Court to get its judgment altered or reviewed as the same is expressly prohibited by section 369, Cr. P. C.
(c) the relief must be granted by the Court itself after taking into consideration the various factors as noted in para. 11.
8. This Court considered and also gave effect to section 382-B Cr. P. C., in Sultan Ahmad v. State [PLJ 1981 Cr. C. (Lahore) 424] by reducing the death sentence of Sultan to life imprisonment, with a direction that the period of detention already undergone by him, as an undertrial prisoner, be treated as a period of detention as a convict.
*Now reported as PLJ 1984 Cr. C. (Lah.) 438 (DB).
9. Another Division Bench of this Court in
Mar Eliahi v. State [PLJ 1983 Cr. C. (
(fl) though section 57, P. P. C. and rule 198 (b) of the Pakistan Prison Rules, 1977, were of no avail and the sentence of life imprisonment could not be equated to 25 years, yet benefit of section 382-B Cr. P, C. must be applied to all types of imprisonments, including life imprisonment to advance the object and purpose of law and to relieve a prisoner of rigours of unduly harsh prolongation of his incarceration ;
(b) the benefit of the provision can be granted by merely directing the jail authorities to do so leaving the modalities to be worked out by them ;
(c) section 382-B is retrospective in its application to matters pending trial, appeal or revision but where all those stages had been con cluded before 24th December. 1975, no relief can be given ;
(rf) in other cases relief can be given by this Court under section 561-A, Cr. P. C., even if the appeal or revision stands already decided.
10. The learned Judges in the above case, referred to in para. 9 above, did not follow Saleh v. Superintendent Cenflal Prison [PLJ 1982 Cr. C. (Karachi) 1901 where the benefit of section 382-B was granted in a case in which both the trial and the appellate Courts had passed their sentences before 24th December, 1975, /'. e. the date when this section was first introduced with word 'may'. The views of the learned Judges of the Sind High Court may also be summarised here with advantage .
(i) section 382-B is procedural in naiure as it relates to computation of period of sentence and shall, therefore, operate retrospectively :
(if) the Court is competent under section 561-A to consider a miscellaneous application and grant relief under section 382-B if the same was omitted from consideration before, as it would not involve alteration or modification of sentence ;(Hi) an order under section 382-B can be made only after application of mind as to whether benefit under it be given or not ?
(/>•) the power under section 382-B can only be exercised by. a competent authority after application of mind and not by the jail authorities.
11. To sum up the above discussion, it may be said that the Supreme Court has given no authoritative pronouncement, on the points mentioned above, as envisaged by Article 189 of the Constitution, so as to give binding guidance to this Court, As regards the decisions of this Court and the High Courts referred to above, generally there is no disagreement on the subject of the section. The consensus of opinion of all the Courts is that section 382-B recognises the fact that the state machinery, for reasons, is not in a position to dispense speedy justice and. therefore, the proceedings under Section 145 Cr. P. C. must yield to the said Civill litigation and could not be continued any longer.
13, For the foregoing reasons, the petition is accepted asd th.e proceedings referred to above are quasfcsd.
(MGR) Proceedings quashed,