The applicant was convicted under Article 4 of the Prohibition (Enforcement of Hadd) Order, 1979 and sentenced to ten years' R.I., with whipping numbering twenty stripes and a fine of Rs.50,000, in default to suffer R.I., for five years' R.I. The applicant filed an appeal against the said judgment in this Court, which was dismissed on 5-5-1986. The petition for special,, leave to appeal was also dismissed by the Shariat Appellate Bench of the Supreme Court of Pakistan. The applicant then filed a Constitutional Petition No.D-245 of 1989 in the High Court which was, however, dismissed with a direction that the applicant may move in the appropriate Court. The applicant then filed an application before the trial Court praying for the benefit of section 382-B, Cr.P.C. The learned trial Court rejected the said application by its order dated 10-10-1990, on the ground that it has been filed after a delay of about five years and thus it is not maintainable. Now the applicant has filed the above criminal miscellaneous application challenging the said order.
2. Section 382-B, Cr.P.C., was introduced in the Criminal Procedure Code in 1972 which was promulgated on the 14th of April 1972. The said provision as amended is reproduced below: "382-B. Period of detention to be considered while awarding sentence of imprisonment.-- 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:"
3. A plain reading of the above provision would show that it is mandatory for the Court to take into consideration the period, if any, during which the accused was detained in custody as an under- trial prisoner, for the offence convicted. The word `shall' substituted in place of `may' by Ordinance LXXI of 1979 is a clear manifestation of this interpretation.
4. The question has already been considered in a number of cases. In Ali Sher v The State PLD 1980 SC 317 the Honourable Supreme Court while maintaining the conviction and sentence and restoring the judgment of the trial Court observed `yet the benefit contemplated by this section 382-B, Cr.P.C., must clearly be made available to the respondents who have been in custody for several years. In another case of Muhammad Younis v The State 1982 SCMR 1022 the Honourable Supreme Court observed that: "He submitted next that the petitioner has not been given the benefit of the provisions of section 382-B, 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., 1985 SCMR 1167, the Honourable Supreme Court while dismissing the appeal observed that: "We however, find that the question of giving the appellant the benefit under section 382-B, Cr.P.C., was not at all considered by any of the Courts below. We, therefore, while dismissing their appeal direct that they shall be given the benefit under section 382-B, Cr.P.C.
A Division,, Bench of the High Court of Sindh in Saleh v. Superintendent, Central Prison, Hyderabad PLD 1982 Kar. 542 held that: "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 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 Sindh, can give adjustment for any detention period during the trial under the above provisions, as it does not authorise 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 under-trial period alongwith other remissions, which a convict is entitled to under the Jail Rules for the detention period:"
5. The same view was expressed in Noor Akbar Bucha v. State 1982 P Cr. LJ 944 and Abdul Majeed and others v. Superintendent Jail, Khairpur 1982 P Cr. LJ 1.
6. The above case-study reveals that section 382-B, Cr.P.C. As amended is a mandatory provision as the word `may' has been substituted by the word `shall' by Ordinance LXXI of 1979. The benefit of section 382-B, Cr.P.C., was extended in cases where neither the trial Courts nor Appellate Courts applied their minds to the grant of benefit of section 382-B, Cr.P.C. While disposing of the case or appeal. The benefit,, of section 382-B, Cr.P.C., was extended to the accused by the High Court and the Supreme Court. In a recent unreported case decided by the Federal Shariat Court, of which I was a party, the benefit of section 382-B, Cr.P.C., was given, much after the disposal of the appeal on a separate application moved by the convict in this Court.
7. In the instant case it appears that the trial Court while sentencing the applicant/accused failed to apply its mind to the question of extending the benefit to the convict as provided in section 382- B, Cr.P.C. This was clearly an omission on the part of the trial Court. The accused/convict should not suffer for such) omission of the Court.
8. For reasons discussed above the impugned order seems to be wrong inasmuch as there is no limitation prescribed for making such application. In any case, the delay stands explained by the events stated above. Even otherwise, the order is not sustainable in law. The impugned order is, therefore, set aside and the benefit of section 382-B, Cr.P.C., is grip led to the convict in accordance with law in the circumstances of the case rot?