CHAUDHARY MUHAMMAD TAJ, J.---This appeal has been filed against the judgment and order of the District Criminal Court, Kotli passed on July 17, 1990, whereby the appellant was convicted and sentenced to life imprisonment.
2. The facts forming the background of this appeal are that a case under section 5, Islamic Penal Laws Act, was registered on the report of Sub. Abdul Ghafoor Khan, complainant, on October 16, 1981 at 3-45 p.m. At Police Station Sehnsa. It was stated in the F.I.R. That the complainant came on leave. It was also stated that Muhammad Aslam is his real brother. A month earlier, the daughter of his uncle Muhammad Siddique was abducted by Muhammad Yunus alias Sain with the connivance of Muhammad Aziz son of Muhammad Zama and Muhammad Aslam supported his uncle which gave grievance toMuhammad Aziz and Muhammad Yunus who became inimical towards him. It was further stated that today Muhammad Aslam alongwith Muhammad Taj son of Manga Khan, Shah Nawaz son of Ghulab, Qurban son of Manga, Muhammad Khalil son of Pola, went to attend the ' Janaza' prayer of one Mangta Khan in village Atkora. At about 10 a.m. They reached Pandorian.
The accused Muhammad Aziz son of Muhammad Zaman, alongwith another accused Muhammad Yunus alias Sain armed with .12 bore guns, appeared who were hiding themselves. The moment Muhammad Aslam came in front of them, Muhammad Aziz accused fired at him with .12 bore gun which hit Muhammad Aslam on his right and left thigh and the bleeding started. I also reached there and tried to relieve Muhammad Aslam from the accused with the help of other persons but they gave threats of dire consequences and not allowed to come near them. The accused Muhammad Yunus dragged Muhammad Aslam to a ' Gehl' who died there after few minutes. The occurrence was witnessed by Muhammad Taj, Shah Nawaz, Qurban, Muhammad Khalil and the complainant himself. On alarm, Habib and Mst. Shafait Begum also reached the spot.
3. After investigation, the challan was forwarded to the District Criminal Court, Kotli, against Muhammad Aziz, Muhammad Yunus, Muhammad Karim and Muhammad Ayub, under section 5, I.P.L.A. Read with section 34,APC. Muhammad Aziz was challaned under section 512, Cr.P.C. And later on ' Tetitmna' challan was submitted against him when he was apprehended. During the course of trial, Muhammad Yunus, accused was murdered while the other accused Muhammad Ayub also died. After completion of the trial Muhammad Karim was acquitted, while Muhammad Aziz, accused appellant was convicted and sentenced to life imprisonment.
This appeal challenges the aforesaid order of the District Criminal Court, Kotli.
4. Ch. Muhammad Yusuf Khan, the learned counsel for the appellant did not press the appeal on merits.
However, he invited the attention of the Court that the accused after being apprehended on July 11, 1985, remained in judicial lock-up for a period of more than 5 years when the case was finally concluded by the District Criminal Court, on July 17, 1990. It was argued that the Trial Court did not take into consideration the period during which the accused was detained in custody, at the time the sentence of imprisonment was awarded. It was further argued that it was the requirement of law through mandatory provisions of section 382- B, Cr.P.C. To consider the relevant period. He prayed that the benefit of section 382-B, Cr.P.C. May be given to the accused-appellant. The learned counsel referred to 1994 PCr.LJ 873, 1992 PCr.LJ 597, 1984 PCr.LJ. 152, PLD 1980 SC 317 and 1991 PCr.LJ 1721, in support of his contentions. On the other hand, Kh. Abdul Basit, the learned counsel for the complainant and learned Additional Advocate-General opposed the contention of the learned counsel for the appellant, on the ground that the accused-appellant is not entitled to the concession of section 382-B, Cr.P.C. As he absconded after the commission of the crime. It was also argued that the accused brutally committing heinous crime are not entitled to the above concession. The learned counsel for the complainant did not cite any law or citations in support of his assertion. To appreciate the proposition, it is appropriate to appraise the relevant provision which is reproduced as below:-- "S.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."
The analysts of the above provision of law reveals that at the time of passing the sentence of imprisonment, it is mandatory for the Court to consider the period during which the accused was detained in custody. A perusal of the impugned judgment and order shows that the trial Court at the time of passing the order failed to consider the period of detention the accused remained in custody during the investigation and trial.
5. This Court exercises the same powers in appeal as are vested in the Trial Court. Therefore, it seems appropriate to advert to the relevant law which s escaped the attention of the Trial Court. The proposition of extending concession of section 382-B, Cr.P.C. Invited the attention of the different jurisdictions. The consensus remained in favour of extending the above benefit for a period spent by a convict in the course of trial or investigation, or even during the appeal period if the accused is convicted by the Appellate Court or his sentence is altered by that Court. Reliance in this regard may be placed on 1992 P.Cr.LJ 597 wherein the Shariat Court of Azad Jammu and Kashmir, held as follows:-- "---The convict was arrested on February 16, 1980. He remained in judicial lock-up throughout the trial and disposal of the appeal and confirmation of the sentence. Therefore, he is granted benefit of provisions of section382-B, Cr.P.C. The period of such detention shall be counted towards his rigorous imprisonment. The benefit of concession of remittances of sentence to the convict awarded by the Government or the President from time to time, during this period shall be admissible to him as well. The appeal and reference are disposed of accordingly."
The proposition also came under consideration before a Division Bench of Lahore High Court in the case titled Hakim Khan v. State 1994 PCr.LJ 873 wherein it was held as under:-- "---Learned counsel for the petitioner has made an application under section 561-A, Cr.P.C. For the grant of benefit of section 382-B, Cr.P.C. To him on the strength of Ramzan and 3 others v. The State PLD 1992 SC 11, whereby judgment of the Full Bench of the High Court in the case titled Zulfiqar A.I v. The State PLD 1984 Lahore 461 was reversed. Learned counsel for the petitioner has cited Liaqat A.I v. The State 1991 P.Cr.LJ 1721 where benefit of section 382-B, Cr.P.C. Was allowed to convicts even after pronouncement of judgment. It was observed in the said case that such orders are neither considered alteration of the judgment nor review of the same and in fact are passed to give effect to the legal proposition."
The Supreme Court of Pakistan in the case titled A.I Sher v. The State and others PLD 1980 SC 317 observed as under:----- "---Section 382-B---Sentence---Computation of detention period---Supreme Court not passing original order of conviction and sentence but merely restoring judgment of trial Court---Section 382-B, held, not attracted in strict terms but, nevertheless, benefit contemplated by section clearly to be made available to respondents kept in custody for several years tinder orders of Court during pendency of present appeal---Benefit of section accordingly ordered to be extended to accused respondents." .
"---Ss.382-B and 561-A--Benefit of S.382-B---Mandatory for Court passing sentence of imprisonment to take into consideration period of detention undergone by accused as an under-trial prisoner and apply its mind expressly for deciding whether adjustment of period of detention be allowed or not and in absence of such order, Jail Authorities not authorised to give such adjustment---High Court competent under 5.561-A to consider a miscellaneous application for determination as to whether convict entitled to benefit of S.382-B, Cr.P.C.---Not necessary for Court allowing benefit thereof to specify actual period undergone by accused which can be left to be computed by Jail Authorities--Section 382-B, Cr.P.C. Being procedural provision, held, can be applied retrospectively to cover even cases decided before its enforcement.--"
6. The analysis of the aforesaid authorities reveals that the period of detention of an accused during the investigation trial or period spent during the appeal is to be considered. Allowing of benefit can be made even on the miscellaneous application by the Court after passing the judgment and while deciding the appeal as well.
Relying upon the aforesaid authorities, the convict appellant is given the benefit of section 382-B, Cr.P.C. For the period he was detained either in police custody or judicial lock-up. The period of such detention shall be counted towards his imprisonment. With the above observations, the appeal stands dismissed.