Appellant Manzoor Ahmed was tried for the murder of his sister Mst. Hameedan and convicted under section 304, Part 1, P. P. C. And sentenced to R. I. For three years and fine of Rs, 5,000 or in default R. I. For six months. He was further required to pay compensation of Rs, 5,000 to the heirs of the deceased or in default to suffer R. I. For six months. The present appeal is confined to the prayer for reduction in the sentence of fine. By separate application (M. A. No, 453/82) the appellant has prayed for the benefit of section 382-B, Cr. P. C. With consent of the learned counsel for the parties the appeal and the application were heard together and this judgment will govern both of them.
2. The facts leading to this case are that on 11th March, 1980 the present of appellant having gone to Gambat, his sister Mst. Hamida was left alone in the house. Atabout 2-00 p. m. When the appellant returned to his house from the tube-well where he had gone to take bath, he found one Goro embracing and kissing his sister and the latter tying the string of her trousers. This sight made the appellant lose his self-control completely, who under the grave and sudden provocation killed his sister by giving her hatchet blows. The paramour, however, escaped unhurt. Ghulam Shabir, Muhammad lshaq and others were attracted to the vardat on the commotion.
3. The appellant went straight to the Police Station and surrendered himself alongwith blood- stained hatchet and blood-stained clothes. The A. S.-I. Incharge of Police Station, recorded the F. I.
R. On behalf of State and started investigations. After taking into possession the bloodstained hatchet and blood-stained clothes produced by the appellant, the A. S.-I. Visited vardat and secured blood-stained earth from there. He sent the dead body of Mst. Hamida to Medical Officer Kotdiji for postmortem examination. He examined Ghulam Sbabir, Muhammad Ishaq, Ms:. Wasandi, Mst. Begum, Mst. Sardari, Ghous Bux and Muhammad llyas. On the next day he produced the appellant before the First Class Magistrate, Khairpur, for his judicial confession. After completion of the investigation the appellant was challaned by S. H.
0. Munir Hussain in the Court of S. D. M. Kotdiji who forwarded the case to the Sessions Court for trial.
4, Dr. Syed Muhammad Ali Shah who conducted the autopsy of the dead body of Mst. Hamida found the following three incised injuries on her person :-
(1) Multiple incised wound 12" x 6" fracturing right axillar right mandible, mastoi sphemoid, first and second cervicle vertebra dividing spinal cord on the right side face extending to neck posteriorly.
(2) Multiple incised wound 6" x 8" fracturing 4th and 5th cervical vertebra on the neck anteriorly dividing food pipe and wind pipe.
(3) An incised wound 4" x 3i" x fracturing left humerus on the left arm upper the.
5. From the above injuries the doctor was of the opinion that the death was caused by shock and haemorrhage resulting from cutting off the spinal cord. According to him the injuries were sufficient in ordinary course of a nature to cause death. Thus it is established from the medical evidence that the injuries found on person of the deceased Mst. Hamida were responsible for her death.
6. The prosecution case is that the appellant had caused the aforesaid injuries to the deceased.
The evidence adduced in support of this point comprises accused's admission contained in his statement under section 342, Cr. P. C. His extra-judicial and judicial confession and recovery of incriminating articles. The plea consistently taken by the appellant is that he committed the murder of his sister under grave and sudden provocation as he found her in objectionable position with her paramour Goro. The plea finds support not only from the accused's statement under section 342, Cr. P. C. And judicial confession but also from the extra-judicial confession that he had made to P. Ws. Ghulam Shabir and Muhammad Ishaq. These witnesses have confirmed that they saw the accused with blood-stained clothes on his person and having blood-stained hatchet. On their inquiry he told them that he had killed his sister Hamida as he found her in compromising position with her paramour Goro. Apart from above, it is admitted that the blood-stained hatchet and blood-stained clothes were secured by police from accused's possession.
7. After taking into consideration the evidence available on record the learned trial Judge rightly came to the conclusion that the accused had committed the murder of his sister under sudden and grave provocation. I agree with his finding that the case fell under section 304, Part I, P. P. C.
The accused was convicted accordingly and awarded the sentence as mentioned above.
8. The learned counsel for the appellant argued that looking to the circumstances of the case and economical position of the accused, the sentence of fine awarded to the accused is too harsh. He submitted thati in the case of this kind, keeping in view the sentence of three years' R. I. Which amply met the ends of justice, the sentence of fine should have been only nominal. He further contended that while imposing fine, the accused's paying capacity should have been kept in mind.
Th accused being a poor labourer cannot afford to pay such a heavy amount of fine. The argument of the learned counsel carries a lot of weight. The accused does not appear to have enough resources to pay the amount of fine as well as that of compensation. The learned A. A.-G.
Agreed that this is a fit case which calls for reduction in sentence of fine. If the sentence of fine is left untouched, the accused's financial position would hardly permit him to pay the amount and in the event of default h would suffer additional imprisonment of one year which together with three years' substantive imprisonment would be excessive in the case of this type.
9. For above reasons the fine was reduced by an order dated 4th October, 1982 to Rs, 1,000 or in default to R. I. For one month. It was further directed in the same order that if the amount of fine is realized it shall be paid as compensation to the heirs of the deceased and no further amount will be recovered as compensation from the appellant.
10. The next point urged by the learned counsel for the appellant was that the benefit of section 382-B, Cr. P. C. Be granted to the appellant and the period of his detention as under-trial prisoner may be counted towards his sentence of imprisonment. In support of his prayer he made specific reference to the requirements of the said section and placed reliance on some authorities.
11. It would appear that section 382-B was introduced in the Criminal Procedure Code for the first time through Law Reforms Ordinance, 1972 which was promulgated on 13th April, 1972. However, the section became effective from 24th December, 1975, vide Sind Government's Notification No, S- Legis 4 (8)/75, dated 23rd December, 1975. In order to comprehend the implication of section 382- B, Cr. P. C. Vis-a-vis the appellant's case, it is reproduced as under :- "382-B. 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."
12. The word 'shall' used in the above section was substituted in place of the word 'may' by amending Ordinance known as Code of Criminal Procedure (Second Amendment) Ordinance, 1979 published in the Gazette of Pakistan, Extraordinary, Part I, 22nd December, 1979. It was submitted by the learned counsel for the appellant that the intention of the amendment clearly was to make it obligatory for Courts to take into consideration the period of detention undergone by the accused as undertrial prisoner while passing a sentence of imprisonment. Elaborating his arguments he contended that after the above amendment, the Court had to allow the benefit of section 382-B, Cr. P. C. On its own without asking by the prisoner. The argument does not appear to be without force and finds support from some authorities which may briefly be reviewed. In the case of Ali Slier v. The State and 3 others , the Supreme Court was pleased to observe :- "It would appear that although the section is not attracted in strict terms to the present case, as we are not passing an original order of conviction and sentence, but merely restoring the judgment of the trial Court, yet the benefit contemplated by this section must clearly be made available, to the respondents, who have been in custody for several years under the orders of this Court during the pendency of this appeal against acquittal."
13. In another case of Falaksher v. State , it was held :- "By a recent amendment of section 382-B, the word 'may' has been substituted by the word 'shall'.
In view of this amendment, the period of detention for an offence has to be taken into consideration. The appellants are in jail for the last five years. Keeping this fact in view, I reduce the sentence of imprisonment of the appellant to already undergone."
14. In the case Sultan Ahmed and 2 others v. The Pate , following observations were made :- "Since the trial Judge has not taken into consideration the provision of section 382-B, Cr. P. C. In the case of Akbar and Umar Hayat appellants, which is an error of law, we proceed to do so in their case as well."
15. In the recent case of this High Court, Saleh v. Superintendent, Central Prison, Hyderabad , it was held :- "It may also be observed that now section 382-8 is a mandatory provision as the word 'may' has been substituted by the word 'shall' by Ordinance LXXI of 1979 (published in PLD 1980 Federal Statutes 19)."
16. In another case of this High Court reported as Muhammad Sidik v. The Province of Sind and 2 others , a constitution petition was filed under Article 9 of the Provisional Constitution Order, 1981 with prayer that the Jail authorities be directed that while computing the sentence of imprisonment awarded to the petitioner, the period of detention undergone by him during trial proceedings and subsequently under the orders of the Supreme Court during the pendency of appeal in that Court be included. Relying on the case of Ali Sher referred to above, the Division Bench directed the jail authorities to include the said period of detention of the petitioner in his sentence of imprisonment.1 2 3 4 5
17. In the case of Muhammad Younas v. The State , the Supreme Court has observed :- "He submitted next that the petitioner has not been given the benefit of the provisions of section 382-8, Cr. P. C., although the petitioner had remained as an under-trial prisoner for quite some time.
We have considered the aforementioned contentions. We do not consider this to be a fit case for reappraisal of evidence but in the circumstances of this case, we feel that, he is entitled to relief under section 382-B, Cr. P. C."
18. Reverting to the case of Saleh it was further held by the D. B. Of this Court :- "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 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 ' In absence of an order of 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 authorize them to extend the benefit of the same provision."
' It was further observed in the same case :- "In our view this Court is competent under section 561-A, Cr. P. C. To consider a Miscellaneous application for determination as to 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 undertrial period alongwith other remissions, which a convict is entitled to under the Jail Rules for the detention period.".
19. The same view was expressed in Noor Akbar Bucha v. State , in the following words :- ..It is open to tbis Court to allow benefit of statutory provi-sions 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 561- A, Cr. P. C. 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."
20. The next important case in the series is of Abdul Majid and others V. Superintendent, Jail Khairpur , in which the petitioner was arrested on 11th September, 1968 on a charge under section 302 and allied provisions of the Penal Code. On trial he was acquitted by the Sessions Judge, Khairpur on 26th February, 1970. There was an appeal against the acquittal which was decided on 12th October, 1973. The petitioner was sentenced to transporation for life and R. I. For one year and five years on different counts. While considering the application under section 382-B, Cr. P. C. The question arose whether the period of detention as under-trial prisoner is to be specified by the Court or leave the jail authorities to take that into consideration. In this connection reliance was placed on Ali Sher v. The State , and Manzoor Ahmad v. The State . In the latter case the earlier case was taken notice of and the Supreme Court observed : - "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 uptil the date of announcement of sentence for imprisonment for life against him in the light of recent amendment under section 382-B of the Cr. P.
C.
' Following these authorities a direction was given to the Superintendent Jail to compute the period that the petitioner had remained in custody as undertrial prisoner.
21. It would be noticed from above authority that the benefit of section 382-B, Cr. P. C. Was extended in the case which was finally closed long before the section had become operative. On the retrospective application of section 382-B, Cr. P. C. The view taken in the above case as well as6 7 8 9 10 in the case of Saleh of this High Court is contrary to the view of the High Court of Azad Jammu and Kashmir in the case of Iqbal Hussain Shah v. The State . In this case the prisoner was convicted and sentenced to death under section 302, P. P. C. By the trial Court and on appeal to the High Court the sentence was commuted to life imprisonment by order dated 15th July, 1978. It was held that since section 382-B was enforced on 20th February, 1980, the section was not available to the Court while awarding sentence and as such it cannot be said that while passing sentence on the petitioner, the Court ignored section 382-B. It was further held that PLD 1980 SC 323 had no bearing on the instant case. It was also held that section 382-B has no application in the cases which were finally determined by the Courts prior to its enactment.
22. In the case of Saleh referred to above it was observed ;- "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."
23. The other cases worthy of mention in respect of section 382-B, Cr. P. C. Are : Muhammad Aslam v. State , Nazar Muhammad and another v. The State , Muzaffar Mustafa v. State and Muhammad Arif v. The State . In the case of Muhammad Aslam, the Supreme Court was pleased to observe :- "It may be mentioned that accused (petitioner in D. P. No, 85/81) filed a belated application that they should be given the benefit of section 382-B, Cr. P. C. But considering the severity of the attack and the number of injuries caused by them to the deceased and the fact that they have already been dealt with leniently, we do not consider it a fit case for granting the relief prayed for by them."
24. In the case of Nazar Muhammad it was held : "before us the counsel for the appellants did not contest on merits but only submitted that the learned High Court had omitted to reconsider the provisions of section 382-B, Cr. P. C. Which provides that the Court sentencing the accused to imprisonment is required to take into consideration the period during which he (the accused) was detained in custody for the offence is question.
' On going through the last paragraph (para. No, 7) of the impugned judgment we find that the learned Judge in Chamber had, in fact considered this question while reducing the sentences of the appellants under section 325/34, P. P. C. From 7 years' R. I. To 4 years' R. I."
25. In the case of Muzaffar Mustafa it was observed by the Supreme ourt "Learned counsel has urged for reduction of sentence of death in view of the decision of this Court in Muhammad Bashir v. State PLD 1982 SC 139 and for giving the appellant benefit of section 382- B, Cr. P. C. This is not opposed by Mr. Nemat Khan, learned counsel appearing for the State.
Considering the circumstances of the case, we are satisfied that lesser sentence will suffice the ends of justice. We accordingly reduce the sentence of death to that of imprisonment for life with benefit under section 382-B, Cr. P. C."
26. In the case of Muhammad Arif it was held :- "Applying section 382-B, Cr. P. C. The sentence already undergone comes to more than four years.
This is sufficient to meet the ends of justice."
27. In view of the case law noticed in the forgoing paragraph, I m inclined to hold : firstly, that after substitution of the word 'shall' in be place of the word 'may' in section 382-B, Cr. P. C., it is now mandaory for Courts passing sentence of imprisonment on the accused to take ato consideration the period, if any, during which the accused was etained as undertfial prisoner ; secondly that the Court has to apply s mind expressly for deciding whether adjustment of period of detention s undertrial prisoner be allowed or not and in absence of such order the all authorities are not authorised to give such adjustment ; thirdly, that his Court is competent under section 561-A, Cr. P.
C. To consider a niscellaneous application for determination as to whether the convict is ntitled to the benefit of section 382-B, Cr. P. C. Fourthly, that it may not e necessary for the Court allowing the11 12 13 14 15 benefit of section 382-B, Cr. P. C. To specify the actual period undergone by the accused as undertfial prisoner which can be left to be computed by the Jail authorities ; and fifthly, that section 382-B, Cr. P. C. Being a procedural provision, it can be applied etrospectively to cover even the cases decided before its enforcement.
28. In the instant case, as is disclosed in the judgment of the learned sessions Judge, the accused/appellant was arrested on 11th March, 1980, while he was convicted on 24th February, 1981.
In view of the principles nunciated in the authorities reviewed above the benefit of section 382-B, r.
P. C. Is to be allowed to the appellant who by short order dated 4th ktober, 1982 has been granted the benefit. Above are the reasons for -the aid decision. PLD 1980 SC 317 PLD 1981 Lah. 143 1981 P Cr, L J 602 PLD 19 82 Kar. 542 1982 P Cr. L J 190 1982 SCMR 1022 1982 P Cr. L J 944 1982 P Cr. L J 1 PLD 1980 SC 317 1981 SCMR 260 P D 1982 Azad J&K 77 1982 SCMR 709 1982 SCMR 628 1982 SCMR 695 1979 P Cr. L J 602