GUL MUHAMMAD Versus State
This criminal revision petition arose from the conviction of the petitioner under Section 13 of the Arms Ordinance, 1965, by a Magistrate, which was subsequently upheld by an Additional Sessions Judge. The petitioner was sentenced to three years' rigorous imprisonment but was denied the benefit of Section 382-B of the Code of Criminal Procedure 1898, as the trial court reasoned that the weapon was used in a heinous offence of roadside dacoity. Before the High Court, the petitioner did not challenge the conviction on merits but limited his prayer to the mandatory application of Section 382-B, Cr.P.C. The High Court examined the legal position, noting that Section 382-B makes it obligatory for courts to consider the period of detention already served by an accused as an under-trial prisoner when awarding a sentence of imprisonment. The Court held that denying this benefit based on the nature of the offence or other pending cases is legally impermissible, as it effectively forces the accused to serve a sentence exceeding that awarded. Consequently, the Court maintained the conviction but modified the sentence to include the benefit of Section 382-B, Cr.P.C.
- Is the benefit of Section 382-B of the Code of Criminal Procedure 1898 mandatory when awarding a sentence of imprisonment?
- Can a court deny the benefit of Section 382-B of the Code of Criminal Procedure 1898 on the ground that the accused committed a heinous offence?
- Should the period served by an accused as an under-trial prisoner be counted towards the sentence awarded?
- Section 13, Arms Ordinance 1965
- Section 382-B, Code of Criminal Procedure 1898
ORDER
Vide judgment dated 7-6-2003 passed by learned Magistrate Section 30, Burewala the petitioner was convicted under section 13 of the Arms Ordinance, 1965 and sentenced to three years' R.I. but he was not granted the benefit of section 382-13, Cr.P.C. on the ground that he used the weapon of offence in a heinous offence of road side dacoity. Against the said judgment an appeal was filed before the learned Additional Sessions Judge, Burewala which was also dismissed through his judgment, dated 11-5-2004. Both said judgments have been assailed through this Criminal Revision Petition.
2. Learned counsel for the petitioner does not press this petition on merits, but only prays for giving .benefit of section 382-B, Cr.P.C. which has not been extended to the petitioner by both the Courts below whereas it is a mandatory provision.
3. Learned Additional Advocate-General accepts the notice on behalf of the State and contends that the petitioner is involved in another case of heinous nature and the learned trial Court has rightly denied the benefit of section 382-B, Cr.P.C. to the petitioner.
4. With the consent of the parties, this petition is decided as Pakka case.
5. I have heard the learned counsel for the parties and also perused the impugned judgments. Both the Courts below have given the finding that the petitioner was found in possession of pistol .12 bore and have relied upon the witnesses. Learned counsel for the petitioner has also not challenged the conviction and only prays for direction to give benefit of section 382-B, Cr.P.C. to the petitioner. The said provision for ready reference is reproduced as under:--
"382-B. 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 arty, during which such accused was detained in custody for such offence."
6. A perusal of the above provision shows that while awarding sentence of imprisonment to an accused it is obligatory on the Courts to take into consideration the period already undergone by him as under-trial prisoner. From the perusal of impugned judgment, it does not appear that lesser punishment has been awarded to the petitioner keeping in view his earlier detention. There is consistent view of this Court as well as the Supreme Court of Pakistan that the period served by the accused in jail as under-trial prisoner should be counted towards his sentence and such a relief cannot be denied on the ground taken by the learned Courts below as it would amount to bound the accused to serve the sentence over and above awarded to him.
7. From the foregoing reasons the impugned judgments of conviction and sentence passed by both the Courts below are maintained with the modification that benefit of section 382-B, Cr.P.C. shall be awarded to the petitioner and this Criminal Revision Petition stands disposed of.
N.H.Q./G-132/L Petition accepted.