' AJMAL MIAN, C.J.---This is a criminal appeal against the judgment dated 4-11-1992 of a Division Bench of the Lahore High Court passed in Criminal Appeal No, 176 of 1988 filed by the appellants and Murder Reference No,76-A/88 submitted by the learned Additional Sessions Judge at Dera Ghazi Khan for confirmation of the death sentence recorded by him for the murder of one Mir Muhammad. It seems that while the above criminal appeal and murder reference were pending in the High Court, by virtue of general aminesty granted on 7-12-1988 by the Federal Government, the death sentence awarded inter alia to the present two appellants was commuted to imprisonment of life. The High Court maintained the conviction and also referred to the factum of commutation of the death sentence to imprisonment for life and affirmed the same. The appellants have sent an application through the Deputy Superintendent Jail praying therein that they would not like to press the appeal provided they are granted benefit of section 382-B, Cr.P.C. Mr. Ibrahim Satti Advocate Supreme Court also prays for the above relief. He also submits that he would not press the above appeal if the above benefit is granted. In support of the above prayer he has relief upon the case of Abdul Malik v. The State (1991 SCM R 270) and the case of Mukhtiar-ud-Din v. The State (1997 SCM R 55). It has been contended that since the appeal is pending before this Court, the question as to whether imprisonment for life is to be maintained or not is in issue before this Court and this issue also involves determination as to whether benefit of section 382-B, Cr.P.C. Should be granted to the appellants. It may be pertinent to observe that in the case of Mukhtiar-ud-Din (supra), this Court has inter alia laid down the following principles:-- "(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 I, 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.
(iii) 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 absence of express manifestation of the application of the mind by the Court that it has addressed itself to the above provision at the time of imposing sentence on the convict concerned, no presumption can be raised in favour of the Court of having adverted to the same."
2. On the other hand, Mr. Sh. Altaf Ilahi, learned Additional Advocate-General has relief upon the case of Noor Muhammad alias Noora v. The State (1995 SCM R 671) and the case of Muhammad Ahmad and another v. The State and others (1997 SCM R 89). In both the above cases it has been held that if the death sentence is commuted to imprisonment for life by an administrative order and the Court maintains that sentence while not interfering with the conviction, section 382-B, Cr.P.C., is not applicable.
3. At this stage, Mr. Satti has invited our attention to the case of Abdul Malik v. The State (supra) in which a Bench comprising Shafiur Rahman and Rustam S. Sidhwa, JJ., while declining leave to appeal granted benefit of section 382-B, Cr.P.C., though the death sentence was commuted to imprisonment for life by virtue of Presidential Order of December 1988. He has further pointed out that the High Courts of Lahore and Sindh, on miscellaneous applications after the disposal of the cases in the case of Hakim Khan v. The State (1994 PCr.LJ 873), Muhammad Hussain and others v.
The State (1995 PCr.LJ 37), Amir Bux v. The State (1995 M LD 610) and Mst. Razia Bibi v. Muhammad Arshad and others (1994 M LD 1) have granted the benefit of section 382-B, Cr.P.C., upon an application under section 561-A, Cr.P.C., through the death sentences were commuted on the basis of the Presidential Order. However, it seems that there are two judgments of Full Benches of this Court, namely, in the case of Bashir and 3 others v. The State (PLD 1991 SC 1145) and the case of Mushtaq Hussain v. The State (1993 SCM R 319) wherein it has been held that the benefit of section 382-B, Cr.P.C., cannot be granted outside the judgment and independently in disposed of matters.
The above benefit can be invoked at the time of considering the question of sentence. It seems that the case of Abdul Malik v. The State (supra) was not brought to the notice of the Hon'ble Benchs, which handed down the judgments in the case of Noor Muhammad alias Noora v. The State (supra) and Muhammad Ahmad and another v. The State and others (supra). In our view, when a High Court or this Court dismisses an appeal of a convict, whose sentence of death has been commuted by a Presidential Order or the Federal Government Order, it, in fact and law, affirms the conviction and sentence. There appears to be no justifiable reason to deny the benefit of above section 382-B, Cr.P.C. Which is a beneficiary provision and, therefore, the same should be given liberal interpretation. In the case of Bashir Ahmad v. The State (supra), this Court inter alia has held that since section 382-B, Cr.P.C., is a beneficiary provision, it should be given liberal interpretation. The above view, which we are inclined to take, stands reinforced, if we were to apply another well-settled principle of interpretation of statues, namely, if two interpretations of a provision of a criminal statute are susceptible, the interpretation which is favourable to an accused/convict, should be preferred.
4. Since in the present case, the appeal is pending before us and the question of sentence is in issue besides the questions on merits, we are inclined to hold that the Court can grant benefit under section 382-B, Cr.P.C., even in cases in which the death sentence has been commuted on the basis of Presidential I C Order to imprisonment for life as the questions as to whether the conviction and the said sentence are to be confirmed or not are in issue before this Court. We would, therefore, dismiss the above appeal, but would order that the appellants be granted benefit of section 382-B, Cr.P.C.