AJMAL MIAN, J---This is an appeal with the leave of this Court against the judgment dated 17-10- 1993 passed by a Division Bench of the Peshawar High Court, Peshawar, in Criminal Miscellaneous Application No.771 of 1993, filed by the appellant for the grant of benefit of section 382-B Cr.P.C., dismissing the same.
2. The brief facts are that the appellant was convicted and sentenced to life imprisonment and a fine of Rs.10,000 in default, to undergo further R.I. Of five years, under section 302, P.P.C. For the murder of one Muhammad Diyar Khan. He was denied the benefit of section 382-B, Cr.P.C. By the learned Additional Sessions Judge, Swabi, while recording the above conviction through the judgment dated 6-11-1986 for the following reasons:-- "I, therefore, do not find any hesitation in convicting the accused under section 265(H), of the Cr.P.C.
For the offences of murder of Mukhtiaruddin deceased. However, the question of sentence is a bit complicated because the accused seems to be enraged by reason of the acute jealousy which he was having for not succeeding in getting the hands of this cousin Mst. Shaheen whereas the deceased succeeded in this regard, therefore, the mental state of the accused requires a: bit of sympathy keeping in view the human feelings, and nature and this is considered as mitigating circumstance favouring the accused. I, therefore, sentence him to life imprisonment instead of death sentence and also to pay a fine of Rs.10;000 or in default to undergo further R.I. For five years under section 302, P.P.C. He is in custody, and is sent to jail for undergoing his sentence. The case property be kept intact till the period of limitation for appeal/revision and in case if an appeal/revision is filed till its decision. The fine when recovered be paid to the legal heirs of the deceased. Furthermore, by reasons of the already reduced sentence he is not given the benefit of section 382-B, Cr.P.C."
3. Against the above judgment of the learned Additional Sessions Judge, Swabi, the convict filed Criminal Appeal No. 170 of 1986 in the Peshawar High Court, whereas the complainant filed Criminal Revision No.6 of 1987 for enhancement of sentence.
4. The above appeal as well as the Criminal Revision were dismissed by a Division Bench of the Peshawar High Court, through the judgment dated 29-5-1988. It may be observed that, while affirming the conviction and sentence of the appellant, the learned Judges of the Division Bench had not addressed themselves to the question, whether the appellant was entitled to the benefit of section 382-B, Cr.P.C. As regards the Criminal Revision, the following observations were made:-- "With regard to the sentence imposed upon the accused-respondent apparently the reasons given by the Additional Sessions Judge for awarding lesser penalty to the accused, are not sound but in the circumstances when it is not known when Mst. Shaheen was engaged with the deceased and what transpired just before the deceased was fired at by the accused at the relevant the and place. We are not inclined to interfere with the sentence awarded by the learned trial Judge.
Accordingly we would also dismiss the revision petition. "
5. It appears that the appellant filed aforesaid Criminal Miscellaneous Application No.771 of 1993 for claiming benefit under section 382-B, Cr.P.C. On the ground that the learned Judges of the Division Bench, while dismissing his Criminal Appeal, had not adverted to the question of grant of benefit of section 382-B, Cr.P.C. But the aforementioned criminal miscellaneous application was dismissed through the above judgment dated 17-10-1993 for the following reasons:-- "7. No doubt the word used in the language of section 382-B, Cr.P.C. Is 'shall', but it does not express the me&iing that the Court in each and every case shall give the benefit of this section. Rather the discretion is still left with the trial Court as well as the appellate Court to give or refuse the said benefit in circumstances of each case.
In view of the above clear proposition of law and the precedent cases, this petition being without substance is hereby dismissed. The petitioner should be informed accordingly."
6. After that the appellant filed Jail Petition No.106 of 1994, in which leave was granted by this Court to consider the question, whether the appellant It was rightly denied the benefit of section 382-B, Cr.P.C.
7. In support of the above appeal Mr. Muhammad Ibrahim Satti, learned ASC, has vehemently contended that after the amendment in section 382-B, Cr.P.C. By Ordinance No. LXXI of 1979 whereby the word "may" was substituted by the word "shall", it was mandatory on the part of the High Court to have adverted to the question, as to whether the appellant was rightly denied the benefit of section 382-B, Cr.P.C. By the learned Additional Sessions Judge. His further submission was that the ground on which the learned Additional Sessions Judge declined to extend the benefit of section 382-B, Cr.P.C. To the appellant is not sustainable. He has relied upon the case of Qadir and another v. The State (PLD 1991 SC 1065), the case of Muhammad Rafiq v. The State (1995 SCMR 1525) and the case of Zulfiqar Ali v. The State (PLD 1984 Lahore 461).
On the other hand, Mr. Khalid Khan, learned ASC appearing for the State, has urged that since the High Court had affirmed the judgment of the learned Additional Sessions Judge, it was not mandatory to have discussed the question of grant of benefit of section 382-B, Cr.P.C. To the appellant as it is to be presumed that the High Court must have taken into consideration the above provision of the Code of Criminal Procedure while affirming the sentence. He has further urged that the ground on which the learned Additional Sessions Judge declined to grant benefit of section 382-B, Cr.P.C. To the appellant is sustainable in law. To reinforce his above first submission he has relied upon the case of Haider Zaman and 2 others v. The State (1995 MLD 1218).
8. Before dilating upon the above contentions, it may be pertinent to quote section 382-B, Cr.P.C., which reads as under:-- "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 for such offence."
A perusal of the above section indicates that it imposes an obligation on the part of the Courts that while passing sentence for an offence, they should take into consideration the period, if any, during which the accused was detained in custody for such offence. '
9. It may be pertinent to observe that prior to the promulgation of Ordinance No. LXXI of 1979, the word "may" was used, which was substituted by the word "shall" by the aforesaid Ordinance. The above deliberate substitution of the word '"shall" in place of the word "may" by the law-makers indicates that they wanted to make the above provision mandatory as far as the question of consideration whether the under-trial detention period is to be adjusted against the sentence which the Court intends to impose for an offence, but the adjustment of the under trial detention period has not been made mandatory. In other words, the Court is bound to take into consideration the question, whether the benefit of section 382-B, Cr.P.C. Is to be granted or not but it is not mandatory to grant the same. In other words, the Court has discretion to decline the same.
However, the above discretion is not to be exercised arbitrarily or capriciously but should be exercised judiciously on sound judicial principles reviewable by the higher forum in appeal or revision, prompted with the desire to do complete justice between the parties keeping in view rule of consistency and reasonableness.
We may observe that in contrast to the above Pakistani provision in some foreign laws, it is mandatory to adjust the under trial detention period against the sentence for an offence awarded by a Court. In this behalf, reference may be made to section 67 of the English Criminal Justice Act, 1967 and section 428 of the Indian Code of Criminal Procedure, 1973, which read as under:-- Section 67 of the English Criminal Justice Act, 1967: "The length of any sentence of imprisonment imposed on an offender by a Court shall be treated as reduced by any period during which he was in custody by reason only of having been committed to custody by an order of a Court made in connection with any proceedings relating to that sentence or the offence for which it was passed or any proceedings from which those proceedings arose, but where the offender was previously subject to a probation order, an order for conditional discharge of a suspended sentence in respect of that offence, any such period falling before the order was made or suspended sentence passed shall be disregarded for the purposes of this section. "
Section 428 of the Indian Code of Criminal Procedure, 1973: Period of detention undergone by the accused to be set of against the sentence of imprisonment.- -Where an accused person has., on conviction, been sentenced to imprisonment for a term (not being imprisonment in default of fine), the period of detention, if any, undergone by him during the investigation, inquiry or trial of the same case and before the date of such conviction shall be set of against the term of imprisonment imposed on him on such conviction and the liability of such person to undergo imprisonment on such conviction shall be restricted to the remainder if any, of the term of imprisonment imposed on him."
10. A perusal of the above-quoted provision from the English statute indicates that its first portion provides that the length of any sentence of imprisonment imposed on an offender by a Court shall be treated as reduced by any period during which he was in custody by reason only of having been committed to custody by an order of a Court made in connection with any proceedings relating to that sentence or the offence for which it was passed or any proceedings from which those proceedings arose. The above-quoted provision of the Indian Code of Criminal Procedure also provides setting of under investigation, enquiry or trial period against the sentence awarded for the offence for which the accused was detained during investigation, enquiry or trial. There is no such parallel provision in the Code of Criminal Procedure in Pakistan. However, as observed here in above the discretion left with the Court in the above provision to adjust the under-trial period is to be exercised on sound judicial principles. The benefit of the same cannot be denied simpliciter on the ground that the Court has discretion in the matter. Some cogent reason which should have nexus with the award of sentence is to be recorded so that if an error is committed, the same may be corrected by the higher forum and secondly the accused should also feel that the Court had applied its mind while declining the benefit of the above provision.
11. Reverting to the present case, we may refer to some case-law on the subject:-
(i) Ali Sher v. The State and 3 others (PLD 1980 SC 317); in which this Court, while dismissing an appeal filed by the convict, observed that section 382-B, Cr.P.C. Is attracted to where a Court decides to pass a sentence of imprisonment on account of an offence and not when an Appellate Court is to affirm the same. However, this Court extended the benefit of section 382-B, Cr.P.C. In spite of the above view.
(ii) Zulfiqar Ali v. The State (PLD 1984 Lahore 461); This is a judgment of a Full Bench of the Lahore High Court, in which the above provision of section 382-B, Cr.P.C. Was considered from various angles and inter alia the following conclusions were recorded:--
(a) That the above provision was not applicable to the cases involving life imprisonment;
(b) that section 382-B, Cr.P.C. Casts duty on Court to take into consideration the period, if any, during which the accused was detained in custody for such an offence while passing order of sentence of imprisonment and omission to do so will amount to violation of a mandatory provision;
(c) That if the High Court has not taken into consideration the above provision while substituting sentence of death by imprisonment for life, the above error can be corrected upon filing of a miscellaneous application inter alia under section 561-A, Cr.P.C.
It may be pertinent to point out that in the above report the appellant was sentenced to death under section 302/34, P.P.C. But the above conviction was altered to that under section 304, Part 1/34, P.P.C. By the High Court and the appellant was awarded 10 years R.I. In other words, though the High Court acted as an Appellate Court, but it first the imposed the sentence of imprisonment in place of death.
(i.e) Qadir and another v. The State (PLD 1991 SC 1065); in which the question in issue before this Court was, whether section 382-B, Cr.P.C. Makes any distinction between imprisonment for life and shorter imprisonment period. It was held that the above provision makes no distinction, whether the sentence to be passed is for imprisonment for life or for shorter period. The benefit granted to an accused that the period during which he was detained in custody shall be taken into consideration, need not be whittled down. The above judgment of this Court overruled the view found favour with the Judges of the Full Bench of the Lahore High Court in the case of Zulfiqar Ali v. The State (supra), wherein it was held that the above provision was not applicable where the Court awarded imprisonment for life.
(iv) Muhammad Rafiq v. The State (1995 SCMR 1525); In the above case, this Court after referring the case-law, recorded the following conclusions:-- "14. From the guidance to be derived from these principles, the true approach to the exercise of the judicial discretion conferred upon the Court under section 382-B, Cr.P.C. Is that after the Court decides to pass a sentence of imprisonment on an accused, it shall, in the absence of special circumstances disentitling the accused to have his sentence of imprisonment reduced by the period spent in jail during the trial exercise its discretion in favour of the accused by ordering that, that period shall be counted towards his sentence of imprisonment or that the sentence of imprisonment shall be treated as reduced by that period. This may involve a balancing exercise between the public and private interest and also the consideration of such other factors as the conduct of the accused, his antecedents, nature of the offence etc. Indeed, the Court will use its good sense in determining the circumstances in which the discretion will not be exercised in favour of the accused. But as the discretion is a judicial discretion, the order of the Court must show that the pre-sentence period has been taken upto consideration and if the Court thinks that the sentence should not be reduced by the period spent in prison during the trial, the Court must give reasons for so thinking. That is necessary, among others, because (i) the Court's discretion is liable to be set right by the Court of appeal and (ii) if justice is to be seen to be done; the discretion which falls to be exercised by different Judges in different cases, must manifest a reasonable consistency as between one case and another. (MacShannon case-- (1978) 1 All ER 625, 631)." .
(v) Haider Zaman and 2 others v. The State (1995 MLD 1218); in which a Division Bench of the Peshawar High Court held that the Court, while passing a sentence of imprisonment, must be presumed to have taken into account the provision of section 382-B, Cr.P.C. In the above case, the trial Court awarded death sentence but the High Court substituted the above sentence with that of imprisonment for life without adverting to the above provision of section 382-B.
12. After having considered the above provision of section 382-B, Cr.P.C. And the case-law, we are inclined to hold as under:--
(i) That strictly speaking section 382-B, Cr.P.C. Is attracted to, when a Court decides to pass a sentence either in the trial or appellate or revisional proceedings against an accused for the offence charged with. In other words, if the sentence has already been passed by a trial Court and the matter is brought before an Appellate Court, strictly speaking, section 382-B, Cr.P.C. Is not applicable. However, there is no legal bar and that an Appellate Court is competent to grant the benefit of the above provision to a convict. Furthermore, a convict will be entitled to agitate before the Appellate Court the question, that the trial Court had failed to consider the above provisions while imposing the sentence on him or that he was wrongly denied the benefit of the same, in such a case, the Appellate Court would be bound to examine the above question and to rectify the error/mistake, if any, committed by the trial Court.
(ii) That if an Appellate Court substitutes death sentence to that of imprisonment for life or rigorous imprisonment for a certain period, it is obligatory on its part to take into consideration above section 382-B, Cr.P.C., for example, if a High Court in a murder appeal/reference alters conviction from section 302, P.P.C. To that under section 304. Part 1, P.P.C. And substitutes death sentence to that of rigorous imprisonment of 7 or 10 years, it is mandatory for it to advert to the question of extending the benefit of the above provision to the convict while imposing above sentence.
(i.e) That though under section 382-B, Cr.P.C. The Court has discretion not to grant the benefit of the same to a convict, but this discretion is to be exercised judiciously on sound judicial principles inter alia as explained hereinabove in para 9.
(iv) That since the provision of section 382-B, Cr.P.C. Is mandatory, in the I absence of express manifestation of the application of the mind by the Court that it has addressed itself to the above provision at the the of imposing sentence on the convict concerned, no presumption can be raised in favour of the Court of having adverted to the same.
13. Adverting to the case in hand, it may be observed that the learned Additional Sessions Judge declined to grant benefit of section 382-B, Cr.P.C. To the appellant on the ground that he had already awarded imprisonment for life instead of death sentence. It may be pointed out that the above reason had no nexus with the object imbedded in section 382-B, Cr.P.C. The object of the above provision seems to be to compensate a convict for the delay in the conclusion of his trial because of the various factors generally not attributable to him as a State is supposed to provide speedy justice. It may be stated that for the offence of murder falling under section 302, P.P.C. The law provides to sentences i.e. Death, which is the normal sentence, and imprisonment for life if there is any one or more judicially recognized mitigating circumstance/circumstances. The question, whether a particular mitigating circumstance has nexus with the object of section 382-B, Cr.P.C., will deepened on its nature. In the instant case, the learned Additional Sessions Judge found that the deceased got married to the girl in whom the appellant was interested as a mitigating circumstance not to impose death sentence. The above circumstance has no nexus with the object contained in section 382-B, Cr.P.C. However, if the learned Additional Sessions Judge would have awarded imprisonment for life instead of death sentence on the ground that the appellant had remained in custody for 8 or 9 years during the trial, the above reason would have direct nexus with the object of the above section 382-B, Cr.P.C., but the question as to whether the above reason would have constituted a mitigating circumstance is different issue, which needs not be dilated upon in this discourse.
We may further observe that when a Court denies the benefit of section 382-B, Cr.P.C. To a convict on the ground that he had purposely obstructed the trial resulting in the delay of the conclusion of the same, the above ground will have nexus with the object of the above provision.
14. In this view of the matter, the learned Additional Sessions Judge had not exercised the discretion under section 382-B, Cr. P.C. On a ground sustainable in law and the High Court was wrong in not entertaining the, appellant's aforesaid appeal. We would, therefore, allow the above appeal and would order that the appellant would be entitled to the adjustment of the under-trial detention period against the period of sentence awarded to the appellant.