P L D 1998 Supreme Court 152 (PLP)

SAIDUZZAMAN SIDDIQUI, J.--In the above Jail Appeal leave was granted to consider whether benefit of section 382-B, Cr.P.C. can be extended to the appellant who was awarded life imprisonment by converting the sentence of death awarded by the Trial Court. The High Court had not addressed itself to the question of grant or otherwise of concession under section 382-B, Cr.P.C. while awarding the life sentence to the appellant. The purport behind insertion of section 382-B in the Code of Criminal Procedure and its scope was considered at length in the case of Muhammad Rafi v. The State 1995 SCMR 1525 by a Bench of this Court, where it was observed as under: "Section 382-B of the Code and section 67 of the Criminal Justice Act, 1967 and section 428 of Indian Code of Criminal Procedure, 1973, are pari materia. It seems to me that the spirit which inspired the enactment of section 382-B of the Code is the same as had inspired the Indian and the English Legislatures to enact sections 428 and 67 respectively. It is symptomatic of the growing recognition by the law-tax of a more rational treatment of the pre-sentence period in jail. As the accused was put in jail for the very offence for which he was convicted and sentenced to imprisonment, the pre-sentence period spent by him in jail was nut in vain and must, therefore, be taken into account. It explodes the notion that, that period can be ignored because it was not spent in jail by way of 'punishment'. Not to treat that period as punishment, will, in my opinion, be a play on the meaning of the word 'punishment'. Whether the detention in jail was punitative or non-punitative, the consequence, as regards the person detained, was the same, namely deprivation of liberty and that is certainly punishment. Section 67 of the English Act and section 428 of the Indian Act provide expressly that the sentence of imprisonment imposed by the Court shall stand reduced by the pre-sentence period spent in nail (the English Act) or which is the same thing, that the pre-sentence period shall be set off against the term of imprisonment imposed on him (the Indian Act). The English and the Indian Acts do not, therefore, leave, as regards the presentence period spent in jail, anything to be done by the sentencing Court. Instead, they direct that the period so spent in jail shall automatically count towards the sentence of imprisonment imposed by the Court and the sentence of imprisonment shall stand reduced accordingly. We wish that section 382-B of the Code were also couched in language as clear and unambiguous as the sections in the Indian and the English enactments are. If it were, then it would be right to say, as has become customary to do, that the convict should get the 'benefit' of that section. But unfortunately it does not. The stage for the application of section 382-B of the Code is 'when the Court decides to pass a sentence of imprisonment on an accused for an offence ....'. That is the stage when the Court asks the crucial question: what length of sentence shall be regarded as appropriate? When the Court has asked and answered that question, then 'it shall take into consideration the period, if any, during which such accused was detained in custody for such offence'. What the section does, therefore, is to require the sentencing Court to take into consideration the presentence period spent in jail. That the word 'shall' here was intended to make the provision mandatory in the sense that it imposes a duty to do what is prescribed admits of no doubt whatever, The matter relates to the liberty of person. As was held in Qadir v. State PLD 1991 SC 1065, where the question was whether section 382-B applies to cases of life imprisonment, 'the provision occurs in a criminal statute which requires strict construction as far as it imposes restrictions and E punishments. Beneficial provisions need to be construed liberally'. In any even, the fact that when the section was first enacted the word used was 'may' and later it was substituted by the word 'shall' provides the clearest possible evidence that the intention was that the Court must take the pre-sentence period of detention in jail 'into consideration'. Section 382-B of the Code is, therefore, a statutory limitation upon the Court's discretion to determine the length of imprisonment. It must 'take into consideration' the pre-sentence period spent in jail. That brings us to the difficult problem of how the sentencing Court can give effect to the legislative intent expressed in the words 'shall take into consideration' in exercising its discretion to determine the length of the sentence of imprisonment. According to what is known as Padfield principle (see Padfield v. Minister (168) AC 997, 1030) Parliament must have conferred the discretion with the intention that it should be used to promote the policy and objects of the Act. As has been observed above, the policy and the objects which inspired the enactment of section 382-B, and this is manifestly plain from the fact that in the original section, the word used was 'may' and later it was substituted by 'shall', were the growing recognition of a more rational treatment of the pre-sentence period in jail. Lord Morris said in the Padfield case: ... ... ... Where a power is deposited with a public officer for the purpose of being used for the benefit of persons who are specifically pointed out, and with regard to whom a definition is supplied by the Legislature of the conditions upon which they are entitled to call for its exercise, that power ought to be exercised and the Court will require it to be exercised.' The principles which apply directly to this case were, in my opinion, laid down in R v. Stafford Justices (1940) 2 KB

33. The argument there was that the remedy of certiorari when the applicant is an aggrieved person and the absence of jurisdiction is established is not a matter of discretion at all. Lord Greene M R observed that the order for the issue of the writ certiorari is ... ... in all cases a matter of discretion, but that it is perfectly true to say that if no special circumstances exist, and if all that appears is a clear excess of jurisdiction, then a person aggrieved by that is entitled ex debito justiae to his order. He went on to say, and that, in my opinion, is the essence of the principle: 'That merely means that, in my judgment, that the Court in such circumstances will exercise its discretion by granting the relief. In all discretionary remedies it is well-known and settled that in certain circumstances. I will not say in all of them, but in a great many of them the Court, although normally it has a discretion, if it is to act according to the ordinary principles upon which judicial discretion is exercised, must exercise that discretion in a particular way, and if a Judge at a trial refuses to do so, then the Court of appeal will set the matter right. But once it is established that in deciding whether or not a particular remedy shall be granted the Court is entitled to inquire into the conduct of the applicant, and in the circumstances of the case, in order to ascertain whether it is proper or not to grant the remedy sought, the case must, in my judgment, be one of discretion.' From the guidance to be derived from these principles, the true approach to the exercise of the judicial discretion conferred upon the Court under section 382-B is that after the Court decides to pass a sentence of imprisonment on an accused, it shall, in the absence of special circumstances disentitling the accused to have his sentence of imprisonment reduced by the period spent in jail during the trial, exercise its discretion in favour of the accused by ordering that, that period shall be counted towards his sentence of imprisonment or that the sentence of imprisonment shall be treated as reduced by that period. This may involve a balancing exercise between the public and private interest and also the consideration of such factors as the conduct of the accused, his antecedents, nature of the offence etc. Indeed, the Court will use its good sense in determining the circumstances in which the discretion will not be exercised in favour of the accused. But as the discretion is a judicial discretion, the order of the Court must show that the pre-sentence period has been taken into consideration and if the Court thinks that the sentence should not be reduced by the period spent in prison during the trial, the Court must give reasons for so thinking. That is necessary, among others, because (i) the Court's discretion is liable to be set right by the Court of appeal and (ii) if justice is to be seen to be done, the discretion which falls to be exercised by different Judges in different cases, must manifest a reasonable consistency as between one case and another. (MacShannon case (1978) 1 All ER 625, 631)." The benefit of section 382-B, Cr.P.C. is also available to a person whose sentence of death under section 302, P.P.C. has been subsequently altered to imprisonment for life as clearly borne out from the decision of this Court in the case of Ramzan and 3 others v. The State PLD 1992 SC

11. The scope of section 382-B, Cr.P.C. was also examined at length by a Bench of this Court in the case of Mukhtiar-ud-Din v. The State 1997 SCMR 55 and after referring to the case-law, following conclusions were recorded: "After having considered the above provision of section 382-B, Cr.P.C. and the case-law, we are inclined to hold as under:- (i)???????? That strictly speaking section 382-B, Cr.P.C. is attracted to, when a Court decides to pass a sentence either in the trial or appellate or revisional proceedings against an accused for the offence charged with. In other words, if the sentence has already been passed by a trial Court and the matter is brought before an Appellate Court, strictly speaking, section 382-B, Cr.P.C. is not applicable. However, there is no legal bar and that an- Appellate Court is competent to grant the benefit of the above provision 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 provisions 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/mistake, if any, committed by the trial Court. (ii)??????? That if an Appellate Court substitutes death sentence to that of imprisonment for life or rigorous imprisonment for a certain period, it is obligatory on its part to take into consideration above section 382-B, Cr.P.C. for example, if a High Court in a murder appeal/reference alters conviction from section 302, P.P.C. to that under section 304, Part I, P.P.C. and substitutes death sentence to that of rigorous imprisonment of 7 or 10 years, it is mandatory for it to advert to the question of extending the benefit of the above provision to the convict while imposing above sentence. (iii)?????? That though under section 382-B, Cr.P.C. the Court has discretion not to grant the benefit of the same to a convict, but this discretion is to be exercised judiciously on sound judicial principles, inter alia, as explained hereinabove in para.9. (iv)?????? That since the provision of section 382-B, Cr.P.C. is mandatory, in the absence of express manifestation of the application of the mind by the Court that it has addressed itself to the above provision 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 same. Adverting to the case in hand, it may be observed that the learned Additional Sessions Judge declined to grant benefit of section 382-B, Cr.P.C. to the appellant on the ground that he had already awarded imprisonment for life instead of death sentence. It may be pointed out that the above reason had no nexus with the object imbedded in section 382-B, Cr.P.C. The object of the above provision seems to be to compensate a convict for the delay in the conclusion of his trial because of the various factors generally not attributable to him as a State is supposed to provide speedy justice. It may be stated that for the offence of murder falling under section 302, P.P.C. the law provides two sentences i.e. death, which is the normal. sentence, and imprisonment for life if there is any one or more judicially recognized mitigating circumstance/circumstances. The question, whether a particular mitigating circumstance has nexus with the object of section 382-B, Cr.P.C., will depend on its nature. In the instant case, the learned Additional Sessions Judge found that the deceased got married to the girl in whom the appellant was interested as a mitigating circumstance not to impose death sentence. "The above circumstances has no nexus with the object contained in section 382-B, Cr.P.C. However, if the learned Additional Sessions Judge would have awarded imprisonment for life instead of death sentence on the ground that the appellant had remained in custody for 8 or 9 years during the trial, the above reason would have direct nexus with the object of the above section 382-B, Cr.P.C., but he question as to whether the above reason would have constituted a mitigating circumstance is a different issue, which needs not be dilated upon in this discourse. We may further observe that when a Court denies the benefit of section 382-B, Cr.P.C. to a convict on the ground that he had purposely obstructed the trial resulting in the delay of the conclusion of the same, the above ground will have nexus with the object of the above provision. " In the case of Liaqat Ali v. The State PLD 1995 SC 485 the Shariat Appellate Bench of this Court considered the effect of section 382-B, Cr.P.C. and came to the conclusion that where the Courts below have omitted to consider grant of concession of section 382-B, Cr.P.C. to the accused, the same benefit can be extended by this Court. From the preceding precedent it appears that unless there are any exceptional circumstances in a case which the Court considers sufficient for the purpose of denying the benefit of section 382-B, Cr.P.C. to the accused, the Court in all other cases, while awarding sentence, will take into consideration the period during which the accused remained in dentention during his trial, and this period will normally be adjusted in the sentence awarded to the accused by allowing him the benefit of section 382-B, Cr.P.C. Mr. M.Zaman Bhatti, learned counsel for the State, however, has very vehemently opposed the grant of benefit of section 382-B, Cr.P.C. to the appellant, contending firstly that it was a case of a gruesome murder and secondly, that the appellant had already been treated leniently by the High Court by converting his death sentence into life imprisonment. In support of his contention learned counsel for the State has relied on the case of Islamuddin v. The State 1988 PCr.LJ 1576 decided by learned Single Judge of the High Court of Sindh. The case relied upon by the learned State Counsel is distinguishable on facts. However, so far as the proposition of law mentioned in that case that the concession of section 382-B, Cr.P.C. is to be granted only upon the request of the accused is concerned, it does not appear to have laid down the law correctly. Learned counsel for the State has also referred to an unreported decision of this Court in Criminal Appeal No.321 of 1993 given on 21-10-1997 by a Bench of this Court of which one of us (Saiduzzaman Siddique, J.) was a member and contended that in view of that judgment the appellant should not be allowed benefit of section 382-B, Cr.P.C. We have called for the judgment in that case. In that case the accused was acquitted of the charge under section 302/307/449, P.P.C., but was convicted under section 304, Part 1, P.P.C. and awarded imprisonment for life and a fine of Rs.5,000 or in default R.I. for one year. On an appeal filed by the State against the acquittal of the accused from the charge under section 302/307/449, P.P.C. the High Court altered the conviction accused Muhammad Amjad from section 304, Part I to section 302, P.P.C. and sentenced him to death while maintaining the sentence of fine awarded by the trial Court. The conviction and sentence awarded to the accused in that case under section 308, P. P. C. was converted to under section 307, P.P.C. without any modification in the sentence. Leave to appeal was granted in that case by this Court and the sentence of death awarded by the High Court was converted into life imprisonment under section 302, P.P.C. However, the conviction and sentences under sections 307 and 449, P.P.C. were maintained. In the end this Court also allowed the benefit of section 382-B, Cr.P.C. to the appellant in that case. The above case relied upon by the learned counsel for the State, therefore, does not support the contention of the learned counsel that the concession of section 382-B, Cr.P.C. should not be extended to the appellant in the present case. Having examined the facts of the case, we have not been able to discover any extraordinary circumstances in the present case which warranted denial of benefit of section 382-B, Cr.P.C. to the appellant. We, accordingly, allow the appeal and direct that the appellant will be I entitled to the benefit of section 382-B, Cr.P.C. N.H.Q./G-12/S??????????? Appeal allowed.