1995 PLP 1525 (SCMR)

Padfield v. Minister (168) AC 997, 1030; R v. Stafford Justices (1940) 2 KB 33 and MacShanhon's case (1978) 1 All, ER 625, 631 quoted. Ch. Khan Muhammad Bajwa, Advocate Supreme Court instructed by Ch. Mehdi Khan Mehtab, Advocate‑on‑Record for Petitioner. Nemat Khan, Advocate Supreme Court for the State. Date of hearing:, 28th March, 1995. FAZAL KARIM, J.‑‑This petition for leave to appeal under Article 185, clause (3) of the Constitution, which was converted into an appeal at the hearing, has arisen in the following circumstances.

2. The petitioner Muhammad Rafiq was, on 16‑12‑1991, found in possession of a Klashinkov loaded with a Magazine containing 30 bullets alongwith 3 loaded Magazines each containing 30 bullets and 36 other spare bullets. He was sent up to stand his trial before the Special Court constituted under the Suppression of the Terrorist Activities, Faisalabad, was tried under section 13 of the Arms Ordinance, 1965 read with section 7 of Surrender of Illicit Arms Ordinance, 1991 and convicted under those sections and was sentenced to seven years' R.I. and fine of Rs.50,000 or in default to suffer further 1‑1/2 years' R.I. The learned Special Judge held that the petitioner "is not entitled for the benefit of section 382‑B, Cr.P.C. in view of the circumstances of the case in hand". The petitioner appealed but his appeal was dismissed by a judgment of the Lahore High Court dated 7‑2‑1994:

3. Learned counsel for the petitioner did not challenge the petitioner's conviction; he also did not challenge the quantum of sentence. He, however argued that the petitioner was entitled under section 382‑B of the Cr.P.C. to have the period of his detention in jail during the trial counted towards his sentence and secondly that the sentence of fine was too severe. As to his latter contention, learned counsel pointed out that section 13 of the Arms Ordinance does not fix the amount to which the fine may extend. He referred to section 63 of the Pakistan Penal Code, which provides that where no sum is expressed to which a fine may extend, "the amount of fine to which the offender is liable is unlimited, but shall not be excessive". 3‑A. It is to be noted that the petition is barred by 279 days. In his petition for the condonation of delay, the petitioner has stated and the statement is supported by an affidavit, that he had filed the appeal before the High Court through Jail; that the date of hearing before the High Court was not notified to him in Jail; that he learnt of the dismissal of his appeal on 20‑11‑1994; that thereafter he made Criminal Miscellaneous Petition No.1275‑M of 1994 which was dismissed on 27‑11‑1994 and that it was in these circumstances that the delay in the filing of the appeal occurred. We see no reason to doubt the above statement of fact, supported as it is by the petitioner's affidavit and concerning the matter as it does with the liberty of a citizen, we condone the delay. 3‑B. We have seen that the learned trial Judge had by his judgment dated 18‑2‑1992 held the petitioner "not entitled for the benefit of section 382‑B, Cr.P.C by which we understand him to mean that in the circumstances of the case, the petitioner was not entitled to have his sentence reduced by the period which he spent in Jail during the trial. In the judgment of the High Court, however, it was stated that the petitioner had been "given the benefit of section 382‑B, Cr.P.C." This was obviously a clerical error. This clerical error induced the petitioner to apply for the review of the judgment. His application was, however, dismissed by the learned Judge with the observation that "such concession cannot be made available at this stage nor it is a case which would entitle the petitioner to such benefit".

4. Section 13 of the Arms Ordinance provides the maximum and the fixed minimum sentence of imprisonment and this is the only legislative contribution td the sentencing policy in the context of the tariff (a convenient name for the process by which the length of sentence of imprisonment is calculated). Within those limits, the sentencing Court has been left with a complete discretion in the matter of the length of the prison sentence. Like numerous other provisions, section 13 of the Ordinance affords no other guidance for the exercise of that discretion. Nor does that section contain a general statement of the aims in terms of different theories of punishment such as the "protection of the public", the "prevention of crime" and the "reform of the offender". Decided cases and authoritative Text Books such as The English Sentencing System by Sir Rupert Cross, page 145; and the Principles of Sentencing by DA. Thomas, Chapters III and IV however recognize that "Judges think in terms of a range of sentence appropriate to the offence in the particular circumstances in which it was committed". The ranges vary according to the gravity of the offence, that is, the sentence must be proportionate to the offender's culpability and must have some relation to the gravity of the offence. Included in them, of course, are offences which are known to be rampant at the present time and are "grave and insidious form of crime", which must call for very severe sentences. In such cases "law‑abiding citizens look to the Courts to retaliate on behalf of the community. They expect that criminals who prey on the community or violate its fundamental values or, by their aggressive and rapacious conduct imperil the average citizen's sense of security and confidence in law and order, should be made themselves to suffer in requittal for the harm they have done to others" ("The Courts and Criminal Punishment" by an Australian Judge, Sir John Barry, quoted at page 80 of Sir Rupert Cross's Book).

5. Section 382‑B of the Code of Criminal Procedure was added in 1972 by Ordinance XII of 1972. As originally enacted, it read: "Section 382‑B. Where a Court decides to pass a sentence of imprisonment on an accused for an offence, it may take into consideration the period, if any, during which such accused was detained in custody for such offence." It was amended by Ordinance LXXI of 1979 which substituted the word `shall' for the word `may'.

6. It is pertinent to note that in England, the corresponding provision is contained in section 67 of the Criminal Justice Act 1967; that section reads: "The length of Any sentence of imprisonment imposed on an offender by a Court shall be treated as reduced by any period during which he was in custody by reason only of having been committed to custody by an order of a Court made in connection with any proceedings relating to that sentence or the offence for which it was passed or any proceedings from which those proceedings arose, but where the offender was previously subject to a probation order, an order for conditional discharge or a suspended sentence in respect of that offence, any such period falling before the order was made or suspended sentence passed shall be disregarded for the purposes of this section."

7. Similarly in the Indian Code of Criminal Procedure, 1973, section 428 provides: "Period of detention undergone by the accused to be set off against the sentence of imprisonment.‑‑Where an accused person has, on conviction, been sentenced to imprisonment for a term (not being imprisonment in default of fine), the period of detention, if any, undergone by him during the investigation, inquiry or trial of the same case and before the date of such conviction shall be set off against the term of imprisonment imposed on him on such conviction and the liability of such person to undergo imprisonment on such conviction shall be restricted to the remainder if any, of the term of imprisonment imposed on him."

8. 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 387‑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‑makers 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 not 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 uptil was punitative or non‑punitative, the consequence, as regards the person detained, was the same, namely deprivation of liberty and that is certainly punishment.

9. 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 jail (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 pre‑sentence period spent in jail, anything to be done by the sentencing Court. Instead, they direct chat 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.

10. 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.

11. 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 pre‑sentence 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" (PD 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 punishments. Beneficial provisions need to be construed liberally". In any event, 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.

12. 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." .

13. 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 ih 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 other factors as the conduct ' 1 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 j different Judges in different cases, must manifest a reasonable consistency as between one case and another. (MacShannon case‑‑(1978) 1 All ER 625, 631).

15. In this case, we see no reason and none was suggested why the petitioner/appellant should not have his sentence of imprisonment reduced by the period spent in jail during the trial. We, therefore, direct that the petitioner's sentence shall stand reduced by the period so spent by him in jail. In the circumstances of the case we are also of the opinion that the amount of fine is on the higher side. We reduce it to Rs.10,000, in default, the petitioner shall suffer six months' S.I. As observed above the petition was converted into an appeal; with the above modifications it is dismissed. M.B.A./M‑21.65/S Order accordingly.