P L D 1984 Lahore 461 (PLP)

(ii) the Court is competent under section 561‑A to consider a miscel laneous application and grant relief under section 382‑B if the same was omitted from consideration before, as it would not involve alteration or modification of sentence ; (iii) an order under section 382‑B can be made only after application of mind as to whether benefit under it be given or not ? (iv) the power under section 382‑B can only be exercised by a competent authority after application of mind and not by the jail authorities.

11. To sum up the above discussion, it may be said that the Supreme Court has given no authoritative pronouncement, on the points mentioned above, as envisaged by Article 189 of the Constitution, so as to give binding guidance to this Court. As regards the decisions of this Court and the other High Courts referred to above, generally there is no disagreement on the object of the section. The consensus of opinion of all the Courts is that section 382‑B, recognises the fact that the state machinery; for reasons, is not in a position to dispense speedy justice and, therefore, the accused have to remain in custody, before and during trial, for unreason ably long periods. This section (382‑B, Cr. P. C.), therefore, is designed to undo that hardship and grant some relief by awarding lesser term of imprisonment. However, except in the Karachi and Bahawalpur cases, it is not adequately discussed if it is for the Court and not the jail authorities to grant benefit under section 382‑B, Cr. P. C., and whether it is to be granted automatically or can be given only after scrutinising the facts and circumstances of the each case, viz. the severity of the illegal act, role played by the accused, conduct of the prisoner during trial, any dilatory tactics played by the prosecution or defence, quantum of sentence already awarded etc. May be the above discussion was not considered necessary in the circumstances of those cases yet these aspects have to be considered to resolve the present controversy. The provisions of section 382‑B, Cr. P. C., prima facie do suggest that it is the Court which must itself pass a clear order of sentence of imprisonment, after taking the above factors into consideration and then leave, as usual, the computation of undergone, sentence and remissions to the jail authorities.

12. Again, section 382‑B confers a judicial power as some adjudica tion of facts is involved. The decision must say not only that benefit is t be given but bow much and the adjudication must be reflected in the final sentence of imprisonment to be announced. Can thus the jail authorities be asked to decide whether to refuse the benefit at all or to say how much of it must be allowed in a particular case? The answer obviously will be the negative as what is to be kept in view, in deciding it, are the facts an circumstances of a particular case as mentioned above. So, the grant of benefit can neither be automatic or the same in each case nor can it be left to the jail authorities to determine. One aspect of this is fully demons trated by the Supreme Court, in the cases cited in paras. 2‑3 above, where it granted relief in certain cases but refused the same in the case of Muhammad Aslam. It may further be noted that this power is exercisable while passing an order of sentence. So, the announcement of a specific term of sentence must follow and be based on that mental process. This stage is reached when the trial Court has recorded all the evidence and heard the parties or if the appellate or the revisional Courts, intend to interfere, in the order of the trial Court, in view of sections 418, 423 and 439, Cr. P. C. This was done in Muhammad Aslam v. State (1) where a Division Bench, in appeal, altered the conviction under section 304, Part II and awarded sentence of 7 years to be reduced by 2 years, for the accused had remained in custody from 8th June, 1975 to 13th January, 1978. This power can also be used by the appellate Court, if the trial Court had omitted to apply section 382‑B when passing the order of sentence, as held in the case of Fazal Hussain.

13. Normally, no Court can, therefore, have resort to the power under section 382‑B, Cr. P. C., in view of section 369, Cr. P. C., when the matter bad already crossed the above‑given stage and was out of its hands. However, the following controversial and other questions in that regard raised before us need consideration and we shall take them up one by one (a) Can this Court under section 561‑A, Cr. P. C., entertain an applica tion and grant a relief under section 382‑B, in cases, which it has already decided, without applying that provision, in its appellate or revisional jurisdiction, despite the express prohibition contained in section 369, Cr. P. C., against alteration or review of a judgment? (b) Does the word "imprisonment" used in section 382‑B cover the cases in which the punishment awarded is imprisonment for life? (c) Can section 382‑B be applied retrospectively to cases which had been finally decided prior to 23rd December, 1975, but the prisoners are still serving the sentence? (d) Can relief under section 382‑B be denied if it was not urged by the accused before the trial Court?

14. Section 369, Cr. P. C., reads as under: ‑ "Save as otherwise provided by this Code or by any other law for the time being in force or, in the case of a High Court, by the Letters Patent or other instrument constituting such High Court, no Court, when it has signed its judgment, shall alter or review the same, except to correct a clerical error." This section is placed in Chapter XXVI of the Code which is meant for trial and, therefore, would concern the judgments delivered by the Courts in their criminal original jurisdiction. This view is supported by a learned Single Judge of Sind High Court in Muhammad Hanif v. State (P L D 1974 Kar. 22) who observed that section 369, Cr. P. C. applied only to judgments given by any Court, including the High Court, in the exercise of criminal original jurisdiction. .

15. In Crown v. Habibullah (P L D 1952 Lah. 587) a Division Bench of this Court took note of the fact that an alteration means a change whether in character or appearance and the change would be there by mere insertion or by sub stituting of something for something else. In their view an argument in support of an existing argument without changing the sense would amount to an alteration and if the sense is changed wholly or partially, it would cover the term `review'. However, Kiani, J. at page 599 observed that there is inherent jurisdiction in every Court over its own record, which is more than saying that every Court can correct an accidental slip or omission in its judgment. The learned Judge went on to say that section 561‑A is a power enabling the Court to correct its own record, on the assumption that section 369 does not apply to the appellate or the revisional judgment of the High Court. Muhammad Munir, C. J. opined: 'If any order to supply the omission of the statutory direction is necessary, I have no doubt we have the jurisdiction to make such order even though we might have become functus officio after signing our judgment and, therefore, incompetent to alter or review it'.

16. The Madras High Court in Muhammad Haji v. State (A I R 1923 Mad. 426) held that even the appellate Court cannot alter or review its judgment, in view of section 369, Cr. P. C., though Court found it a fit case for rehearing as the appeal was dismissed for non‑prosecution. An Indian High Court observed in Nand Kishore Lal v. Emperor (4 A I R 1919 Pat. 514) that High Court in view of section 369, Cr. P. C. cannot review its own decision given in a revision petition on the ground that the order complained of was without jurisdiction. The Indian Supreme Court in U. J. S. Chopra v. State of Bombay (AIR 1955 S C 633) has, however, ruled that section 369, Cr. P. C., applied to the trial Court only.

17. The Sind High Court in Anwar Ahmad v. Abdullah Ahmad (P L D 1962 Kar. 282) and State of Pakistan v. Wasiuddin Ahmad (1975 P. Cr. L J 707) also held the view that section 369, Cr. P. C., applied to appellate and revisional jurisdiction as well. The Supreme Court in Malik Firoz Khan Noon v. State (P L D 1958 S C (Pak.) 333) held at pages 353 and 382 that though inherent power of the High Court to alter or review a judgment would normally be available but it will not be used if there is a prohibition in law. The learned Judges further observed that the judgment of the learned Single Judge was as much a judgment of the High Court as that of the appellate Bench of the same Court. However, the decision of the High Court in that case had been given in its criminal original jurisdiction. The Supreme Court in Amiruddin v. State (P L D 1977 S C 602) affirmed its previous decision given in the case of Gulzar Hassan Shah (P L D 1970 S C 335) and restated the following dicta: ‑ Nonetheless, in the opinion of the Court in rare and exceptional cases the High Court has inherent power to revoke, review or alter its own earlier decision in cases which were not governed by sec tions 369, 424 and 430, with a view to give effect to any order under the Code or to prevent abuse of the process of the Court or otherwise to secure the ends of justice

18. The above point has been elaborately discussed in the judgment of this Court (Bahawalpur Bench) in Aslam Parvez v. State already referred to in para. 7 above. The view expressed by the learned Judges is that section 369, Cr. P. C. was a complete bar and they relied on the above noted Supreme Court judgments in Amiruddin v. State Gulzar Hassan Shah v. Ghulam Murtaza, Malik Feroze Khan Noon v. State, and this Court's view in Ramzan v. Ch. Muhummad Aslant (P L D 1972 Lab. 809) to hold that the decision of the High Court, rendered in appeal of the applicant, cannot be reasonably altered or reviewed as it is governed by the provisions of sections 369, 424 or 430, Cr. P. C., and that there was no justification to deviate or escape from the binding dicta of the Supreme Court. It was further held that the appeal once decided on merit could not be reopened on the basis of the benefit of section 382‑B, Cr. P. C., or any other legal or factual grounds, because of the express statutory bar as given in sec tion 369, Cr. P. C.

19. We, however, see no discussion on sections 424 and 430, Cr. P. C., in the above‑quoted judgment of the Division Bench at Bahawalpur despite the fact that the Supreme Court instead of completely barring the inherent jurisdiction of the High Court subjected it to sections 424 and 430, Cr. P. C., or any other express provision of law. It appears to us that the scope and import of these two sections was not explained before the learned Judges while they considered the case of Aslam Parvaiz referred to in para. 18 above. As said in para. 17 above, the Supreme Court while deciding the case of Gulzar Hassan Shah particularly made it quite clear at page 341 that the inherent power was available to the High Court to review, alter or revoke its earlier decisions in cases which are not governed by sections 369, 424 and 430, Cr. P. C. We have also seen in the same case at page 339 that section 369 does not apply to orders passed in appeal or revision and is attracted only to the judgments delivered in its criminal original jurisdiction. That view was also affirmed in 1977 in the case of Amiruddin, also referred to in para. 17 above. The judgment delivered by the Division Bench at Bahawalpur thus left the deliberations incomplete and its judgment is not supported by the Supreme Court dicta sought to be relied on.

20. There can be no quarrel with the rule that all Courts are bound to follow the law laid down by the Supreme Court in view of Article 189 of the Constitution. The above discussion also, keeping in view particularly the dictum of the Supreme Court, shows that the High Court has the inherent power to alter, review or revoke its earlier decision unless there is a statutory bar. The learned Judges of the Supreme Court made particular reference, in this regard to sections 369, 424 and 430, Cr. P. C., to say that if the decisions to be altered were governed by these provisions, the inherent power of the High Court would not be available to alter or review them. We may further add that it is quite clear from the above decision that. according to the Supreme Court, as is discussed later also, section 369 would apply to the High Court only if the judgment in question has been given in ~ its criminal original jurisdiction, for the reason that sections 424 and 430 deal with the appellate decisions.

21. The question for an answer, therefore, is as to what is the import of sections 424 and 430, Cr. P. C., and what is their effect on the case in hand, in the light of the law laid down by she Supreme Court? Reference may thus be made here, first to the connotation of section 424, Cr. P. C. It reads as under :‑ "

424. The rules contained in Chapter XXVI as to the judgment of a Criminal Court of original jurisdiction shall apply, so far as may be practicable, to the judgment of any Appellate Court other than a High Court . . . . . . ." Section 369 is a part of Chapter XXVI. So even though the principle underlying the section 369, Cr. P. C., may apply to any appellate Court, in view of the contents of section 424, it will have no application to the High Court, because of its express exclusion, despite the fact that it decides a, matter in its appellate capacity. Reference may also be made to Nandlall Chunilal Bodiwala v. Emperor (A I R 1946 Bom. 276), Kuldip Das v. Emperor (A I R 1933 Pat. 39) and Dwarka v. Emperor (A I R 1926 Sind 275).

22. It was held in Anwar Ahmad v. Abdullah (P L D 1963 Kar. 313) that in view of section 424, the judgments of the High Court in appeals have been expressly taken out of the mischief of the provisions of Chapter XXVI applicable to judgments of the criminal Courts of original jurisdiction. The view is also supported by the Supreme Court in the case of Gulzar Hassan Shah v. Ghulam Murtaza. The relevant portion runs as under "In the first place, an order passed under section 498, Cf. P. C. is not a judgment within the meaning of section 369, Cr. P. C. Moreover, section 369 of the Criminal Procedure Code is in the Chapter relat ing to original trial and unless it is specifically applied to other proceedings under the Criminal Procedure Code, it cannot be said to have any application to other proceedings." It is, therefore, clear that neither section 369 nor section 424 governs or, controls the exercise by the High Court of its appellate or revisional jurisdiction.

23. The next provision to be considered is section 430, Cr. P. C., which reads as under :‑‑ "

430. Judgments and orders passed by an Appellate Court upon appeal shall be final, except in the cases provided for in section 417 and Chapter XXXII." This section bestows partial finality on the orders passed by an Appellate Court inasmuch as that it creates exception in cases provided for in section 417, i.e, appeal against acquittal and Chapter XXXII concerning references and revisions. This means that appeals against acquittal and revisional powers remain intact. Even then the concept of finality given here is not absolute. It does not completely shut out the power of the High Court to tamper with its own decision. It was held in an old case Dular Dat Rai v. Nijabat Hosein (I L R 12 Cal. 536) that a sentence is said to be final when it cannot be set aside or interfered within any manner by any Court. That view, however, seems to be not in vogue. A quite contrary view was taken in State v. Bhawani Shankar (A I R 1953 Raj 17) and Chandrika v. Rex (A I R 1949 All: 176) to say that the expression `judgment shall be final' means that the judgment shall not be open to any further appeal but the powers of the High Court to interfere with it otherwise than in appeal are not taken away.

24. The latter view appears to be popular and the approved one as the Courts in India as well as here have been ignoring or altering their decisions in various situations. It will be seen that the inherent power of the High Court, as recognised by the legislation, is there to see that the orders made under the Code do not lose their application or effect, for any omission made and that the ends of justice are secured and abuse of the process of the Court prevented. This provision overrides other provisions of the Code and can be applied, if need be, to achieve any of the above objects. The Allahabad High Court in re: State of U P. (Lucknow Bench) (A I R 1959 All. 69) found that section 561‑A, Cr. P. C., confers no additional power on the High Court and that it was only a statutory recognition of the inherent powers possessed by the Judges of the High Court which they hesitated to exercise to secure the ends of justice even where the injustice was palpable and apparent, merely because of the finality of the appellate decision. The learned Judges further remarked that the statutory recognition of the inherent power was a reminder to the High Court that they were not merely the Courts of law but the Courts of justice also.

25. This Court in Mathra Das v. Crown (A I R 1927 Lah:‑‑139), held that section 561‑A is in no way governed by section 369, Cr. P. C., and the High Court has the power to reconsider the question of sentence when ends of justice require it. The learned Additional Advocate‑General referred to Raju v. Emperor (A I R 1928 Lah. 462) which gives a contrary view and also discloses that the learned Judge who gave the 1927 judgmenst, subsequently retracted his view. This factual position as given above is correct but this Court seems to have adopted the view taken in Mathra Das's case. Reference be made to Edward Few v. Emperor (A I R 1939 Lah. 244). It was held that High Court has no power to alter or review its judgment except in cases where order was without jurisdiction, in default of appearance, without adjudication on merit or to correct a clerical error. In Rukan Din v. Hafizuddin (P L D 1952 Lah.161) a Division Bench of this Court approved the case of Jai Karan v. Panchaiti Akhara Chota Naya Udasi Nanak Shahi (A I R 1933 All. 49) in which Sulaiman, J. had dictated the orders after hearing arguments in the presence of the counsel for the parties. One of the counsel then made a request to him not to sign the judgment before reconsidering the question of limitation. Sulaiman, J., however, signed the order inadver tently when it was put before him with a number of other orders. On the matter coming to his notice he set aside the order under his inherent power and directed rehearing.

26. A Division Bench of the Sind High Court heard a State appeal State v. Muhammad Hassan (1972 P Cr. L J 107), and recorded conviction against one Sobdar though his case had been ordered to be separated from others and he was neither served nor did he appear on that date. On a subsequent application to recall the order of conviction and sentence, under section 561‑A, Cr. P. C. the learned Judges relied on the case of Gulzar Hassan Shah v. Ghulam Murtaza and modified the judgment for the reason that the case was eminently one in which error of Court should be rectified or otherwise it will lead to grave injustice.

27. In another case, Muhammad Hanif v. State (P L.D 1974 Kar. 22), the Sind High Court altered the judgment already delivered. The learned Judges observed that it was neither possible nor desirable to enumerate the different possibilities which would justify alteration of a previous order but one which occurred to the learned Judges proper was where an order has been passed in viola tion of some mandatory provision of law or in violation of the principles of natural justice. In that case no opportunity had been given to show cause to the accused against his conviction nor were the merits of the case considered. The previous order was, therefore, recalled and the matter reconsidered.

28. The same Court in Sher Khan v. State (1975 P Cr. L J 655), observed that if an appeal was rejected without going into the merits of the case, there will be no judgment within the meaning of section 367, Cr. P. C., and no bar of section 369, Cr. P. C., to renearing. A Division Bench of this Court in the case of Alam Sher etc. v. State (1975 P Cr. L J 1188), rectified under section 561‑A its mistake of imposing fine on two appellants, against whom no petition of revision had been filed. Even the Dacca High Court held the same view of Rabu Lal Agarwala v. State (P L D 1961 Dacca 523), where an order of dismissal was passed in an appeal without considering its merit. It was held that the previous order was not a judgment under section 421, Cr. P. C., because before summarily dismissing an appeal the Court must have perused the memorandum of appeal and the copy of the judgment, which was not done. The order of dis missal of appeal, however, did conform to the long‑standing practice of that Court that it would refuse to entertain or hear an appeal when the appellant had not surrendered before the Court. Despite that the previous order was recalled on the, ground that it amounted to a refusal to entertain or hear an appeal and that there was no judgment in the eye of law.

29. A learned Single Judge of the Baluchistan High Court in Masood Ali Khan v. Muhammad Aslam (P L D 1979 Quetta 84), observed that generally the High Court should not review, alter or amend its own orders but the special jurisdiction under section 561‑A, Cr. P. C., can be invoiced only in exceptional cases for which there is no express provision in the Code. The learned Judges enumerated some of the situations in which departure could be made from the general principles viz.: ‑ (i) the order is without jurisdiction; (ii) the injustice done by the order is patent on the face of the record; (iii) order adversely affecting an accused has been passed without notice to him; (iv) there was no adjudication of the case on merit; (v) an order under section 561‑A is necessary to prevent abuse of the process of Court or to secure the ends of justice.

30. Some of the cases of Indian jurisdiction may also be cited to show that even there the Courts have been altering or reviewing their own orders before as well as after the partition of the country. The Allahabad High Court interfered with its own order passed in the case of State of U. P. v. Bati (A I R 1950 All. 265), as a mandatory provision of law had been overlooked. A similar view was taken by the same Court in Jagannath Singh v. Bedheshi (3 A I R 1955 All. 712). Where the Court found an order erroneous and unjust on the face of the record in Muhammad Was! v. State (A I R 1951 All. 441) it found itself bound to interfere on the plea that the Court had no jurisdiction to pass such an order and that it failed to exercise its jurisdiction. In Subba Raidu v. State (A I R 1922 Mad. 329), it was held that where an appellate Magistrate disposing of a criminal appeal failed to pass an order under section 520, Cr. P. C., it was open to his successor to do so in spite of section 369, Cr. P. C. The same Court In re: T. Somu Naidu (A I R 1922 Mad. 640) allowed rehearing of a case in which no reasonable opportunity of bearing was given to the accused before exercising jurisdiction under section 439, Cr. P. C. The Calcutta High Court In re: Ramesh Pada Mandal v. Kadambini Dasi (A I R 1927 Cal. 702) also reheard a case in which the lower Court's order under sec tion 562(1‑A) was set aside in exercise of power under section 439, without serving a notice on the affected party. A similar order was made by the Allahabad High Court in Chandrika v. Rex where the appeal was heard and decided on a day earlier than it was fixed.

31. A case akin to the one in hand came up before the Allahabad High Court in Sri Ran v. Emperor (A I R‑ 1948 All. 106). There the mandatory provision of law contained in the amended section 14‑A of Hoarding and Profiteering Prevention Ordinance, 1943, had been overlooked in a trial in respect of an offence under the Ordinance. The High Court held that it is necessary in order to secure the ends of justice that such an error was corrected despite section 369, Cr. P. C. Another similar case arose before Mysore High Court in Dasppa v. State of Mysore (A I R 1965 Mys. 224). There the accused had been sentenced to rigorous imprisonment of four months for an offence under section 380 of the Indian Penal Code. Against that conviction they filed a revision petition which was dismissed. The prisoners then filed an application under section 561‑A praying that as they were respectively aged 12 years and 17 years, had clear antecedents and hailed from respectable families, they should be given benefit of the provisions of the Probation of Offenders Act. Their plea was that their Advocate through oversight could not make submission about the above Act. It was held that no doubt the inherent power could be exercised to reconsider orders of dismissal of appeal or an application where reconsideration is necessary to secure the ends of justice but the provisions of sections 4 and 6 of the Probation of Offenders Act are not mandatory.

32. The above discussion leaves no manner of doubt that section 369, read with section 424, Cr. P. C., does not concern the appellate power of the High Court. The other restriction, in the light of the dicta of the Supreme Court, may be there either in section 430, Cr. P. C. or any other express provision of law. We have also found that even section 430,1 Cr. P. C., does not absolutely and unequivocally oust the inherent power of the High Court to alter, review or vary its orders, if it is so needed to give effect to the orders made under the Code, to prevent abuse of the process of the Court or to meet the ends of justice, though this power is to be exercised in rare and exceptional cases. The proposition to meet now is to know what are those situations. We have already enumerated a number of them in paras. 23‑31 where the Courts interfered. An important l feature in must of them is that the Court would recall or alter the order if any mandatory provision of law had been violated.

33. There is, however, no serious controversy before us on that score. Section 382‑B was first enforced on 23rd December, 1975, with `may' and then changed to `shall' on 22nd December, 1979. We have discussed in para. 45 before that even the word 'may' meant shall making it a mandatory provision. Any way, the intention of the legislature was made quite clear by substituting `shall' for `may'. Further, the section casts an obligation on the Court to consider the factor mentioned therein while passing the sentence. This duty is for public benefit and must be performed. We are, therefore, of the view that even the word `may' as originally used meant `shall' and the subsequent amendment meant only to make the provision clearer. Thus, the inadvertence or omission on the part of the Court to consider that provision should not place the prisoner in a dis advantageous or losing position. We, therefore, hold that the High Court has the power under section 561‑A to alter or review its previous order, even though the order of conviction had been passed prior to 23rd December, 1975, if it had interfered with the conviction and sentence on any date after 23rd December, 1975. This view is based on the ground that the section 382‑B is a procedural provision and shall have retrospective application. The High Court, therefore, shall exercise the same power which the trial Court would have, had its order been passed after 23rd December, 1975.

34. The next point is when should this power under section 561‑A be used. The Supreme Court in Ghulam Muhammad v. Muzammal Khan (PLD 1967SC317), has held that the inherent power under section 561‑A should not be exercised when there is an alternate remedy. The learned counsel for the State pressed that view into service and submitted that as the petitioners could have gone to the Supreme Court and as that was an adequate alternate remedy, this power should not be exercised. This is no cavil with the plea that the inherent power under section 561‑A cannot be invoked when there is another express remedy provided in any law or when law s prohibits that exercise. Reference in that regard be made to the case of Muhammad Samiullah Khan v. State (PLD 1963 SC 237), as also of Shaukat Bus Service v. State (1969 SC MR 325). However, the question whether there is an adequate alternate remedy in the type of cases in band is a matter for consideration. It may first be noted that Courts do not encourage multiplicity of litigation. An approach to the Supreme Court is also governed by the constitutional provisions. In the type of cases in hand the omission to consider sec tion 382‑B would be apparent on the face of the record. How then would it be necessary or feasible to take the matter up with the Supreme Court? The Supreme Court in the Shahkot Bus Service case referred to above, observed as under:‑ "It is, no doubt, true that where express provision is made in the Code itself for a particular purpose, recourse cannot be had to the inherent jurisdiction to achieve the same purpose, but at the same time it has to be pointed out that the inherent power of the High Court is of a very wide and indefinable nature and in exercise of this power the High Court can make all such orders which may be necessary to do real and substantial justice and prevent abuse of the process of the Court, subject only to the limitation that it cannot override an express provision of the Code." Thus, the power of this Court under section 561‑A 'remains always in attendance, if anyone of the purposes as stated above is to be achieved. In the case in hand the Court inadvertently omitted to take into considera tion the contents of section 382‑B while passing the order of sentence. This omission will not be disputed by any one and no adjudiction on this aspect will be needed. The only question to be considered would be how much benefit in term of period be allowed? Is it then necessary to approach the highest Court of the country for it? The wrong can be remedied and so omission supplied even by the High Court to do real and substantial justice. As said above, such action will not be hit by section 369 or 430, Cr. P. C., either.

35. We now turn to consider the second question i.e. whether a sentence of life imprisonment is also included in the terms `imprisonment' as contemplated by section 382‑B, Cr. P. C. The learned counsel for the petitioner submitted that the word `imprisonment' has been used in generic sense in section 382‑B and, therefore, it shall cover any type of imprisonment. He based his argument on the purpose of law which, according to him, is to give benefit to every accused who had been detained in custody, without a speedy trial, for an unreasonably long period. The learned Additional Advocate. General, on the other hand, referred to various provisions of law in support of his plea that the word `imprison ment' had been used in the technical sense and, therefore, section 382‑B will not be relevant to the cases of life imprisonment.

36. Reference in this connection had been made to section 53, P. P. C. which provides the following kinds of punishments to which the offenders are liable :‑. Firstly : Death. Secondly: Imprisonment for life. Thirdly : Omitted. Fourthly: Imprisonment which is of two descriptions namely :‑‑ (1) Rigorous, that is, with hard labour ; (2) Simple. Fifthly : Forfeiture of property. Sixthly : Fine. Section 54, P. P. C. also gives an indication that the second and fourth punishments are different species inasmuch as that the Central Government or the Provincial Government may without the consent of the offenders commute any one punishment for any other punishment provided by this Code. Section 55 also shows a distinction between the imprisonment for life and a punishment for imprisonment of either description for a term not exceeding 14 years.

37. The learned counsel for the petitioner then referred to section 57, P. P. C. to state that as the imprisonment for life is to be reckoned as equivalent to 25 years, it is an imprisonment as such. He supported his argument further by referring to section 65, P. P. C. which necessitates imposition of a fraction of a sentence in situations like sections 116. 119, 120, 201, 212, 213, 214 and 511, P. P. C. and section 18 of the Offence of Zina (Enforcement of Hudood) Ordinance. The precise argument is that life imprisonment is in fact and effect a term of imprison ment for 25 years and the same period will be taken into account if a fraction of life sentence under any law was to be counted. The argument, however; does not meet the objection which concerns the use of two different terms for the two types of sentences.

38. It is to be noted from the above, that the law provides for six species of punishment under section 33, P. P. C. It allots a different category for imprisonment for life and another for imprisonment. This T distinction is further clearly brought out in various provisions of law where the two sentences are mentioned side by side. Reference in this connection may be made to sections 383, 396, 398(2), 402, 426, 426(1‑A) (c), 4970), Cr. P. C. Further reference may be made to sections 121, 122, 124‑A, 125, 128, 130, 131, 132, 194, 222, 225, 304, 305, 313, 326, 329, 364, 364‑A, 371, 376, 377, 388, 394, 396, 400, 409, 413, 436, 438, 449, 459, 467, 474, 475, 477, 489‑A, 489‑D and 511, P. P. C. It is, therefore, quite clear that the legislature, if it bad so intended, to include the punishment of imprisonment for life in section 382‑Bit would have mentioned there expressly either the sentence of imprisonment for life or would have incorporated the imprisonment for 25 years in the sections referred to above.

39. Even the argument that life imprisonment means 25 years and, therefore, it‑ is covered by the term imprisonment used in section 382‑B, has not impressed us much. It may be noted that originally the second sentence in section 53, P. P. C. was transportation for life. It was amended by Ordinance XII of 1972 and the phrase `imprisonment for life' was substituted instead. Had the legislature wanted to equate it with imprisonment for 25 years it would have deleted the second sentence in section 53 altogether and would have substituted imprisonment for 25 years for transportation for life wherever it occurred. That was not done and rather a new category was created. Again, if the `life imprisonment' was so covered in section 382‑B as argued, then the legislature would not have found any paucity of suitable words to cover the situation. It could either say `sentence of imprisonment for any period including life imprisonment' or `sentence of imprisonment or imprisonment for life', if it really intended to give benefit in the cases in dispute. Undoubtedly, that is not done and rather the phraseology used, when read with other provisions, shows that it is to be read not in the generic but the technical sense. Again a person sentenced to life imprisonment has to undergo a specific period of detention and consequently it was necessary to mention the terms of years. The provisions of section 57, therefore, have to be seen in that context. Same will be the position in respect of section

65. There is thus no merit in this argument either.

40. It may further be seen that section 382‑B, Cr. P. C., had been introduced through Law Reforms Ordinance, 1972, to compensate for the hardship caused to an accused due to undue delay in his trial. If the intention of the legislature was to compensate every accused and in respect of every type of punishment it would not have mentioned only one of the six types of pun ishments enumerated in section 53, P.P.C. Undoubtedly, section 382‑B gives no benefit where there is a sentence of death, forfeiture of property, fine or whipping even though the trial may have been delayed in every such case, due to no fault of the accused and may be because of the dilatory tactics of the prosecution. We, therefore, agree with the learned Additional Advocate‑General that had the intention been to grant the general benefit to every type of accused prisoner then the wording of section 382‑B may have also covered the other types of punishments. The fact that it doe t not do so is, therefore, supportive of the argument that section 382‑B had been applied only to the cases of imprisonment other than the life imprison ment, death, whipping, fine, etc.

41. We may, in this connection, also refer to similar provisions' concerning delay in the trial. The third proviso to section 497(1), Cr. P. C. concerning grant of bail in non‑bailable offences lays down in clause (a) that any person shall be released on bail who being accused of any offence not punishable with death has been detained. In clause (b) the offence mentioned is the one punishable with death. The important feature to be noticed is that the sentences have been categorised in this provision into death and the rest of them to cover practically every case. Again, while dealing with question of suspension of sentence during the pendency of appeals, the legislature has divided the sentences in section 426(1‑A), Cr.P. C., into three different categories. Clause (a) concerns imprisonment exceeding three years. Clause (b) refers to imprisonment exceeding three years but not exceeding seven years while clause (d) speaks of imprisonment for life or imprisonment exceeding seven years. Had the contention of the petitioner been valid the term imprisonmeut for life' in clause (d) would be quite redundant and superfluous for the remaining portion i.e. `imprison ment exceeding seven years' would have squarely covered the life imprisonment i. e. 25 years also. The fallacy of this argument can be further demonstrated by comparison of section 2(e) (which defines imprison ment for life' as imprisonment till death) of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979, with sections 13 and 14 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, prescribing `imprisonment for life' simplicitor as the punishment. These provisions may be further contrasted with sections 10(3), 12 and 15 of the Offences of Zina Ordinance, the sentence given where is 25 years. It is, therefore, quite clear that the term `imprisonment for life' is a category apart and was nothing to do with the imprisonment for 25 years as such.

42. The learned counsel then referred to the judgment of this Court in the case of Nur Rahi v. State (1) already cited in para. 9 above. The observations at page 135 show ‑that the learned Judges felt difficulty in bringing the life imprisonment cases within the ambit of section 382‑B but surmounted the obstacle just by relying on the purpose of law which, in their view, was to relieve an accused from the rigours of unduly harsh prolongation of his incarceration. As a result they wanted that the pro visions must be liberally construed, with a view to promote the object in the mind of the framers of the law. We have already discussed above that such a general purpose cannot be spelt out from section 382‑B and that the object of the framers of law does not appear to be to grant benefit to every person accused of any offence, or in respect of every kind of punish ment. It has to be particularly noted again that the benefit is not per missible to those accused who after unreasonably protracted trial, for no fault, of theirs, are sentenced to death, forfeiture of property, whipping, fine etc. The observations by the learned Judges that they were extending the benefit only `to promote the object in mind of the framers of the law' y therefore, does not appear to be sound. Permitting such a benefit generally, would rather be in violation of law. We therefore, hold that section 382‑B,I Cr. P. C. does not apply to the cases of life imprisonment.

43. The learned Judges in Nur llahi case (supra) had also relied on the case of Kishori Lal v. Emperor (AIR 1945 PC 64) but even that supports the converse proposition and rather shows that transportation for life was a different cate gory. The following observations may be reproduced with advantage :‑ " ..... So, it, India, a prisoner sentenced to transportation may be sent to the Andamans or may be kept in one of the jails in India appoint ed for transportation prisoners where he will be dealt with in the same manner as a prisoner sentenced to rigorous imprsonment. The appellant was lawfully sentenced to transportation for life, at the time when he made his application to Monroe, J. he was confined in a prison which had been appointed as a place to which prisoners so sentenced might be sent. Assuming that the sentence is to be regarded as one of 20 years, and subject to remission for good conduct, he had not earned remission sufficient to entitle him to discharge at the time of his application and it was, therefore, rightly dismissed but, in saying this, their Lordships are not to be taken as meaning that a life sentence must and in all cases be treated as one of not more than 20 years or that the convict is necessarily entitled to remission." (Underlining* supplied).

44. Now we come to the third question i.e. whether section 382‑B can be applied retrospectively to the cases which had been finally decided prior to 23rd December, 1979 but where the prisoners are still serving the sentence. A Rivision Bench of this Court in Nur 11ahi's case, referred to above, came to the conclusion that section 382‑B is retrospective in its application to matters pending trial, appeal or revision but where all those stages have been concluded before the 23rd December, 1975, no relief can be granted. The learned Judges of the Sind High Court in the case of Saleh referred to in para. 10 above, however, gave a little different finding. They held that the benefit of section 382‑B can also be given in a case in which both the trial and the appellate Courts had passed their orders before 23rd December, 1975.

45. As stated in para. 33 above, section 382‑B with word `may' was enforced on 23rd December, 1975. Undoubtedly, this was an enabling provision apparently of a directory nature but in certain cases where powers entrusted to a person it becomes his duty to exercise it. According to Corpus Juris Secundum, Vol. LIX at pages 1071‑1074, the statutes are mandatory where they are founded on public policy, affect public interest or claims de jure of third persons as promote ends of justice, or confer a new right, privilege or immunity and prescribe the mode for acquisition, preservation, enforcement or enjoyment thereof. In such a situation the word `may' shall be construed as `shall' and the provision will be treated as absolute. It was held in Julius v. Bishop of Oxford ((1880) 5 A C 214) that where a power is deposited with a public office for the purpose of being used for the benefit of persons who are specifically pointed out, that power ought to be exercised and the Court will require it to be exercised. It was held In re: Shuter ((1960) 1 Q B 142), that word `may' should be interpreted as mandatory in the absence of sufficient case shown to the contrary against conveying a person out of the United Kingdom as required by section 72 of the Fugitive Offenders Act, 1881. A similar view was taken in R. v. Governor of Brixton Prison ((1963) 2 Q B 455). In the case in hand also the Court has to exercise the power for the benefit of an accused and, therefore, the word `may' meant `must'.

46. However, the word `may' was changed to `shall' vide an amendment introduced on 22nd December, 1979. The contents of this section make it quite clear that it is a power to be exercised by the Court, where it decides to pass a sentence of imprisonment, on an accused for an offence. The section itself, therefore, determines the time when this power can be exercised. We have already discussed this aspect in paragraph 12 to say that this power can be exercised by the trial Court invariably if it is to pass an order of sentence on or after 23rd December, 1975. The same power can also exercised by the appellate or the revisional Court in case it intended to interfere with the order of the trial Court so as to upset either the conviction or the sentence and pass a fresh order in either of the event.

47. It will thus be seen that the power must be available to the Court on the date when it is to pass an order of sentence, in any capacity, and the date of the commission of offence and its challan will not at all matter. As a result, a trial Court could not have exercised this power under sec tion 382‑B in a matter in which it passed the order of sentence, prior to 23rd December, 1975. Even the appellate Court would not be able to do so in case it did not intend to interfere with the finding arrived at by the trial Court. Same will be the case of revisional Court if it maintains the orders passed by the Courts below. However, the appellate and the revisional Courts would be empowered to exercise this power, even though the con viction was made by the trial Court prior to 23rd December, 1975, if it decides to interfere with conviction or the sentence and itself passes an order of sentence of imprisonment.

48. The next question requiring our consideration is whether the relief under section 382‑B can be granted if the same was not urged by the accused before the trial Court. The learned Judges of the Bahawalpur Bench in the case of Aslam Parvaiz, referred to above, have opined that no relief can be granted if no such request was made by or behalf of the appli cant at the relevant time. Before going into this proposition we would like the situation to be viewed from two different angles. In one case the law may entitle an accused to move a Court for a particular relief. An omission on his part in such a case may deprive him of his right on the basis of the principle of waiver. In Park Gate Iron Co. v. Coates (1870LRCP634) Bovill, C. J. said that the, provisions of section provided that there shall be a notice of appeal and security seem to have been intended for the benefit of the respondent and he may waive it. In Hebbletriwaite v. Hebblethwaite (1869 L R 2 P&D 29), it was held that if the witness for whose benefit the provision was made, did not object the other parties could not. On the other hand, if the Act provided a benefit for the public it cannot be waived in any case. ‑Reference be made to the case of E. A. Evans ‑v. Muhammad Ashraf (P L D 1964 S C 536), R. v. Bertrand (1867 L R 1 P C 520) and R. v. H. Sherman ((1949) 2 All E R 207). The relief, however, will not be denied if the law places a duty on the Court to consider a situation and grant relief. The view that we have taken rests on the well‑established principle that no one shall be allowed to suffer for an act or omission of the Court. The other principle invocable in the situation is that it is the duty of the Court to apply the correct law and no one can claim finality to the order of estoppel against the other side if the correct law was not applied. Reliance may be placed on Wright v. John Bagnall & Sons ((1900) 2 Q B 240) and Rendall v. Hill's Dry Docks and Engineering Co. ((1900) 2 Q B 245), Haji Abdullah Khan v. Nisar Muhammad Khan (P‑L D 1965 S C 690) and Ghulam Muhammad khan v. Settlement and Rehabilitation Commissioner (1972 S C M R 359). As said above, the section as it is worded, not only arms the Court with a power to be exercised but also casts a duty on it to take into considera tion the period, if any, during which such accused was detained in custody for such offence, while passing an order of sentence of imprisonment. Any omission on its part, therefore, would amount to failure to exercise a power or to perform a duty in accordance with law for which the accused must not suffer. Again, as referred to in paras 20 to 31 the omission on the part of the Court may be the violation of a mandatory provision of law and, therefore, the High Court can remedy the situation either in appeal or revision even under section 561‑A, Cr. P. C., if the omission bad taken place in the High Court itself. The denial of the relief merely for the reason that no request was made on behalf of the accused to consider a provision of law or the Court was not reminded of its power, should not place the accused in a disadvantageous position. We are, therefore, of the, view that the relief cannot be denied to the accused just for the reason that it, was not urged on his behalf.

49. The sum and substance of the entire discussion is that : ‑ (a) This Court can, under section 561‑A, Cr. P. C., entertain an application and grant relief under section 38 ‑B, despite section 369, Cr. P. C., in cases, which it has, without applying that provision, already decided, in its appellate or revisional jurisdiction, as the prohibition contained therein does not pertain to the High Court (b) the application under section 561‑A must be made within a reason able time of the order made by the High Court ; (c) the grant of relief is a judicial duty of the Court and must be performed after due application of mind to the facts and circum stances of each case The benefit is net to be granted automatically as it may not only differ from case to case but may even be denied in a given situation ; (d) the result of the adjudicative process must be reflected in the sentence of imprisonment announced in each case and the exercise, of it cannot be left to the jail authorities ; (e) the word `imprisonment' as used in section 382.B does not cover' the cases in which the punishment awarded is imprisonment for life ; (f ) section 382‑B can be applied retrospectively inasmuch as that the power thereunder must be available to the Court on the relevant date when it is to pass an order, in any capacity, whether original, appellate or revisional, of sentence of imprisonment, and the date' of the commission of offence and its challan will not at all matter ; (g) relief cannot be denied to a prisoner for the reason that he or his counsel had not urged the same before the Court at the hearing before the announcement of the sentence.

50. The facts of the present case are that the petitioner was arrested on 10th April, 1974. He was never released on bail. He was convicted by the trial Court on 21st December, 1975. His appeal was partly accepted by the High Court on 7th November, 1979. As to his late applying for this concession we condone the delay on his part for the reason that there has been so much confusion on the interpretation of the relevant provision of law. The petitioner was in custody during trial fur about 20 months. There is no allegation by the prosecution that he unduly delayed his trial. Keeping in view all the circumstances we think that he should be allowed the benefit to the extent of 20 months. The sentence of 10 years already awarded by this Court shall, therefore, read as 8 years and 4 months in view of the benefit we are granting under section 382‑B, Cr. P. C. The previous order shall stand altered accordingly. M. Z. M. Order accordingly