ISLAMUDDIN Versus THE STATE

ORDER

1. This application under section 382-B read with section 561-A, Cr.P.C. has been filed by Islamuddin from open jail Badin with prayer for allowing benefit of reduction of sentence as contemplated under section 382-B, Cr.P.C. Applicant Islamuddin was convicted by the trial Court for offence under section 302, P.P.C. and was sentenced to life imprisonment and against the judgment of the trial Court he filed Criminal Appeal No. 240 of 1978 which has been dismissed vide judgment dated 2-3-1981. Although present application is filed rather belatedly but there is no dispute with regard to the fact that such application can be entertained by the High Court under section 561-A, Cr.P.C. for grant of benefit as envisaged under section 382-B, Cr.P.C. The question that arises for consideration is whether section 382-B Cr.P.C. provides that if such request is made for the benefit of reduction of sentence invariably every request is to he granted or the Court has power to refuse such request as well. Section 382-B, Cr.P.C. has been added by Law Reforms Ordinance and persusal of the language contained therein shows that it has been made mandatory for the Court at the time of passing sentence to take into consideration the period if any during which accused was detained in custody. The word used is "shall" which makes it mandatory but this applies only for the purpose of taking into consideration the period accused has remained in custody as under trial prisoner. It does not necessarily mean that in every case the request is to be granted. It further appears from the language used in this section that it has been left open to the trial Court to grant this benefit in appropriate cases and it is not necessary that whole period, the accused remained under trial prisoner, is to be deducted but even part of it can also be deducted. The object of this section is to compensate the accused if he has remained incarcerated for along time as under trial prisoner and bail was not granted to him. In that context such benefit could be given to him for the whole period or part of it while he remained in detention during the trial and further such benefit could be given in appropriate cases and not necessarily in all cases. It is imperative for the trial judge to consider this question but is it further discretionary matter to grant the request or not depending upon the peculiar circumstances of the case. In support of the proposition reliance is placed on the case of Nur Ellahi v . State P L D 1983 Lah. 126 decided by Division Bench of that High Court.

2. In the instant case according to the prosecution's case applicant Islamuddin committed murder of his wife Mst. Khairunissa in a brutal manner by sitting on her chest and slaughtering her throat with a Knife. He was caught red-handed at the spot and there were 4 eye witnesses who saw the incident. Leaned trial judge convicted him for offence .under section 302, P.P.C. and refrained from awarding him capital sentence on the sole ground that at time of incident Islamuddin claimed to be 19 years old. Learned trial Judge observed that he considered that as extenuating circumstance to spare his life and .sentenced him to life imprisonment to live for the' rest of his life in repentence and remorse. Appeal was dismissed and no interference was made with the impugned judgment. At that tune no request was made for grant of benefit under section 382-B, Cr.P.C'. In the circumstances and for the facts and reasons mentioned above I consider It not a fit case for grant of benefit under section 382-8, Cr.P.C, for the reason that, murder was committed in a brutal manner 'and already accused has got the benefit of capital punishment not having been awarded to him and his life has been saved. Application is therefore, dismissed.

3. M.Y.H./I-42/K ??????????????????????????????????????????????????????????????????????? Application dismissed.