YASIN alias BHUTTO vs THE STATE and another
This criminal petition was filed by the petitioner, Yasin alias Bhutto, seeking the benefit of Section 382-B, Code of Criminal Procedure 1898, which allows for the period of detention as an under-trial prisoner to be counted towards the substantive sentence. The core legal question was whether the High Court possesses the jurisdiction to grant this benefit when the trial court and the appellate court failed to consider or extend it in their respective judgments. The petitioner contended that the trial court was under a mandatory obligation to consider this benefit, and its omission warranted intervention by the High Court. The Court held that it has the inherent jurisdiction under Section 561-A, Code of Criminal Procedure 1898, to extend the benefit of Section 382-B, Code of Criminal Procedure 1898, to a convict when the trial court has failed to do so. Consequently, the petition was allowed, and the petitioner was granted the benefit of having his period of detention as an under-trial prisoner counted towards his sentence.
- Does the High Court have the inherent jurisdiction under Section 561-A of the Code of Criminal Procedure 1898 to grant the benefit of Section 382-B of the Code of Criminal Procedure 1898 to a convict when the trial court failed to do so?
- Can the period of detention as an under-trial prisoner be counted towards the substantive sentence if the trial court omitted to pass such an order?
- Section 382-B, Code of Criminal Procedure 1898
- Section 561-A, Code of Criminal Procedure 1898
' CHAUDHRY IFTIKHAR HUSSAIN, J.---The learned counsel for the petitioner has filed certified copy of the judgment, dated 30-6-2008, recorded by Mr. Muhammad Shoaib Adeel, Magistrate Ist Class, Sialkot/trial Court.
2. Petitioner Yasin alias Bhutto through the instant petition has prayed for the grant of benefit to him of section 382-B, Cr.P.C.
3. The learned counsel for the petitioner has contended that it was mandatory upon the learned trial Court to consider the question of grant or otherwise of the benefit of the aforesaid section to the petitioner but the impugned judgment of the learned trial Court as well as the appellate Court show that no such consideration was made in the same and hence, it is within the jurisdiction of this Court under section 561-A, Cr.P.C. To grant him such benefit. In support of his such submission, he has relied upon the case of Gul Muhammad v. The State and another (2004 PCr.LJ (Lahore)
1802).
4. As against that, the learned DPG has contended that it was not mandatory upon the learned trial Court to have extended such benefit to the petitioner. He, however, has conceded that both the learned Courts below neither have extended such benefit to him :tor have said anything as regards the same.
5. I have carefully considered the submissions made by the parties and the copies of the record annexed to the petition gone into. Admittedly, the petitioner has not been given the benefit of section 382-B, Cr.P.C. The judgment of the learned trial Court and the appellate Court are before me. It has not been mentioned therein that if such aspect of the matter was attended to or considered at their ends.
6. This Court in the aforesaid case of Gul Muhammad v. The State and another (2004 PCr.LJ (Lahore) 1802), while referring to various judgments, has held that High Court has inherent jurisdiction to extend the benefit of the aforesaid provision of the Cr.P.C. To a convict when it has not been done so at the end of the learned trial Court. Hence, relying upon the same, I find that there is substance in this petition. The sam therefore, is allowed and the petitioner be extended the benefit of section 382-B, Cr.P.C., inasmuch as that the period of his detention as under-trial shall be counted towards his sentence.