Petitioner's appeal vas heard on 4th November, 1980. The judgment was reserved. It was announced on 24th November, 1980 convicting the petitioner under section 304-1I, P. P. C. And sentencing him to a period of 10 years R. I. Maintaining the fine already imposed.
2. The petitioner has filed this application saying that since his counsel was not present at the time of writing of the judgment, provisions of section 382 (b), Cr. P. C. Were not taken into account which lay down that "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 Learned counsel submits that the period during which the petitioner remained in custody during the trial should have been taken into account and sentence reduced thereby. Learned Counsel for the petitioner has referred to the decisions of the Supreme Court directing the jail authorities to take into account the sentence undergone by a prisoner during trial to reckon in calculating the period of imprisonment to be suffered under the sentence. These two cases are mentioned in a D. B. Judgment of Abdul Hameed and another v. Superintendent, Jail, Multan (1982 P Cr. L J 1) wherein a prisoner had sent an application to the Chief Justice that the period he had remained in custody during the trial should be taken into account and excluded from the sentence of imprisonment imposed by the Court. The matter was disposed of by the learned Judges with the direction to the Superintendent Jail that the period of custody of that petitioner should be computed in such a manner that the period the petitioner had remained in custody as under trial prisoner is excluded in enforcing the sentence of imprisonment imposed by the Court.
3. Learned counsel appearing for the State has submitted that the direction to the Jail authorities will amount to altering the sentence earlier imposed on the petitioner which is not permissible in view of section 369, Cr. P. C.
4. Learned counsel for the petitioner referred to Gulzar Hussain Shah v. Ghulam Murtaza and 4 others (PLD 1970 SC 335) and read at page 339 the follow--ing passage "The question for consideration is whether section 369, Cr. P. C. Controls section 498, Cr. P. C. Or section 561-A, Cr. P. C. Applies to it. 1n my opinion section 369 of the Cr. P. C. Does not control section 498 and in suitable cases section 561-A of the Criminal Procedure Code can be invoked. In the first place, an order passed under section 498, Cr. P. C. Is not a judgment within the meaning of section 369, Cr. P. C. Moreover, section 369 of the Criminal Procedure Code is in the Chapter relating to original trial and unless it is specifically applied to other proceedings under the Criminal Procedure Code, it cannot be said to have any application to other proceedings".
Besides that section 369, Cr. P. C. Falls under Chapter XXVI relating to original trial and the judgment is in the original jurisdiction section 369 itself provides that "Save as otherwise provided by this Code or by any other law for the time being in force. Or in the case of a High Court by the Letters patent of such High Court, no Court, when it has signed its judg- -ment, shall alter or review the same, except to correct a clerical error."
In other words, section 561, (A) Cr. P. C. Can be applied if otherwise attracted by circumstances of a particular case by the High Court. In fairness to the learned counsel for the State it may be noticed that it has been pointed out on his behalf that there is another provision of section 424 which reads as follows : "The rules contained in Chapter XXVI as to the judgment of a Criminal Court of original jurisdiction shall apply, so far as may be practicable, to the judgment of any Appellate Court other than a High Court." i. e. Section 369, Cr. P. C. Which falls under Chapter XXVI does not apply to a High Court. In the commentary on the Code of Criminal Procedure Vol. III, by Mr. Shaukat Mahmood under section 424, on the basis of a judgment of a foreign Court reported in (A. I. R. 1 963 Maysoor 326 (D. B.), it is stated that "there is no provision in the Code requiring a High Court after pronouncing a judgment in open Court to date and sign the same or barring the High Court from reviewing its appellate judgment". (Underlining* is mine).
Section 561-A, Cr. P. C. Lays down that : "Nothing in the Code shall be deemed to limit or affect the inherent power of the High Court to make such orders as may be necessary to give effect to any order under this Code or to prevent abuse of process of any Court or otherwise to secure the ends of justice".
5. In view of the above discussion, it will be apparent that it is open to-this Court to allow benefit of the statutory provisions under section 382-B, Cr. P. C. As has been done in the precedent cases and in exercise of the jurisdiction of this Court under section 563-A, Cr. P. C. A it is directed that the period during which the petitioner had remained in custody during his trial, shall be counted in computing the period of sentence imposed by this Court on him in his appeal. This petition is thus disposed of.