FAZL-I-MAHMOOD, J.--- This is an appeal against conviction and sentence awarded to the appellant who was tried for an offence under section 13 of the Arms Ordinance 1965, by Special Court No.1 for Suppression of Terrorist Activities, Rawalpindi Division Rawalpindi, and convicted to seven years' R.I. And a fine of Rs.25,000 or in default of payment of fine, to further undergo R.I. For six months.
2. At the very outset learned counsel for the appellant Sardar Muhammad Aslam, frankly stated that he would while arguing this appeal be confining its scope to the reduction of sentence. The argument in support of reduction of sentence is based on hypothesis that the appellant is liable to be treated as a carrier and not a person who was the owner of the illicit arms comprising two klashnikovs with 160 rounds, which were recovered from the sealed cavity of the Mini Bus by the raiding party at Check Post Attock.
3. We have gone through judgment of the learned Judge Special Court No.1 (Punjab) Suppression of Terrorist Activities, Rawalpindi Division Rawalpindi, and find that the appellant in the course of answering questions under section 342(2), Cr.P.C. Declined to make a statement on oath under section 340(2), Cr.P.C. No plea of being a carrier was ever raised even before the trial Court. The sentence, which has been awarded to the appellant is such as could have been awarded under section 13 of the Arms Ordinance. This aspect,, of the matter is not being disputed by the learned counsel for the appellant. In case the appellant had given his version by way of statement under section 340(2), Cr.P.C. It might have been possible for this Court to place the prosecution version and such statement in juxtaposition and then drawn proper legal inference. A careful perusal of the judgment of the Special Court does not show any error in appreciation of evidence, application of law or drawing proper inference on the basis of quality of evidence or attending circumstances of the case in holding that prosecution succeeded in proving the case beyond doubt against the appellant in respect of the offence with which he was charged.
4. The plea of treating the appellant as carrier raised before us is thus nothing but a bald assertion being made, which can also be called as a plea of convenience. On the one hand the learned counsel for the appellant does not press the appeal on merits but on the other is indirectly seeking interference with the findings of the trial Court recorded lawfully. This visible inconsistency cannot advance the case of the learned counsel for the appellant for the purpose of his appeal.
5. The second plea was that appellant is of young age. We have asked him the age of the appellant. He informs that he is thirty years of age. Unfortunately for the appellant such age has never been considered to be either a tender age or an age of infirmity so as to constitute a mitigating circumstance in reducing the sentence lawfully awarded by a Court. 4, 10 11W,
6. After having given consideration to the pleas raised, we find that there is no scope for entertaining the plea of mitigating circumstances.
7. The third plea of the learned counsel for the appellant is that the appellant has not been given the benefit of section 382-B, Cr.P.C. For the period during which he remained in custody for the offence.
8. We have examined the legal plea. The provisions of section 7 of the Suppression of Terrorists Activities Act, 1975, give to a person sentenced by a Special Court a right of appeal to the High Court. It further lays down that save as aforesaid and notwithstanding the provisions of the Code or any other law for the time being in force etc. No Court shall have the authority to remit any sentence or to transfer any case from a Special Court or to make any order under section 426 or section 491 or section 498 of the Code or have any jurisdiction of any kind in respect of any proceedings of a Special Court.
9. The provisions of section 382-B, Cr.P.C. Appear to need deeper examination and interpretation to sustain or reject plea being raised.
We do not feel called upon to comment in respect of matters, which are stricto senso, not necessary for answering the plea. Even if it could be said that power in terms of section 426 of the Code of Criminal Procedure is not available under section 7 of the Suppression of Terrorist Activities (Special Courts) Act, 1975, the embargo does not appear to extend to denial of relief and benefit to a convicted person in terms of section 382-B of the Code. We may advantageously refer to the provisions of section 382-B, which read as follows: "382-B. 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."
The provisions of section 426, Cr.P.C. Are, by their very nature, confined to suspension of sentence pending an appeal by a convicted person. This provision cannot be construed as placing a clog on the power of an appellate Court to make proper disposal of the appeal in accordance with law. In exercise of the undoubted power this Court is fully competent and rather obliged to take into consideration the period during which the convict appellant remained in custody for such offence and to give the benefit of section 382-B, Cr.P.C. Which legal aspect the trial Court failed to attend to:'
10. On appreciation of the scheme of the Suppression of Terrorist Activities Act, 1975 and section 382-B, Cr.P.C. We feel that benefit of section 382-B, Cr.P.C. Can be granted to the convict where the trial Court had failed to do so or erred in relevant respects. The provisions quoted and situation visualised in section 7 of the Act are not designed to interfere with or whittle down the substantive power of the High Court as a Court of Appeal for lawful disposal of the appeal. None of the embargoes or ouster of powers enumerated in section 7 stand in the way of discharging legal obligations in terms of section 382-B, Cr.P.C. We. Therefore, hold that the provisions of section 382- B, Cr.P.C. Shall be taken into consideration by a Special Court constituted under the Suppression of Terrorist Activities (Special Courts) Act, 1975, where such Court decides to pass a sentence of imprisonment on an accused for an offence tried under the said law. There is by now plethora of case-law on the scope of section 382-B, Cr.P.C. Including the view that a Court of appeal can grant this benefit.
11. The appellant was arrested on 23-2-1990 and convict on 11-7-1990. The period worked out by the learned counsel for the appellant in respect of benefit of section 382-B, Cr.P.C. Is four months and 12 days. The jail authorities shall accordingly, grant to the appellant the benefit of section 382, CI.P.C. The appeal is disposed of in the above terms.