MIANGUL HASSAN AURANGZEB, J. --- Through this judgment, I propose to decide Criminal Appeals No, 145/2017, 149/2017, 177/2017, since they entail common questions of law and fact. In all the said appeals, the appellants challenge the judgment dated 18.10.2017, passed by the Prevention of Electronic Crime Court, Islamabad, passed in case F.I.R. No, 72, dated 27.10.2015, registered under Section 36/37 of the Electronic Transactions Ordinance, 2002 ("E.T.O., 2002") read with Sections 419, 420, 468, 471 and 109 of the Pakistan Penal Code, 1860 ("P.P.C.") and Section 14 of the Foreigners Act, 1946, at the Cyber Crime Circle, Islamabad.
2. Vide the impugned judgment dated 18.10.2017, each of the appellants in the said criminal appeals were convicted under Section 36 of the E.T.O., 2002, and sentenced to five years' rigorous imprisonment with the fine of Rs. 1,000,000/- or in default thereof to further undergo simple imprisonment for six months. Additionally, each of the appellants were convicted under Section 420, P.P.C. and sentenced to five years' rigorous imprisonment with a fine of Rs. 1,000,000/- or in default thereof to further undergo simple imprisonment for two months. The benefit of Sections 397 and 382-B of the Code of Criminal Procedure, 1898 ("Cr.P.C.") was not extended to the appellants.
In other words, the said sentences were to run consecutively and were to commence from the date of the judgment and not from the time when the appellants were arrested.
3.For the sake of brevity, in this judgment, Iroko Mercy Chimizie, the appellant in Criminal Appeal No, 145/2017 and masquerading as Jeff Jack More, shall be referred to as "Iroko"; Raja Asad Ali, the appellant in Criminal Appeal No, 149/2017 shall be referred to as "Asad"; Daud Ghauri, the appellant in Criminal Appeal No, 177/2017 shall be referred to as "Ghauri"; Barrister Oslu Jonathan shall be referred to as "Oslu"; Abdul Jabbar Raza Ansari, the complainant, shall be referred to as "the complainant"; and Hafiz Ahmad Ansari shall be referred to as "Mr. Ansari".
4. The complainant's case in the F.I.R. No, 72/2015, dated 27.10.2015 was that complainant received an email from email address i,e, oslu2282215720@gmail.com) on the complainant's personal email address (i,e, abduliabbar42000@yahoo.com); that the sender of the email, Oslu, informed the complainant that the former was the legal attorney of late Mr. Ansari from Hafizabad, Pakistan; that Mr. Ansari was a Civil Engineer/contractor and handled many projects in West-Africa; that Mr. Ansari died alongwith his wife and daughter on 30.04.2015; and that Mr. Ansari had assets worth U.S. Dollars 89 Million and wanted to transfer the said assets to the complainant in Pakistan for the purpose of business.
5. The complainant in the said F.I.R. claimed to have been persuaded by the, sender of the said email to payU.S. Dollars 500 to Union Togolaisc de Banque's Legal Advisor, namely, Woedeme Yawa, as bankaccount opening fee; that on 06.09.2015, the complainant sent U.S Dollars 500 through Western Union to Woedeme Yawa as advised by the sender of the said email; that on 16.09.2015, the complainant received a call from mobile number 0310-0854318 on the complainant's mobile number 0323-7.936100; that the caller introduced himself as Jeff Jack More and told the complainant to deposit Rs. 5,00,000/- in Asad's bank account No, 020112543771 at Soneri Bank, E-11 Branch, Islamabad so that the complainant could receive Mr. Ansari's assets; that the complainant deposited the said amount on the same very day against bank receipt No, 19459223; that later on, Jeff Jack More called the complainant and asked to meet him in Markaz F- 10, Islamabad; that the complainant went to Markaz F-10, Islamabad and met Jeff Jack More who took the complainant to a house near F-9 Park, Islamabad, and showed him a box full of black dollars and a broken chemical bottle; that Jeff Jack More told the complainant to deposit Rs.
8,00,000/- in Ghouri's bank account No, 1004641-M.C.B. for the purchase of a new chemical bottle from the U.S. Embassy; that the complainant deposited see Rs. 1.5 Million in the said bank account; that after a few minutes of the delivery of the chemical bottle at F-10 Markaz, Islamabad, it burst in the --claimant's hand that after the complainant informed Jeff Jack More about the said incident, the latter asked the complainant to deposit Rs. 1.5 Million in Ghouri's bank account No, 0042001004450401 at Bank Alfalah for the purchase of another chemical bottle; that the complainant deposited the said amount in the said bank account as per Jeff Jack More's instructions; that thereafter, Jeff Jack More was calling the complainant and demanding Rs. 2 Million for the chemical bottle so that Mr. Ansari's assets worth U.S. Dollars 89 Million could be received by the complainant; that Jeff Jack More asked the complainant to meet him near Al- Maroof International Hospital, Islamabad; and that- the complainant realized that all this was a scam and, he was defrauded of Rs. 4.3 Million. The Complainant requested that strict legal action be taken against Jeff Jack More and others and his money be recovered. This said F.I.R. was registered on the complainant's complaint dated 27.10.2015. The complainant's Statement was recorded by the Investigation Officer ("I.O.") on 27.09.2015.
6. Iroko was arrested on 27.10.2015; Ghauri on 02.11.2015; and Asad on 05.11.2015. After the investigation was completed, challan/report under Section 173,, Cr.P.C. was submitted in the Court by the local police/F.I.A. The charge against the appellants was framed on 04.01.2016 after the requirements of Section 161, Cr.P.C. had been complied with. The appellants pleaded not guilty to the charge framed against them and claimed trial.
7. During the trial, the prosecution produced the complainant as PW-1; Kamran Khan (Constable, F.I.A.) as PW-2; Arslan Safdar (Constable, F.I.A.) as PW-3; Shahid Majeed (Inspector, F.I.A.) as PW-4; and Masood Ali (Deputy Director Forensic, F.I.A.) as PW-5. As mentioned above, vide impugned judgment dated 18.10.2017, the appellants were convicted under Section 36 of E.T.O., 2002 and Section 420 Cr.P.C. The said judgment has been impugned in the instant appeals.
8. Learned counsel for the a submitted that the learned Trial Court did not have the jurisdiction to adjudicate upon the case; that the trial before the Special Court was illegal; that the trial should have been conducted by a Magistrate; that no case against the appellant had been made out under Sections 36 of E.T.O., 2002; that sending an email is not an offence under Section 36 of E.T.O., 2002; that the receipt of the email has not been verified by the 1.0.; that the origin of the emails could have been determined through I.P. address; that the complainant had received an email from an unknown person; that the appellant had not sent the said email; that this was a simple case of fraud under Section 420, Cr.P.C. by a sender of the email; that the charge was not framed in accordance with the law; that there should have been separate charges under the different Sections mentioned in the F.I.R.; and that no case was made out under Section 471, Cr.P.C. since it was not specified as to which false document had been presented so as to, prove abetment.
9. Furthermore, it was submitted that even though in, the F.I.R., all the payments were alleged to have been made through bank but no one from the bank or Western Union was produced in the Court; that even before the 1.0.,' no one from Western Union appeared; that the bank record was not produced to show that the complainant had paid any amount to the appellant; that the bank record has not been verified under Section 94, Cr.P.C. or Banker's Book Evidence Act, 1891, after permission from the Court; that under the provisions of the Qanoon-e-Shahadat Order, 1984, the bank record has to be produced by the author; that the complainant had produced bank documents but the same had not been verified by the 1.0.; that it was for the bank to State that a transaction in the complainant's account had taken place; that the I.O. had accepted that no\inquiry was conducted as regards the transactions in the complainant's bank account; that the black dollars/papers and chemical bottle were not produced in evidence; and that the prosecution miserably failed to bring home the guilt of the accused.
10. It was further submitted that the complainant was claiming Mr. Ansari's legacy even though there was no relationship between the two; that the complainant (PW-1), in his cross-examination, deposed that he had filed the complainant in Urdu; that the complaint (Ex. PF) is in English and bears the complainant's signature in English; that there is no complaint in Urdu on the record and therefore, the allegations levelled in the F.I.R. have not been proved; that there is no proof on the record that any amount was paid by the complainant to the appellant; that the learned Trial Court erred erred by applying Section 397, Cr.P.C.; that the appellant had not been previously convicted; that an offence under Section 420, P.P.C. carries a maximum sentence of seven years, whereas an offence under Section 36 of E.T.O., 2002 also carries a maximum sentence of seven years; that the learned Trial Court unlawfully denied the benefit of Section 382-B, Cr.P.C. to the appellant; that the appellant was arrested on 27.10.2015 and convicted on 18.10.2017; that during this period, the appellant had not been granted bail. In making his submissions, learned counsel for the appellant placed reliance on the judgments reported as 2014 SCM R 668 and PLD 2009 S.C. 809.
11. Learned counsel for the appellant (Asad) submitted that only Rs. 5,00,000/- has been attributed to the said appellant; that the appellant used to repair the complainant's computer; that an inflated bill was given for payment in the appellant's account; that no offence under Section 468, P.P.C. or Section 36 of the E.T.O., 2002, is made out against the appellant; and that not even any conversation is alleged to have taken place between the appellant and complainant.
12. On the other hand, learned counsel for the complainant submitted that the provisions of the E.T.O., 2002, are attracted where there is use of electronic equipment in furtherance of an offence; that in the instant case, email messages were sent to the complainant by lroko; that SMS had been sent by the lroko to the complainant and in this regard the call data record was produced as Ex.
PW-2/B; that the SIM of the number from which calls were made and messages were sent to the complainant was recovered from Iroko; that the I.P. address from where the email in question had been sent was in U.S.A. and the F.I.A. could not access the same; that the email in question (Ex. P/A) is undated and was sent from Oslu's address to the complainant; that Iroko was impersonating as Jeff Jack More and he is the one who sent the email in question; that the chain of causation was started by Oslu; that the complainant had sent U.S. Dollars 500 through Western Union to a bank in Togo; that the beneficiary of the said amount was Oslu; that lroko contacted the complainant on 16.09.2015 and thereafter Rs. 5,00,000/- were deposited by the complainant in Asad's bank account and Rs. 3,800,000/- in Ghouri's bank accounts, details whereof are mentioned in the Statement of PW-1; that three transactions were made from the complainants bank account; that Asad in his Statement, did not State as to what services he had performed for the said Payment to be Made to hint that fraud was committed by the appellants with the use of electronic equipment; that the complainant has been defrauded by the appellants of a huge amount of Rs 4,300,000/-; that the appellants' conviction by the learned Trial Court is strictly in accordance with law. Learned counsel for the complainant very fairly took the position that the learned Trial Court should have given the benefit of Section 382-B, Cr.P.C. to the appellants.
13. I have heard the contentions of the learned counsel for the contesting parties and have perused the record with their able assistance. The facts leading to the filing of the instant appeals have been set out in sufficient detail in paragraphs 2 to 7 above and need: not be recapitulated.
14. The complainant's case against the appellant i s that on 16.09.2015, the former got a call from Iroko masquerading as Jeff Jack More, a diplomat from the Togo Embassy. On lroko's instructions, the complainant deposited Rs. 5,00,000/-- in Asad's bank account. The complainant then got a call from Iroko who asked the complainant to meet him at Al-Maroof International Hospital to hand over U.S. Dollars 89 Million to the latter. The complainant was shown a box with black dollars and a broken chemical bottle by Iroko. The complainant was asked to deposit Rs. 8,00,000/- in Ghauri's account so that a chemical bottle is purchased from the. U.S. Embassy. The complainant 'deposited Rs, 8,00,000/- in. Ghauri's account. Subsequently, Iroko asked 'the complainant to deposit a further amount of 'Rs. 1,500,000/- in Ghauris account. After the said amount is deposited by the complainant in the Ghauri's account, the complainant was given the chemical bottle by- Iroko but the same burst in the complainant's hands. When "Iroko asked the complainant to pay Rupees Two Million more, the complainant got suspicious and submitted a complaint to the F.I:A.
Cyber Crime Circle, Rawalpindi/Islamabad.
15.The complainant gave evidence as PW.1 and produced the email sent by Oslu to the complainant as Exh. ' PA. There is no mention of the date on which the said email was sent. This email is addressed to "Abdul Jabbar Raza Ansari". It appears to be a second communication from Oslu to the complainant. In this email, there is reference to, a response by, the complainant to an earlier communication. Replete with, grammatical errors, the email is sent by a person claiming to be a lawyer based in Lome City, Togo Republic. The sender claims that lateAnsafi from Hafizabad, Pakistan, was his client. The sender gives an, assurance to the complainant that the "transaction is 100% legal and risk free".
16. In the said email, Oslu (the .purported sender of the email) informed the complainant that Mr. Ansari was Union Togolaise De Banque' customer and operated a coded account; that Mr. Ansari was a civil engineer and a contractor who handled many projects in West Africa; that Mr. Ansari alongwith his wife and daughter died in a car, accident; and that Mr. Ansari had a company which was wound-up after his demise; that Oslu was searching for a trustworthy partner who shared the same surname as Mr. Ansari; that Oslu had found the complainant and was convicted that the latter was Mr. Ansari's relative; that Oslu wanted the complainant to stand as Mr. Ansari's next of kin so that the latter's funds in his bank could be released and transferred to the complainant; that Oslu wanted to speak, over the telephone to the complainant so as to increase the former's confidence and to develop mutual trust; that after Mr. Ansari's funds are transferred to the complainant as a beneficiary, they will be shared equally between Oslu and the complainant; and that the matter had to be kept confidential. Oslu requested the complainant to provide his details so that an application could be submitted to the bank for the transfer of the funds.
17. The complainant was subjected to rigorous cross-examination. In his cross-examination, he deposed inter-alia that he did not call Asad for this transaction; that the only proof against the Asad was that Rs. 5,00,000/- were deposited in his account; that the complainant had seen Asad with Iroko once or twice and that Asad was present when the complainant went to receive the chemical bottle; that after Rs. 5,00,000/- were deposited in Asad's account, the complainant called Asad to make sure that the amount had been received; that the complainant did not have any type of record regarding the said call; that Iroko had given the complainant Asad's account number; and that the complainant had drafted his complaint in Urdu for the registration of the F.I.R.
18. The Investigation Officer (PW.4) in his evidence stated that upon the complainant's complaint (Exh. PF), F.I.R. No, 72/2015, dated 27.10.2015 was signed and lodged by him; that Iroko was arrested on 27.10.2015 near Al-Maroof Hospital, F-10, Islamabad; that the items recovered from Iroko included one Nokia Mobile Phone alongwith SIM and two page black dollars which were taken into possession, vide recovery memo: (Exh. PW-2/A); that Ghauri was arrested on 02.11.2015 from Jhelum near Al-Bilal Hotel G.T. Road, Jhelum; that the items recovered from him were taken into possession, vide recovery memo. (Exh. PW-3/A); that Asad was arrested on 05.11.2015 from his computer repair shop at F-11 Markaz, Islamabad; that the items recovered from him include one Soneri Bank Visa Card, two cheques of Soneri Bank in the name of Asad, one Nokia Mobile phone alongwith one Ufone SIM, one Zong SIM and a second Zong SIM; that the items recovered from Asad were taken into possession, vide recovery memo. (Exh. PW-3/B); that on 29.10.2015, he collected the call data record of mobile phone No, 0323-7936100 consisting of fifteen pages, one page email and three pages of SMS record which was taken into possession, vide recovery memo. (Exh. PW-2/B); and that the three appellants in collaboration had defrauded the complainant of Rs. 4.3 Million.
19. In his cross-examination, PW-4 deposed inter-alia that during the investigation, no evidence came on record to suggest that Iroko had any connection with these emails; that he did not verify the identity of Oslu; that he did not know from which part of the world the emails were sent; that the complainant had not brought the computer equipment through which the emails in question were received; that the complainant had no relationship with Mr. Ansari; that no justification was given by the complainant as to why he wanted to claim the fortune of Mr. Ansari; that an official from Western Union was not joined in the investigation to verify as to whether any payment' was sent by the complainant through Western Union; that the complainant used to get calls from mobile No, 03100854318; that the said mobile phone number was not registered in the same of Iroko; that the SIM of the said number was recovered from Iroko at the time of his arrest; that the said mobile number is not mentioned in the recovery memo. but the IMEI is mentioned; that the complainant had not described Jeff Jack More's features in his complaint; that during the course of the investigation, no evidence of social connection between Ghauri, Asad and Oslu was found; that the complainant never produced any chemical bottle; that he had not sent the black dollars/papers for any sort of analysis; that throughout the investigation, no evidence came on the record that any of the appellants got illegal access to any information system or any of the appellants, after getting illegal access, damaged the information system; that if someone sends a message to another person, it amounts to access in private information system; that he did not find any source of income of the complainant; that he did not seek permission from the Court for getting the complainant bank records; and that neither was any bank employee cited as a witness nor the statement of any bank employee was recorded during the course of the investigation. PW.5, in his cross-examination, admitted that he did not check or verify the creation of the email, the place or the IP address from where it was created.
20. Iroko, in his Statement under Section 342, Cr.P.C. simply denied all the questions put to him.
When asked as to why the case was registered against him, Iroko responded by saying that Jeff Jack More had fled away leaving his belongings; that Jeff Jack More was known to him, because he was also from Nigeria; that Iroko had been made a scapegoat and no independent witness had deposed against him; and that there is no proof on the record that he sent any email to the complainant.
21. As regards Asad's Statement under Section 342, Cr.P.C., he admits having received Rs. 5,00,000/- in his bank account No, 020112543771 in Soneri Bank, E-11 Branch, Islamabad. He also admits the withdrawal of the said amount from his account. He explains that he used to repair the computer of his client, "Mr. Mike", who told him that an amount would be deposited in his account for repairing his computer. He also explains that "Mr. Mike" had asked him for his bank account details. Asad does not explain as to what services or repairs he had performed for which an amount of Rs. 5,00,000/- was paid into his account.
22. Ghauri, in his Statement under Section 342, Cr.P.C., admitted that on 17.09.2015, the complainant deposited/transferred Rs. 8,00,000/- in his bank account No, 1004644 at MCB, T Block, DHA, Lahore.
Ghauri explained since some persons had to transfer funds to his brother-in-law who did not have a bank account, therefore, the said account was used. Ghauri also admitted that on 29.09.2015, the complainant had deposited Rs. 1,500,000/- in the former's said account. Ghauri also admitted that the complainant had deposited an additional Rs. 15,00,000/- into the former's bank account No, 0042001004450401 at Bank Alfalah, Wahadat Road, Lahore. As regards the withdrawal of all this amount from the said bank accounts, Ghauri Stated that he had given the said amount to his brother-in-law who had left Pakistan.
23. Perusal of the impugned judgment dated 18.10.2017 shows that the appellants were not convicted under Section 37 of the E.T.O., 2002. Their conviction was under Section 36 of the E.T.O., 2002 and Section 420, P.P.C. only Section 36 of the E.T.O., 2002, is reproduced herein below:-- "36. Violation of privacy of information.---Any person who gains or attempts to gain access to any information system with or without intent to acquire the information contained therein or to gain knowledge of such information, whether or not he is aware of the nature or contents of such information, when he is not authorized to gain access, as aforesaid, shall be guilty of an offence under this Ordinance punishable with either description of a term not exceeding seven years, or fine which may extend to one million rupees, or with both."
24.Now, the said email (Exh. PA) is a curious document. It does not mention the date on which it was sent. It also does not mention the complainant's email address. No effort seems to have been made by the Investigating Officer or the forensic expert to verify as to whether the said email was indeed received by the complainant. There is no mention in the said email about Mr. Ansari having U.S. Dollars 89 Million in his bank account. As mentioned above, in the said email, Oslu has appreciated the complainant's "prompt response". It was not explained as to whether the complainant had at any stage prior to the said email communicated either through email or otherwise with Oslu. The first communication from Oslu to the complainant is also not on the record. The complainant's computer was not even examined so as to ensure that the said email was indeed received by the complainant. The Investigation Officer (PW.4), in his cross-examination, admitted that throughout the investigation, no evidence came on the record that any of the appellants got illegal access to any information system or any of the appellants after getting illegal access damaged the information system.
25. The appellants cannot be said to have committed an offence under Section 36 of the E.T.O., 2002. None of the appellants gained or attempted to gain access to any information system with or without the intent to inquire the information contained therein or to gain knowledge of such information, when they were not authorized to gain access, as aforesaid. Even if Iroko is considered to be the sender of the email in question, it cannot be said that by sending the said email, he had gained or attempted to gain access to any information system with or without the intent to acquire the information contained therein. Against Asad and Ghauri, there is no allegation that they gained or attempted to gain access to any information system with or without the intent to acquire the information contained therein. Therefore, it is my view that the appellants could not have been convicted under Section 36 of the E.T.O., 2002.
26.Section 420, P.P.C. provides inter alia that whoever cheats and thereby dishonestly induces the person deceived to deliver any property to any person, or to make, alter or destroy the whole or any part of a valuable property shall be punished with imprisonment of either description for a term which may extend to seven years and shall also be liable to fine.
27. In the said email, it is mentioned that Oslu would call the complainant for oral clarification. After the said email ' was sent Iroko, on 16.09.2015, is said to have contacted the complainant on the latter's mobile number. I am in agreement with the finding of the learned Trial Court that Iroko's stand that he was no nexus with the email (Exh. PA) is negated by the fact that as planned in the said email, Iroko contacted the complainant and introduced himself as Jeff Jack More and discussed the matter regarding the legacy of Mr. Ansari.
28. When Iroko was arrested, the items recovered from him included a mobile telephone Nokia (RM-1035) and an installed SIM. The forensic examination of these items showed that the complainant's name was saved as "Abdul". The incoming and outgoing call history showed that there were several calls and text messages made and received to the complainant's mobile number (0323-7936100). The details of these calls are a part of the digital forensic examination report which was part of the Court's file. Although the SIM (0310-0854318) is not registered in Iroko's name but the same was in his use and recovered from him when he was arrested.
29. The use of a mobile was made in the process of defrauding the complainant of Rs. 4,300,000/-.
The forensic examination of the mobile phone and SIM recovered from lroko showed that several calls and SMS messages were made to and received from the complainant. For Iroko to take the position that he had nothing to do with complainant, is simply not believable. Iroko was the mastermind of the fraud practiced on the complainant.
30. The stand taken on behalf of the Iroko that he had nothing to do with the email from Oslu to the complainant is also not believable, because it was in furtherance of the plan made in the said email that Iroko contacted the complainant and started asking him to make payments. Iroko was identified by the complainant as the person who had met him regarding the payments etc.
31. The deposit of Rs. 5,00,000/- in Asad's bank account and Rs. 8,00,000/- plus Rs. 1,500,000/- in Ghuari's bank account stands proved. Asad and Ghauri could not come-up with any plausible explanation as to why the said amount was deposited in their account. It is an admitted position that the said amount has been withdrawn by Asad and Ghauri from their respective bank accounts. The story put forth by Asad regarding the repair of "Mr. Mike's" computer and the one put forth by Ghauri regarding his brother-in-law having gone abroad with the money are an after- thought and taken at a belated stage of the proceedings.
32. But for the instructions given by Iroko to the complainant, the latter would not have parted with Rs. 4,300,000/- by paying Rs. 5,00,000/- into Asad's bank account and Rs. 3,800,000/- into Ghauri's bank accounts. The explanation given by Asad for the payment of Rs. 5,00,000/- into his account has not been substantiated. Asad could not explain as to which services of computer repair he had performed for the said amount to be deposited in his bank account. As regards Ghauri, the story of his brother-in-law having asked him for the deposit of Rs. 3,800,000/- to be made into his bank account and the said amount to be withdrawn and taken, away by his brother-in-law is a clear after-thought. This concocted story was given in Ghauri's Statement under Section 342, Cr.P.C. and not at any earlier stage.
33. In view of the above, the finding of the learned Trial Court that the appellants had committed an offence under Section 36 of the E.T.O., 2002, is set-aside. However, the appellants' conviction under Section 420, P.P.C. is maintained but the sentence awarded for the offence under Section 420, P.P.C. is modified and reduced to two and a half years of rigorous imprisonment with a fine of Rs.
1,00,000/- for each of the appellants.
34. I am of the view that the learned Trial Court erred by denying the appellants the benefit of Section 382-B, Cr.P.C. which provides that where a Court decides to pass a sentence of imprisonment on an accused for an offence, it shall take into consideration the period, if any, during which such accused was detained in custody for such offence. No reason has been given by the learned Trial Court for denying the benefit of Section 382-B, Cr.P.C. to the appellants. The appellants have been incarcerated ever since 2015. The said provision is couched in mandatory terms and therefore, the learned Trial Court should have extended the benefit of said provision to the appellants. In holding so, I am guided by the law laid down in the following cases:--
(i) In the case of "Government of Khyber Pakhtunkhwa v. Mehmood Khan" 2017 SCM R 2044, the learned Appellate Court while reducing death sentence of the respondent omitted to give the latter the benefit of Section 382-B, Cr.P.C. In the said report, it was held by the Hon'ble Supreme Court that the "unamended Section 382-8, Cr.P.C. was couched in words/language where for awarding benefit of detention period pending Trial the Court was required to record reasons therefor, however after amendments, to refuse such concession the Court has to record reasons for such refusal". Furthermore, it was held as follows:-- "7. As highlighted and explained above, now extension of benefit of pre-conviction detention period be deducted from the sentence awarded is mandatory and for refusal to grant the same, cogent, strong and convincing reasons are to be recorded. In the instant case it was a simple omission on the part of the learned Bench of the High Court to look at the substance of the mandatory provision of Section 382-8, Cr.P.C., thus it can be rectified at any stage and even the Jailer in whose custody the prisoner is undergoing sentence, is bound to award such benefit even if the judgment is silent unless the Court for cogent and convincing reasons has expressly refused to grant such benefit."
(ii) In the case of "Sajjad lkram v. Sikandar Hayat"(2016 SCM R 467), it was held as follows:-- "In section 382-B, Cr. P. C., earlier word "may" was used which was subsequently substituted to word "shall" through the Cr. P. C. (Second Amendment) Ordinance (71 of 1979). The word "shall" in the said section bound the Court to take into consideration the pre-sentence period spent by the convict in the jail. This enactment requires the Court to take into consideration the period for which accused remained confined as an under-trial prisoner. It is the duty of the Trial Court to take into consideration the said provision. However, the benefit of Section 382-8, Cr. P.C. is also available to a person whose sentences of death under Section 302(b), P.P.C. have been subsequently converted to imprisonment for life (as in this case). While passing the sentence, it is the duty of the Court to take into consideration the pre-sentence period which he had spent in connection with the offence for which he was convicted. The said pre-sentence period should not go uncounted for. This Court in the case of Shah Hussain v.. The State (PLD 2009 SC 460) had extended the said benefit to the convict whose sentence of death was subsequently converted to life imprisonment."
"382-B. Period of detention to be considered while awarding sentence of imprisonment.---Where a Court decides to pass a sentence of imprisonment on an accused for an offence, it shall take into consideration the period, if any, during which such accused was detained in custody of such offence."
(iii) In the case of "Qaiser Khan v. The State"(1998 M LD 633), the Court of the learned Sessions Judge, Swabi, while convicting the appellant made no mention in his judgment about affording the benefit of Section 382-B, Cr.P.C. to the appellant. The learned Federal Shariat Court held that Courts were under an obligation to apply their conscious mind to the legal provisions governing the conduct of trials and abide by all the requirements of the law before the pronouncement of the judgment. Furthermore, after making reference to Section 382-B, Cr.P.C. it was held as follows:-- "It clearly emerges that the Court has been put under an obligation that while awarding sentence on a conviction it should take into consideration the period for which an accused remained confined as an undertrial prisoner. It correspondingly also gives a right to the accused that the Trial Court shall provide the benefit under this provision to the accused and in case it be found by the Court that the accused is not entitled thereto, explicitly give reason therefor. The Trial Courts shall be well-advised to adhere to the legal requirements for conduct of trials and not to allow omissions to creep in which may cause prejudice to any party before them. Be that as it may, it appears that the omission of the Court below in this regard is inadvertent and, therefore, the appellant is allowed the benefit of Section 382-8, Cr.P.C."
35. The appeals are partly allowed in the above terms. There shall be no order as to costs.