MUHAMMAD AFZAL Versus State
This matter arises from a petition filed under section 561-A of the Code of Criminal Procedure 1898 seeking the benefit of section 382-B of the Code of Criminal Procedure 1898, after the petitioner's conviction under section 9-C of the Control of Narcotic Substances Act, 1997 (originally sentenced to death, later modified to life imprisonment by the High Court) omitted to grant such benefit. The core legal question was whether the statutory benefit of section 382-B of the Code of Criminal Procedure 1898 is mandatory upon the reduction of a death sentence to life imprisonment, and whether the High Court can invoke its inherent powers under section 561-A of the Code of Criminal Procedure 1898 to rectify an accidental omission in its prior judgment. The court held that the substitution of 'may' with 'shall' in section 382-B renders the provision mandatory, and the benefit extends to a convict whose death sentence is reduced to life imprisonment. Furthermore, the High Court possesses inherent jurisdiction under section 561-A to correct accidental omissions in its judgments. The petition was accordingly allowed.
- Whether the provision of section 382-B of the Code of Criminal Procedure 1898 is mandatory for granting the benefit of the period spent in detention to a convict?
- Is a convict whose death sentence is subsequently reduced to life imprisonment entitled to the benefit of section 382-B of the Code of Criminal Procedure 1898?
- Can the High Court exercise its inherent jurisdiction under section 561-A of the Code of Criminal Procedure 1898 to correct an accidental omission regarding section 382-B benefits after the disposal of the main appeal?
- Section 9-C, Control of Narcotic Substances Act, 1997
- Section 9(c), Control of Narcotic Substances Act, 1997
- Section 382-B, Code of Criminal Procedure 1898
- Section 561-A, Code of Criminal Procedure 1898
ORDER
Brief facts of the case are that FIR No.312 dated 11-8-1995 under section 9-C of Narcotic Substances Act, 1997, was got registered at Police Station City, Lodhran at the instance of Abdul Rehman Shah, Inspector.
2. According to the F.I.R Abdul Rehman Shah, Inspector, S.-I. CIA staff Lodhran received secret information that the petitioner dealt in narcotics whereupon he applied to the Illaqa Magistrate for search warrant of the residence of the accused-petitioner. Subsequently he was granted permission and a raiding party was constituted who raided the residence of the accused and was overpowered by the raiding party. He led to the recovery of total 10 kg. and 40 grams of heroin, 1 kg. and 500 grams of opium and 1 kg. and 400 grams Charas along with scale for weighing the said narcotics. Samples from each bag of narcotic were separated for chemical examination. A case was registered against the accused appellant and after due investigation he was challaned.
3. Trial was conducted by the learned ASJ, Lodhran, who ultimately convicted and sentenced him to death with a fine of one million rupees. Forfeiture of all of his property/assets was ordered in favour of the State. The petitioner challenged his conviction and sentence as mentioned above before this Court through Criminal Appeal No.426 of 1999, which was ultimately decided on 29-4-2004 with the following amendment in the sentence:--------
Under section 9(c) Control of Narcotic Substances Act, 1997 Life imprisonment with a fine of the one million or in default six months' S.I. The assets of petitioner are also forfeited in favour of the State.
With the above modification in the sentence, the murder reference was answered in negative. However, there was no mention of benefit of section 382-B, Cr.P.C. Aggrieved of this order, the petitioner has moved this petition under section 561-A, Cr.P.C., for the grant of benefit of section 382-B, Cr.P.C.
Learned counsel for the petitioner has argued that the learned trail Court awarded death sentence to the present petitioner vide judgment dated 4-12-1999 but the petitioner was behind the bars even before 4-12-1999, the day he was convicted; that this aspect of the matter was argued before the D.B. while arguing the main appeal; that it will be in the interest of justice that benefit of section 382-B, Cr.P.C., is awarded to the petitioner, that the omission in giving this benefit was accidental and this Court has ample powers to correct the same as there are no hindrances to correct the order in this respect.
5. The learned State counsel has opposed this petition.
6. We have heard the arguments at length.
7. By virtue of Ordinance LXXI of 1979, in section 382-B, Cr.P.C., the word "may" was substituted by the word "shall". This substitution by the word shall mean that this provision was mandatory and it was obligatory on the Courts to give this benefit to the accused who was awarded sentence of imprisonment. This benefit was also available to a person who was awarded death sentence by the trial Court but subsequently reduced to life imprisonment. Respectfully reliance has been placed upon PLD 1992 SC 11, PLD 1998 SC, 1998 SCMR 1794.
8. A legal valuable right has been conferred upon the accused after the amendment of section 382-B, Cr.P.C., and this right cannot be ignored or refused. Needless to add that the object granting this benefit B is to compensate the accused for the unnecessary delay that has been caused in the commencement of his trial. Therefore, the Courts must take into consideration the period that the accused has lived in jail prior to his conviction. The present applicant on the reduction of the sentence c from death to life was entitled to get the benefit of section 382-B, Cr.P.C. from this Court.
9. No reason has been given in judgment dated 29-4-2004 by this Court for disallowing this benefit to the appellant, it is therefore, only an omission.
10. The next question is that whether the said benefit can be given to him at this stage. Under section 561-A, Cr.P.C. this Court has inherit jurisdiction to correct its own judgment. In "Jewan Khan v. State" (1998 PCr.L.J. 1975) the benefit of section 382-B, Cr.P.C., was extended to the accused after lapse of 10 years from the awarding of the sentence. In this case the death sentence was converted by a D.B. of this Court on 1-6-1998 but the benefit of section 382-B, Cr.P.C., was not extended to the accused. Similarly, this Court has inherent powers to correct its own orders.
11. For the reasons stated above this application is accepted and 10 benefit of section 382-B, Cr.P.C is given to the present petitioner.
N.H.Q/M-1142/L Petition allowed.