' IFTIKHAR MUHAMMAD CHAUDHRY, J.---This appeal by leave of the Court is directed against the judgment dated 7th January, 2003 passed by High Court of Balochistan, Quetta whereby Criminal Appeal No,91 of 2002 filed by appellant has been dismissed.
2. Precisely stating the facts of the case are that appellant along with two others was tried for the offence falling within the mischief of sections 4/5 of Explosive Substances Act, 1908 on the allegation that on the date of registration of the case i,e, 31st May, 2001 appellant was found in possession of three hand grenades. Later on he also got recovered one Rocket, concealed in the earth near Hazar Ganji Market in front of Bismillah Hotel, while the second was recovered from the Maidani of Zahri Town. On completion of the trial, learned Special Judge, A.T.A./Sessions Judge, Quetta vide judgment, dated 28thy February, 2002 convicted the appellant under section 5 of the Explosive substances Act, 1908 and sentenced him to undergo 14 years' R.I. With forfeiture of his entire immovable properties. Benefit of section 382-B, Cr.P.C. However, was not extended to him.
Appeal filed by the appellant before the learned High Court was not pressed by him as only reduction in the quantum of sentence was prayed for. Accordingly, by means of impugned judgment sentence awarded to him was reduced from 14 years' R.I. To that of 10 years' R.I. Whereas remaining sentences awarded to him by the trial Court were maintained. Hence this appeal by leave of the Court.
3. Leave to appeal in this case was granted to examine as to whether benefit of section 382-B, Cr.P.C. Was declined to convict without assigning strong justification.
4. Learned counsel appearing for appellant contended that the provision of section 382-B, Cr.P.C. Is mandatory in its nature as the word "shall" has been used by the law givers, therefore, its benefit cannot be declined to the accused facing trial.
5. On the other hand learned Advocate-General (Balochistan) contended that keeping in view the facts and circumstances of the case and according to well recognized principles of interpretation of law, the word "shall" can also be read as "may". According to him in the instant case, huge quantity of explosive material has been brought inside the country by the appellant for the purpose of terrorism, as observed by the learned trial Court, therefore, for such strong reason, benefit of section 382-B, Cr.P.C. Has rightly been withheld. He further stated that in appeal before the High Court, this question was not agitated at all on behalf of convict.
6. We have heard both the sides and have also gone through the judgment, dated 28th February, 2002 passed by learned Special Judge, A.T.A./Sessions Judge, Quetta. Learned trial Court declined to extend the benefit of section 382-B, Cr.P.C. For the reason that the explosive material could have been used by him for terrorism, therefore, he is not entitled to the benefit of section 382-B, Cr.P.C.
This Court on a number of occasions examined section 382-B, Cr.P.C. And held that "it is binding duty of the trial Court to apply its judicial mind at the time of deciding the question of sentence being awarded to an accused as to whether he is entitled for the protection of the period which he has spent during the pre-sentence period but the Court has discretion to extend such benefit to the accused or decline it by assigning judicial recognized reasons". Reference in this behalf may be made to the cases of Muhammad Rafiq v. The State 1995 SCM R 1525, Mukhtiar-ud-Din v. The State 1997 SCM R 55 and Javed Iqbal v. The State 1998 SCM R 1539. In the last mentioned judgment this Court has observed that 'no doubt in appropriate cases, while exercising discretion judiciously, may refuse to grant protection concerning period spent by the convict as under-trial prisoner--- Nevertheless, it would be more essential while examining the question with regard to allowing for refusing facility contemplated under section 382-B, Cr.P.C. And consciously apply its mind".
Following the observation made earlier by this Court in the judgment referred to herein before we are persuaded to agree with the reasons assigned by the learned trial Court for not extending the benefit of pre-sentence period to appellant within the contemplation of section 382-B, Cr.P.C.
Because the learned trial Court denied the benefit of this section to him after having taken into consideration the nature of the offence being committed by the appellant. Thus, we are inclined to hold that under section 382-B, Cr.P.C. It is mandatory for the trial Court to consider it at the time of deciding the question of sentence being awarded to an accused as to whether he is entitled for protection of pre-sentence period but the Court while exercising discretion judiciously is not bound to extend such facility to an accused keeping in view the facts and circumstances of the cases.
7. Besides above conclusion this Court in exercise of its appellate jurisdiction has discretion not to interfere in the order of the trial Court declining to grant the benefit of sectior 382-B, Cr.P.C. To an accused, if such refusal is based on sound judicial ,reasons. Reference in this context may be made to the case of Ghulam Sa rwar v. The State PLD 1984 SC 218. As a result of above discussion relief so claimed by the appellant is declined.
' For the foregoing reasons appeal is dismissed.