GUL MUHAMMAD Versus THE STATE

ORDER

Gul Muhammad, the petitioner has brought the instant petition under section 561-A, Cr.P.C. for direction to the jail authorities to deduct the period spent by him as under-trial prisoner from his substantive sentence as envisaged by section 382-B, Cr.P.C.

2. Briefly the facts relevant for the disposal of the same are that the petitioner in case F.I.R. No.290 dated 8-12-1995, under section 302, P.P.C. registered with Police Station Saddar Jalalpur Pirwala, District Multan, was convicted under section 302(b), P.P.C. and sentenced to suffer imprisonment for life as Tazir and to pay fine of Rs.5,000 and in case of default in the same to further undergo six months' S.I. vide the judgment dated 15-10-1997 recorded by Mr. Muhammad Siddique Sikandar, the learned Additional Sessions Judge, Multan.

3. He as per his own showing did not challenge his conviction and sentence by way of an appeal. Anyway, to further ascertain such fact the report about the same was sought for from the office. The office has reported that no appeal has been filed by him in this Court.

4. It has been contended on his behalf that this Court has the inherent power under section 561-A, Cr.P.C. to extend him the benefit of section 382-B, Cr.P.C. In support of his contention, he has placed reliance upon the case of Muhammad Ilyas v. The State 1991 PCr.LJ 90; Sabir Ahmad v. The State 1989 ALD 559 and Jiwan Khan v. The State 1998 PCr.LJ 1797. In this matter, I did not feel the necessity of issuing notice to the respondent/ State as it is purely a legal question and the same can be answered/decided just after hearing the petitioner's side particularly when it was obligatory upon the learned trial Court to have extended him the benefit of section 382-B, Cr.P.C. unless it should bell declined for reasons to be recorded.

5. It has not at all touched or discussed this question. Now the only question required to be decided is that if he can be extended such benefit by this Court in exercise of its' inherent powers under section 561-A, Cr.P.C. The answer to such question is in the affirmative. In this regard reference is made to the above cited cases. In the case of Muhammad Ilyas v. The State 1991 PCr.LJ 90 it has been held that omission by the trial Court to give effect to a statutory requirement can be remedied by exercise of inherent jurisdiction under section 561-A, Cr.P.C. In the case of; Sabir Ahmad v. The State 1989 ALD 559, it has been held that the provision of section 382-B, Cr.P.C. is mandatory and should be applied by Courts with express statement in judgments whether or not the convict was entitled to benefit of the same and failure to do so would be corrected by High Court in exercise of inherent jurisdiction under section 561-A, Cr.P.C. with the grant of such benefit to convict. The similar view has been expressed in the D.B. judgment in the case of Jiwan Khan v. The State 1998 PCr.LJ 1797.

6. I, therefore, accept this petition and direct that he be given the benefit of section 382-B, Cr.P.C. inasmuch as that the period of his detention as under-trial prisoner shall be counted towards his sentence.

N.H.Q./G-303/L Petition accepted.