2000 PLP 1897 (YLR)

Ch. EJAZ YOUSAF, J. ‑‑‑This appeal is directed against the judgment, dated 2‑6‑1999 whereby the appellant has been convicted under Article 3/4 of the Prohibition (Enforcement of Hadd) Order, 1979 and sentenced to undergo R.I. for 12 years, to pay a fine of Rs.50,000 or in default to further undergo R.I. for six months and to suffer ten stripes. Benefit of section 382‑B, Cr.P.C., has, however, been extended to the appellant.

2. Briefly stated, the prosecution case as gathered from the record `is that on 29‑11‑1990 in consequence of spy information received by Irshad Aslam Shaikh F.I.O. of the P.N.C.B., Karachi that; heroin is likely to be smuggled through the ship "Safina‑e‑Abid" the appellant who was bound to travel from Karachi to Jedda in the said liner, was intercepted. His luggage was searched and in consequence 1500 grams of "heroin" concealed in a quilt was recovered. After taking out a sample of five grams of sending to the Chemical Examiner, in a sealed cover, the remaining bulk of "heroin" was seized and sealed on the spot in presence of the witnesses. The appellant was taken to the Police Station P.N.C.B. Defence, Karachi where F.I.R. bearing No.21 of 1990 was registered under Article 3/4 of the Prohibition Order, 1979. Investigation was carried out and on completion thereof the‑appellant was challaned to the Court for trial.

3. Charge was accordingly framed to which the accused/appellant pleaded not guilty and claimed trial.

4. At the trial the prosecution in order to prove the charge and substantiate the allegations levelled against the appellant produced two witnesses only. P.W.1 Irshad Islam Shaikh, F.I.O., is the complainant as well as Investigating Officer of the case. He, at the trial while reiterating the version contained in the F.I.R., deposed that in consequence of spy information received by him he had searched the person as well as luggage of the appellant. Resultantly, 1500 grams of "heroin" was recovered from the quilt which was being carried by him. After taking out the sample, the remaining contraband material was sealed on the spot and taken into possession vide recovery memo. Exh.11. Passport and identity card of the appellant were also taken into possession vide the aforementioned recovery memo. The witness further deposed that sample taken out from the contraband was later on sent to the Chemical Examiner who vide his report Exh.16 confirmed that the material sent to him for analysis was "heroin". P.W.2 Masood Hashmi, H.C. P.N.C.B. corroborated the statement of P.W.1 in all material particulars and confirmed that the contraband material was recovered from the quilt which has been carried by the appellant.

5. On the conclusion of the prosecution evidence the accused/appellant was examined under section 342, Cr.P.C. In his above statement he denied the charge and pleaded innocence. He, however, failed to lead evidence in his defence or to appear as his own witness in terms of section 340(2), Cr.P.C.

6. After hearing arguments of the learned counsel for the parties the learned trial Court convicted the accused/appellant and sentenced him to the punishment as mentioned in the opening para. hereof.

7. We have heard Ch. Muhammad Akram, Advocate, learned counsel for the appellant and Miss Qamar‑un‑Nisa, Advocate, for the State and have also perused the entire record with their help.

8. Ch. Muhammad Akram, Advocate, learned counsel for the appellant after having gone through the evidence made some submissions but then decided not to challenge conviction of the appellant. Instead, he prayed for reduction in the sentence of imprisonment of the appellant on the ground that the appellant was the first offender and sole bread earner of a poor family, which in his absence has been subjected to poverty, therefore, a lenient view may be taken in the matter of sentence. It is further his submission that benefit of section 382‑B, Cr.P.C., has unjustifiably been withheld by the learned trial Court and the reason given for the same i.e. "that since the appellant during trial had absconded, therefore, he was not entitled for the benefit", is neither legal nor valid. Learned counsel for the appellant maintained that in the absence of special circumstances disentitling the appellant to have his sentence of imprisonment reduced by the period already spent in jail during trial, it was obligatory for the trial Court to afford benefit of section 382‑B, Cr.P.C. to him. In furtherance of his contention he has stated that if at all the learned trial Court had taken the "abscondence" as an incriminating piece of evidence in withholding the benefit of section 382‑B, Cr.P.C., then in all fairness, the appellant should have been questioned in that regard in the course of his statement recorded under section 342, Cr.P.C. Since needful was not done, therefore, appellant could not have been deprived of the benefit.

9. Qari Abdul Rashid, Advocate, learned counsel for the State having been confronted with the proposition candidly conceded and submitted that in the circumstances of the instant case, abscondence of the appellant could not have been taken as an incriminating piece of evidence against the appellant, therefore, it was not justifiable for the trial Court to withhold the benefit of section 382‑B, Cr.P.C. He, however, maintained that since the case against the appellant was otherwise proved to the hilt, therefore, he was rightly convicted and sentenced for the offence. He also expressed his no objection in case moderate reduction in the sentence of the appellant is made.

10. Notwithstanding the fact that Ch: Muhammad Akram, Advocate, learned counsel for the appellant has not challenged conviction of the appellant, we have considered the merits of the instant case, in the light of the evidence on record. We are convinced that the learned lower Court has properly appreciated the evidence and has drawn correct conclusions as such no interference is called for. However, we are of the opinion that in the instant case the learned trial Court has not properly construed and applied the provision of section 382‑B, Cr.P.C. In order to appreciate the proposition it would be advantageous to reproduce here-in-below the relevant provision which reads as follows: ‑‑ "382‑B. Period of detention to be considered while awarding sentence of imprisonment. ‑‑‑Where a Court decides to pass a sentence of imprisonment on an accused for an offence, it shall take into consideration the period, if any during which such accused was detained in custody for such offence." A bare perusal of the above provision would reveal that when a Court decides to pass a sentence of imprisonment on an accused for an offence, it would be obligatory for it to take into consideration the period, if any, during which such accused was detained in custody for such offence and in doing so, though the Court may have a regard to certain factors such as, heinousness of the offence, role played by the accused in the crime, age of the accused and extenuating or mitigating circumstances because all these would be relevant for the purpose of determining the quantum of sentence, but conduct of the accused, at the trial, can by no stretch of imagination be taken a circumstance apropos for the grant of refusal of the benefit. There is marked distinction between a case in which an accused absconds immediately after the commission of offence and a case in which he absconds later on or at the trial stage. Former being a corroboratory piece of evidence may be taken into account while deciding the guilt of the accused or in determining the quantum of sentence, but the latter being less or in certain cases, of no evidentiary value, cannot be considered to be an incriminating piece of evidence against the accused particularly for the purpose of section 382‑B, Cr.P.C. The import of section 382‑B, Cr.P.C., is that period of detention suffered by an accused as an undertrial prisoner has to be treated as a part of substantive sentence, therefore, unless it is proved on record that the delay in the trial, if any, was the result of the tactics of the accused the benefit cannot be withheld. Since nothing of the sort in the instant case is available on record and it has not been proved that abscondence of the accused during trial was for the specific purpose of delaying the proceedings, therefore, in our view he could not have been deprived of the benefit of section 382‑B, Cr.P.C.

11. We see force in this argument of the learned counsel for the appellant as well, that if the "abscondence" of the accused, at all, was taken as an incriminating piece of evidence then in all fairness, the appellant should have been questioned with regard thereto in the course of his statement recorded under section 342, Cr.P.C., thereby enabling him to explain his position. In this view we are fortified by the following reported judgments:‑‑ (i) 1992 SCMR 1983‑‑‑Ch. Muhammad Yaqoob v. The State. (ii) PLD 1990 FSC 57‑‑‑Spin Bacha and others v. The State. Be that as it may, since we have already concluded that abscondence of the accused, during trial, in this case, was not a relevant factor in determining the grant or refusal of the benefit of section 382‑B, Cr.P.C., therefore, there is no need to resolve the proposition.

12. It is well‑settled that in the absence of special circumstances disentitling the accused to have his sentence of imprisonment reduced by the period, already spent in jail p during trial, it is obligatory for the trial Court to afford benefit of section 382‑B, Cr.P.C., to him. Reference in this regard may usefully be made to the following reported judgments: ‑‑‑ (1) Ghulam Murtaza v. The State (PLD 1998 SC 152). (2) Ali Sher v. The State (PLD 1980 SC 317). (3) Muhammad Younus v. The State (1982 SCMR 1022). (4) Muhammad Aslam v. The State (1997 PCr.LJ 307). (5) Akbar Khan v. The State (1991 PCr.LJ 845). (6) Khan Aga v. The State (1991 PCr.LJ 839). (7) Muhammad Asif alias Aasoo Billa v. The State (1999 SCMR 2489). . (8) Javed Iqbal v. The State (1998 SCMR 1539). (9) Bashir alias Bashira v. The State (1998 SCMR 1794).

13. The upshot of the above discussion is that the benefit of section 382‑B, Cr.P.C., is hereby extended to the appellant. Consequently the period during which he was detained in custody for the offence shall be taken into consideration and computed accordingly. The conviction recorded against the appellant by the trial Court vide judgment, dated 2‑6‑1999 is maintained. However, keeping in view the submissions made by the learned counsel for the parties and the fact that the appellant is repentant, the sentences of imprisonment as well as of fine E recorded against him are reduced as under in the hope that the indulgence shown to him would bring out of him by a law‑abiding and respectable citizen:‑‑ (i) Sentence of imprisonment is reduced from twelve years' R.I. to that of ten years R.I.; and (ii) the sentence of fine is reduced from Rs.50,000 to that of Rs.25,000 in default whereof he shall further undergo S.I. for three months.

14. The sentence of stripes is set aside under the Abolition of Punishment of Whipping Act, 1996. With the above modification in the sentences this appeal is hereby dismissed. Q.M.H./M.A.K./18/FSC Order accordingly.