MUSHTAQ HUSSAIN vs THE STATE
The petitioner, a convict sentenced to death which was subsequently commuted to life imprisonment, filed a petition seeking the benefit of Section 382-B of the Code of Criminal Procedure 1898, requesting that his period of detention as an undertrial be considered toward his sentence. The core legal question was whether the benefit of Section 382-B is applicable to a convict whose original sentence was death, even after commutation to life imprisonment. The Supreme Court held that the petition was incompetent. The Court reasoned that Section 382-B applies only where a court decides to pass a sentence of imprisonment on an accused. Since the petitioner was originally sentenced to death, not imprisonment, the provision was inapplicable. Relying on the precedent set in Bashir and 3 others v. The State (PLD 1991 Supreme Court 1145), the Court affirmed that the statutory relief regarding the calculation of detention time is not available in cases where the initial sentence was capital punishment, regardless of subsequent commutation.
- Is the benefit of Section 382-B of the Code of Criminal Procedure 1898 available to a convict whose original sentence was death, even if later commuted to life imprisonment?
- Does Section 382-B of the Code of Criminal Procedure 1898 apply to cases where the court did not originally pass a sentence of imprisonment?
- Section 302, Pakistan Penal Code 1860
- Section 382-B, Code of Criminal Procedure 1898
ORDER
' SHAFIUR RAHMAN, J.--The petitioner/applicant convicted under section 302, P.P.C. And sentenced to death, which sentence stands converted to life imprisonment, has moved from the Jail a Petition seeking benefit of section 382-B of the Criminal Procedure Code.
2. The petitioner/applicant claims to have remained in prison as an undertrial from 11th of January, 1982 to 7th of January, 1984. He was convicted and his sentence of death confirmed by the High Court on 3rd of November, 1987. He sought leave to appeal against the judgment of the High Court by the Criminal Petition No,385 of 1987 and leave to appeal was refused to him on the 9th of April, 1989. The sentence of death thereby remained intact.
3. It appears from the petition that subsequently the sentence of death awarded by the Courts was commuted to life imprisonment which fact has prompted the petitioner/applicant to seek the concession available in certain cases under section 382-B of the Criminal Procedure Code.
4. After hearing the learned Advocate-General in the matter we find that this or such a petition is not competent. Section 382-B of the Criminal Procedure Code provides as hereunder:- "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."
5. It comes into effect only when the Court passes a sentence of imprisonment on an accused. In the case of the petitioner/applicant the Court has not passed a sentence of imprisonment. Besides, this matter stands decided by this Court in Bashir and 3 others v. The State (PLD 1991 Supreme Court 1145 at 1163).
6. The Criminal Miscellaneous Petition is, therefore, dismissed. The petitioner/applicant be informed.