Application of Section 382-B Cr.P.C. and Post-Conviction Detention Credit

Panel: Fazl-i-Mahmood and Muhammad Sharif, JJ.

This case, decided on February 25, 1984, with Sh. Riaz Ahmad, Advocate-General, Punjab, appearing for the State , addresses the application of Section 382-B of the Criminal Procedure Code (Cr.P.C.). The petitioner, Aslam Pervaiz, sought the benefit of this provision , claiming that the period he was detained in custody during trial should be considered towards his sentence. He was initially convicted of murdering Muhammad Akram under Section 302/34 PPC and sentenced to death , but in appeal, his conviction was altered to Section 326 PPC with a sentence of seven years’ rigorous imprisonment and a fine. The High Court dismissed his application , stating that Section 382-B Cr.P.C. is not a remedial provision like an appeal, revision, or review , and its benefit is not automatically granted. The court emphasized that the burden lies on the accused to prove that any delay in trial was not due to their dilatory tactics, but solely due to law’s delays.

The High Court further held that the application was incompetent as it was filed about five weeks after the judgment in the criminal appeal had been pronounced and signed , rendering the court

functus officio. The court stated that reviewing or altering a judgment is expressly prohibited under Section 369 Cr.P.C.. Additionally, the court noted that Aslam Pervaiz was detained for murder under Section 302/34 PPC but convicted of an altogether different offense under Section 326 PPC, making it doubtful if he could claim the benefit of Section 382-B Cr.P.C.

stricto senso as a matter of right. The court also emphasized that inherent jurisdiction under Section 561-A Cr.P.C. is not available to bypass express legal bars or to bring about a material change or alter the judgment of the High Court in a criminal appeal so as to interfere with the term of imprisonment that the applicant has to undergo.

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