 
 
IN THE SUPREME COURT OF PAKISTAN 
(Appellate Jurisdiction) 
 
 
 
 
 
 
PRESENT: 
 
 
 
 
Mr. Justice Iftikhar Muhammad Chaudhry, CJ. 
 
 
 
Mr. Justice Javed Iqbal 
 
 
 
Mr. Justice Raja Fayyaz Ahmed 
 
 
 
Mr. Justice Ch. Ijaz Ahmed 
 
 
 
Mr. Justice Sayed Zahid Hussain 
 
 
 
Mr. Justice Muhammad Sair Ali 
 
 
 
 
JAIL PETITION NO. 56 OF 2005 
 
(On appeal against the judgment dated 11.9.2003 passed by the 
Peshawar High Court, Abbottabad Bench in Crl. Appeal No. 61/2001) 
 
Shah Hussain  
 
 
 
…. 
 
 
PETITIONER 
 
 
 
 
 
 
VERSUS 
 
The State 
 
 
 
 
…. 
 
 
RESPONDENT 
 
 
For the petitioner:  
 
Mr. Zulfiqar Khalid Maluka, ASC  
 
For the State: 
 
 
Syed Tahaar Hussain, ASC  
 
 
 
 
 
(on behalf of A.G., NWFP) 
 
Amicus Curiae: 
 
 
Syed Iftikhar Hussain Gillani, Sr.ASC 
 
 
 
 
 
 
 
 
 
 
 
Mr. Muhammad Akram Sheikh, Sr.ASC 
 
 
 
 
 
(Assisted by Barrister M. R. Kamran Sheikh, Adv.) 
 
 
 
 
 
 
 
 
 
 
 
Sh. Zameer Hussain, Sr.ASC  
 
 
 
 
 
 
 
Ms. Naheeda Mehboob Elahi, DAG 
 
 
 
 
 
Qazi Muhammad Amin, Addl.AG 
 
 
 
 
 
 
 
 
 
 
 
Mr. Muhammad Naeem Sheikh, ASC 
 
 
 
 
 
(With permission of the Court) 
 
Dates of hearing:  
 
7th & 11th May, 2009  
---- 
 
JUDGMENT 
 
 
  
IFTIKHAR MUHAMMAD CHAUDHRY, CJ. -    This petition for 
leave to appeal has been filed through jail against the judgment dated 
J.P.56/2005 
2 
11.9.2003 passed by the Peshawar High Court at Abbottabad Bench in Cr. 
A. No. 61/2001. 
2. 
 
The petitioner, his brother Akhtar Hussain and co-accused 
Muhammad Shaukat were tried by the Sessions Judge/Zila Qazi, Kohistan 
at Dassu for committing murder of one Farman Ali, causing injuries to 
Muhammad Siffat Khan (injured PW) and for the offence of Haraabah in 
respect of jeep bearing registration No.GLT-4406. They were convicted 
under section 392 read with section 34 PPC and section 20 of the 
Offences Against Property (Enforcement of Hadd) Ordinance, 1979 and 
were sentenced to 10 years’ R.I. and a fine of Rs.25,000/- each, or in 
default of payment thereof, to undergo one year R.I. They were also 
convicted under section 394 read with section 34 PPC and section 20 of 
the Offences Against Property (Enforcement of Hadd) Ordinance, 1979 
and were sentenced to imprisonment for life with a fine of Rs.25,000/- 
each, or in default thereof, to undergo one year R.I. In case of recovery of 
fine, 3/4 of it was ordered to be paid to the injured PW Muhammad Siffat 
Khan as compensation. Under section 302(b)/34 PPC, accused Shaukat 
was convicted and sentenced to death while the petitioner and his brother 
Akhtar accused were convicted and sentenced to imprisonment for life 
each. All three convicts were also ordered to pay a sum of Rs.100,000/- 
each as compensation to the legal heirs of deceased Farman Ali, or in 
default thereof, to suffer S.I. for six months. Their sentences were ordered 
to run consecutively. On a reference under section 374, Cr.P.C. and 
appeal filed by the convicts, the Peshawar High Court, vide judgment 
dated 11.9.2003, allowed the appeal of Akhtar Hussain, set aside his 
conviction and sentence and acquitted him of the charges but dismissed 
the appeal of the petitioner and maintained his conviction and sentence. 
J.P.56/2005 
3 
Accused Shaukat died during the pendency of appeal and the murder 
reference against him stood abated.  
3. 
 
The FIR of the case was registered on 6.9.1999 at the report 
of Hafiz Janas Khan, SHO, P.S. Dubair, who, during his usual patrolling, 
found jeep No.GLT-4406 at the Karakurram Highway, which appeared to 
have met an accident. On search of the vehicle, he found a .30 bore pistol 
bearing No.5901-B loaded with magazine containing four rounds, an empty 
cartridge of .30 bore and blood. Off the roadside nearby, he found a dead 
body of an unknown person. He noticed one entry wound on the right 
eyebrow on the scalp with an exit wound near it. There were other injuries 
on the head, which showed that the dead body had been thrown down 
from somewhere. He registered case under section 302/34 PPC, prepared 
the injury sheet and inquest report and sent the dead body to the RHC 
Pattan for autopsy.  
4. 
 
Sole eyewitness of the occurrence was PW8 Muhammad 
Siffat Khan, driver of the jeep. In his deposition, he stated that on 6.9.1999 
two boys, namely, Shaukat and Shah Hussain (petitioner and co-accused) 
came to him and hired the jeep for the journey from Gilgit to Basham. He 
took Farman Ali (deceased) with him as a companion for the aforesaid 
journey. The petitioner sat with him on the front seat while the other took 
the back seat with Farman Ali. When they reached near a hotel at a 
deserted Nallah, he heard a fire shot behind him. He parked the vehicle at 
the roadside and found that Farman Ali had been shot by Shaukat. 
Thereafter Shaukat came to him and fired a shot at him injuring him on the 
neck and right shoulder. Shaukat wanted to fire more shots, but his pistol 
did not work. The petitioner pushed the injured PW out of the vehicle and 
occupied the driving seat. The accused threw the dead body of Farman Ali 
J.P.56/2005 
4 
off the roadside and took away the vehicle towards Basham. He was lying 
there in an injured condition when a bus came and he was taken to 
Basham Hospital. At the identification parade held in the jail premises, 
petitioner and Muhammad Shaukat were identified. Recoveries included 
the aforesaid jeep, a pistol, two empty cartridges, five .30 bore live 
cartridges, a wrist watch and bloodstained clothes of the petitioner. The 
crime weapon and two empty cartridges were to the firearms expert, which 
were found to have been fired from the said pistol. The autopsy of Farman 
Ali deceased showed firearm injuries on his body while the medical 
examination report of injured PW Siffat Khan showed firearm injuries on 
his person.   
5. 
 
The petitioner admitted, in his statement, the occurrence. With 
minor discrepancies, he narrated the prosecution story as given by Siffat 
Khan PW, noted above. He stated that Shaukat accused fired at Farman 
Ali deceased and Siffat Khan PW with a .30 bore pistol. He also stated that 
after the snatching of the vehicle from Siffat Khan PW and after throwing of 
the dead body of Farman Ali deceased off the jeep, he drove the vehicle 
towards Basham when it met an accident in which he and Shaukat 
accused got injured. They spent the night in a deserted place. In the 
morning they met an old man named Samandur whom Shaukat accused 
told that they (Shaukat and the petitioner) were searching their brother. On 
their way back from that place, they were arrested by the police. Clearly, 
petitioner’s statement is inculpatory in nature. Though at the trial, he 
retracted from his above statement, yet the same is corroborated on 
material particulars by the ocular account of the incident furnished by PW8 
Siffat Khan, mentioned above. Likewise, the recovery of crime weapon 
coupled wi th the medical evidence also corroborated the prosecution case. 
J.P.56/2005 
5 
In law, the confessional statement of the petitioner was sufficient for his 
conviction and sentence. Hence, no case for interference with the 
impugned judgment of the Peshawar High Court is made out qua 
conviction and sentence of the petitioner.  
6. 
 
During hearing of the petition on 6.5.2009, this Court noticed 
that the sentences of the petitioner, namely, 10 years’ R.I., and 
imprisonment for life on two counts, were ordered to run consecutively, the 
benefit of section 382-B, Cr.P.C., was not given to him and the remissions 
granted by the Federal and the Provincial Governments during his pre-
sentence custody period were also not allowed to him. Thus, we 
considered it a question of public importance relating to the enforcement of 
Fundamental Right of a prisoner as guaranteed under Article 9 of the 
Constitution and passed the following order on the said date:  - 
“2. 
Learned counsel for the petitioner contends that learned 
trial Court has convicted and sentenced the petitioner on 
various counts, which were ordered to run consecutively 
whereas the Courts, while awarding sentences on different 
counts, normally order the same to run concurrently. 
Secondly, in view of the law laid down in Haji Abdul Ali v. Haji 
Bismillah (PLD 2005 SC 163), the petitioner is not entitled to 
any remission granted by the President of Pakistan or the 
Provincial Government during the period he remained 
confined in jail as under-trial prisoner when he was neither 
convicted of any offence nor was undergoing any sentence.  
 
3. 
It is to be noted that the petitioner has been in custody 
since 1999 and, prima facie, in the light of the law laid down in 
the case reported as Ghulam Murtaza v. State (PLD 1998 SC 
152), the court is under an obligation to take into consideration 
the provisions of section 382-B, Cr.P.C. and in absence of 
special circumstances disentitling the accused, exercise its 
discretion in favour of the accused by ordering that such 
period shall be counted towards his sentence of imprisonment.   
 
4. 
In the instant case, the petitioner has neither been 
extended the benefit of section 382-B Cr.P.C., nor is entitled 
to any remission in view of judgment of two Hon’ble Judges in 
Abdul Ali’s case (supra). Further, in the said case, the 
judgment of a three member Bench in case of Ghulam 
Murtaza (supra) was not considered. Another aspect of the 
matter is that in another judgment delivered by a Bench of four 
J.P.56/2005 
6 
Hon’ble Judges in the case reported as Human Rights Case 
No.4115 of 2007 (PLD 2008 SC 71), the view taken in the 
case of Haji Abdul Ali (supra) has been reaffirmed. It may be 
noted that if a prisoner/convict remains in custody, his right to 
life under Article 9 of the Constitution remains available to him, 
therefore, such convicts should be dealt with in a manner in 
which they enjoy their fundamental right to life. This is not the 
only one case in which great difficulties and hardships have 
arisen for the prisoner but there are so many other cases 
wherein the prisoners are suffering in jail on account of delay 
in the trial of their cases for which generally they are not 
responsible in any manner. Therefore, we consider it 
appropriate to re-visit the judgments in the cases of Haji Abdul 
Ali and the Human Rights Case No. 4115 of 2007 (supra). The 
office is directed to fix this matter before a Bench of more than 
five Hon’ble Judges. Adjourned to 7.5.2009. Copy of this order 
be sent to the learned counsel appearing on Court’s call.” 
 
7. 
 
The learned counsel for the petitioner referred to the 
provisions of section 382-B, Cr.P.C., the corresponding provisions of 
section 428 of the Indian Code of Criminal Procedure, 1973 and section 67 
of the U.K. Criminal Justice Act 1967, as amended by the Powers of the 
Criminal Courts (Sentencing Act), 2000 and particularly Ghulam Murtaza’s 
case (supra), wherein it was held that the trial Court was under an 
obligation to take into consideration the pre-sentence period spent by a 
convict in jail, and in absence of special circumstances disentitling the 
accused, exercise its discretion in favour of the accused by ordering that 
such period should be counted towards his sentence of imprisonment. 
However, the learned counsel contended that in the instant case neither 
the trial Court extended the benefit of section 382-B, Cr.P.C., to the 
petitioner nor he was held entitled to any remission.  
8. 
 
The learned counsel for the petitioner cited judgments in the 
cases of Javed Iqbal v. State (1998 SCMR 1539), Muhammad Saleem v. 
State (1996 P.Cr.L.J. 1598), Ramzan  v. State (PLD 1992 SC 11), 
Mukhtiar-ud-Din v. State (1997 SCMR 55), Muhammad Rafiq v. State 
(1995 SCMR 1525), Aamir Ali v. State  (2002 YLR 1902) at 1912, R. Wust 
J.P.56/2005 
7 
(2001) 1 SCR 455 = 2000 SCC 18 to argue that the grant of benefit of 
section 382-B, Cr.P.C., was a rule while its denial an exception, therefore, 
the same could only be withheld if the trial Court concluded, on taking into 
consideration that the accused for strong reasons was not entitled to the 
said benefit. He also referred to an article “Pre-sentence custody and the 
determination of sentence: a framework for discussion” by Allan Manson of 
the Faculty of Law, Queen’s University, Kingston, Ontario. He further 
argued that section 382-B, Cr.P.C. had received beneficial interpretation 
from the Superior Courts, which was apparent from the following well-
settled propositions: -  
(1) 
If the Court did not record reasons in declining the benefit of 
section 382-B, Cr.P.C., no presumption could be raised in 
favour of the Court; 
(2) 
The reduction of the sentence of a convict by the under-trial 
detention period exploded the myth that the pre-sentencing 
detention period and the post-sentencing period were different 
and the conviction and sentence could not be ante-dated 
because it blurred the line between the pre-sentencing and 
post-sentencing periods;  
(3) 
The period spent in jail prior to formal conviction and sentence 
was punishment;  
(4) 
Once the benefit of section 382-B, Cr.P.C. was extended to a 
convict, the remissions granted by any authority could not be 
withheld on any ground whatsoever;   
(5) 
The benefit of this provision could be extended to convicts 
even after the passing of judgment by the High Court or the 
Supreme Court of Pakistan; and 
(6) 
The Courts had held that the application seeking the said 
benefit would neither be review nor alteration of the main 
judgment. 
 
9. 
 
Syed Iftikhar Hussain Gillani, Senior ASC, appearing as 
amicus curiae, opened up his arguments with the submission that the 
J.P.56/2005 
8 
extension of benefit under section 382-B, Cr.P.C., and the grant of 
remission granted during the under-trial period of a prisoner were inter-
twined and interlinked and could not be dealt with in isolation from each 
other under any principle of interpretation as was done in the judgment in 
Abdul Ali’s case (supra). To support his stance that the trial Court while 
taking into consideration provisions of section 382-B, Cr.P.C., was also 
under an obligation to grant the benefit of remissions granted by any 
authority under the Constitution or any statute during the pre-sentence 
period spent in jail, he dilated upon the terms ‘conviction’ and ‘sentence’ by 
quoting passages from the book titled “Access to Justice in Pakistan” by 
Justice Fazal Karim, a former Judge of the Supreme Court of Pakistan. He 
also referred to the cases reported as Muhammad Rafiq v. State (1995 
SCMR 1525), Qadir v. State (PLD 1991 SC 1065), Ramzan v. State (PLD 
1992 SC 11), Liaqat Hussain v. State (PLD 1995 SC 485), Mukhtiar-ud-Din 
v. State (1997 SCMR 55), Ghulam Murtaza’s case (supra), Javed Iqbal v. 
State (1998 SCMR 1539) and Ehsan Ellahi v. Muhammad Arif (2001 
SCMR 416). He further submitted that if a convict whose trial was 
prolonged was not treated at par with those convicts whose trials were 
concluded expeditiously, then four consequences would follow: - 
(1) 
It would be discriminatory and violative of the equal protection 
clause. Convicts could not be classified on the basis of early 
and delayed conclusion of trial. It would be violative of Article 
9 and Article 25 of the Constitution as well. Fundamental 
rights are available to prisoners (AIR 1974 SC 2092); 
(2) 
It would militate against the rational treatment of pre-sentence 
detention period. Once a Court of competent jurisdiction under 
the provisions of section 382-B, Cr.P.C., declares and holds 
that the sentence begins from the date of arrest, this is a 
lawful order passed by a competent court and the sentence is 
to be treated as such for all purposes, not for certain purposes 
only;  
(3) 
As soon as the Court directed that the benefit of section 382-
B, Cr.P.C., should be granted, which practically meant that the 
sentence was reckoned from the date of arrest, then the 
benefit of remissions granted during that period would be 
J.P.56/2005 
9 
admissible. However, where the benefit of section 382-B, 
Cr.P.C., was declined, remission would not be granted.  
(4) 
It would provide a tool in the hands of unscrupulous public 
functionaries to pick and choose amongst the prisoners.  
 
10. 
 
Other submissions of Mr. Gillani were: - 
 
(1) 
Sentencing was the power of the Court and primarily was a 
matter of judicial discretion. If the Court, on the facts and 
circumstances of a particular case, came to the conclusion 
that the benefit of section 382-B, Cr.P.C. would be granted, no 
other authority had the power to negate it by any 
methodology;  
(2) 
Even in computing 2/3rd of the substantive sentence, if the 
Court had granted the benefit of section 382-B, Cr.P.C., it was 
the Court’s order that would prevail; 
(3) 
The ratio of Shahid Nabi Malik’s case (PLD 1997 SC 32) and 
Mahmood Khan Achakzai’s case (PLD 1997 SC 426) was that 
higher rights, e.g. independence of judiciary would prevail; 
(4) 
The Court alone had the power to sentence. When an order is 
passed by the judicial organ of the State in the matter of 
admissibility of any remission, the Government had no power 
to say that such remission would not be available. Anything 
flowing from the Court could only be rectified by the higher 
court; 
(5) 
For months the prisoners involved in petty cases were not 
produced before the Courts. The prisoners should not suffer 
for failure of the state machinery; 
(6) 
While interpreting certain provisions of law, legalistic approach 
should be blended with equity and compassion; 
(7) 
Interpretation was an art and not a science, therefore, the 
Court was not to follow a pre-determined path. Basic rule of 
interpretation applicable to this case was that the legislative 
intent to do more good and to do justice was to be ascertained 
through the interpretative process; and  
(8) 
The pardon granted to a prisoner serves God’s purpose – 
Islamic jurisprudence. 
 
J.P.56/2005 
10 
Mr. Gillani further stated that the Indian law was less beneficial. The Indian 
Courts were not required to consider anything at all. In Pakistan, the 
moment the benefit of section 382-B, Cr.P.C., was given, the Court was 
involved. Under the Indian law, it was not. Here, Muhammad Rafiq’s case 
(supra) was to be improved. The sentence would become operative from 
the date of arrest, and not from the date of conviction. He lastly submitted 
that the question of exclusion of certain categories of convicts involved in 
certain heinous offences from the benefit of remission (e.g. NAB, anti-
terrorism cases, kidnapping, abduction for ransom, karo kari, etc.) should 
be considered in appropriate cases separately.  
11. 
 
Mr. Muhammad Akram Sheikh, Sr. ASC appeared as amicus 
curiae. He submitted that once the pre-sentence period was taken into 
consideration, the grant of remissions from the date of arrest of the convict 
was peripheral issue and the same could not be withheld. Reduction of 
sentence by the amount of pre-sentence period in jail meant that a 
convict’s pre-sentence period was taken into consideration as a 
punishment towards his substantive sentence. Refusal to grant the 
remissions was discriminatory. He submitted that in pursuance of the 
judgment in Abdul Ali’s case (supra), all the remissions earned by the 
prisoners under different categories and recorded in their history ticket 
were confiscated. The said remissions could not be revoked under the 
principle of locus poenitentiae unless a prisoner was guilty of practicing 
fraud. According to him, it was a right, which should be available to all the 
convicts. He pleaded that the pathetic conditions prevalent in jails, the 
suffering and the miseries of jail inmates when juxtaposed with the ‘dignity 
of man’ called for a rational treatment of remissions being granted during 
incarceration of a person as an under-trial prisoner. He submitted that law 
J.P.56/2005 
11 
was a very tiny branch of logic. If the substantive sentence was being 
reduced, it meant that everything that happened during that period was 
also to be taken into consideration. If a remission was granted on the eve 
of Eid, or for that matter on any other similar occasion, the benefit of 
remission should be available to all the prisoners, who were confined in 
prison as under-trial prisoners, whether they were convicted on a day prior 
to Eid or a day after Eid. He submitted that as held by this Court in the 
case of Abdul Malik’s case (supra), the power of the President to grant 
pardon, remission, etc., under Article 45 of the Constitution could not be 
regulated by any sub-constitutional legislation, e.g., the Pakistan Prison 
Rules, or the Jail Manual. The restriction under the said rules to serve a 
specified minimum period would not be applicable to such cases.  He 
pointed out that the system of grant of remissions in India was absolutely 
different from that of Pakistan. So far as the liberty element was 
concerned, both were supportive otherwise the system was different. If a 
person was considered to be incarcerated, he should be deemed to be a 
sentenced prisoner and should also be deemed to be entitled to 
remissions. He submitted that the aims and objects of punishment and the 
circumstances in which offences were committed were required to be kept 
in mind, as was done by Omar (RA), the Second Caliph, when he 
suspended the sentence of Qata-e-yad (cutting of hands in certain 
categories of theft cases) during the times of famine. Lastly, he submitted 
that the examination of the question of remission in NAB, ATC, etc., cases 
may be postponed to an appropriate time. He also filed written 
submissions.  
12. 
 
Sh. Zamir Hussain, Sr. ASC also appeared as amicus curiae. 
He submitted that there was no ambiguity in the language employed in 
J.P.56/2005 
12 
section 382-B, Cr.P.C. The intent and purpose of the legislation was clear. 
Section 428 of the Indian law referred to ‘investigation’, ‘inquiry’ and ‘trial’ 
while the Pakistani law only referred to the trial period. He submitted that 
under the Indian law, the period was categorically set off, but under the 
Pakistani law the trial Court was required to consider it while passing the 
sentence. The benefit could be withheld in certain cases. Resultantly, the 
approach and treatment of the issue differed from Judge to Judge and 
from Court to Court. Here it was ‘consideration’, there it was clear ‘set off’. 
He submitted that section 382-B, Cr.P.C. may be interpreted in line with 
the Indian and the English law. In the interpretative process, the Court was 
justified to supply the omission, if any, in an enactment, but re-writing of 
the law was not permissible. He stated that on the strength of Muhammad 
Rafiq’s case, section 382-B, Cr.P.C., could be interpreted to include 
remissions granted during the pre-sentence period, but not, if the view in 
Abdul Ali’s case was not overruled. He stated that there were different 
categories of prisoners under the Prison Rules, e.g. criminal prisoners, 
convicted criminal prisoners. The word ‘remit’ indicated that it was a post 
sentence phenomenon, therefore, remissions were not covered under 
section 382-B, Cr.P.C. By way of hypothesis he elucidated that in a case, 
FIR was registered on 1.1.1990, the accused was arrested on 2.1.1990 
and sent to judicial lock up on 20.1.1990. His trial concluded after seven 
years and he was sentenced to seven years. If the benefit of section 382-
B, Cr.P.C., was allowed and the remissions granted in that period were 
also allowed, he would not suffer one day in prison. He stated that there 
was judicial consensus that judgment of sentence could not be antedated. 
Lastly, he submitted that given the language of Article 9 of the Constitution, 
the right to life was always subject to law.  
J.P.56/2005 
13 
13. 
 
Ms. Naheeda Mahboob Elahi, learned Deputy Attorney 
General submitted that the use of word ‘shall’ in place of the word ‘may’ by 
the legislature had made it obligatory upon the Court to address itself to 
the issue of pre-sentence period spent by a convict in jail. She submitted 
that as compared to section 428 of Indian law, section 382-B, Cr.P.C. was 
not happily worded. She stated that the remission granted by the President 
would prevail.  
14. 
 
Qazi 
Muhammad 
Amin, 
Additional 
Advocate 
General 
submitted that the provisions of section 382-B, Cr.P.C., were never 
considered in the backdrop of Articles 9 and 25 of the Constitution. The 
issue was being examined from this angle for the first time in the present 
case under order dated 6.5.2009. He referred to the case of T.V. 
Vatheeswaran v. State of Tamil Nadu [AIR 1983 SC 361(2)] wherein it was 
held that the prison walls did not keep the fundamental rights out. He 
contended that an accused was taken into custody for a purpose, i.e. on a 
specific charge and if ultimately the prosecution was able to drive home 
the charge, then he would be convicted and sentenced. He stated that if 
any benefit was available under the law from the date of arrest, the same 
could not be denied, particularly the rights under the Constitution could not 
be withheld. However, he submitted that there was no distinction between 
pre-sentence or post sentence periods of detention. Detention was 
detention. According to him, the entire concept was based on the 
classification of punitive and non-punitive detention. The notional 
distinction between ‘punitive’ and ‘non-punitive’ had been abolished. To 
give excessive remissions would not be a balanced approach. It was for 
the Government to grant remissions or not. If the government was of the 
opinion that under the prevailing law and order situation it was not 
J.P.56/2005 
14 
advisable to do so, the government was not under compulsion to grant any 
remission.  
15. 
 
Syed Tahaar Hussain, ASC appeared for the State (on behalf 
of the Province of NWFP). He submitted that the ‘wish’ of the Supreme 
Court, such as the one expressed in Muhammad Rafiq’s case (supra) was 
the highest piece of judicial verdict, which must be honoured. He submitted 
that section 382-B, Cr.P.C. was an important piece of legislation. Best 
word ‘consideration’ was used in it, which was the main issue. Not only the 
Court should not ignore the day and time spent by a person in jail, but the 
day and time when the convict committed the offence should also be kept 
in view. It was a rational provision. Its meaning was clear. The Court was 
bound to take into consideration the period spent by the accused in jail 
during trial and was to assign cogent reasons if it decided not to consider 
it. It was mandatory for the trial Court, but discretionary for the Supreme 
Court. If the benefit was not given by the trial Court or the High Court, the 
Supreme Court may direct that such benefit be given. In support of his 
submissions, he referred to the cases reported as Ghulam Sarwar v. State 
(PLD 1984 SC 218), Ahmed Yar v. State (1985 SCMR 1167),  Liaqat 
Hussain v. State (PLD 1995 SC 485), Noor Muhammad v. State (1995 
SCMR 671),  Muhammad Rafiq (supra) and  Mukhtiar-ud-Din (supra).  
16. 
 
With the permission of the Court, Sh. Muhammad Naeem, 
ASC submitted that the provisions of section 382-B, Cr.P.C. should be 
interpreted liberally to include remissions so as to give relief to the 
prisoners as was done by this Court by expanding its jurisdiction in the 
case reported as Al-Jehad Trust v. Federation of Pakistan (1999 SCMR 
1379) to secure the rights of the people of Northern Areas.   
J.P.56/2005 
15 
17. 
 
We have heard the learned counsel for the petitioner, the 
learned Senior Advocates appearing as amicus curiae and the learned 
Deputy Attorney General for Pakistan and have examined the case law 
cited at the bar.   
18. 
 
The learned counsel for the petitioner vehemently contended 
that in absence of sound reasons the benefit of section 382-B, Cr.P.C., 
had been withheld illegally. He submitted that the petitioner in the instant 
case was sentenced to 10 years’ R.I. and imprisonment for life on two 
counts. His sentences were ordered to run consecutively. The benefit of 
section 382-B, Cr.P.C., was not given to him and the remissions of the pre-
sentence custody period were also not allowed. He prayed that not only 
the petitioner may be granted the said benefit, but he may be allowed the 
remissions granted in the said period and the sentences awarded to him 
may also be ordered to run concurrently.  
19. 
 
In this background, first question being considered by this 
Court is whether the petitioner is entitled to the benefit of section 382-B, 
Cr.P.C., and if so, whether he would be entitled to the remission granted 
by the President of Pakistan, or the Provincial Government or any other 
authority? As the issue pertains to the interpretation of section 382-B, 
Cr.P.C., the same 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]1 
take into consideration the period, if any, during which such an 
accused was detained in custody for such offence.” 
 
20.  
 
The provisions of section 382-B, Cr.P.C., have undergone 
scrutiny by the superior Courts and have been interpreted in a plethora of 
cases. In Qadir v. State (PLD 1991 SC 1065), this Court has held that 
                                                 
1 Section 382-B, Cr.P.C. was added by the Law Reforms Ordinance, 1972. The word “shall” was 
substituted for the word “may” by the Criminal Law Amendment Ordinance (Ordinance No. LXXI) of 
1979. 
J.P.56/2005 
16 
section 382-B, Cr.P.C., is a beneficial provision and is to be construed 
liberally. Relevant observation reads as under: - 
“It may be noted that the mandatory provision has been 
introduced because of the realization that an accused person 
is entitled to be put to trial or released on bail. If he is not to be 
released on bail, he must be put to trial. If for any reason the 
State is unable to put him up for trial it is only fair that during 
the period he is detained to await his trial that period is taken 
into consideration in computing the sentence of imprisonment 
given to him. Another point to be noted is that the provision 
occurs in a criminal statute which requires strict construction 
as far as it imposes restrictions and punishments. Beneficial 
provisions need to be construed liberally. These are axiomatic 
principles.” 
 
21. 
 
In Ramzan v. State (PLD 1992 SC 11), the Court adhered to 
the exposition of law made in Qadir’s case (supra). In Liaqat Hussain v. 
State (PLD 1995 SC 485), it was noted that the trial Court or the Federal 
Shariat Court had not pointed out any circumstance which would justify the 
denial of the extension of the benefit of section 382-B, Cr.P.C., to the 
appellant in the said case. Thus, while maintaining the conviction and 
sentences of the appellant awarded by the trial Court and affirmed by the 
Federal Shariat Court, the Court directed that the benefit of section 382-B, 
Cr.P.C. would be extended to the appellant. 
22. 
 
In Muhammad Rafiq’s case (supra), this Court made a 
threadbare examination and discussion of the provisions of section 382-B, 
Cr.P.C. After considering the corresponding provisions in the English Act 
(section 67) and the Indian Act (section 428), the Court held as under: -  
“9.  
Section 67 of the English Act and section 428 of the 
Indian 
Act 
provide 
expressly 
that 
the 
sentence 
of 
imprisonment imposed by the Court shall stand reduced by 
the pre-sentence period spent in jail (the English Act) or which 
is the same thing, that the pre-sentence period shall be set off 
against the term of imprisonment imposed on him (the Indian 
Act). The English and the Indian Acts do not, therefore, leave, 
as regards the pre-sentence period spent in jail, anything to be 
done by the sentencing Court. Instead, they direct chat the 
period so spent in jail shall automatically count towards the 
J.P.56/2005 
17 
sentence of imprisonment imposed by the Court and the 
sentence of imprisonment shall stand reduced accordingly. 
 
10.  
We wish that section 382-B of the Code were also 
couched in language as clear and unambiguous as the 
sections in the Indian and the English enactments are. If it 
were, then it would be right to say, as has become customary 
to do, that the convict should get the benefit' of that section. 
But unfortunately it does not. 
 
23. 
 
In Mukhtiar-ud-Din v. State (1997 SCMR 55), Saiduzzaman, 
J., as he then was, speaking for the Court held as under: - 
“(i)  
That strictly speaking section 382-B, Cr.P.C. is attracted to, 
when a Court decides to pass a sentence either in the trial or 
appellate or revisional proceedings against an accused for the 
offence charged with. In other words, if the sentence has already 
been passed by a trial Court and the matter is brought before an 
Appellate Court, strictly speaking, section 382-B, Cr.P.C. is not 
applicable. However, there is no legal bar and that an Appellate 
Court is competent to grant the benefit of the above provision to a 
convict. Furthermore, a convict will be entitled to agitate before the 
Appellate Court the question, that the trial Court had failed to 
consider the above provisions while imposing the sentence on him 
or that he was wrongly denied the benefit of the same, in such a 
case, the Appellate Court would be bound to examine the above 
question and to rectify the error/mistake, if any, committed by the 
trial Court. 
 
(ii)  
That if an Appellate Court substitutes death sentence to that of 
imprisonment for life or rigorous imprisonment for a certain period, it 
is obligatory on its part to take into consideration above section 
382-B, Cr.P.C., for example, if a High Court in a murder 
appeal/reference alters conviction from section 302, P.P.C. to that 
under section 304. Part 1, P.P.C. and substitutes death sentence to 
that of rigorous imprisonment of 7 or 10 years, it is mandatory for it 
to advert to the question of extending the benefit of the above 
provision to the convict while imposing above sentence.  
 
(iii)  
That though under section 382-B, Cr.P.C. the Court has 
discretion not to grant the benefit of the same to a convict, but this 
discretion is to be exercised judiciously on sound judicial principles 
inter alia as explained hereinabove in Para 9. 
 
(iv)  
That since the provision of section 382-B, Cr.P.C. is 
mandatory, in the absence of express manifestation of the 
application of the mind by the Court that it has addressed itself to the 
above provision at the time of imposing sentence on the convict 
concerned, no presumption can be raised in favour of the Court of 
having adverted to the same. 
 
J.P.56/2005 
18 
24. 
 
In the case reported as Ghulam Murtaza v. State (PLD 1998 
SC 152), the question before the Court was whether benefit of section 382-
B, Cr.P.C., could be extended to the appellant who was awarded life 
imprisonment by converting the sentence of death awarded by the trial 
Court. After a survey of the case law, the Court answered the question in 
the affirmative as under: - 
“Unless there are any exceptional circumstances in a case 
which the Court considers sufficient for the purpose of denying 
the benefit of section 382-B, Cr.P.C., to the accused, the 
Court in all other cases, while awarding sentence, will take 
into consideration the period during which the accused 
remained in detention during his trial, and this period will 
normally be adjusted in the sentence awarded to the accused 
by allowing him the benefit of section 382-B, Cr.P.C.” 
  
25. 
 
In Javed Iqbal v. State (1998 SCMR 1539), this Court dealt 
with the issue from yet another angle. The judgment introduced a new 
concept when it held as under: - 
“It may be noted that the mandatory provision has been introduced 
because of the realization that an accused person is entitled to be 
put to trial or released on bail. If he is not to be released on bail, he 
must be put to trial. If for any reason the State is unable to put him 
up for trial it is only, fair that during the period he is detained to await 
his trial that period is taken into consideration in computing the 
sentence of imprisonment given to him. Another point to be noted is 
that the provision occurs in a criminal statute which requires strict 
construction as far as it imposes restrictions and punishments. 
Beneficial provisions need to be construed liberally. These are 
axiomatic principles.” 
  
In Ehsan Ellahi v. Muhammad Arif (2001 SCMR 416) this Court approved 
earlier decisions on the admissibility of benefit of section 382-B, Cr.P.C.    
26. 
 
Some of the propositions expounded in the above judgments 
are noted here so as to adequately highlight the implications of, and bring 
home the manner, in which the provisions of section 382-B, Cr.P.C., were 
to be applied. They are: -  
(1) 
While passing sentence, the Court, in the absence of special 
circumstances disentitling the accused to have his sentence of 
imprisonment reduced by the period spent in jail during the 
J.P.56/2005 
19 
trial, exercise its discretion in favour of the accused by 
ordering that such period shall be counted towards his 
sentence 
of 
imprisonment 
or 
that 
the 
sentence 
of 
imprisonment shall be treated as reduced by that period; 
(2) 
The discretion has to be exercised with the intention to 
promote the policy and objects of the law;  
(3) 
Indeed, the Court will use its good sense in determining the 
circumstances in which the discretion will not be exercised in 
favour of the accused. But as the discretion is a judicial 
discretion, the order of the Court must show that the 
pre-sentence period has been taken into consideration and if 
the Court thinks that the sentence should not be reduced by 
the period spent in prison during the trial, the Court must give 
reasons for so thinking;  
(4) 
The word ‘shall’ is intended to make the provision mandatory 
in the sense that it imposes a duty to do what is prescribed 
admits of no doubt whatever; 
(5) 
The provision occurs in a criminal statute which requires strict 
construction as far as it imposes restrictions and punishments. 
Beneficial provisions need to be construed liberally”. In any 
event, the fact that when the section was first enacted the 
word used was ‘may’ and later it was substituted by the word 
‘shall’ provides the clearest possible evidence that the 
intention was that the Court must take the pre-sentence period 
of detention in jail “into consideration”. Section 382-B of the 
Code is, therefore, a statutory limitation upon the Court’s 
discretion to determine the length of imprisonment. It must 
‘take into consideration’ the pre-sentence period spent in jail; 
(6) 
The benefit of section 382-B is also available to a person 
whose sentence of death under section 302 PPC has been 
subsequently altered to imprisonment for life; 
(7) 
As the accused is put in jail for the very offence for which he is 
convicted and sentenced to imprisonment, the pre-sentence 
period spent by him in jail is not in vain and must, therefore, 
be taken into account;  
(8) 
It explodes the notion that such period can be ignored 
because it is not spent in jail by way of ‘punishment’. Not to 
treat that period as punishment, will be a play on the meaning 
of the word ‘punishment’. Whether the detention in jail was 
punitive or non-punitive, the consequence, as regards the 
person detained was the same, namely, deprivation of liberty 
and that is certainly punishment.   
 
27. 
 
Now we take up the judgment in Abdul Ali’s case. Abdul Ali, 
petitioner in the said case was arrested on 24.7.1997 in a case under 
section 302/34, etc., but was acquitted by the Sessions Judge, Pishin vide 
judgment dated 19.10.1998. However, the High Court, by judgment dated 
5.10.1999, set aside his acquittal, convicted him under section 302(b), 
PPC and sentenced him to suffer imprisonment for life. The ‘benefit’, as it 
J.P.56/2005 
20 
is commonly referred to, of section 382-B, Cr.P.C., was extended to him. 
Remissions granted by various authorities from time to time including the 
remissions of the pre-sentence custody period of the petitioner were 
recorded in his history ticket, which were challenged by the respondent-
complainant in a writ petition. Vide judgment dated 12.5.2003, the High 
Court, inter alia, declared that the petitioner was not entitled to the 
remissions of his sentences for the period prior to his conviction. The High 
Court, in view of section 402-C, Cr.P.C., also disallowed remission of 60 
days granted by a general order dated 5.1.2000 of the Government of 
Balochistan under section 401 Cr.P.C., as well as the remission of one 
year granted by the President of Pakistan under Article 45 of the 
Constitution on 5.1.2000 on the eve of Eid-ul-Fitr to the prisoners 
undergoing sentence of life imprisonment. In a petition filed against the 
judgment of the High Court, this Court examined the question of 
entitlement of the petitioner to the remissions granted by the President 
under Article 45 of the Constitution or by the Provincial Government under 
section 401, Cr.P.C. during his pre-sentence period spent in jail in 
connection with the trial etc., of the case, i.e. prior to the date of his 
conviction and sentence by the High Court in the light of the provisions of 
sections 35, 383, 396 and 397, Cr.P.C., and took the view that “the 
conviction and sentence of an accused could not be made to run from the 
date prior to the date of conviction by a competent Court although in 
certain eventualities the execution of sentence of a convict could be 
postponed. Ordinarily, a conviction commences from the time it is passed. 
A criminal Court does not possess any power to make a sentence to 
precede the conviction. In other words, the conviction and sentence cannot 
be ante-dated.” Reliance was placed on the cases of Baghel Singh v. the 
J.P.56/2005 
21 
Emperor (1907 (5) Crl.L.J. Reports 217), Emperor v. Tha Hmun (1908) (7) 
Crl.L.J. 453), Dangar Khan v. Emperor (AIR 1923 Lahore 104), Emperor v. 
Naga Po Min (AIR 1933 Rangoon 28), Gulzar Muhammad v. Crown (1951) 
(52) Crl.L.J. 238 (Lahore), State v. Jernelsingh (AIR 1955 NUC Rajasthan 
4613) and State v. Chandra Khandapani (1968 Crl.L.J. 1152). The 
definition of “convicted criminal prisoner” viz., “any criminal prisoner under 
sentence of a Court or Court Martial…….” given in section 3(3) of the 
Prisons Act, 1894, (Act IX of 1894) and that of “convict” viz., “a convicted 
criminal prisoner under sentence of a Court” given in rule 3 of the Prison 
Rules was also taken into account. As to the pre-sentence period spent by 
a convict in jail, it was observed that the Legislature in its wisdom enacted 
section 382-B, Cr.P.C., requiring the Court to take the same into 
consideration so as to give it “more rational treatment”. It was concluded 
that there was nothing in section 382-B, Cr.P.C., or any other law to 
indicate that such a person was to be treated as convict from the very 
inception. Finally, it was held that remissions granted by the President 
under Article 45 of the Constitution or the Provincial Government were not 
available to the petitioner for the period during which he had not been 
convicted of any offence nor was he undergoing any sentence. 
28. 
 
At this stage, it is just and proper that a brief survey of the 
case law relied upon in Abdul Ali’s case (mentioned in the preceding 
paragraph) is undertaken. In Baghel Singh’s case (supra), the Chief Court 
of the Punjab held as under: - 
 
“The accused on conviction by Mr. Meredyth Young, 
exercising the powers of a Magistrate of the first class in the 
Montgomery District was sentenced, by order dated 11th September 
1906, under section 411 of the Indian Penal Code, to the period of 
imprisonment has already passed in the lock-up…………….  
 
“Section 383, Criminal Procedure Code, requires that a 
warrant be issued but no such warrant was issued. ……………..  
J.P.56/2005 
22 
 
“The order of the Magistrate is obviously illegal. No sentence 
was passed. Had the Magistrate sentenced the prisoner to 
imprisonment until the rising of the Court, the requirements of the 
law would have been met. I see no reason for entering into the 
merits of the case. I set aside the order purporting to pass sentence 
and return the record to the Magistrate for disposal in accordance 
with law, either by passing sentence or by passing an order under 
section 562 of the Code of Criminal Procedure.”  
 
In Tha Hmun’s case (supra), the Chief Court of Lower Burma held as 
under: - 
“The accused, after he had been in custody for a week, was 
convicted of a petty theft of plantains. He was sentenced “to undergo 
the imprisonment he has already suffered.” The form of the sentence 
is bad. There is nothing in the Code of Criminal Procedure which 
authorizes a Magistrate to antedate the commencement of a 
sentence. As the Magistrate thought that the accused had been 
sufficiently punished by his detention while under trial, the proper 
course would have been to sentence him to one day’s imprisonment. 
He would then be released on the same day on which he was 
sentenced.”  
 
In Dangar Khan’s case (supra), the Lahore High Court held as under: -  
“The Magistrate has directed in the case of each appellant that 
half of the period during which he was detained in custody as an 
under-trial prisoner shall count as part of the sentence. This order is 
quite wrong. If the Magistrate considered that the appellants were 
entitled to lenience on account of their having remained a long time 
in custody he should have passed a smaller sentence. To set aside 
this order would have the effect of enhancing the sentences, unless 
the sentences are also reduced. The sentences passed under 
section 364, Indian Penal Code, are therefore, reduced in each case 
to six years’ rigorous imprisonment.” 
 
In Naga Po Min’s case (supra), the Rangoon High Court held as under: - 
 
“S. 383 says that an accused who is sentenced to 
imprisonment shall be forwarded to the jail in which he is to be 
confined, and contains no words which warrant the antedating of the 
sentence. 
S. 
397 
deals 
with 
the 
postponement 
of 
the 
commencement of the sentence of imprisonment, but nowhere does 
the Code provide for the antedating of a sentence of imprisonment, 
and the antedating of a sentence of imprisonment seems to be 
contrary to the spirit of Ss. 383 and 397.”  
 
In Gulzar Muhammad’s case (supra), the Lahore High Court held as  
under: - 
 
“A person is “undergoing” imprisonment within the meaning of 
S. 397 from the moment the sentence is passed. The fact that he is 
J.P.56/2005 
23 
on bail is immaterial. The accused need not actually pass into the 
portals of the jail. Consequently, when at the time of passing a 
second sentence, the accused is “undergoing imprisonment”, though 
on bail, and the order does not make the second sentence run 
concurrently, the sentence will be treated as consecutive. 
 
In Jernelsing’s case (supra), the Rajasthan High Court held as under: - 
 
“Although there is no direct provision in the Code which lays 
down that the sentence passed against an accused should 
commence from the date of the judgment convicting him, a sentence 
of imprisonment must be made to operate from the date of 
conviction and not from a date prior to the date on which the 
sentence is passed. (Sections 383, 35 and 397, referred). 
 
Where Magistrate has ordered that the period already 
undergone in custody be counted towards the sentence the order 
was illegal. In such a case two courses are open for the High Court 
in revision: one being that his sentence be reduced so as to 
synchronize with the date of his release or he should be made to 
serve the remainder of the sentence passed on him. 
 
Held, in the circumstances of the case that the only correct 
course open was to direct that the accused shall serve the unexpired 
period of his sentence to be counted from the date of his conviction.”  
 
In Chandra Khandapani’s case (supra), the Orissa High Court held as 
under: - 
 
“The sentence of imprisonment awarded ought to commence 
from the time the sentence is passed and its commencement cannot 
be antedated. The Criminal P.C. does not provide for antedating the 
sentence, which will amount to passing an unexecutable sentence. 
Therefore, no Magistrate can have any jurisdiction to convert, by his 
order, the jail custody of an undertrial prisoner into a period of 
punishment awarded in the judgment. The only proper course to 
which the Magistrate is entitled, if he wanted to take a sympathetic 
view having regard to the long period of his jail custody is to pass a 
lesser sentence taking the period of custody as an undertrial 
prisoner into consideration. Hence the Magistrate has no jurisdiction 
to direct that any portion of the period of detention as an undertrial 
prisoner should be counted as a part of the sentence.” 
  
The accused in the precedent case just cited was convicted under section 
380/75 of the Indian Penal Code and sentenced to undergo R.I. for 3 
months and 5 days. He was taken into jail custody on 1.2.1966 where he 
remained till the date of judgment. The Magistrate directed that the 
sentence be computed from the date when he was taken to the jail 
custody, which would expire on 6.5.1966. The Orissa High Court set aside 
J.P.56/2005 
24 
the order of the Magistrate and with a view to regularizing the matter, 
reduced the sentence to the post judgment period of 11 days already 
undergone.  
29. 
 
With great deference, it may be stated that all the judgments 
referred to in Abdul Ali’s case (supra) were given in a different legal 
setting. They dated back to the pre-Law Reforms Ordinance, 1972 period 
when there existed no provision in the Code of Criminal Procedure as it did 
in the shape of section 382-B, Cr.P.C., in the post-promulgation period of 
the Law Reforms Ordinance. It is noticed that it was being pleaded 
successively on behalf of the convicts, and the Courts were also inclined to 
it in many cases, that the pre-sentence period of the convicts spent in jail 
in connection with the offence of which they were convicted, should not go 
unaccounted for and must be taken into consideration. The hue and cry of 
the convict-prisoners ultimately led to the enactment of section 382-B, 
Cr.P.C., which made a specific provision requiring the Court to take into 
consideration the pre-sentence period while passing the sentence. This 
was a new era in an area of the criminal law, which dealt with the liberty of 
a person. Prior to it, the time spent by the convicts in custody for the same 
offence would not be accounted for in any way. Having waited for the 
conclusion of their trials for months, and in many cases for years together, 
they would re-enter the jail to serve out the sentence imposed upon them. 
The enactment of section 382-B, Cr.P.C., brought a complete shift in the 
approach of the Court toward the issue of pre-sentence period of a convict. 
Hence, in our humble opinion, the case law preceding the enactment of the 
said provision had no relevance and bearing on the interpretation of that 
provision, which has been termed as a beneficial provision by all and 
sundry all along without exception. We would respectfully state that the 
J.P.56/2005 
25 
judgment in Abdul Ali’s case did not address the issue in the changed 
perspective, nor the Court addressed itself to certain celebrated judgments 
of the superior Courts on the subject matter handed down in the cases of 
Muhammad Bashir (1982), Muhammad Rafiq (1995), Mukhtiar-ud-Din 
(1997), Ghulam Murtaza (1998), Javed Iqbal (1998), etc., which had dwelt 
upon the subject exhaustively. Only one recent judgment delivered by a 
Single Judge of the Lahore High Court in the case of Inayat Bibi v. Amjad 
Ali (2001 P.Cr.L.J. 1453) was taken note of where a contrary was taken. 
But, the Court did not take into consideration even the judgment of a 
Division Bench of the same High Court in the case of Aamir Ali v. State 
(2002 YLR 1902), which dissented from the view taken in Inayat Bibi’s 
case. It is pertinent to reproduce the relevant paragraph from Aamir Ali’s 
case, which reads as under: - 
 
“Now we may advert to the question whether the appellant can 
avail of the benefit of jail remissions granted to a convict prior to the 
date of his conviction if he is given the benefit of section 382-B of the 
Criminal Procedure Code. The appellant’s actual date of conviction 
is 10.5.2001 and his date of arrest is 21.2.2001. He was given the 
benefit of section 382-B of the Criminal Procedure Code. Meaning 
thereby that the period of his sentence would be deemed to have 
commenced from the date of his arrest, i.e. 21.2.2000. This question 
came up before a learned Single Judge of this Court in the case of 
Inayat Bibi v. Amjad Ali and others (2001 P.Cr.L.J. 1453) in which it 
was held that question of granting remissions to a convict would 
arise only after the trial was over and judgment delivered by the 
Court. Thereafter, from the date of conviction onwards the convict 
could claim the remissions granted by the competent Authority. The 
argument that since the substantive period of imprisonment was to 
be counted from the date of arrest of the convict by virtue of the 
provisions of section 382-B of the Criminal Procedure Code, 
therefore, remissions granted by the competent Authority from the 
date of arrest are to be counted towards the appellant’s substantive 
sentence, was repelled. With due deference, we are not inclined to 
subscribe to the view expressed in the above referred case. It is true 
that the benefit of remissions is to be granted after announcement of 
judgment and passing of the sentence of imprisonment against a 
convict. However, the moment benefit of section 382-B of the 
Criminal Procedure Code is given to a convict, the period during 
which he remained in detention as under-trial prisoner, would be 
counted towards his substantive sentence. Legally he would be 
deemed to be in jail as a convict since the date of his arrest and 
J.P.56/2005 
26 
would certainly be entitled to the benefit of remissions granted by the 
competent Authorities to the convicts after the said date.” (Emphasis 
supplied)  
 
30. 
 
Here, we may mention that the judgment in the Human Rights’ 
case (supra) just followed the dicta laid down in Abdul Ali’s case. Even 
otherwise, it being a human rights petition, only an Additional Advocate 
General from NWFP had appeared on Court’s notice. No other lawyer had 
appeared in the matter and the attention of the Court could not be drawn to 
any of the aforesaid judgments. In the above backdrop, we have intended 
to re-visit the judgments in Abdul Ali and the Human Rights cases so as to 
reach an appropriate conclusion.   
31. 
 
Relevant to the concept of antedating of a judgment of 
sentence are the terms, “conviction” and “sentence”. To throw light on the 
connotations of these terms, Mr. Gillani, learned amicus curiae, took us 
through a passage from the book titled “Access to Justice in Pakistan” by 
Justice Fazal Karim, a former Judge of the Supreme Court of Pakistan, 
which we quote hereunder: - 
 
“Conviction and sentence are two different things. Conviction 
means to find guilty of an offence. Sentence is punishment awarded 
to a person convicted in criminal trial. Conviction is followed by 
sentence. Only when a person has been found guilty of an offence 
can the question of sentencing him arise.” 
 
In Abdul Ali’s case, the Court, while making the observation that “the 
conviction and sentence of an accused cannot be made to run from the 
date prior to the date of conviction by a competent Court”, altogether 
overlooked the practical effect of the provisions of section 382-B, Cr.P.C. 
Sentence preceding conviction, in our view, means that the accused is 
sentenced first, but convicted later, which was not the situation in Abdul 
Ali’s case. There, the Court was called upon to just make the sentence 
J.P.56/2005 
27 
(pronounced certainly after conviction) effective from the date the convict 
was taken into custody in connection with such offence, and not from any 
date prior to the commission of the offence. Even otherwise, conviction 
follows proof of guilt of the convict, which is relatable to the time of the 
commission of the offence. Only its finding is reached on a subsequent 
date. On proof of guilt, the presumption of innocence is displaced and the 
convict is considered guilty of the offence from the very inception, i.e. from 
the date of commission of the offence. The Court also did not take into 
account the consequences of “consideration” in terms of section 382-B, 
Cr.P.C., which was a crucial aspect having material bearing on the 
determination of the moot point involved in the case regarding admissibility 
or otherwise of the remissions of the pre-sentence period.  
32. 
 
The Courts, in the afore-noted cases from the Indian 
jurisdiction, referring to the provisions of sections 383, 35, 396 and 397 of 
the Code, took the view that a sentence could not be antedated. It may be 
seen that sections 383 and 396 Cr.P.C., respectively relate to execution of 
sentence of imprisonment in other cases and execution of sentence on 
escaped convicts, section 397 deals with sentence on offender already 
sentenced for another offence while section 35 deals with sentence in case 
of conviction of several offences at one trial. (Emphasis supplied). The 
Courts, taking note of the issuance of warrant for execution of sentence 
mentioned therein, by way of analogical deduction, concluded that there 
should be “executable sentence” because in their view, as noted in some 
of the above cases, where the convict was sentenced to imprisonment 
already passed in the lock up, or to undergo imprisonment he had already 
suffered, or half of the period during which the accused was detained in 
custody as an under-trial prisoner should count as part of the sentence, it 
J.P.56/2005 
28 
was tantamount to passing an unexecutable sentence. It may be noted 
that the issuance of warrant for execution of sentence of imprisonment 
“until rising of the Court” may be only a formality otherwise sentence in 
such a case is undergone by the convict in the presence of the Judge. 
Thus, the Courts in those cases never directly determined what actually 
was meant by the term “antedating of sentence”. Even the judgment in 
Abdul Ali’s case also did not address this issue, as noted earlier, any more 
other than saying that the conviction and sentence could not be antedated.  
33. 
 
In the case of Muhammad Rafiq’s case it was held that the 
pre-sentence custody of a convict could be treated nothing else but 
punishment in all its ramifications. As a matter of fact, this very realization, 
which received judicial pronouncement in the year 1995 after much water 
had flown under the bridges since the promulgation of the Law Reforms 
Ordinance, 1972 had emanated from the sufferings and miseries of the 
prisoners (whether they were detained as under-trial prisoners or as 
convicts) due to scarcity of accommodation in the jails/lock-ups and the 
resultant overcrowding, lack of health facilities in terms of inadequate food 
and medical treatment and protracted trials and the hearing of appeals. 
Such realization paved the way for the enactment of section 382-B, 
Cr.P.C., with a view to providing relief to the prisoners. The pre-sentence 
custody period certainly called for a rational treatment, which it got in the 
shape of enactment of section 382-B, Cr.P.C.   
34. 
 
At this juncture, we take note of a judgment delivered by the 
Court of Appeal of Botswana in the case of Thake v Attorney General 
(CACLB-033-07) [2008] BWCA 23 (25 April 2008). This appeal had 
originated in a claim for damages for unlawful detention and involved the 
question of a correct interpretation of the date of commencement of a 
J.P.56/2005 
29 
concurrent sentence within the meaning of sections 300 and 309 of the 
Criminal Procedure and Evidence Act (of Botswana). The appellant was 
sentenced to an effective period of 10 years imprisonment on 24 April 
1997 and to another effective period of 10 years imprisonment 32 days 
later, namely, on 26 May 1997. It was ordered that the latter sentence 
would run concurrently with the sentence of 24 April 1997. The crisp 
question for determination in the appeal was what was the effective date of 
the commencement of the sentence of 26 May 1997? The appellant 
contended that the effective date was 24 April 1997. The respondent on 
the other hand contended for a contrary proposition, namely, that the 
effective date was 26 May 1997. The Court of Appeal examined the issue 
in the light of section 300 of the Criminal Procedure and Evidence Act. For 
facility of reference, the said provision is reproduced below: - 
“300. (1) When a person is convicted at one trial of two 
or more different offences, or when a person under 
sentence or undergoing punishment for one offence is 
convicted of another offence, the court may sentence 
him to such several punishments for such offences or 
for such last offence (as the case may be) as the court 
is competent to impose. 
(2) 
Such 
punishments, 
when 
consisting 
of 
imprisonments, shall commence the one after the 
expiration, setting aside or remission of the other, in 
such order as the court may direct, unless the court 
directs that such punishments shall run concurrently.” 
 
For the purposes of the present case, more pertinent was the issue of date 
of commencement of sentence, concurrent or otherwise, involved in the 
precedent case, which was governed by section 309 of the aforesaid Act. 
This section provides as follows:- 
J.P.56/2005 
30 
“309. Subject to the provisions of section 308, a 
sentence of imprisonment shall take effect from and 
include the whole of the day on which it is pronounced 
unless the court, on the same day that sentence is 
passed, expressly orders that it shall take effect from 
some day prior to that on which it is pronounced.” 
 
The Court of Appeal relied upon its earlier judgment in the case of 
Kolojane v. State (1999 BLR 70 (CA) and held that the question of ante-
dating a sentence was a matter which lay within the discretion of the trial 
Court. In exercising its judicial discretion, the trial Court takes into account 
all the relevant factors that have a bearing on the matter such as, for 
instance, the fact that the crimes under consideration are interrelated as in 
the instant case. After re-stating the above principles, the Court of Appeal 
held that since the learned trial Magistrate did not “expressly” order that 
the sentence of 26 May 1997 shall take effect from the date of the prior 
sentence, namely, 24 April 1997, that being the case, the provisions of 
section 309 came into play. The sentence of 26 May 1997 took effect from 
the same day, being the day on which the sentence was pronounced. It 
was held that the appellant’s submission to the contrary was misconceived 
as it was squarely hit by section 309 ibid. Further, the appellant in the 
precedent conceded that the learned trial Magistrate did not “expressly” 
order that the sentence of 26 May 1997 shall take effect from the earlier 
sentence of 24 April 1997, he nevertheless sought to persuade the Court 
of Appeal that, by necessary implication, this sentence commenced on the 
latter date because, so he argued, the two sentences in the matter were 
ordered to run concurrently. The Court of Appeal held that the fallacy of 
this submission lay in the fact that concurrent sentences did not 
necessarily have to commence or end on the same day. Nor do they 
J.P.56/2005 
31 
necessarily have to be of the same duration. Indeed there may sometimes 
be an element of overlapping in concurrent sentences. It all depended on 
the particular circumstances of each case. It was for that reason that the 
Legislature in its wisdom had enacted that a sentence of imprisonment 
shall commence on the day on which it was pronounced unless the trial 
court expressly ordered it to commence on a day prior to the 
pronouncement. This applied equally to concurrent sentences.   
35. 
 
The legal position in the precedent case, to some extent, 
elucidates the concept of antedating of a sentence. In that case, the crimes 
under consideration were inter-related trial whereof and the conviction and 
sentence therein followed one another. None of the judgments relied upon 
in Abdul Ali’s case visualized such an eventuality nor addressed the issue 
from that angle. Such situations possibly would arise in trial of offences 
falling under the heading “Joinder of Charges” (sections 233-240, Cr.P.C.).  
36. 
 
This brings us to the question as to how the provisions of 
section 382-B, Cr.P.C. have been applied ever since its enactment. On the 
language used in the section, particularly, prior to the amendment of 1979, 
which substituted the word “shall” with the word “may”, the trial Courts 
would apply the provision very casually, rather at their sweet will. 
Sometimes, they would advert to it, sometimes they would not. 
Consequently, a lot of litigation emanated from the non-application of the 
section in its letter and in spirit and the superior Courts were called upon to 
lay down the principles for the exercise of power and jurisdiction under the 
said provision. After the amendment, the trial Courts were mandatorily 
obliged to take into consideration the pre-sentence custody period at the 
time of passing of the sentence.  
J.P.56/2005 
32 
37. 
 
In view of above circumstances and the generality of the 
language employed in section 382-B, Cr.P.C., this Court in its celebrated 
judgment in Muhammad Rafiq’s case wished that the said provision was 
couched in language as clear and unambiguous as the sections in the 
Indian and the English enactments were. More than a decade having 
passed since passing of the above judgment, no step at all had been taken 
in this regard at the appropriate level. The learned Deputy Attorney 
General confirmed that the matter was never brought on the agenda.   
38. 
 
The practical effect of reducing the sentence to the extent of 
pre-sentence custody period, particularly, the way it is done in Pakistan, is 
that the sentence takes effect from the date of arrest of the convict in 
connection with the offence. This is not prohibited by any specific provision 
of the Code of Criminal Procedure, rather this course, prima facie, appears 
to be permissible considering the provisions of section 382-B, Cr.P.C., 
read with sections 233 to 240, 383, 397 and 35, Cr.P.C. This position is 
also in line with the Botswana law as noticed in Thakes’s case (supra), 
which empowers the Court to make the sentence effective by a specific 
order from an earlier date.   
39. 
 
The under-trial prisoners, or criminal prisoners, particularly 
those who are later convicted of the offence in connection with which they 
were incarcerated, sooner or later join the ranks of convicted criminal 
prisoners. It is discriminatory not to treat them at par with their co-prisoners 
living in the same or similar premises, may be under the same very roof. 
They are equal before law and are entitled to equal protection of law under 
Article 25 of the Constitution. If remissions of the pre-sentence period were 
to be denied to the convicts after they were granted the benefit of section 
382-B, Cr.P.C., we would be confronted with a situation where remission 
J.P.56/2005 
33 
granted on the eve of Eid would be admissible to a prisoner who was 
convicted a day before Eid, but not to a person who was convicted a day 
after Eid, though the two prisoners were on an equal footing two days 
before Eid, i.e., till then both of them were confined as under-trial prisoners 
and both of them also got the benefit of section 382-B, Cr.P.C. The 
classification of ‘criminal prisoners’ and ‘convicted criminal prisoners’ qua 
the admissibility of remissions granted by any authority where the Court 
has passed an order granting the benefit of section 382-B, Cr.P.C., does 
not meet the test of ‘intelligible differentia’ laid down in the case of I.A. 
Sharwani v. Government of Pakistan (1991 SCMR 1041). The under-trial 
prisoners getting the benefit of section 382-B, Cr.P.C., cannot be deprived 
of remissions accruing during their pre-sentence custody period. Article 
9 of the Constitution guarantees the right to life of a person and is very 
much available to a prisoner along with certain other fundamental rights, 
such as to acquire, hold and dispose of property for the exercise of 
which incarceration can be no impediment, though he is deprived of 
certain fundamental freedoms like the right to move freely throughout 
the country or the right to practice a profession, etc., as it was held in 
the case of D.B.M. Patnaik v. State of A.P. (AIR 1974 S.C. 2092). 
Therefore, the protection guaranteed under Article 9 remains available 
to the under-trial prisoners and they are entitled to the benefit of section 
382-B, Cr.P.C., along with remissions if any, granted during their pre-
sentence custody period, inasmuch as on account of denial thereof, 
they would be required to remain in prison for a longer time than 
warranted and deprived of their liberty. Article 9 has received 
interpretation by this Court in the case of Shehla Zia v. WAPDA (PLD 
1994 SC 693). Relevant passage from the judgment reads as under: - 
J.P.56/2005 
34 
 
“Article 9 of the Constitution provides that no person shall 
be deprived of life or liberty save in accordance with law. The 
word ‘life’ is very significant as it covers all facets of human 
existence. The word ‘life’ has not been defined in the Constitution 
but it does not mean nor can it be restricted only to the vegetative 
or animal life or mere existence from conception to death. Life 
includes all such amenities and facilities which a person born in a 
free country is entitled to enjoy with dignity, legally and 
constitutionally. …………….   
 
 
“The word ‘life’ in the Constitution has not been used in a 
limited manner. A wide meaning should be given to enable a man 
not only to sustain life but to enjoy it.”  
  
Keeping the ratio of the above cases in view, we are inclined to hold 
that refusal to allow remission of pre-sentence custody period to a 
convict whom the Court has granted the benefit of section 382-B, 
Cr.P.C., is tantamount to deprivation of his liberty within the 
contemplation of above Article of the Constitution. The cases of convict-
prisoners who are expressly debarred under any law from the benefit of 
section 382-B, Cr.P.C., stand on a different footing. Thus, where section 
382-B, Cr.P.C., itself is not applicable, no remission of the pre-sentence 
custody period can be allowed to the prisoner in question.   
40. 
 
The petitioner in the instant case was sentenced to 10 years’ 
R.I. and imprisonment for life on two counts. His sentences were ordered 
to run consecutively. The aggregate sentence of the petitioner would thus 
come to sixty years, which is contrary to the provisions of section 35, 
Cr.P.C. Proviso (a) to section 35, Cr.P.C. prohibits the giving of 
consecutive sentence in one trial beyond the period of 14 years. This issue 
J.P.56/2005 
35 
came up for examination by this Court in the case of Javed Shaikh v. State 
(PLD 1985 SC 153) wherein it was held as under: - 
 
“Life imprisonment is, according to section 57 of the PPC to be 
reckoned as equivalent to 25 years’ R.I. This is one of the 
punishments which can be imposed on an offender, on account of 
the substitution of the punishment for transportation for life – which 
was one of the punishments that could be imposed on an offender 
under section 53 of the PPC and was reckoned as equivalent to 
fourteen years before its amendment by the Law Reforms 
Ordinance, 1972. No objection can, therefore, be taken to the 
imposition of the sentence of life imprisonment, after the 
promulgation of the Law Reforms Ordinance, 1972. However, the 
question is whether the appellant can also be sentenced to undergo 
a further sentence of seven years under section 307, PPC for his 
having attempted to murder Manzoor Hussain, PW5? 
 
 
A perusal of proviso (a) to subsection (2) of section 35, 
Cr.P.C., indicates that it prohibits the giving of consecutive sentence 
in one trial beyond the period of fourteen years, the maximum 
sentence, short of the death sentence, which could be imposed on 
an offender before the promulgation of the Law Reforms Ordinance, 
1972. The said provision (section 35, Cr.P.C.) appears to be in 
consonance with the scheme and intendment of the Pakistan Penal 
Code that an offender should only suffer the maximum sentence of 
imprisonment for any heinous crime (as it stood until 1972) which 
should not exceed fourteen years. Therefore, the imposition of the 
sentence of life imprisonment (which means 25 years’ R.I., plus 
seven years’ R.I. under section 307 PPC would be inconsistent with 
the intendment of the provisions of proviso (a) to subsection (2) of 
section 35, Cr.P.C., inasmuch as the maximum punishment 
prescribed for heinous offences shall be exceeded. The difficulty in 
this case can be overcome if the sentences awarded to the appellant 
in respect of the two convictions under section 302, PPC and under 
section 307 PPC in one and the same trial are directed to run 
concurrently instead of running consecutively.” 
 
J.P.56/2005 
36 
41. 
 
In view of the above discussion, our conclusions and 
directions are as under: - 
(1) 
After the use of word “shall” for the word “may” in section 
382-B, Cr.P.C., at the time of passing the sentence, it is 
mandatory for the trial Court to take into consideration the 
pre-sentence custody period in the light of the principles 
discussed above; 
(2) 
The refusal to take into consideration the pre-sentence 
custody period at the time of passing the sentence is illegal 
inasmuch as if a Court sentences a convict to imprisonment 
for life, which is the alternate but maximum sentence for the 
offence of murder, but does not make allowance for the pre-
sentence custody period, it would be punishing the convict-
prisoner with imprisonment for life plus the pre-sentence 
custody period, that is to say, more than the maximum legal 
punishment;  
(3) 
The convict-prisoners who are granted the benefit of section 
382-B, Cr.P.C., shall be entitled to remissions granted by 
any authority in their post-sentence detention or during their 
pre-sentence detention in connection with such offence. 
However, the same shall not be available to the convicts of 
offences 
under 
the 
National 
Accountability 
Bureau 
Ordinance, 1999, Anti-terrorism Act, 1997, the offence of 
karo kari, etc, where the law itself prohibits the same; 
(4) 
The law laid down in Abdul Malik’s case that under Article 
45 of the Constitution, the President enjoys unfettered 
powers to grant remissions in respect of offences and no 
clog stipulated in a piece of subordinate legislation can 
abridge this power of the President, is hereby reaffirmed;  
 
41. 
 
Consequently, we convert this jail petition into appeal, and 
partly allow it. The sentences of the appellant shall run concurrently. He 
shall be entitled to the benefit of section 382-B, Cr.P.C. The remissions 
J.P.56/2005 
37 
granted by any authority in his post-conviction period or during his pre-
sentence detention period in connection with such offence shall be 
available to him. His sentences shall be reduced accordingly. The 
impugned judgment is modified to the above extent.  
42. 
 
Before parting with the judgment, we place on record our 
thanks for the learned amicus curiae who have rendered valuable 
assistance in the decision of this case.  
Chief Justice 
 
 
     Judge 
 
 
     Judge 
 
 
     Judge 
 
 
     Judge 
 
 
     Judge 
 
 
ANNOUNCED TODAY  
AT ISLAMABAD, THE ---- DAY OF MAY 2009 
 
 
 
 
 
 
 
 
Chief Justice 
APPROVED FOR REPORTING   
 
J.P.56/2005 
38 
 
JAIL PETITION NO. 56/2005  
ORDER 
 
 
Copies of the judgment in the above jail petition, pronounced 
in Court today, i.e. 1st of June, 2009, shall be sent to the Federal Secretary 
Interior, Chief Secretaries, Home Secretaries, Inspectors General of 
Police, Inspectors General of Prisons and Registrars of the High Courts of 
the Provinces for information and onward transmission to the concerned 
quarters, including the prisoners, etc., for the purpose of its implementation 
in letter and in spirit. The concerned authorities shall submit report within a 
period of two weeks to the Registrar of this Court for our perusal in 
Chambers in respect of the implementation of the judgment, also giving the 
number of prisoners benefited from it.  
 
CHIEF JUSTICE 
 
 
 
 
 
 
 
 
 
 
     JUDGE 
 
 
 
 
 
 
 
 
 
 
     JUDGE 
 
 
 
 
 
 
 
 
 
 
     JUDGE 
 
 
 
 
 
 
 
 
 
 
     JUDGE 
 
 
 
 
 
 
 
 
 
 
     JUDGE 
 
Islamabad 
1.6.2009 
 
