Criminal Miscellaneous No. 1256-M of 2010. This petition under section 561-A, Cr.P.C. Has been moved for extending the benefit of section 382-B, Cr.P.C. To the convict Falak Sher.
2. Brief facts of the case are that the petitioner was tried under the Juvenile Justice System Ordinance, 2000 in a case bearing F.I.R. No.235 dated 6-10-2002 under section 302, 34, P.P.C. Read with section 109, P.P.C., Police Station Thingi District Vehari. The allegation was that the petitioner along with his co-accused had caused death of Allah Ditta and allegation against the petitioner was that he had given "Toka" blow on the right leg near the knee of the deceased and then gave successive blows of "Toka" on the left arm and wrist. After the conclusion of trial vide order dated 25-7-2002, the petitioner was convicted and sentenced under section 302(a), read with section 306, P.P.C. To pay diyat of Rs.2,85,000 to the legal heirs of the deceased. It was also observed by the learned trial Court that since the deceased was done to death in a brutal manner, so, the petitioner was also sentenced to imprisonment for 14 years as Tazir. The judgment was signed and certificate was issued by the court and was duly signed. Thereafter after passing of said judgment and signing it the separate note was given by the learned Additional Sessions Judge, Vehari which reads as under:-- "Note. The case has been called out for announcing judgment taking the accused into custody and delivering copies of judgment to him but he seems to have selected his absence. The judgment against him is pronounced against him in his absence. Perpetual warrants non-bailable for his arrest be issued. He shall serve out his punishment of imprisonment from the date of his arrest. The benefit under section 382-B, Cr.P.C. Is withheld. Proceedings under section 514, Cr.P.C. Shall go separate".
2. The above note clearly shows that in fact this note was not part of the main judgment. In the main judgment the learned trial Court had not withheld the benefit of section 382-B, Cr.P.C. To the petitioner who was a minor. The petitioner preferred Crl. A. No.746 of 2002 which was also disposed of by the DB of this court vide order dated 10-11-2008 and concluding paras, which are paras Nos.10 and 11 are as under:--
10. From the ocular evidence, duly corroborated by medical evidence and recovery of blood- stained Toka on his pointation, appellant's participation in the occurrence is fully established.
However, it has been noticed that while recording conviction, learned trial Court has not applied correct provisions. Section 302(a), P.P.C. Provides for punishment of death if proof of . Qatl-e-amd liable to Qisas as required by section 304, P.P.C. Is available, which is lacking in this case. Under section 306(a), P.P.C. Also, Qisas cannot be imposed if the accused is a minor. However, under section 308, P.P.C., a minor accused guilty of Qatl-e-amd is liable to Diyat. Under second proviso he may also be punished with imprisonment up to twenty-five years as Tazir.
11. Keeping in view the above legal position, we modify the conviction of appellant to section 308, P.P.C., while maintaining his sentence. With this modification, his appeal is dismissed."
3. The above judgment of this court also shows that this court had not considered the aspect of extending or not extending the benefit of section 382-B, Cr.P.C.
4. Now through the present petition, it has been prayed that since this court had not considered this aspect of the case and this court under section 561-A, Cr.P.C. Has inherent power so benefit of section 382-B, Cr.P.C. Be extended to the petitioner/convict.
5. Learned counsel for the petitioner had placed reliance upon the case-law reported in "Ehsan Ellahi and others v. Muhammad Arif and others" (2001 SCM R 416), 1998 SCM R 1539 and 1794. He contended that the court had the power to refuse the benefit of section 382-B, Cr.P.C. But in such eventuality the said discretion should have been exercised judicially on sound judicial principles.
He further contended that though the learned trial Court had withheld the benefit of section 382-B, Cr.P.C. But this court while disposing of the appeal had not given any findings that whether such discretion was exercised by the learned trial Court on sound judicial principles.
6. On the other hand learned counsel for complainant and learned DPG contended that though this court had the power under section 561-A, Cr.P.C. To allow the benefit of section 382-B, Cr.P.C. Even if appeal has been decided but contended that the murder was done in a brutal manner, so, the learned Trial Court had withheld the benefit of section 382-B, Cr.P.C. And since this court had not given any findings on this aspect it means that the said order has been upheld by this court. They placed reliance upon 2006 SCM R 1506, 2011 SCM R 38, 1997 SCM R 55, 2001 SCM R 416, PLD 2009 SC 460 and 2004 PCr.LJ 764.
7. We have considered the arguments addressed by both the parties and have also minutely gone through the case-law cited by the parties.
8. It is not denied that this court while disposing of the appeal had not considered this aspect that whether the learned trial Court on sound principles had withheld the benefit of section 382-B, Cr.P.C. And the judgment in this behalf is silent on the point. The ratio decidendi of the case-law cited by both the parties, is that under section 561-A, Cr.P.C. The court has the inherent power to extend the benefit of section 382-B, Cr.P.C. In appropriate cases even after the decision of appeal.
The only determining factor was to consider whether the learned trial Court which withheld the benefit of section 382-B, Cr.P.C. Had considered the relevant facts for withholding the said benefit.
As has been mentioned above that the learned trial Court announced the judgment, signed it and then issued a certificate and signed it on 25-7-2002 but in the main judgment the benefit of section 382-B, Cr.P.C. Was not withheld. However, when the petitioner did not appear in the court a separate note was given that he has absented himself and thus withheld the benefit of section 382-B, Cr.P.C. This separate note is not part of the main judgment. It is nowhere in the record that during the trial the petitioner had created any hindrance. It appears that due to his absence the learned trial Court was annoyed and without any solid reasons for withholding the benefit of section 382-B, Cr.P.C. Simply mentioned that benefit of section 382-B, Cr.P.C. Is withheld. In this way we are of the considered opinion that benefit was not withheld on the sound judicial principles. Had it been the reason that since the murder was committed in biutal manner the said benefit should have been withheld in the main judgment. While deciding the appeal this court also ignored this aspect of the case and in fact the judgment is silent on this point. Thus, by invoking the inherent power under section 561-A, Cr.P.C. We have no hesitation to hold that the order of learned trial Court by which the benefit of section 382-B, Cr.P.C. Was withheld is not based upon any sound reasoning.
9. In view of what has been said above, we allow this petition and it is hereby directed that petitioner Falak Sher would be entitled to C benefit of section 382-B, Cr.P.C.
10. The petition is allowed in above terms.