MUNIR AHMAD, etc vs STATE and another
This criminal miscellaneous application was filed by a convict seeking the benefit of Section 382-B of the Code of Criminal Procedure 1898, which mandates that the period of pre-trial detention be considered when awarding a sentence of imprisonment. The core legal question was whether the applicant and his co-convicts were entitled to this statutory benefit, given that the original appellate judgment, which had converted their death sentences to life imprisonment, remained silent on the matter. The Federal Shariat Court held that because the statute uses the mandatory term 'shall' regarding the consideration of detention periods, and because the original judgment provided no reasons for disallowing such benefit, it must be inferred that the benefit was intended to be granted. Consequently, the Court allowed the application, clarifying that the applicant and his co-convicts were entitled to the benefit of Section 382-B. The judgment establishes the principle that where a court fails to provide specific reasons for denying the benefit of pre-trial detention consideration under Section 382-B, the benefit is deemed to have been granted by operation of law.
- Is a court required to provide reasons if it decides to deny the benefit of Section 382-B of the Code of Criminal Procedure 1898?
- Does the use of the word 'shall' in Section 382-B of the Code of Criminal Procedure 1898 make the consideration of pre-trial detention mandatory?
- If a judgment is silent regarding the grant of Section 382-B benefits, does it imply that the benefit was intended to be granted?
- Section 382-B, Code of Criminal Procedure 1898
ORDER
1. Crl. Misc. App. No, 18/1 of 2013 This Crl. Misc. App. No, 18/I of 2013 has been filed by the applicant/convict Muhammad Ashraf Shah s/o Islam Shah through Superintendent District Jail, Jhelum seeking grant of benefit of Section 382- B, Cr.P.C.
2. Dr. Muhammad Anwar Gondal, Additional Prosecutor General has appeared for the State. Heard the learned counsel for the State and perused the judgment.
3. We have perused the relevant parts of our judgment dated 25.10.2011 wherein sentence of death penalty was converted to life imprisonment and it has been observed that there was no mention in respect of grant of benefit of Section 382-B, Cr.P.C. to the applicant/convict alongwith other co- convicts. It has also been observed that no reasons in respect of disallowing the benefit of Section 382-B, Cr.P.C. were given in the judgment.
4. The Section 382-B, Cr.P.C. contemplates that period of detention has to be considered while awarding the sentence of imprisonment, meaning thereby Court is supposed to consider the period, if any, during which such accused was detained in custody for such offence inasmuch as word 'shall' has been used in the relevant law. The said provision of law is reproduced herein below for the sake of convenience: "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." That the implicit scheme of the law is obvious that In case of disallowing the benefit under said provision of law Court must write the reasons thereof. In the case in hand when no reasons were given in respect of disallowing the benefit of Section 382-B, Cr.P.C. it implies that the said benefit was intended to be granted by the Court.
5. In view of the above we are inclined to accept the prayer made in Crl. Misc, Application No, 18/I of 2013 and to clarify that the present applicant/convict and so also the other co-convicts namely Munir Ahmad son of Fazal Dad, Muhammad Azam son of Muhammad Roshen and Mian Ghulam Mustafa son of Muhammad Inayat are given benefit of Section 382-B, Cr.RC. Accordingly, the Crl.
6. Misc. App. No, 18/I of 2013 is allowed.