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Petitioner: GUL MUHAMMAD VS Respondent: StateHonorable Justice Ijaz Ahmad ChaudhryBashir Ahmad Chaudhry
2005 P Cr
2005 P Cr. L J 1812
[Lahore]
Before Ijaz Ahmad Chaudhry, J
GUL MUHAMMAD---Petitioner
Versus
THE STATE---Respondent
Criminal Revision No.98 of 2005, decided on 6th April, 2005.
(a) Criminal Procedure Code (V of 1898)---
----S. 382-B---West Pakistan Arms Ordinance (XX of 1965), S.13---Benefit of S.382-B, Cr.P.C., grant of---Courts, while awarding sentence of imprisonment to an accused, were under obligation to consider the period already undergone by him as under-trial prisoner---Impugned judgment did not indicate that lesser punishment had been awarded to accused in the case keeping in view his earlier detention---Relief under S.382-B, Cr.P.C. could not be denied to accused on the ground, taken by the Courts below, of having used the weapon of offence in a heinous offence of road side dacoity, as it would bind the accused to serve the sentence over and above awarded to him---Benefit of S.382-B, Cr.P.C. was awarded to accused accordingly.
(b) Criminal Procedure Code (V of 1898)---
----S. 382-B---Period of detention to be considered while awarding sentence of imprisonment---Provision mandatory---Courts are under obligation to take into consideration the period already undergone by an accused as under-trial prisoner, while awarding him sentence of imprisonment.
Bashir Ahmad Chaudhry for Petitioner.
M.R. Khalid Malik, Addl. A.-G. on Court's call.
ORDER
Vide judgment dated 7-6-2003 passed by learned Magistrate Section 30, Burewala the petitioner was convicted under section 13 of the Arms Ordinance, 1965 and sentenced to three years' R.I. but he was not granted the benefit of section 382-13, Cr.P.C. on the ground that he used the weapon of offence in a heinous offence of road side dacoity. Against the said judgment an appeal was filed before the learned Additional Sessions Judge, Burewala which was also dismissed through his judgment, dated 11-5-2004. Both said judgments have been assailed through this Criminal Revision Petition.
2. Learned counsel for the petitioner does not press this petition on merits, but only prays for giving .benefit of section 382-B, Cr.P.C. which has not been extended to the petitioner by both the Courts below whereas it is a mandatory provision.
3. Learned Additional Advocate-General accepts the notice on behalf of the State and contends that the petitioner is involved in another case of heinous nature and the learned trial Court has rightly denied the benefit of section 382-B, Cr.P.C. to the petitioner.
4. With the consent of the parties, this petition is decided as Pakka case.
5. I have heard the learned counsel for the parties and also perused the impugned judgments. Both the Courts below have given the finding that the petitioner was found in possession of pistol .12 bore and have relied upon the witnesses. Learned counsel for the petitioner has also not challenged the conviction and only prays for direction to give benefit of section 382-B, Cr.P.C. to the petitioner. The said provision for ready reference is reproduced as under:--
"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 arty, during which such accused was detained in custody for such offence."
6. A perusal of the above provision shows that while awarding sentence of imprisonment to an accused it is obligatory on the Courts to take into consideration the period already undergone by him as under-trial prisoner. From the perusal of impugned judgment, it does not appear that lesser punishment has been awarded to the petitioner keeping in view his earlier detention. There is consistent view of this Court as well as the Supreme Court of Pakistan that the period served by the accused in jail as under-trial prisoner should be counted towards his sentence and such a relief cannot be denied on the ground taken by the learned Courts below as it would amount to bound the accused to serve the sentence over and above awarded to him.
7. From the foregoing reasons the impugned judgments of conviction and sentence passed by both the Courts below are maintained with the modification that benefit of section 382-B, Cr.P.C. shall be awarded to the petitioner and this Criminal Revision Petition stands disposed of.
N.H.Q./G-132/L Petition accepted.