1. AJMAL MIAN, J.-By this common order/judgment, we intend to dispose of the Misc. Application filed in the following Confirmation Cases/ Cr. Appeals and the Writ Petitions for granting the benefit under section 382-B Cr. P. C.
2. "(i) (a) For Order on Office Ref.Decided on in Cr. Appeal No. 203/7730-8-80
(b) Cr. Appeal No. 234/731-4-74
(c) Conf. Case No. 23/74 27-1-1976 Cr. Appeal No. 49/74
(d) Conf. Case No. 47/78 24-9-1980 Cr. Appeal No. 266/78
(e) Conf. Case No. 1/79.
3. 9-11-1981 Cr. A. No. 233/1978
(f) Conf. Cose No. 49/1980 29-11-1981 Cr. Appeal No. 300/1980
(ii) C. P. No. 822/81C. P. No. 979/81C. P. No. 905/81 C. P. No. 823/81C. P. No. 992/81C. P. No. 906/81 C. P. No. 824/81C. P. No. 993/81C. P. No. 918/81 C. P. No. 852/81C. P. No. 1018/81C. P. No. 940/81 C. P. No. 869/81C. P. No. 1019/81C. P. No. 1118/81 C. P. No. 870/ 81C. P. No. 1039,/81C. P. No. 1119/81 C. P. No. 904/81C. P. No. 1104/81C. P. No. 1120/81 C. P. No. 1121/81C. P. No. 1150/81C. P. No. 1171/81 2.-(a) Mr. Sayced. A. Shaikh, learned Advocate-General of Sind in response to the Court notice has appeared and has made the following submission :-
(i) That section 382-B, Cr. P. C. Not being a procedural provision cannot be given retrospective effect, but it can be made applicable from the appointed date i. e. 24-12-1974 fixed under a notification dated 23-12-1975.
(ii) That this Court has no power to review the judgments already passed in view of section 369 of the Cr. P. C. And, therefore after the disposal of the appeals/confirmation cases by this Court, the benefit of section 382-B cannot be granted to the convicts/appellants.
(iii) That if a Court does not award maximum sentence, which is provided for in the relevant provision of the P. P. C. It will be presumed that it has taken into consideration the provision of section 382-B, Cr. P. C. While awarding lesser sentence.
(iv) That no writ is competent for enforcing the provision of section 382-B, Cr. P. C. Against the jail Authorities and/or Home Secretary, Govern--ment of Sind, in the absence of an order of a competent Court of law granting benefit under the above section.
(b) On the other hand Mr. Halepota, learned counsel for the convict/ appellant in Confirmation Case No. 1/79, Cr. Appeal No. 233/1978 has made the following submissions.
(i) That section 382-B, Cr. P. C. Being procedural, it has to be given retrospective effect.
(ii) That a Misc. Application under section 561-A, Cr. P. C. Is maintain--able in a disposed of case as it does' not in any way violate/contravene the provision of section 369, Cr. P. C. Inasmuch as, it does not seek alteration/modification of the sentence already passed, but prays for granting of the benefit, of section 382-B, Cr. P. C. Which was not taken into consideration at the time of passing of the judgment by this Court.
(c) Mr. Nizam Ahmed, learned counsel who has appeared as amicus curie in Writ Petitions Nos.
4. 822/81, 823/81, and 824/81 has made the following submissions
(1) That the convicts/petitioners had sent applications for availing of the benefit under section 382- B, Cr. P. C. And it is the mistake of the office of this Court that these applications have been wrongly registered as writ petitions and, therefore. The same can be treated as Misc. Applications in the disposed of Confirmation Cases/Criminal Appeals.
5. 3.-.(a) Reverting to the first contention of Mr. Sayeed A. Shaikh that section 382-B, Cr. P. C. Is not a procedural provision but is a provision of substantive law and, therefore, cannot be given retrospective effect, it has been urged by him that it is the nature of a provision which will determine, as to whether a provision is procedural or substantive law. It has been further urged by him that merely the fact that this provision has been enacted in Cr. P. C. Would not make it a procedural provision. On the other hand, it has been urged by Mr. Halepota that there was no hitch to incorporate this provision in the Pakistan Penal Code instead of enacting the same in the Criminal Procedure Code, which indicates that the Legislature treated the above provision as procedural. We are inclined to hold that section 382-B, Cr. P. C. Is a . Procedural provision and, therefore, it is to be given retrospective effect as it relates to the computing of the period of sentence. Furthermore, except in one case the judgment of the High Court are of the dates subsequent to 24-12-1975 i. e. After the enforcement of the above section 382-B, Cr. P. C.
(b) With reference to the second contention of Mr. Sayeed A. Shaikh, that this court cannot review a judgment already passed in a criminal case, as it has no power to review in view of section 369 of the Cr. P. C. It may be pertinent to quote here-in-below sections 369 and section 561-Cr. P. C. Which reads as follows;-- "Section 369. Court not to alter judgment.-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 judgment, shall alter or review the same, except to correct a clerical error.
6. Section 561. Saving of inherent power of High Court.-Nothing in this 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 the process of any Court or otherwise to secure the ends of justice."
7. It may be noticed that section 369 provides that save as otherwise provided 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 judgment shall alter or review the same except to correct a clerical error. It may further be noticed that this provision is subject to the other provisions of the Cr. P. C.
8. Itself or of any other law including letters patent of the High Court concerned.
9. Whereas in section 561-A, Cr. P. C. It has been expressly laid down that nothing in this Code shall be deemed to limit or affect an inherent power of the High Court to make such an order as maybe necessary to give effect to any order under this Code or prevent the abuse of the process of any court or otherwise secure the ends of justice.
10. It is an admitted position that in the confirmation cases/criminal appeals which were decided subsequent to 24-12-1975, in which Misc. Applications have been moved this court while considering the question of granting of sentence has not adverted to section 382-B. It may also be observed that now section 382-B is a mandatory provision as the word "may" has been substituted by the words "shall" by Ordinance LXXI of 1979 (published ,i PLD 1980 Federal Statutes 19. In our view this court is competent under section 561-A to consider a Misc. Application for determination, as t whether the convict was entitled to the benefit of section 382-B, Cr. P. C. The consideration of the above question does not involve any alteration modification of the sentence as referred to in section 369, Cr. P. C. It is a question of granting of adjustment/remission for the under trial period along with the other remissions, which a convict is entitled to under the Jail Rules for the detention period. In this view of the matter section 369, Cr. P. C. Is not attracted to.
(c) Reverting to the third contention of Mr. Sayeed A. Shaikh that if a court does not grant the maximum sentence under a particular provision of law, it is to be presumed that it had taken into consideration section 382-B of the Cr. P. C. While awarding lesser sentence. In our view this contention is devoid of any force as section 382-B, Cr. P. C. Contemplates the application of mind of the court expressly to the question as to whether adjustment of the detention period during trial is to be given or not or the court may/expressly observe while awarding lesser sentence, that the lesser sentence has been awarded after taking into consideration the provision of section 382-B, Cr. P. C. Or the long detention period during the trial of the case, but this cannot be presumed as canvassed by the learned Advocate --General Sind. The detention period during the trial of a case or the period till the disposal of a confirmation case/criminal appeal, in which the High Court substitutes life imprisonment in place of death sentence will vary from case to case. If the High Court substitutes life imprisonment in place of the death sentence solely on the ground that the trial of the case had taken very long period, in that event it may be argued that the provision of section 382-B, Cr. P. C. Has been complied with.
(d) It was next contended by Mr. Sayeed A. Shaikh that under section 382-B, Cr. P. C. a convict is not entitled as a matter of right to the adjustment of the entire period during which he remained under detention while under trial if the trial was delayed on account of the accused and that delay is to be excluded. We have asked Mr. Sayeed A. Shaikh to point out in any of the present cases where any delay can be attributed to the convict during the trial, but he was unable to point out any such delay and, therefore, we presume that no delay was caused by the convict. The delay generally takes place in the disposal of criminal cases for want of service of process on the witnesses.
(e) It may also be pertinent to refer to the cases, which have been relied upon by the learned counsel for the parties. Mr. Sayeed A. Shaikh has referred to the case of Alisher v. State and 3 others PLD 1980 SC 317 and the case of Sultan Ahmad and others v. State 1981 P Cr. L J 602.
11. On the other hand Mr. Halepota has referred to the case of Manzoor Ahmad v. State 1981 SCMR 260,, the aforesaid unreported judgment in the case of Eid Muhammad v. State given in Cr. Appeal No. K-12/81 on 17-1-1982, and the case of Abdul Majid and others v. Supdt. Jail, Khairpur 1982 P Cr. L J 1
(i) Reverting to PLD 1980 SC 317, it may be observed that in the above case the Supreme Court while dismissing the appeal against the acquittal, ordered that the convicts' detention in custody under the order of the Supreme Court shall be duly taken into account while computing the period of total imprisonment under section 382-B, Cr. P. C.
(ii) With reference to 1981 P Cr. L J 602 it will suffice to observe that a Division Bench of the Lahore High Court, while considering the provision of section 382-B observed that the above provision is mandatory and the Court is duty bound in each case to apply its mind to this question but this does not necessarily mean that in all the cases concession is to be granted. It was also observed that since the provision is founded on equity, this section should be liberally applied to unless for certain strange or special reasons to be expressly recorded; the Court may consider otherwise.
12. Reliance was placed on the case of Fazal Hussain, reported in 1979 P Cr. L J 238.
(iii) Reverting to 1981 SCMR 260, it may be stated that while dismissing the petition for leave the Hon'ble Supreme Court made the following observations.
13. 9.-We feel that this petition has no merit and is, therefore, dismissed. But in view of the compromise between the parties, we would like to observe that the relevant authorities may take into consideration the period spent in jail by the accused as undertrial prisoner from the date of his arrest up til the date of announcement of sentence of imprisonment for life, against him in the light of the recent amendment in section 382-B of the Cr. P. C. ' In making this obser--vation we are respectfully following a Full Bench judgment of this Court as Ali Sher v. State and 3 others.
14. It may be noticed that in the above para. The Supreme Court observed that the relevant authorities may take into consideration the period spent by the accused as undertrial prisoner from the date of his arrest until the date of announcement of sentence of imprisonment for life against him in the light of the reason mentioned in section 382-B of the Cr. P. C. And reference was also made to the aforesaid Supreme Court case, namely, Ali Sher v. State and 3 others. It may further be noticed that in the above case the Supreme Court has used the words "relevant authorities" Mr. Sayeed A.
15. Shaikh, learned Advocate-General submits that this constitutes direction in that particular case to the relevant authorities to give adjustment of the period during which the accused remained under trial, but it cannot be construed as a general direction that the relevant authorities concerned in other cases can give adjustment without the Court's order. This contention seems to be correct.
(iv) In the aforesaid unreported judgment of the Supreme Court dated 17-1-1982 the convict was arrested in 1973 as the incident had taken place on 15-10-1973. The accused was convicted by the Sessions Judge on 24-2-1977. The Supreme Court while upholding the conviction of the convict/appellant under section 302, P. P. C. Altered the sentence from death to life imprisonment. It was also observed that the benefit of section 382-B, Cr. P. C. Shall as well be extended to the appellant.
(v) With reference to 1982 P Cr. L J I, it may be observed that it was a writ petition filed by the accused prisoner convicted and sentenced to transportation for life under section 302, P. P. C. It may be stated that in the above case the main grievance of the petitioner was that the jail authorities were of the view that the transportation for life entails the imprisonment for 25 years and not 20 years. The High Court held that the transportation for life will entail 20 years imprisonment and not 25 years. However, at the same time a direction was given to the jail authorities to give adjustment under section 382-B of the Cr. P. C. For the period during which the petitioner/convict remained under detention as undertrial prisoner.
16. It has been urged by Mr. Sayeed A. Shaikh that the point, which he raised before this Bench as to the maintainability of a writ petition was not urged before the Bench which decided the above case and, therefore, there is no decision on that point given by the Division Bench as to bind this Bench. It is true that in the above case, no objection as to the maintain--ability of the petition for enforcing the benefit under section 382-B, Cr. P. C. Was raised by the State, and, therefore, the Division Bench has not adverted to this aspect. Thus the above case is distinguishable.
(e) From the above cited cases, it is evident that the Supreme Court as well as the High Courts have been granting the benefit of section 382-B, Cr. P. C. Without any reservation and liberal construction has been given to the above provision, (f ) Reverting to the last contention of Mr. Sayeed A. Shaikh that a Constitutional Petition is not competent against the jail authorities or against the Home Secretary, Government of Sind, in the absence of an order passed by a competent Court under section 382-B, in our view the above contention seems to be correct. As observed hereinabove by us that section 382-B, Cr. .P. C.
17. Contemplates the application of mind by the court while considering the granting of sentence. In the] absence of an order of a competent Court neither the jail authorities nor the Home Secretary Government of Sind, can give adjustment for any detention period during the trial under the above provision, as it does not authorise them to extend the benefit of the said provision. However, such a provision could have been incorporated in the Jail Manual under the Rules. If that would have been so, a writ would have been competent against the jail authorities for the violation of such a rule. But no such rule has been cited by any of the counsel. In this) view of the matter a writ petition is not competent.
18. However, it was urged by Mr. Nizam Ahmad that most of these petitions were sent by the convicts from the jail through the Supdt. Of Jails and, therefore, it was the mistake on the part of the office of this Court or the court to register the above petitions as writ petitions. He has also prayed for that these petitions should be treated as Misc, Applications in the disposed of confirmation cases/criminal appeals. From the caption of the petitions, it seems that they were described as petitions and the covering letters sent by the Superintendent jails also indicate that they were constitu--tional petitions. In this view of the matter they were rightly registered as writ petitions, but since we are inclined to hold that the writ petitions are not competent against the Jail Authorities or against the Secretary Government of Sind for the enforcement of section 382-B, Cr. P. C. In the absence of an order of a competent Court of law, the same are not competent. However, the petitioners shall be at liberty to move applications under section 561-A, Cr. P. C. In the disposed of confirmation cases/criminal appeals. It may be observed that this court can convert a writ petition into an appeal, but in our view a writ petition cannot be converted into Misc. Application in a disposed of confirmation case/criminal appeal.
(3) The upshot of the above discussion is that in the confirmation cases/ criminal appeals referred to hereinabove in para. (1) (i) the Jail Authorities are directed to give adjustment of the period during which the convicts/ appellants remained under detention during the period from the date of arrest till the date of pronouncement of the sentence of life imprisonment/ transportation for life by the Sessions Court or by this Court if a death sentence was substituted by life imprisonment/transportation for life.
19. Whereas writ petition mentioned hereinabove in para. (1) (ii) stand dismissed with no order as to costs with the observations contained hereinabove in para. 2 (f ).