2009 SCMR 1042 (PLP)

MIAN HAMID FAROOQ, J.

We, through this single judgment, propose to decide the present petition (Criminal Petition No.231-L of 2008) and the connected petition (Criminal Petition No.181-L of 2008), as both arose out of the 'single judgment.

2. Muhammad Ilyas (the petitioner in Criminal Petition No.231-L of 2008) along with his brother Muhammad Abbas, was tried in a case registered vide F.I.R. No.43, dated 3-5-1996 under section 302/34, P.P.C. at Police Station Qua Kalarwala, District Sialkot on the statement of Muhammad Aslam, the complainant (petitioner in Criminal Petition No.181-L of 2008) for causing Qatl-i-Amd of Muhammad Jamshaid alias Noora, deceased. The learned Additional Sessions Judge, Sialkot after completion of trial, vide judgment, dated 18-11-2002, acquitted Muhammad Abbas and convicted Muhammad Ilyas under section 302(b), P.P.C. and sentenced him to death with direction to pay compensation of Rs.1,00,000 to the legal heirs of the deceased under section 544-A, Cr.P.C. and in case of default to undergo further imprisonment for six months' R.I. Muhammad Ilyas challenged his conviction and sentence and filed the appeal (Criminal Appeal No.1900 of 2002), while the learned trial Court sent reference (Murder Reference No.95 of 2003) for confirmation or otherwise of the death sentence awarded to him. The learned High Court heard both the matters together, came to the conclusion that there are mitigating circumstances justifying reduction of sentence of the petitioner and although dismissed his appeal, yet finding it a case of lesser punishment converted his sentence of death into life imprisonment and murder reference was answered in the negative, vide impugned judgment, dated 8-5-2008. Both the petitioners, through the above-captioned petitions, have sought leave to appeal against the said judgment, as Muhammad Ilyas has challenged his conviction and sentence, while Muhammad Aslam seeks enhancement of sentence awarded to Muhammad Ilyas.

3. Ch. Manzoor Hussain Basra, learned Advocate Supreme Court, counsel for the petitioner in Criminal Petition No.231-L of 2008, opted not to challenge the conviction and sentence of the petitioner and confined himself, only to plead that, under the circumstances, the petitioner was entitled to the benefit of section 382-B, Cr.P.C., which according to him, was illegally and unlawfully declined to the petitioner. He relied upon the judgment reported as Mukhtar-ud-Din v. The State 1997 SCMR

55. Learned Additional Prosecutor-General, when confronted, has no cavil to the said proposition of law. Ch. Muhammad Anwar Khan, learned Advocate-on-Record for the petitioner in Criminal Petition No.181-L of 2008, submitted that there were no mitigating circumstances justifying the reduction of sentence of Muhammad Ilyas and that it would be in the interest of justice if the judgment of the learned trial Court is restored.

4. We have heard the learned counsel for the parties and examined the available record. As noted above, Muhammad Ilyas was sentenced to death by the learned trial Court, which was altered to life imprisonment by the learned High Court, however, it did not take into consideration the crucial aspect of the case viz. as to whether the petitioner was entitled to the benefit of section 382-B, Cr.P.C. We have noticed that the learned High Court in its judgment did not at all advert to and conveniently skipped over to consider the said aspect of the case. It is true that the Courts have discretion either to grant or decline benefit of section 382-B, Cr.P.C. to a convict, but it is equally true that .the discretion should be exercised judicially and keeping in view the established principles qua exercise of discretion. In the present case, we find that the learned High Court did not give any reasons for not granting the benefit of section 382-B, Cr.P.C., rather omitted to consider the impact of said provision of law. It is incumbent upon a Court, while declining the benefit of section 382-B, Cr.P.C. to a convict, to give cogent reasons, which should have nexus with the award of sentence, but in the present case, as noted above, the learned High Court did not at all consider as to whether the petitioner should be granted benefit of section 382-B, Cr.P.C. or not. It has been held by this Court in the case reported as Mukhtar-ud-Din v. The State 1997 SCMR 55 (ibid), referred to by the learned counsel, that a Court is bound to take into consideration the question, whether the benefit of section 382-B, Cr.P.C. is to be granted or not, but it is not mandatory to grant the same. We conclude that the learned High Court did not exercise its discretion properly and in accordance with the sound judicial principles. We are of the view that under the circumstances of the case the petitioner was entitled to the benefit of section 382-B, Cr.P.C. and the learned High Court should have exercised its discretion in his favour. Thus, while exercising our discretion, we are persuaded to convert this petition (Criminal Petition No.231-L of 2008), into appeal and partly allow it so as to modify the impugned judgment to the extent that benefit of section 382-B, Cr.P.C. will be granted to the petitioner.

5. Now coming to the other petition (Criminal Petition No.181-L of 2008), filed by Muhammad Aslam, for enhancement of sentence. We are of the view that the learned High Court after giving cogent reasons, qua existence of mitigating circumstances and while relying upon the case of Abdul Rasheed alias Babu v. The State 1984 SCMR 1184 and after concluding that it was a sudden act on his part rightly converted the death sentence of Muhammad Ilyas into life imprisonment, which findings are not open to any exception. We are not persuaded to reverse the findings of the learned High Court, as we feel that the conversion of death sentence of Muhammad Ilyas into life imprisonment was based on Sound judicial principle and mitigating circumstances recognized under the law.

6. For the foregoing reasons, Criminal Petition No.231-L of 2008, filed by Muhammad Ilyas, is converted into appeal and partly allowed and the impugned judgment to the extent of grant of benefit of section 382-B, Cr.P.C. is modified, while rest of the judgment will hold the field. However, Criminal Petition No.181-L of 2008, filed by Muhammad Aslam, being meritless stands dismissed and leave to appeal is refused. M.H./M-30/SC??????????????????????????????????????????????????????????????????????????????????? Order accordingly.