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Constitutional Petition No. 92 of 1982, decided on 17th October, 1982.
‑‑ S. 382‑B read with Ss. 401 & 402‑A‑Remaining in custody as undertrial prisoner ‑ Consideration of such period‑Held, "such period" cannot be considered where accused having been awarded death sentence‑ Provisional Constitution Order (P. O. 1 of 1981), Art. 9.
‑‑‑ S. 382‑B read with Ss. 401 & 402‑B read with Constitution of Pakistan (1973), Art. 45‑Application of provisions‑Section 382‑B, Cr. P. C.. held, not made applicable to exercise of powers under S. 401, Cr. P. C. or exercise of powers conferred on President of Pakistan under S. 401 read with S. 402‑At‑Cr. P. C. or Art. 45 of Constitution of Pakistan (1973).
Petitioner through Jail.
Hasan Akbar, Asstt. Advocate‑General for the State.
Date of hearing : 17th October, 1982.
‑This is a petition under Article 9 of the Provisional Constitution Order, 1981., filed by Sohrab, who is undergoing the sentence of life imprisonment in the following circumstances.
The petitioner was convicted, as would appear from the record, under section 302, P. P. C. and was sentenced to death by the Sessions Judge, Sukkur, by the judgment dated 13th November, 1973, subject to confirma tion by the High Court of Sind and Baluchistan, Karachi, which sentence was confirmed by the High Court and the petitioner's appeal was dismissed. The petitioner preferred a petition for special leave to appeal against the judgment of the High Court but the same was dismissed by the Supreme Court by the order dated 22nd March, 1975. However, on a mercy petition the petitioner's death sentence was commuted to life imprisonment on 10th August, 1976 as stated by the petitioner in the petition. The petitioner now seeks the benefit of the provisions of section ‑382‑B, Cr. P.C. which read as follows: ‑
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."
It is clear from the above‑stated facts and the above‑quoted provisions that the said provisions require the Court passing the sentence to take into consideration the period during which the petitioner was detained in custody for the offence but in the present case since he was sentenced to death and A the death sentence was confirmed by High Court and maintained by the Supreme Court, the question of taking the period during which the convict remained in prison as under trial prisoner into consideration at any stage could not and did not arise further, the provisions of section 382‑B, Cr. P. C. are not made applicable to the exercise of powers under section 401, Cr. P C., or the exercise of powers conferred on the President of Pakistan under section 401 read with section 402‑A, Cr. P. C. or Article 45 of the Constitution. Therefore, this petition is misconceived and is accordingly dismissed in limine.
We may, however, record that Mr. Hasan Akbar, Assistant Advocate‑General is present and submits that even otherwise, this petition is not maintainable against the respondents who are the Province of Sind, the Inspector‑General of Prisons, Hyderabad, Sind and the Superintendent, Central Prison, Sukkur as they have not committed any act which could be termed as unlawful for it was the Court which passed the sentence which was required to take into consideration the provisions of section 382‑B, Cr. P. C. and the question did not arise at any stage of the proceedings in relation to the present case of the petitioner. The submission is correct and we accordingly uphold the same.
Order accordingly.
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