' JAVED IQBAL, J.---This appeal with leave of the Court is directed against judgment dated 13-8- 2003 whereby Criminal Appeal preferred on behalf of appellant has been dismissed.
2. Leave granting order dated 27-8-2003 is reproduced hereinbelow to appreciate the legal and factual aspects of the appeal:-- "The convict-petitioner Muhammad Zahir alias Tikoo, at present lodged in Central Jail Mch, seeks leave to appeal from judgment dated 13-8-2003, passed by a learned Division Bench of the High Court of Balochistan, Quetta, in Criminal Miscellaneous Application No, 786 of 2002 in Criminal Appeal No, 332 of 1998, whereby he was refused the benefit of provisions of section 382-B, Cr.P.C.
(2) The petitioner and five others were tried by the Special Judge, Suppression of Terrorist Activities, Kalat Division, Mastung, in a case registered against them on 15-2-1996 with sub-tehsil Mangochur, for offences under sections 302/324/34, P.P.C., for committing Qatl-e-amd of deceased Muhammad Umar and Abdul Samad and for causing injuries to as well as attempt to commit qatl- e-amd of Saeed Ahmed by means of Kalashnikov firing. They were nominated as accused during course of investigation of the case. The trial Court, by judgment dated 31-10-1998, convicted the petitioner as well as his co-accused Abdul Karim and Muhammad Ismail under section 302, P.P.C.
And sentenced them to suffer R.I. For life and also to pay Rs, two lacs each as Diyat to the legal heirs of the deceased persons. The petitioner preferred Criminal Appeal No,332 of 1998 against his conviction and sentence which was dismissed by a learned Division Bench of the High Court of Balochistan, Quetta, by judgment dated 2-4-1999. Neither the trial Court nor the High Court had adverted to the question of grant or otherwise of the benefit of the provisions of section 382-B, Cr.P.C. Therefore, the convict-petitioner moved Criminal Miscellaneous Application No,786 of 2002 for grant of benefit of provisions of section 382-B, Cr.P.C. For the period he remained as an under- trial prisoner. The same was dismissed by the High Court, by the impugned judgment dated 13-8- 2002. Hence this jail petition for leave to appeal.
(3) I have gone through the contents of the jail petition as well as the impugned judgment of the High Court. The question of benefit of the provisions of section 382-B, Cr.P.C. Was not considered by the trial Court or by the High Court while awarding or maintaining sentence of the petitioner. The High Court has declined to grant the benefit of the aforesaid provisions on the grounds that the petitioner and the other co-accused were found guilty of causing Qatl-e-amd of two innocent persons and causing serious bullet injuries to P.W. Saeed Ahmad and that the petitioner had absconded and could not be arrested for a considerable period of time. The petitioner was arrested in the year 1997 in connection with some other case of abduction. It was further observed by the High Court that the barbaric and gruesome offence was committed only 15 minutes before Iftar in the holy month of Ramazan. It appears that neither the trial Court nor the High Court had made any such observations while awarding nor upholding the sentence ' of imprisonment for life of the petitioner. After arrest of the petitioner, he was not found to be in any way responsible for any delay in the trial of the case. The principles laid down by this Court in the cases of Ghulam Muhammad v. The State (2001 SCM R 1987), Javed Iqbal v. The State (1998 SCM R 1539), Ghulam Murtaza v. The State (PLD 1998 SC 152), Bashir alias Bashier Ahmed v. The State (PLD 1998 SCM R 1794) and Muhammad Rafiq v. The State (1995 SCM R 1525) were not taken into consideration by the High Court. Even the spirit of enacting provisions of section 382-B, Cr.P.C. Does not seem to have been kept in mind by the High Court. Therefore, in my opinion, this is a fit case for grant of leave to appeal to consider whether in the facts and circumstances of the case, the petitioner was entitled to the grant of benefit of provisions of section 382-13, Cr.P.C. And whether the impugned judgment proceeded on correct principles of law as enunciated by this Court."
3. Mr. M. Javed Aziz Sindhu, learned Advocate Supreme Court entered appearance on behalf of appellant and contended that the provisions as enumerated in section 382-B, Cr.P.C. Have been misinterpreted and misconstrued and besides that it is not inconsonance with the dictum laid down by this Court in case titled Ghulam Muhammad v. The State (2001 .SCMR 1987) and Muhammad Rafiq v. State (1995 SCM R 1525). It is next contended that in such like eventualities where the question of benefit under section 382-B, Cr.P.C. Is concerned the merits of the case would have no substantial bearing as question of benefit is a legal right of the accused which cannot be infringed for any other reason whatever it may be.
4. Mr. Salahuddin Mengal, learned Advocate-General entered appearance on behalf of State and supported the judgment impugned for the reasons enumerated therein with the further submission that entire case law has been examined by the learned Division Bench of the High Court of Balochistna, Quetta and impugned judgment being well based hardly warrants interference.
Learned Advocate General is of the view that dictum as laid down in case titled Ghulam Muhammad v. The State (2001 SCM R 1987) and Muhammad Rafiq v. State (1995 SCM R 1525) would have no bearing on merits of the case in view of the distinguishing facts. It is also argued by learned Advocate General that it is for the court to decide as to whether an accused is entitled to get benefit of section 382-B, Cr.P.C. Or otherwise which cannot be claimed as a matter of right.
5. We have carefully examined the respective contentions on behalf of the parties in the light of the provisions as enumerated in section 382-B, Cr.P.C. And perused the judgment impugned with eminent assistance of learned Advocate Supreme Court on behalf of appellant and learned Advocate General. The pivotal question which needs determination would be as to whether benefit under section 382-B, Cr.P.C. Can be awarded to the appellant or otherwise? It is worth mentioning that it is not the first occasion when such question is being examined but in various cases the above mentioned provisions have been discussed. We have gone through the following judgments on the above formulated question:-- ' Muhammad Rafiq v. The State (1995 SCM R 1525), Asghar Ali v. State (1991 SCMR 151), Shahbaz Afghan v. State (1993 SCMR 224), Ehsan Ellahi v. Muhammad Arif (2001 SCM R 416), Ghulam Murtaza v. The State (PLD 1998 SC 152), Mukhtaruddin v. The State (1997 SCM R 55), Liaqat Ali v. The State (PLD 1995 SC 485).
6. After having examined the respective contentions and the dictum as laid down in the above mentioned authorities an un-escapable inference would be that the question as to whether benefit of section 382-B, Cr.P.C. Can be extended in favour of an accused or otherwise squarely falls within the discretionary domain of a court which is to be exercised judiciously and on sound judicial principles. There is no bar whatsoever on extending such a benefit by a revisional or appellate court if omitted by the learned trial Court. We have perused the dictum as laid down in case Ghulam Muhammad v. The State (2001 SCM R 1987), relied upon by Mr. M. Javed Aziz Sindhu, learned Advocate Supreme Court on behalf of appellant which cannot be made applicable in view of distinguishing features of the case where the appellant had undergone more than 22 years sentence and besides that no mention, whatsoever was made by the learned High Court for declining the benefit under section 382-B, Cr.P.C. The case law as enunciated in Muhammad Rafiq v. State (1995 SCM R 1525) is also not applicable wherein it has been mentioned in a categoric manner that benefit under section 382-B, Cr.P.C. Can be declined in circumstances which have been discussed elaborately in, the judgment impugned by the learned Division Bench of the learned High Court of Balochistan, Quetta.
7. On the touchstone of the criterion as laid down from time to time by this Court, the case of appellant has been examined. We are persuaded to agree with the conclusion as recorded by the learned Division Bench of the High Court after having taken into consideration all the pros and cons of the case in the judgment impugned, relevant portion whereof is reproduced hereinbelow for ready reference:-- "The deducible analogy in view of the guiding principles, dictum laid down by the honourable Supreme Court in the above quoted case law and the reported judgments of the Superior Courts referred to above with reference to the object, scope and mandate of section 382-B, Cr.P.C.
Including the wisdom and reasonableness for enacting the law on the subject, we, have the benefit to observe that the extent of the benefit of section 382-B, Cr.P.C. Which an 'accused may be found entitled, sentenced to any term of imprisonment has also been made determinable by the court sentencing the accused, keeping in view his. Conduct during the trial etc. Having nexus with the object of the said provision of the law.
(8) Adverting to the facts of the case in the light of the observations made in.Para No,7 supra with reference to the case law cited on behalf of the parties, it is worthwhile to note that the incident took place on 15-2-1996 in which two persons namely Muhammad Umer son of Shah Muhammad and Abdul Samad son of Haji Abdul Qadir succumbed to injuries at the place of Wardat, whereas; Saeed Ahmed (P.W.2) brother of deceased Muhammad Umer suffered serious bullet wounds on account of Kalashnikov firing made on them by the convicts Muhammad Zahir (applicant) and co- accused Muhammad Ismail and Abdul Karim on the 12th day of holy month of `Ramazan' i,e, 15-2- 1996, 15 minutes before `Iftar' when they were on their way back to home (as per evidence of P.W.
Saeed Ahmed/injured believed by the trial Court as well as the Division Bench of this Court which eventually dismissed Criminal Appeal No,332 of 1998 vide judgment dated 21-4-1999. Convicts Muhammad Zahir and Abdul Rehman (co-accused) after commission of the offence made good their escape from the scene of occurrence and remained absconders for a considerable period, who as per supplementary challan (Exh.P/8-F) were arrested some time in the month of October, 1997 on receipt of information by the Naib Tehsildar (Investigating Officer) that they have been arrested in respect of an abduction case at Kharan, on which their custody was taken over by the Investigating Officer and were arrested in the instant case. After completion of interrogation from these wanted accused persons supplementary challan Exh.P/8-F was processed through the Magistrate, which was submitted in the court of learned Special Judge STA, Kalat Division at Mastung on 5-11-1997. Eventually on conclusion of the trial vide judgment dated 31-10-1998 passed in Special Case No,10 of 1997 accused Muhammad Zahir (applicant), Abdul Karim and Muhammad Ismail (co-accused) were convicted on the charge under sections 302/324/109/34, P.P.C. And sentenced to imprisonment for life term under section 302/34, P.P.C. Each, whereas; accused persons namely Abdul Rehman, Muhammad Essa and Muhammad Musa were acquitted from the charge. From the findings recorded by the trial Court in its judgment and honourbale Division Bench of this court while deciding the appeal preferred against the conviction by the applicant (Muhammad Zahir). In the light of the prosecution evidence, the applicant along with the co- convicts were found guilty for causing Qatl-e-Amd of two innocent persons and causing serious bullet injuries to P.W. Saeed Ahmed, who after commission of the offence absconded and could not be arrested for a considerable time as above noted, inasmuch as; only 15 minutes before `Aftar' a barbaric and gruesome offence was committed coupled with the fact as mentioned in the supplementary challan that the convict/applicant was arrested after absconsion sometime in the month of October, 1997 in connection with an abduction case at Kharan and such fact remained uncontested, therefore, in view of gravity of the offence committed by the applicant and his conduct referred to above disentitled him to the benefit of section 382-B, Cr.P.C. Consequently; this Criminal Miscellaneous Application being devoid of any merit, is dismissed."
8. We have also scrutinized the entire evidence and are of the view that Muhammad Umar and Abdul Samad were killed in a barbaric manner in the Holy month of Ramazan, 15 minutes prior to "aftari" when they were about to reach their homes. No leniency whatsoever is called for and discretion as conferred upon appellate court has been exercised in a judicial manner and judgment impugned being well based hardly warrants any interference. The appeal is accordingly dismissed.