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Criminal Miscellaneous 121/M of 1983, decided on 14th February, 1983.

---Ss. 561-A & 382-B (as amended by Criminal Procedure (Second Amend ment) Ordinance (LXXI of 1979)--Benefit of period spent by accused as under-trial prisoner--Accused, held, entitled to such benefit as a matter of right--Counsel for accused failing to make such request at time of argument in appeal and High Court not considering it--Jail authorities directed to give accused benefit of S.382-B, Cr.P.C.--[Sentence].

Mian M. Zafar Yasin for Petitioner.

T.H. Jilani, A.A.-G. for the State.

Date of hearing: 14th February, 1983.

--This is a petition under section 564-A, Cr.P.C. whereby Munir Hussain petitioner/appellant seeks direction the effect that the period of his detention as an under-trial prisoner case State v. Munir Hussain and 2 others be considered and benefit of section, 382-B, Cr.P.C. be given to him.

2. The facts giving rise to this petition are that Munir Hussain petitioner with 2 others were tried by the learned Sessions Judge, Muzaffargarh under section 302/307/34, P.P.C. for causing the death of Sadiq Hussar) and murderous assault upon Aziz Ahmad and Abdul Majid P.Ws. On 29th November, 1978, the petitioner was convicted under section 302/307/31, P.P.C. Under section 302, P.P.C he was sentenced to death and a fine of Rs.500 or in default thereof to further R.I. for 4 months and was also directed to pay compensation of Rs.500 to the legal heirs of the deceased or further R.I. for 2 months. Under section 307/34, P.P.C. he was sentenced to 3 years' R.I. and fine of Rs. 200. In default thereof to further R.I. for 2 months. He was also directed to pay compensation of Rs.300 to each injured witness in equal shares or further R.I. for 2 months. The co-accused were however, convicted under section 324/3:, P.P.C. The petitioner filed an appeal against his conviction and sentence. The trial Court also referred the case under section 374 Cr.P.C. for the confirmation of the sentence of the death awarded to the petitions appellant. This Court while disposing of criminal appeal and murder reference vide its judgment dated 8th December, 1981, reduced the sentence of death to imprisonment for life. The sentence of fine, imprisonment in default thereof, compensation and the sentence in default were, however, maintained.

3. The learned counsel for the petitioner submits that provisions of section 382-B, Cr.P.C. being mandatory one, the petitioner is entitled to its benefit. The learned counsel for the State has half-heartedly opposed this petition.

4. After hearing the learned counsel and going through the record, we find that the occurrence took place on 16th September, 1976, the conviction was recorded on 29th November, 1978 and the appeal and murder reference were disposed of on 8th December, 1981. Since the appeal and murder reference are in continuation of the trial, we are inclined to accept the petition for the reasons that under section 382-B, Cr.P.C. as amended by Cr.P.C. (Second Amendment) Ordinance (71 of 1979) the appellant was entitled to the benefit of section 382-B, Cr.P.C. as, a matter of right.. It appears that since at the time of arguments in appeal, the learned counsel did not make any request for benefit of section 382-B, Cr.P.C. the same could not be considered by this Court. It is, therefore, directed that the Jail Authorities shall give the benefit of section 382-B, Cr.P.C. to the petitioner/ appellant.

M.Y.H. Petition allowed.

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