' MUNAWAR AHMAD MIRZA, J.---Broad facts relating to controversy culminating in present appeal are; that appellant Javed Iqbal was challaned before Additional Sessions Judge, Rawalpindi, for committing murder of Muhammad Din resident of Kausar Colony, located within the area of Police Station Civil Lines, Rawalpindi. The trial Court on recording evidence found the appellant guilty for the offence under section 302, P.P.C. And sentenced him to undergo life imprisonment besides fine of Rs,2,000 or in default R.I. For one year, by means of judgment, dated 14th January, 1980. Criminal Appeal No,219 of 1980 filed by appellant before Lahore High Court challenging aforesaid conviction was dismissed on 18th September, 1990. Learned Judge in Chamber of Lahore High Court upheld the sentence for life imprisonment, whereas amount regarding fine was enhanced from Rs,2,000 to Rs,20,000 through said judgment, dated 18th September, 1990, Jail Criminal Petition for Leave to Appeal No,1 12 of 4990 was eventually dismissed by this Court on 7th January, 1991, holding that prosecution had fairly succeeded in proving charge of murder against the appellant on the basis of ocular account supported by medical evidence coupled with recovery of blood-stained crime weapon and the motive.
2. It is pertinent to mention that at no stage any of the Courts while awarding sentence or exercising appellate jurisdiction or when deciding petition for leave to appeal, have considered principle of law concerning grant or refusal of protection available under section 382-B, Cr.P.C.
3. Record reveals that appellant submitted an application through jail before Lahore High Court seeking benefit to section 382-B, Cr.P.C. Which was declined for want of jurisdiction vide order, dated 9th January, 1995, mainly on the ground that Criminal Petition for Leave to Appeal No,112 of 1990 had already been dismissed by the Supreme Court on 7th January, 1991. Thereafter, jail petition was submitted before this Court chzillenging above decision and praying for allowing benefit provided under section 382-B, Cr.P.C. Leave was granted to consider whether petitioner in the peculiar circumstances of present case was entitled to get benefit as contemplated in section 382-B, Cr.P.C.
4. Mr. M. Fayyaz Khawaja, Advocate Supreme Ccourt, for appellant strenuously urged that after amendment in section 382-B, Cr.P.C. By means of Ordinance LXXI of 1979 it became obligatory for the Courts to have adverted to question of allowing or refusal of benefit regarding period spent by the convict as undertrial prisoner. Learned Additional Advocate-General in view of several reported judgments of this Court frankly conceded that trial Court or Higher forums while awarding sentence or examining validity of conviction were bound to consider desirability whether or not convict was entitled to protection under section 382-B, Cr.P.C.
' In order to appreciate the crucial points and legal proposition confronting decision of present appeal, it would be necessary to examine following judgments which are relevant and directly applicable:-
(i) PLD 1992 SC 11 (Ramzan v. State): "Leave was, .Therefore, granted to consider the true interpretation of section 382-B, Cr.P.C. With a view to giving an authoritative pronouncement on the question whether persons convicted under section 302, P.P.C. And awarded sentence of imprisonment for life can be extended the benefit under section 382-B, Cr.P.C.?
' In the meanwhile, however, the same question came up for consideration before a Bench of this Court in the case of Qadir and another v. The State (Criminal Appeals Nos,.142 and 143 of 1987--PLD 1991 SC 1065); two of us were Members of that Bench (viz. Nasim Hasan Shah and Muhammad Afzal Lone, JJ.). In this case, it was held that the benefit was extendable under section 382-B, Cr.P.C. Even in cases of life imprisonment. While arriving at this conclusion, it was. Inter alia, observed: "Section 382-B, Cr.P.C. Provides as follows:-- ' '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.'
' It may be noted that the mandatory provision has been introduced because of the realization that an accused person is entitled to be put to trial or relased on bail. If he is not to be released on bail, he must be put to trial. If for any reason the State is unable to put him up for trial it is only fair that during the period he is detained to await his trial that period is taken into consideration in computing the sentence of imprisonment given to him. Another point to be noted is that the provision occurs in a criminal statute which requires strict construction as far as it imposes restrictions and punishments. Beneficial provisions need to be construed liberally. These are axiomatic principles.
' Keeping the aforesaid in view, since the 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 Court went on to observe further:- "Secondly. The distinction drawn between a sentence of imprisonment for life or imprisonment for a shorter period is rather specious. Imprisonment is imprisonment-whether for life or for a shorter period. This court has consistently been granting benefit of section 382-B, Cr.P.C. To a convict sentenced for imprisonment for life in its ordinary criminal jurisdiction."
' We are inclined to adhere to this exposition of the law and, accordingly, hold that the benefit under section 382-B, Cr.P.C. Can be extended to the appellants in this case."
(ii) 1995 SCM R 1525 (Muhammad Rafiq v. State): "II. The stage for the application of section 382-B of the code is 'when the Court decides to pass a sentence of imprisonment on an accused for an offence.... That is the stage when the Court asks the crucial question: what length of sentence shall be regarded as appropriate? When the Court has asked and answered that question, then "it shall take into consideration the period, if any, during. Which such accused was detained in custody for such offence'. What the section does, therefore, is to require the sentencing Court to take into consideration the pre-sentence period spent in jail. That the word 'shall" here was intended to make the provision mandatory in the sense that it imposes a duty to do what is prescribed admits of no doubt whatever. The matter relates to the liberty, of person. As was held in 'Qadir v. State' (PLD 1991 SC 1065) where the question was whether section 382-B applies to cases of life imprisonment, 'the provision occurs in a criminal statute which requires strict construction as far as it imposes restrictions and punishments.
Beneficial provisions need to be construed liberally'. In any event, the fact that when the section was first enacted the word used was may' and later it was substituted by the word 'shall' provides the clearest possible evidence that the intention was that the Court must take the pre-sentence period of detention in jail 'into consideration'. Section 382-B of the Code is, therefore, a statutory limitation upon the Court's discretion to determine the length of imprisonment. It must 'take into consideration the pre-sentence period spent in jail.
(iii) 1997 SCM R 55 (Mukhtiar-ud-Din v. State): "12. After having considered the above provision of section 382-B, Cr.P.C. And the case-law, we arc 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 proceeding 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 hereinvabove 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.
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 app'ellant 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 two sentences i.e, death, which, which is the normal sentence, and imprisonment for life if there is any one or more judicially recognized mitigating circusmtance/circumstances. The question, whether a particular mitigating circumstance has nexus with the object of section 382-B.
Cr.P.C., will depend 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 circumstances 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 reasons 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 a 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 undertrial detention period against the period of sentence awarded to the appellant."
(iv) PLD 1998 SC 152 (Ghulam Murtaza v. State): "From the guidance to be derived from these principles, the true approach to the exercise of the judicial discretion conferred updn the Court under section 382-B 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 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 judicial discretion, the order of the Court must show that the pre-sentence period has been taken into 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. (Mac Shannon case (1978) 1 All ER 625, 631).
' The benefit of section 382-B, Cr.P.C. Is also available to a person whose sentence of death under section 302, P.P.C. Has been subsequently altered to imprisonment for life as clearly borne out from the decision of this Court in the case of Ramzan and 3 others v. The State PLD 1992 SC 11. The scope of section 382-B, Cr.P.C. Was also examined at length by a Bench of this Court in the case of Mukhtiar-udDin v. The State 1997 SCM R 55 and after referring to the case-law, following conclusions were recorded."
5. Now considering the ratio decidendi of aforementioned reported-judgments, we are persuaded to observe that ordinarily while awarding sentence or examine its validity, the respective Courts must necessarily apply mind whether benefit of section 382-B, Cr.P.C. Should be allowed or declined to Convict. It, therefore, implies that failure or omission to invoke discretionary powers for considering desirability or otherwise, about extending benefit of section 382-B, Cr.P.C. Would contravene spirit of law and frustrate principles of justice. No doubt, the Court in appropriate cases while exercising discretion judiciously may refuse to grant protection concerning period spent by the convict as undcrtrial prisoner. Nevertheless, it would be most essential that the Court while examining the question with regard to allowing or refusing facility contemplated under section 382-B, Cr.P.C. Should consciously apply mind.
6. In the instant case manifestly the Courts while awarding sentence of imprisonment or upholding the same have not taken into consideration mandatory requirement of section 382-B, Cr.P.C.
However, looking to merits of the case there does not appear any exceptional circumstance or sufficient cause whereby benefit of section 382-B, Cr.P.C., could not be denied to appellant.
Therefore, keeping in view facts on record and dictum laid down in afore-quoted judgments we are inclined to observe that appellant is entitled to benefit of G section 382-B, Cr.P.C. The appeal is accordingly allowed.