2004 PLP 931 (SCMR)

‑‑‑‑S. 382‑B‑‑‑Penal Code (XLV of 1860), S.302/34‑‑‑Constitution of Pakistan (1973), Art.185(3)‑‑‑Court had discretion to consider each case on its merits and was not bound to grant benefit of 5.382‑B, Cr.P.C. to prisoner as a matter of right‑‑‑Petition for leave to appeal filed by accused against his conviction and sentence had already been dismissed by Supreme Court, but no plea with regard to grant of benefit under S.382‑B, Cr.P.C. was raised by him at that time before Supreme Court‑‑‑Such plea raised now could not be entertained and earlier order passed by Supreme Court could not be recalled in the present petition after such long period‑‑‑Leave to appeal was declined to accused and his petition was dismissed accordingly. Ehsan Ellahi and others v. Muhammad Arif and others 2001 SCMR 416 ref. Akhtar Hussain, Advocate Supreme Court with S. Abdul Aasim Jafri, Advocate‑on‑Record for Petitioner. Nemo for Respondent. Date of hearing: 16th July, 2001. HAMID ALI MIRZA, J.‑‑‑This criminal petition for leave to appeal is directed against order dated 24‑4‑2001 on Criminal Miscellaneous No.817/M of 2001 in Criminal Appeal No.241 of 1990 (Muhammad Riaz v. The State) where the petitioner was denied the benefit of section 382‑B, Cr.P.C. Brief facts of the case are that the petitioner alongwith co accused was convicted in case vide F.I.R. No.243 of 1984 under section 302/34, P.P.C. of Police Station Munawan, Lahore for the murder of Ashfaq and both were sentenced to life imprisonment and fine of Rs.1,000 each and in default to undergo one month's R.I. as per judgment dated 12‑4‑1990 passed by Additional Sessions Judge, Lahore. The petitioner preferred an appeal before the High Court which appeal was dismissed as per judgment dated 1‑4‑1997 and fine was enhanced to Rs.20,000 or in default to undergo imprisonment for one year in addition to payment of compensation of Rs.30,000 under section 544‑A, Cr.P.C. to the legal heirs of the deceased or in default to undergo six months R.I. This decision was passed on in Appeal No.241 of 1990 preferred by the petitioner and Criminal Revision No.368 of 1990 filed by the complainant. Against the said judgment Criminal Petition for Leave to Appeal No.170/L of 1997 was preferred by the petitioner and Criminal Petition No.223/L of 1997 was filed by complainant and both petitions were dismissed by this Court and leave was refused as per order dated 24‑12‑1998. The petitioner made an application before the trial Court for grant of benefit under section 382‑B, Cr.P.C. but the same was dismissed as per order dated 22‑11‑2000. The petitioner challenged the said order under section 561‑A, Cr.P.C. before the High Court for grant of benefit under section 382‑B, Cr.P.C. but as per impugned order the said application of the petitioner was dismissed hence the present petition. We have heard learned counsel for the petitioner and perused the record. Contention of the learned counsel for the petitioner is that Court is bound to grant benefit of section 382‑B, Cr.P.C. to the accused for the period detained in custody as under‑trial prisoner in terms of section 382‑B, Cr.P.C. There is no cavil with the proposition that the Court is bound to consider‑whether the accused is to be awarded benefit of section 382‑B.I Cr.P.C. but is not bound to grant benefit in each and every case. Each, case is to be decided on its own merits. The Court is not bound to grant " benefit of section 382‑B, Cr.P.C. to every accused as a matter of right but discretion is left to the Court which has to consider each case on its merits. Reference may be made to latest decision of this Court Ehsan Ellahi and others v. Muhammad Arif and others 2001 SCMR

416. In the instant case petitions for leave to appeal were filed against the judgment of the High Court but no plea with regard to grant of benefit under section 382‑B, Cr.P.C. was raised before this Court which petitions were dismissed consequently, the plea raised now cannot be entertained and earlier order passed by this Court cannot be recalled in this petition after such long period. In view of aforesaid reasons, the petition has no merit therefore leave to appeal is declined and petition is dismissed. N.H.Q./M‑555/S Leave refused.