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Constitutional Petition No. D‑909 of 1981, decided on 4th November, 1981.
---S. 382‑B‑Sentence, computation of‑Period of detention under gone by petitioner during trial and appeal in Supreme Court, held, to be included while computing sentence of petitioner.
Ali Sher v. State P L D 1980 S C 317 rel.
Muhammad Hayat Junejo for Appellant.
Abdul Sattar Shaikh, Addl. A.‑G. for Respondents.
10 Date of hearing : 4th November, 1981.
‑This is a petition under Article 9 of the Provisional Constitution Order, 1981, filed by the petitioner with a prayer that Jail Authorities be directed while computing sentence to take into consideration and include period of detention undergone by the petitioner during the trial proceedings and also subsequently under the orders of the Supreme Court, while appeal was pending there as contem plated under section 382‑B, Cr. P. C.
2. It is submitted by Mr. Muhammad Hayat Junejo, counsel for the petitioner that the petitioner was arrested on 26th August, 1968 and was in custody during the period of‑trial before the Sessions Court, where he was ultimately convicted and sentenced to death. Petitioner filed appeal before the High Court, which was allowed in the result whereof he was acquitted on 26th June, 1973. Petition fur Special Leave to Appeal was filed against the judgment of the High Court and the Supreme Court passed orders for arrest of appellant on 31st January, 1974 in pursuance whereof petitioner was arrested on 15th April, 1974 and remained in custody till appeal was finally disposed of by the Supreme Court on 30th January, 1980 convicting him under section 302, P. P. C. and sentencing him for transportation of life.
3. Counsel for the petitioner has further submitted that he filed an application before the Supreme Court praying that benefit contem plated by section 382‑B, Cr. P. C. be ‑ranted to the petitioner and the Jail Authorities be directed to include period of detention undergone by the petitioner during trial and appeal m the Supreme Court while computing the sentence. Mr. Muhammad Hayat Junejo has further submitted that he has received a reply from the Supreme Court' vide letter dated 8th January, 1981 from Assistant Registrar addressed to the Advocate‑on- Record in which it is stated that no further orders are necessary in view of the provisions of section 382‑B, Cr. P. C. and the decision of the Supreme Court in P L D 1980 S C 317.
4, Mr. Muhammad Hayat Junejo has further submitted that after receipt of this letter from the Supreme Court he addressed a letter dated 25th February, 1981 to the Superintendent, Central Prison, Sukkur, quoting the letter of the Supreme Court, but no reply has been received so far neither any action has been taken for computation of the sentence in the light of section 382‑B, Cr. P. C.
5 It is further submitted that language used in section 382‑B Cr. P, C. is very clear and the use of word shall indicates that it is mandatory for the Court to include the period of detention while comput ing the sentence. Mr. Muhammad Hayat Junejo has further submitted that Supreme Court in an identical case has granted this relief which clearly relates to the period of detention undergone by the convict under the orders of the Supreme Court during the pendency of acquittal appeal and the Supreme Court has made specific reference to this reported decision in the letter which is addressed by the Assistant Registrar of the Supreme Court to the counsel of the petitioner.
6 In view of this legal position and the facts narrated above Mr. Abdul Sattar Shaikh, Additional Advocate‑General concedes that prayer (a) in the Constitution Petition can be granted. Accordingly, we direct the Jail Authorities to include period of detention of the petitioner under the orders of the Supreme Court during the pendency of the acquittal's appeal as well as period of detention during the trial proceedings while computing the sentence of petitioner. Mr. Muhammad Hayat Junejo further does not press other prayers mentioned in the memorandum oil petition.
7. In the result the petition is allowed as stated above.
Petition accepted
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