1989 P Cc (PLP)

Date of hearing: 23rd February, 1989. The question that has been raised in this application under section 561‑A, Cr.P.C. relates to the interpretation of section 382‑B, Cr.P.C.

2. Applicant Muhammad Arif was arrested in Crime No. 254 of 1981, Police Station Gulshan‑e‑lqbal on 21‑11‑1981 for an offence under section 392, P.P.C., read with section 20 of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979. He remained in custody till 16‑11‑1983, when he was released on bail. The applicant and two others were convicted by Additional Sessions Judge (East), Karachi, vide judgment, dated 10‑9‑1986, and sentenced to suffer R.I. for six years and to pay a line of Rs.2,000 or in default to suffer R.I. for three months. Applicant Muhammad Arif challenged his conviction and sentence before Federal Shariat Court, but without any success. The benefit of section 382‑B, Cr.P.C. was, however, not extended to applicant, both by the trial Court and the Appellate Court, who has now invoked the inherent jurisdiction of this Court to claim the said benefit.

3. I have heard Mr. Khawaja Naveed Ahmed, learned counsel for the applicant and Mr. A.I. Qarni, learned counsel representing the State. Mr. Qarni has raised a preliminary objection about the competency of application filed under section 561‑A, Cr.P.C., in a situation like this. The concept of `inherent jurisdiction' was analysed by Fazal Karim, J., in his classic judgment reported as Sh. Sardar Ali v. The State and another P L D 1987 Lah.

633. He observed that powers of the High Court under section 561‑A, Cr.P.C. are not new powers, but those which the Court already inherently possessed, and the jurisdiction exercisable under section 561‑A, Cr.P.C. being of an extraordinary nature was intended to be used only in extraordinary cases where there was no other remedy available. The objection of Mr. Qarni, learned counsel for State, however, is effectively answered by a Full Bench in Zulfiqar Ali v. The State reported in P L D 1984 Lah. 461, wherein it was observed that a High Court has inherent power to alter, review or revoke its earlier decision unless there is a statutory bar. While examining the provisions of section 382‑B, Cr.P.C., in relation to section 561‑A, Cr.P.C., it was held that section 382‑B, Cr.P.C. casts obligation on Court to consider factor mentioned therein while passing sentence, and such duty of Court being for public benefit, must be performed. Any inadvertence or omission on the part of Court to consider the provisions of section 382‑B, Cr.P.C. should not place the prisoner in a disadvantageous or losing position. The Full Bench finally observed that a High Court has power under section 561‑A, Cr.P.C. to alter or review its previous order, if the mandatory provision of law had been violated.

4. The scope, import and scheme of section 382‑B, Cr.P.C. were examined by a Division Bench in Aslam Parvaiz v. The State reported in P L D 1984 Lah. 204, wherein it was held that benefit under section 382‑B, Cr.P.C. is not extendable mechanically, or as a matter of course. A burden lies on the accused or convict to satisfy the Court that the delay in trial was not the result of his dilatory tactics, but occasioned solely on account of law's delay. This of necessity would require some sort of inquiry by the Court for its judicial satisfaction. It is only when the Court is satisfied that the accused/convict is in no manner to be blamed for the delay, that the Court would order that period of his custody in jail for the offence in respect of which the sentence of imprisonment is being passed be treated as period already undergone, or in view of such period the Court may correspondingly award lesser sentence of imprisonment. While analysing the scheme of section 382‑B, Cr.P.C., it was observed that this provision does not stand on the footing of those mandatory provisions which affect the jurisdiction of the Court in the category of incurable illegalities.

5. While examining the implications of section 382‑B, Cr.P.C. in Nathu Khan v. The State reported in 1985 M L D 641, it was remarked that although word `may' used in section 382‑B, Cr.P.C. has been substituted by word `shall' yet it is subject to judicial discretion and in an offence of rape, accused, on technical ground, cannot claim benefit as a matter of right.

6. Looking to the gravity of o. ace, the accused was deprived of benefits under section 382‑B, Cr.P.C. in Rehmat Sher v. The State reported in 1987 PCr.LJ855.

7. This view was followed by my brother Sajjad Ali Shah, J., in Islamuddin v. The Slate reported in 1988 P Cr. L J 1576. I cannot do better than quoting his Lordship's observation in extenso:‑ "The question that arises for consideration is whether section 382‑B, Cr.P.C. provides that if such request is made for' the benefit of reduction of sentence invariably every request is to be granted or the Court has power to refuse such request as well. Section 382‑B, Cr.P.C. has been added by Law Reforms Ordinance and perusal of the language contained therein shows that it has been made mandatory for the Court at the time of passing sentence to take into consideration the period, if any, during which accused was detained in custody. The word used is `shall' which makes it mandatory, but this applies only for the purpose of taking into consideration the period, accused had remained in custody as undertrial prisoner. It does not necessarily mean that in every case the request is to be granted. It further appears from the language used in this section that it has been left open to the trial Court to grant this benefit in appropriate cases and it is not necessary that whole period, the accused remained undertrial prisoner, is to be deducted, but even part of it can also be deducted. The object of this section is to compensate the accused if he has remained incarcerated for a long period as undertrial prisoner and bail was not granted to him. In that context such benefit could be given to him for the whole period or part of it while he remained in detention during the trial and further such benefit could be given in appropriate cases and not necessarily in all cases. It is imperative for the trial Judge to consider this question but it is further discretionary matter to grant the request or not depending upon the peculiar circumstances of the case."

8. Admittedly the trial Court did not extend this benefit to applicant, who was convicted for an armed robbery. This fact was also not agitated before the Federal Shariat Court, where the appeal riled by the applicant was dismissed. Under these circumstances the proper forum to seek relief under section 382‑B, Cr.P.C., is the Federal Shariat Court and not the High Court. The facts of Muhammad Nawaz alias Baboo v. The State 1988 P.Cr.L J 1079 relied upon by learned counsel for the applicant are distinguishable. In that case the appeal of the convict was heard and disposed of by the High Court.

9. In the circumstances the application made under section 561‑A, Cr.P.C, has got no merits and is dismissed accordingly. S.A./M‑724/K ??????????????????????????????????????????????????????????? ?????????? Petition dismissed.