ISLAMABAD: The Supreme Court has observed that it is not the obligatory duty of the litigant to point out to the court the correct law in a case; rather it’s the duty of the judges to apply the appropriate and applicable law.

“The parties to a case are even not under obligation to hire the services of lawyers for pleading their cases because the primary duty to do justice and to apply the correct law to the facts of a case is the exclusive duty of the judges,” wrote Justice Dost Muhammad Khan in an order he authored.

Justice Khan made the observation while rejecting a plea moved by the Khyber Pakhtunkhwa government that had challenged the grant of remission to an inmate from whose prison cell a mobile phone was recovered.

The judge was a member of the two-member Supreme Court bench headed by Justice Mushir Alam that had taken up an appeal of the provincial government.

“This petition is found without legal merits and is dismissed,” said the judgment that denied the leave to appeal.

The provincial government had challenged the May 9 order of the Peshawar High Court (PHC) which had allowed the benefit of Section 382-B of the Criminal Procedure Code (CrPC) along with general and special remissions earned during the period of imprisonment.

The benefit of Section 382-B means that the period spent in detention is deducted from the sentence awarded by the court.

Feeling aggrieved over PHC’s order, the provincial government approached the apex court with the plea that a cellular phone (without a Sim) was recovered from the possession of Mehmood Khan inside the prison, as a result of which he was denied remissions.

The Khyber Pakhtunkhwa government through Additional Advocate General Farooq Adam argued that if any court did not grant the benefit of remission the same could not be sought through an independent petition because that would amount to reviewing the original judgement which was not permissible under criminal law and the criminal justice system.

The Supreme Court recalled that before amendment Section 382-B of the CrPC required recording of reasons for awarding of benefit of detention period pending trial. However, after amendment in the same section the court was required to record reasons only if it refused such concessions.

Justice Khan said that in the present case the high court, while partly accepting the appeal against the death sentence awarded under Section 302 of the PPC to Mehmood Khan, the high court had reduced it to life imprisonment.

But the division bench of the PHC conveniently ignored the mandatory provision of Section 382-B of the CrPC, which was an omission of technical nature and not substantive one, which would not attract any bar to amend the original judgement.

Any inadvertent omission on the part of the court should not deprive the party to a relief if the law requires the judge to grant the same in clear terms, Justice Khan observed adding that this principle had a legitimate background based on well-entrenched maxim that “law is written on the sleeves of the judges and they are supposed to know each and every law by heart”.

Thus extension of benefit of deduction of pre-conviction period from the court’s sentence is mandatory, the order observed adding that refusal to grant the concession should be backed up by cogent, strong and convincing reasons.

In the present case, Justice Khan said, it was a simple omission on the part of the high court that could be rectified at any stage.

Even the jailer in whose custody the prisoner was undergoing the sentence was bound to award such benefit even if the judgement was silent unless the court had expressly barred grant of such a benefit.

Published in Dawn, November 19th, 2017