ALOO vs THE STATE

ABDUL HAMEED DOGAR, J.---Leave to appeal was granted to appellant-Aloo son of Motio Mirbahar to consider the request that he may be allowed benefit of section 382-B, Cr.P.C. Towards the computation of his sentence. At the same time as per leave granting order the question of limitation of sending Jail Appeal belatedly by the appellant to this Court was also to be examined.

2. Appellant was sent up to face trial alongwith acquitted accused Khabar before the Court of Ind Additional Sessions Judge, Hyderabad who vide his judgment, dated 15-4-1984 acquitted Khabar whereas convicted and sentenced the appellant under section 302, P.P.C. To imprisonment for life with fine of Rs.10,000 or in default whereof to suffer R.I. For two years for committing murder of Wahiyoon on matrimonial affairs.

3. On appeal High Court of Sindh dismissed the appeal of appellant-Aloo and maintained conviction and sentence vide judgment, dated 31-3-1986. It was on 17-4-1995 appellant sent petition from inside jail requesting to allow him to consider the under trial period of appellant from 29-7-1981 to 14-4-1984 towards his substantive sentence and award him benefit of section 382-B, Cr.P.C.

4. It is pertinent to note that neither trial Court nor Appellate Court have allowed him benefit of section 382-B, Cr.P.C. Towards the commutation of his sentence in the respective judgments.

5. Mr. Muhammad Javed Aziz Sindhu, learned counsel for the appellant mainly contended that the provisions of section 382-B, Cr.P.C., are mandatory in nature as such the appellant is entitled to its benefit. Its failure or an omission would contravene the law and frustrate principle of justice. In support he relied upon the case of this Court viz. Javed Iqbal v. The State (1998 SCM R 1539) and argued that a case of appellant is at par with this case.

6. This Court in the cases of Qadir v. The State (PLD 1991 SC 1065), Muhammad Rafiq v. The State (1995 SCM R 1525), Mukhtiar-ud-Din v. The State (1997 SCM R 55), Javed Iqbal v. The State (1998 SCM R 1539), have categorically held that section 382-B, Cr.P.C. Is a statutory limitation upon Court's discretion to determine the length of imprisonment. Court must take into consideration the pre- sentence period spent by accused in jail. The object is to compensate accused for the delay in conclusion of his trial because of various factors generally not attributable to him as the State is supposed to provide speedy justice. In this case two Courts below while awarding sentence of imprisonment by upholding the same had not taken into consideration the mandatory provision of section 382-B, Cr.P.C. No reasonable cause is found from the merits of the case for denial of such benefit.

7. Considering the dictum laid down in the afore-mentioned judgments we are of the view that the appellant is entitled to the benefit of section 382-B, Cr.P.C. Looking to the circumstances of the case and agony of the trial faced by the appellant the delay in sending the Jail Petition is condoned.

Accordingly, the appeal is allowed to the above extent.