P L D 1983 Lahore 126 (PLP)

RUSTAM S. SIDHWA, J.-This common order will dispose of sixteen miscellaneous petitions under section 561-A, Cr. P. C., namely:

1. Cr. M. 56/M-82 in Cr. A. No. 465/78 ;

2. Cr. M. No. 175/M-82 in Cr. A. No. 451/77;

3. Cr. M. No. 189/M-82 in Cr. A. No. 588/74;

4. Cr. M. No. 226/M-82 in Cr. A. No. 64/75;

5. Cr. M. No. 255/bI-82 in Cr. A. 754/77;

6. Cr. M. No. 257/M-82 in Cr. A. 832/78 ;

7. Cr. M. No. 259/M-82 in Cr. A. 276/78 ;

8. Cr. M. No. 286/M-82 in Cr. A. No. 680/76 ;

9. Cr. M. 295/M-82 in Cr. A. 337/79 ;

10. Cr. M. 306/M-82 in Cr. A. 30/75 ;

11. Cr. M. No. 412/M-82 in Cr. A. No. 954/78 ;

12. Cr. M. No. 513/M-82 in Cr. A. 83/74 ;

13. Cr. M. No. 523/M-82 in Cr. A. 625/76 ;

14. Cr. M. No. 374/M-82 in Cr. A. Na. 1156/78 ;

15. Cr. M. 85l/M-82 in Cr. A. 481/73 and

16. Cr. M. No. 822/M-82 in Cr. A. No. 92/78; filed by various persons, who stand convicted on the basis of decisions given by this Court in criminal appeals decided by it, for the grant of the benefit of the provisions of section 382-B Cr. P. C. in respect of the sentences imposed on them. Since the last seven years, this Court, when deciding criminal. appeals, has been considering with care the propriety and appropriateuoss of the sentences passed by trial Judges or that to be imposed or altered by itself and, in appropriate cases, has been taking into consideration the periods, if any, during which the appellants have been detained in custody for the offence or offences which have been ultimately found proved against them, thereby granting them the benefit of the provisions of section 382-8, Cr. P. C. The reference of these petitions en bloc to us is, therefore, not understood; nor the reasons are available on the files of the present cases. However, we are informed by the learned Assistant Advocate-General, Punjab, that the present sixteen petitions have been marked - to this Bench for the special consideration of the question as to whether section 382-B, Cr. P. C. is retrospective and, if so, to what extent. We are informed that in some petitions before us this question is of relevant importance, though perhaps not in others, which have inadvertently been tagged on to the relevant cases. Since a large number of counsel have bestowed on us the benefit of their wisdom, not only on the legal point mentioned by the learned Assistant Advocate General, but on the said provision of law generally, we would deal with all these submissions here.

2. Before taking up the arguments addressed in this connection, we submit below the dates of the judgments of the trial Court and of this Court in appeal in respect of the cases which are before us : Serial??????????????? Number of petition???????? ???????? Date of trial???????? Date of High No.?????????????????????????????????????????????????????? ?????? Court judgment?????? Court judgment in ??????????????????????????????????????????????????????????????????????????????????????????????? criminal appeal ??????????????????????? ??????????? 1.???????? Cr. M. No. 56/M-82.???????????????? 3-6-1978.????????? 29-12-1980. ??????????? 2.???????? Cr. M. No. 175/M-82.?????????????? 7-5-1978.????????? 2-9-1979. ??????????? 3.???????? Cr. M. No. 189/M-82.?????????????? 27-7-1974.??????? 30-5-1975. ??????????? 4.???????? Cr. M. No. 226/M-82.?????????????? 17-1-1975.??????? 27-10-1975. ??????????? 5.???????? Cr. M. No. 255/M-82.?????????????? 13-7-1977.??????? 7-10-19o0. ??????????? 6.???????? Cr. M. No. 257/M-82.?????????????? 19-7-1978.??????? 8-3-1981. ??????????? 7.???????? Cr. M. No. 259/M=82.?????????????? 27-2-1978.??????? 8-8-1979. ??????????? 8.???????? Cr. M. No. 286/M-82.?????????????? 12-5-1976.??????? 7-11-1977. ??????????? 9.???????? Cr. M. No. 295/M-82.?????????????? 22-2-1979.??????? 14-10-1981. ??????????? 10.??????? Cr. M. No. 306/M-82.?????????????? 28-11-1974.?????? 12-17-1975. ??????????? 11.??????? Cr. M. No. 412/M-82.?????????????? 24-9-1978.??????? 7-7-1980. ??????????? 12.??????? Cr. M. No. 513/M-82.?????????????? 18-12-1973.?????? 17-1-1975. ??????????? 13.??????? Cr. M. No. 523/M-82.?? ?????????? 30-4-1976.??????? 5-7-1978. ??????????? 14.??????? Cr. M. No. 374/M-82.?????????????? 14-12-1978.?????? 12-3-1980. ??????????? 15.??????? Cr. M. No. 851/M-82.?????????????? 5-7-1973.????????? 27-11-1974. ??????????? 16.??????? Cr. M. No. 822/M-82.?????????????? 7-1-1978.????????? 10-10-1979.

3. On behalf of the petitioners, it is submitted that. section 382-8, Cr. P. C. is retrospective in effect and enables the High Court to grant the benefit arising from it, through petitions filed under section 561-A, Cr. P. C., in criminal appeals in which judgments have been announced whether before or after 26-12-1975. In this connection it is submitted that since the said provision has been inserted in the Criminal Procedure Code, which is a procedural law, and not in the Pakistan Penal Code, which is a substantive law, the intention is that as a procedural provision it is to have retrospective effect. It is further submitted that it does not make any difference whether the original and appellate judgments in the same case were delivered before 26-12-1975, for once the petition under section 561-A, Cr: P. C. is filed even after 26-12-1975 section 382-B, Cr. P. C. can be applied. In this connection, the learned counsel has referred to Saleh v. The Superintendent, Central Prison, Hyderabad(P L D 1982 Kar, 542).

4. On behalf of the State, the learned Assistant Advocate-General has made a number of submissions: First, that though section 382-B, Cr. P. C. is a procedural section, it can only be given retrospective effect to consider the appellate judgment of this Court, provided that such criminal appeal was heard or decided by the High Court on or after 26-12-1975, which was the date fixed , by the Punjab Government's Notification No. Judi. 1. 3(2)75 dated 23-12-1975 when this section became operative, and provided further that the Supreme Court had not granted special leave to appeal against the High Court's appellate decision, for in such a case, this Court would be functus oj,%icio- and the Supreme Court alone would have to be approached for the grant of the said benefit. Second, that section 382-B, Cr. P. C. is not applicable to cases where a sentence of death, life imprisonment or imprisonment for a minimum term, where the statute so. provides, is imposed. In this connection it is submitted that a death sentence cannot be equated with any form of imprisonment, from which any period of detention can be deducted. Therefore, this section does not apply to a sentence of death imposed on a convict. As regards the sentence of life imprisonment, it ,is submitted that section 53 of the Pakistan Penal Code has categorised six types of punishments separately and imprisonment for life and the general form of imprisonment, which is of two descriptions, namely, rigorous and simple, are categorised as two different and distinct types of punishments and, therefore, imprisonment for life is totally a distinct and separate form of punishment as against the general form of punishment referred to in the Penal Code, which can either be rigorous or simple, Since the sentence of imprisonment for life legally has no maxima ceiling or any fixed term, it is not possible to make any deduction from the said sentence and, therefore, section 382-B, Cr. P. C. is inapplicable to such cases. In this connection Po Kun v. The King (A I R 1934 Rang. 124) is cited. As regards section 57 of the Pakistan Penal Code, the learned counsel submits that the said provision does not. lay down any maxima ceiling in respect of a sentence of imprisonment, only relates to the mode of calculating fractions of terms of punishment. Muhammad Ayub's case (P L D 1959 Lah. 623) is cited in this behalf. It is stated that this section, therefore, cannot be treated as equating a sentence of imprisonment for life with imprisonment of a rigorous nature for twenty-five years for all purposes. It is further stated that unless a sentence of imprisonment for life is commuted or remitted under the provision of the Pakistan Penal Code or the Code of Criminal Procedure, the convict is bound by law to serve his life term in prison. Since the power of suspension, remission and commutation is reserved by statute with the Provincial Government and the President of Pakistan, section 382-B, Cr. P. C. cannot be applied to cases of imprisonment for life, as that would be giving Judicial Courts the power of partly remitting the punishment imposed for life, which the law does not permit. As regard persons sentenced to minimum terms of imprisonment, such as in cases like sections 364-A, 397, 398, P. P. C. etc., it is submitted that the law expects that the said convict should suffer the said minimum term from the date he is taken into custody after Judgment is announced and the grant of benefit of section 382-B, Cr. P. C. would again amount to remitting the whole or part of his minimum sentence, which power the law does not give to the Judicial Courts. Third and last, it is submitted that these points have not been considered by any of the superior Courts of Pakistan, much less the Supreme Court, and the decision of the Supreme Court in Ali Sher's case (P L D 1980 S C 317) and Sikundar All's case (1981 S C M R 573) being obiter, where these important legal matters were never canvassed or considered, the said decisions are not binding on this Court and do not stand in its way in giving its own independent judgment on this section, which, in the public interest, calls for a proper and correct interpretation.

5. We have heard the learned counsel for the petitioners and the State and have given our anxious consideration to the arguments which have been addressed before us for some days. Before we deal with section 382-B, Cr. P. C., we would like to clear the ground with regard to a few matters.

6. Prior to the Law Reforms Ordinance, 1972, section 53 of the Pakistan Penal Code described six types of punishments, of which the first was death, second was transportation for life and the fourth was imprisonment, which was of two descriptions, namely, rigorous i.e. with hard labour and simple. With the enforcement of the Law Reforms Ordinance, 1972, the second of the punishments prescribed was altered to imprisonment for life. Much stress has been laid by the Assistant Advocate-General on the past history of this section to show that originally as transportation for life was not ordinary form of imprisonment as prescribed by the fourth part of section 53 of the Code, the same sentence under the changed nomenclature of imprisonment for life is also, therefore, not the ordinary form described in the fourth part of the section. This argument may be true for the purposes of interpreting any provision of the Penal Code, where the distinction provided carries weight, but for the purposes of section 382-B of the Code of Criminal Procedure, the same argument may not be true. The question whether an accused who was ..sentenced to transportation for life but was not transported over the mainland to the Andamans Islands in the Indian Ocean but kept imprisoned in some of the jails in India, could legally be imprisoned in such jails permanently and, if so, upto what term, was dealt with by the Judicial Committee of the Privy Council in Kishori Lai's case (1) where the Committee, after referring to section 368(2) of the Criminal Procedure Code, 1898, and sections 29, 31 and 32 of the Prisoners Act, 1900 (as amended in 1903 and 1920) and Orders and Circulars of an administrative nature issued under the relevant law, inter alia held that a sentence of transportation was no longer necessarily a sentence of transportation beyond the seas and a prisoner convicted to transportation for life basically was a person sentenced to rigorous imprisonment for life and could be detained for the maximum period of twenty years (as then fixed) in jails in India. The actual wording of Lord Goddard in the said connection may be reproduced with advantage "But at the present day transportation is in truth but a name given in India t9 a sentence for life and, in a few special cases, for a lesser period, just as in England the term imprisonment is applied to all sentences which do not exceed two years and penal servitude to those of three years and upwards . . . . So, in India, a prisoner sentenced to transportation may be sent to the Andamans or may be kept in one of the Jails in India appointed for transportation prisoners where he will be dealt with in the same manner as a prisoner sentenced to rigorous imprisonment." This view was approved by the Supreme Court in Gopal Vinayak Godse v: The State of Maharashtra (2). The old sentence of transportation for life was, therefore, nothing more than a sentence of rigorous imprisonment for life in jails in this sub-continent. The amendment brought about by the (1) A I R 1945 P C 64?? (2) AIR 1960 S C 600 Law Reforms Ordinance, 1972, to sections 53, 56 and 57 of the. Pakistan Penal Code only recognises this reality by legally changing the name of the old punishment of transportation for life to imprisonment for life.

7. It is also necessary to understand the scope and object of section 382-B, Cr. P. C. It has already been dealt with by a Division Bench of this Court in Sultan Ahmad v. The State (1981 P Cr. L J 602). However, it may be restated. The object of this provision is to grant to the accused the benefit of a concession by reducing in appropriate cases the sentence intended to be imposed on him, by the whole or some portion of the period of detention already undergone by him as an under-trial prisoner, so as to compensate him for the unduly long incarceration to which he may have been subject as a result of the delay in the trial for any cause for which he was not responsible. In view of undue delay in criminal trials, both due B to shortage of Judicial Officers and failure in procedural working, the necessity of granting the Courts the power of relieving convicts from the full burden of the sentences proposed to be imposed on them, where they had suffered incarceration as under-trial prisoners for unduly long periods of time, was acutely felt and treated as entitling them, on principles of equity and justice, to have the whole or some fair portion of such periods remitted or deducted from their sentences. Section 382-B, Cr. P. C. fulfils that need. This section was, therefore, introduced through the Law Reforms Ordinance, 1972, though it did not come into force in the Punjab till 26-12-1975. Initially the section enacted was follows.: "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." The use of the word "may" connoted imperative duty and not discretion. It is cardinal principle of interpretation that where a statute confers an authority to do judicial act in a certain case, it is imperative on those so authorised, to exercise that authority, when the case arises and its exercise is duly applied for by the party who is interested and has the right to call for its application. In such cases the word "may" is not treated as giving a discretion, but conferring a power upon the Court or Judge, and the exercise of such power depends, not upon the discretion of the Court or Judge, but upon the proof of the particular case out of which such power arises. Craies on Statute Law, 7th Edn., page 285 and the observations . of Jervis C. J. in Macdougall v. Patterson ((1851) 11 C B 755) may be referred in this respect. In Fazal Hussain v. The State (1979 P Cr. L J 238) this Court also held, where a trial Judge had neither granted the benefit of section 382-B, Cr. P. C. to the accused nor recorded any reasons for not granting the same, that on principles of equity and justice, the trial Judge should have recorded his reasons, so that the accused could have been informed of the reasons which had prompted him in not granting the concession permissible under this section. This Court further held that failure of the trial Judge in not applying the section and his total silence in the judgment in not giving reasons for not applying the same, had rendered the sentence awarded open to serious legal objection. Accordingly, it granted the benefit of the said section to the accused. However, on 22-12-1979 the word "may" in section 382-B, Cr. P. C. was substituted by the word "shall" by the Code of Criminal Procedure (Second Amendment) Ordinance, 1979. This did not change the position materially, though it made the intent more certain and clear. Strictly, there. fore, even before the amendment the trial Judge had an imperative duty, when passing a sentence, to take into consideration the period that an accused was detained in custody for such offence, though whether he did grant the said benefit and, if so, to what extent, were discretionary matters of which he was. the sole Judge. The position after the amendment is the same. Section 382-B, Cr. P. C. is so worded that the power strictly appears to be available to a trial Judge, but the power is also available to the appellate Court, for a Court of appeal, under sections 418 and 423, Cr. P. C., is both a Court of law and of fact and whilst determining the appropriateness of any sentence passed by , the trial Court or that to be imposed or altered by itself, can take into consideration the provisions of that section. Under the Explanation to section 418 of the Code of Criminal Procedure, 1898, the alleged severity of a sentence is itself, for the purposes of that section, to be deemed to be a matter of law. Section 382-B, Cr. P. C. basically seeks to mitigate a form of latent severity on the equitable plane. Its consideration, in many cases, would itself become a question of law. The appellate Court, therefore, has power to apply t this section. The Supreme Court itself has allowed the benefit of this section when deciding criminal appeal. All Sher v. The State (PLD1980SC317) is one of many such cases.

8. We now turn our attention to the question whether a punishment of death, imprisonment for life or imprisonment for a minimum statutory period, where the law so provides, is a punishment to which section 382-B, Cr. P. C. can be applied. It is obvious that the punishment of death is a sentence to which section 382-B, Cr. P. C. under no circumstance can be made applicable. There is no dispute by any party on this proposition. This, therefore, stands answered accordingly. As regards the sentence of imprisonment for life, it is stated by the learned Assistant Advocate-General that since this punishment has no maxima ceiling and cannot be equated with any particular terms of imprisonment, section 382-B, Cr. P. C. cannot be applied to it. According to the counsel for the State, section 382-B, Cr. P. C. can only be applied to a punishment provided in the fourth part of section 53 of Pakistan Penal Code namely, punishment provided for a specified period. This calls for closer examination of the section. The words "sentence of imprisonment" in section 382-B, Cr. P. C. are used in a general sense and not in any restricted sense, so as to be only applicable to the category of imprisonment provided in the fourth part of section 53 of the Pakistan Penal Code. As far back a 1945, the Judicial Committee of the Privy Council in Kishore Lal's case (AIR1945PC64) treated the sentence of transportation for life as sentence of rigorous imprisonment for life. If it was the intention of the framer of the law to re3trict the application of section 382-B, Cr. P. C. only to the type of imprisonment provided in the fourth part of section 53 of the Pakistan Penal Code and not to cases of imprisonment for life or to cases where a minimum term of imprisonment is provided in law, it would have so provided the necessary exceptions. The fact that it has not so provided any exception, clearly shows that the words "sentence of imprisonment" are intended to apply to all forms of imprisonment whether for life, for a determined period or any fixed minimum period, where the law so provides. Equity itself does not permit any exception to be grafted into section 382-B, Cr. P. C. for, whether the sentence to be imposed is fixed or indefinite, a convict who has been detained for long in prison as an undertrial prisoner for no fault of his own, is in either case entitled to have the whole or some fair portion of that period remitted or set off. Section 382-% Cr. P. C. strictly does not provide a remission, that power being specially reserved to the Provincial Government under section 401 (1) of the Code of Criminal Procedure and to the President of Pakistan under section 401 (5) of the same Code, section 55-A of the Penal Code and under Article 55 of the Constitution of Pakistan, 1973. The power of imposing, reducing or enhancing a sentence is primarily a judicial function of the Court. Basically, the object of section 382-B, Cr. P. C. is to effect a reduction in the sentence. It is possible in cases where sentence of imprisonment for a fixed term is proposed to be imposed, to grant the benefit of this section, as in such cases the period spent by the convict as, an undertrial prisoner can be deducted from the sentence proposed to be imposed. In cases of sentence of life imprisonment, a difficulty is likely to arise, as a sentence of life imprisonment cannot be equated as one of twenty-five years' rigorous imprisonment, by applying section 57 of the Pakistan Penal Code. or rule 198 (b) under the chapter "Remission System" of the Pakistan Prisons Rules, 1977. The first provision of law is restricted in its application to the calculation of fractions of terms of punishment, where the Penal Code provides a fractional term of imprisonment, such as section

511. The second provision is restricted to the interpretation of the Prisons Rules for the purposes of calculating the various remissions which are available to a convict under the said chapter. These two provisions are of no avail. However, as we have already . stated above, section 382-B, Cr. P. C. is applicable to all types of imprisonments, including life imprisonment. Being a law enacted in the interest of the convict and founded with a view to relieve him from the rigours of unduly. harsh prolongation of his incarceration, the same must be liberally construed with a view to promote the object in the mind of the framer of the law: This Court in Sultan Ahmad's case (P L D 1980 S C 318) has already held that this provision should be liberally applied. Though in cases where the sentence of life imprisonment is awarded, it may strictly not be possible for the Court to reduce the sentence, but if it considers that the convict was unreasonably detained in prison as an undertrial prisoner for no fault of his own, it can grant the benefit of that whole or some fair portion of that period, by merely stating that the benefit of the said provision may be granted to the convict when computing his sentence, leaving it to the Jail Authorities to work out the modalities as to how it will carry it into effect. This Court itself has used an expression, as is apparent in Sultan Ahmad's case. The Supreme Court in Ali Sher's case (1981 p Cr. L J 602) directed the concerned authority to take into account the period of detention that the accused were in custody under the orders of the Supreme Court, when computing the total imprisonment which the convicts would have to undergo in connection with the sentence of transportation for life imposed upon them. In Sikandar All's case the Supreme Court directed the relevant authority to take into consideration the period spent in jail by the accused as an undertrial prisoner from the date of his arrest up to the date of announcement of sentence of imprisonment for life imposed upon him. These two decisions of the Supreme Court, even if they be treated as obiter, as suggested by the Assistant Advocate-General, would still be binding on us. They support our view that the said section has to be liberally construed, that it can be applied by the appellate Court and that it can be applied to cases where the punishment proposed to be imposed is life imprisonment. We are also informed by the learned Assistant Advocate-General that the Jail Authorities have given the necessary remissions in cases where the Courts have given the -benefit of this section to convicts sentenced to imprisonment for life. This clearly shows that the Executive Government has honoured and accepted all orders passed by the Courts under this section. In this view of the matter, we have 'no hesitation in holding that the said section is applicable to sentences of imprisonment for life. As regards the sentence of imprisonment for a fixed statutory terms, where the law provides a minimum sentence, the application of section 382-B, Cr. P. C. does not negate the statutory object. In such a case, the minimum sentence fixed by law should be accepted as the sentence proposed to be imposed, from which reduction can be made of the period of detention that the Court considers reasonable and proper. Another way of dealing with such a case would be for the Court to impose the minimum sentence and to merely state that the benefit of section 382-B, Cr. P. C. with regard to such and such period be taken into consideration when calculating the sentence. Such a method would not only maintain the projection of the deterrence behind such minimum sentence cases, but also grant the necessary relief to the convict under section 382-B, Cr. P. C. This section, therefore, can be applied to minimum sentence cases.

9. We now come to the main question involved in these petitions, namely, whether section 382-B, Cr. P. C. is retrospective and, if so, to what extent. Section 382-B, Cr. P. C. was originally incorporated in the Law Reforms Ordinance, 1972, as one of the amendments to be effected in the Code of Criminal Procedure, 1898. The said section with others was not brought into force with immediate effect, but was deferred to a date to be notified by the Provincial Government by notification to be published in the official Gazette, which date was later fixed by the Provincial Government as 26-12-1975. A postponement clause In a Statute has sometimes been taken as giving an indication against the presumption that a retrospective intent is not intended ; though this view has never been firm. But to understand, the true intent, one must resort to the wording of this section itself. The section calls upon the Court, when deciding to pass a sentence of imprisonment on an accused for an offence, to take into consideration the period of his detention as an undertrial prisoner for such offence. Since the section provides some form of mitigation or reduction in the sentence, on first impression it appears to have some element of substantive law. But then, section 382-B, Cr. P. C. has deliberately been placed in Chapter XXVIII dealing with "Execution" and not Chapter XXIX covering "Suspensions, Remission and Commutations of Sentences" Chapter XXVIII largely deals with procedural matters Chapter XXIX, which deals with remissions etc. deals with powers of the Provincial and Federal Governments and the President, which touch substantive law. See Gul Hassan Khan v. Government of Pakistan (P L D 1980 Pesh. 1). The epoch of time fixed by section 382-B, Cr. P. C. for the enforcement of the statutory duty is the time when the Court decides to pass the sentence, which is either the time when it has concluded hearing the case or is dictating or announcing judgment. It is, in short the point of time that relates to the process of hearing or adjudication, both of which are purely procedural matters. Since the duty imposed upon the Court in discretionary, no vested right accrues till such time that the Court has exercised its discretion in favour of the accused. Since the section does not work to the detriment of the accused, no substantive right of the accused is adversely affected. The acts or events which constitute the offence or offences and the penalties prescribed therefor, in accordance with the law in force when such acts or events take place, are not affected. Section 382-B, Cr. P. C. neither amends the offences nor the sentences prescribed. It only enables a Court to grant a discretionary benefit, purely arising out of equitable considerations. From the language of the section, therefore, the intendment is clear that the section is retrospective as to be applicable to pending trials, provided that the judgment has not been passed before the coming into operation of the said section. Where, however, the judgment has been passed by the trial Court before the coming into operation of the said section, the said benefit cannot be granted by it on a date after its enforcement. Where the section come into operation during the pendency of an appeal against such a decision, different consideration will apply. In this sub-continent a criminal appeal is treated as a continuation of the original trial and a judgment is not treated as final till the matter has been heard and decided by an appellate Court, where such an appeal is provided. Under the Code of Criminal Procedure, finality does not attach to a judgment till the appeal is beard. See section 430 of the Code. If this position is not accepted, every trial Court decision will become final under section 403 of the Code and the principle of autre fois convict or autre foil acquit will apply. This cannot be permitted. Clause 23 of the Letters Patent of this Court inter alfa states " . . all offenders brought for trial before the High Court of Judicature at Lahore either in exercise of its original jurisdiction or in exercise of its jurisdiction as a Court of appeal . . . . ". This shows that the appellate powers of this Court in criminal matters reside at the culminating point of a trial. In these circumstances, where the matter is before the Appellate Court, the matter is sub judice and the Appellate Court, both as a Court of law, and of fact under section 418, Cr. P. C. has seisin of the whole case and it can take into account section 382-B, Cr P. C. which has come into force in the meantime. For cases in the civil jurisdiction, where an appeal in treated as a re-hearing, Lachmeshwar Parshad v. Kishwar Lal (1) and Saeed-ur-Rahman v. Chief Settlement Commissioner (2) may be referred. In Attorney-General v. Birmingham and Rea District Drainage Board (3) it was re-affirmed that an appeal was a re-hearing and the appellate Court could make such order as the Judge of the first instance would have made if the case had been heard by him at the date on which the appeal was heard. For cases in the criminal jurisdiction where an appeal is treated as a continuation of the original trial, Muhammad Anwar v. The State (4), Ayaj Ali v. The State (5), Queen v. Jabanullah (6), Balli Reddy v. Emperor (7), Ranjit Singh v. State (8), Sagnata Investment Ltd. v. Norwich Corporation (9), Drover v. Rugman (10), Rey v. Pilgrim (11V maybe referred. In these circumstances, the Appellate Court while deciding a criminal appeal can grant the benefit of the said section, which is a beneficial provision, as the appeal before the .appellate Court is a continuation of the trial.. However, we must categorically submit that if the - trial Court and the appellate Court have both delivered their judgments before the coming into force of section 382-B, Cr. P. C. the appellate Court n would be fanctus officio. With regard to the five petitions listed at Serial Nos. 3, 4, 10, 12 and 15 in para. 2 above, where both the trial Court and the appellate Court judgments have been passed before 26-12-1975, this Court would not be in a position to entertain petition under section 561-A, Cr. P. C. for the grant of benefit of section 382-B, Cr. P. C. A petition under section 561-A, Cr. P. C. for the grant of such a benefit, can only be filed on the assumption that this Court whilst deciding the criminal appeal had power to (1) A I R 1941 F C 5???????????????? (2) P L D 1965 $ C-158 (3) 1912 A C 788????????????????????? (4) 1972 P Cr. L J 862 (5) P L D 1962 Dacca 223???????? (6) I L R 23 Cal. 975 (7) 1914 Mad. 258???????????????????? (8) 1952 Him. Pra. 81 (9) (1971) 2 Q B 380???? _????????? (10) (1951) 1 K B 380 (11) 1870 L R 6 Q B 89 apply section 382-B, Cr. P. C. but that by inadvertence or mistake it had omitted to do so. Where, at the time of the passing of the appellate judgment, it had no much power, no assumption exist and no legal fiction can be brought into operation to arm this Court with such a power. Thus, where both the trial Court and this Court in appeal have passed their judgments before 26-12-1975, this Court cannot assist. In Saleh v. The Superintendent, Central Prisons, Hyderabad (P L D 1982 Kar. 542) the Sind High Court, whilst dealing with a number of similar petitions for the grant of benefit under section 382-B, Cr. P. C. allowed the benefit in a criminal case (Cr. A. 324/73) where both the trial Court and appellate Court judgment were delivered before 24-12-1975, this being the date notified by the Sind Government for the enforcement of section 382-B, Cr. P. C. We regret we cannot stretch the retrospectivity to such an extent. To this extent, we differ from the Sind view. However, in such cases, if special leave to appeal against the High Court's appellate judgment has been granted, it may be possible for the appellant to canvass his case under section 382-B, Cr. P. C. before the Supreme Court, but we would leave this matter for the Supreme Court to decide. Likewise, if in any of the petitions before us which we are competent to dispose, such a leave has been granted by the Supreme Court, we are functus officio and the Supreme Court should be approached in the matter.

10. Having answered the legal questions raised before us, we now turn our attention to the various petitions before us.

11. This Court has no jurisdiction to decide petitions Cr. DPI. 189/M-82, Cr. M. 226/M-82, Cr. M. 306; M-82, Cr. M. 513/M-82 and Cr. M. No. 851/M-82, as both the trial Court and appellate Court judgments were delivered before 26-12-1975. These petitions are, therefore, dismissed. The petitioners may, if so legally advised, move the Provincial Government for remission on equitable grounds. ,

12. As regards the remaining eleven petitions, we have been informed that leave to appeal has not been granted by the Supreme Court against the appellate judgment of this Court in those cases. These petitions are competent. Since it is necessary in each case to determine whether the appellate Court did consciously apply its mind to the section when passing the sentence (though perhaps it submitted to refer to the matter in the judgment), or inadvertently omitted to take into consideration the said section, it is necessary in the interest of justice that these petitions be placed before the same Judges who heard them. Since these petitions arise out of appeals heard by Division Benches, they should be placed before the same Benches which decided them, or, with the permission of the learned Acting Chief Justice, preferably before Division Benches, one of- whose members is one who was member of the Bench that originally decided the appeals. Order accordingly.