1998 P Cr (PLP)

This is an application under section 561‑A, Cr.P.C. moved on behalf of appellant Anwar Khan. The only prayer in this application made and urged by the learned counsel for the appellant was that since the appellant was not given the benefit of section 382‑B, Cr.P.C. at the time of passing of the judgment by the original Court viz Special Judge (Central‑I), Karachi, and the same concession was also not specifically allowed or denied by this Court while rejecting his appeal, the appellant may be granted the concession available to him under section 382‑B, Cr.P.C. Learned Advocate of A.‑G. appearing on behalf of the State did not oppose the request of the appellant. I have considered the arguments advanced by the learned counsel and have also gone through the judgment of the original Court and the Appellate Court referred by learned counsel for the appellant. The provisions of section 382‑B, Cr.P.C. do not appear to have been expressly mentioned in any of these judgments. In the trial, the appellant was not represented by a counsel and while appeal was decided, the learned counsel had not pointed out or prayed for the benefit accruing to the appellant under section 382‑B, Cr.P.C. The result is that the appellant stands deprived of the benefit of section 382‑Cr.P.C. in this case. Although it was held in the case of Haider Zaman and 2 others v. The State 1995 MLD 1218 that a Court while passing a sentence of imprisonment must be presumed to have taken into account the provisions of section 382‑B, Cr.P.C., but this judgment was considered in the case of Mukhtiar‑ud‑Din v. The State reported in 1997 SCMR 55 and the Supreme Court held in this judgment that 'here is no legal bar and that an Appellate Court is comp4tent to grant the benefit of the above provisions 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 provision 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, if any, committed by the Trial Court. It was also held in the above case by the Supreme Court that although under section 382‑B, Cr.P.C. the Court had discretion not to grant the benefit of the same to a convict, but this discretion is to be exercised judiciously on sound judicial principles. The provisions of section 382‑B, Cr.P.C. are mandatory, and in the absence of express manifestation of the application of the mind by the Court 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 provisions of section 382‑B, Cr.P.C. In the case in hand, it is observed that Trial Court did not mention whether the provisions of section 382‑B, Cr.P.C. were considered while sentencing the appellant to 1 year's R.I. and a fine of Rs.10,

000. Similarly, judgment of this Court on appellate side is also silent on the same point and the appeal was dismissed. Therefore, in order to provide full justice to the appellant I consider that the discretion given to the Court must be considered judiciously. In this view of mine, I am supported by the case of Liaqat Ali v. The State PLD 1995 SC

485. In the above case the Supreme Court had extended the benefit to the accused in the circumstances of the case when the Trial Court as well as the Appellate Court (Federal Shariat Court. in the above case) did not point out any circumstances, justifying the denial of the extension of benefit of section 382‑B, Cr.P.C. to the accused. In the present case also, I find that the circumstances, justifying the denial of the extension of benefit of section 382‑B, Cr.P.C. have not been mentioned in the judgment. The appellant was an employee as V.P. Clerk in the Registration/Delivery Branch of a Post Office in Karachi and the allegation against him was for misappropriation of Rs.17,915.75. The case had started in the year 1984, while the original Court had decided the same in the year 1991. The appeal was decided in 1997. Under these circumstances, I find that judicious discretion in exercising the benefit of section 382‑B, Cr.P.C. should go to the appellant. Consequently, I allow this application to the extent that appellant stands awarded the benefit under section 382‑B, Cr.P.C. in his sentence. H.B.T./A‑208/K Application allowed.