YASIN alias Bhutto vs STATE and another
This matter arises from a petition filed by Yasin alias Bhutto seeking the benefit of Section 382-B of the Code of Criminal Procedure 1898. The core legal question is whether the High Court, under Section 561-A of the Code of Criminal Procedure 1898, can grant the benefit of section 382-B when both the trial court and the appellate court failed to consider or extend such benefit during conviction. The Lahore High Court held that the High Court possesses inherent jurisdiction under Section 561-A of the Code of Criminal Procedure 1898 to extend the benefit of section 382-B to a convict if the trial court omitted to do so. The court laid down the principle that the period of detention as an under-trial prisoner must be counted towards the substantive sentence when the trial court fails to apply its mind to the mandatory provisions regarding the same, and the High Court can rectify this omission through its inherent powers.
- Can the High Court grant the benefit of Section 382-B of the Code of Criminal Procedure 1898 under Section 561-A when the trial court and appellate court failed to consider it?
- Whether the period of detention as an under-trial prisoner can be counted towards the total sentence if omitted by the trial court?
- Section 382-B, Code of Criminal Procedure 1898
- Section 561-A, Code of Criminal Procedure 1898
The learned counsel for the petitioner has filed certified copy of the judgment dated 30.06.2008, recorded by Mr. Muhammad Shoaib. Adeel, Magistrate 1st 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 P.Cr.L.J. (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 nor 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 382B 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 P,Cr.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 same, 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.