1. ' AMIR-UL-MULK MENGAL, C.J.--- This Habeas Corpus petition has been filed under section 491, Cr.P.C. By Mahr Ali who was involved in a case of killing 5 persons as well as in a case under section 13(e) of Arms Ordinance. There was also a case registered under section 307, P.P.C. Against him.
2. The Special Judge Suppression of Terrorist Activities, Quetta sentenced him as under:--
(i) under section 13(e), Arms Ordinance 1965: 6 years' R.I. With fine of Rs,20,000, on default in payment of fine six months S.I. With benefit under section 382-B, Cr.P.C. Decided on 30-8-1992.
(ii) under section 311 read with 338-E, Q&D/P.P.C: 10 years' R.I. As .Tazir. 'His previous conviction was also indirectly connected with this case', decided on 8-7-1993.
(iii) under section 307, P.P.C. 7 years' R.I. With a fine of Rs,5,000 on default in payment of fine 6 months' S.I. 'The sentence to this accused would run concurrently with benefit as provided under section 382-B, Cr.P.C.
2. ' However, in revision petition the case was remanded and his sentence under section 311 read with section 338-E, Q&D/P.P.C. Was set aside by Special Judge Suppression of Terrorist Activities, Sibi.
3. ' It is case of petitioner that after setting aside conviction and sentence under section 311 read with section 338-E the remaining sentences were concurrent and benefit of section 382-B, Cr.P.C. Was allowed in both the cases.
4. ' However, the Superintendent Central Jail, Machh did not accept the version of the petitioner and submitted that he can be given benefit of section 382-B, Cr.P.C. In one case when the sentences are concurrent.
5. ' The petitioner has now filed this petition that he has already undergone his sentence and he is in illegal detention.
6. ' Notice was issued to Superintendent Central Jail, Machh as well as learned Advocate-General. In pursuance of the notice Mr. Abdul Samad Niazi, Superintendent Central Jail, Machh appeared and brought history ticket of accused. He submitted that benefit of section 382-B, Cr.P.C. Can be given in respect.Of only one case as provided under Rule 34 of the Jail Manual. The same has already been given to accused.
7. ' However, Superintendent Central Jail taking benefit of the proposition in issue proposed that in many cases when petitioners approach this Court the benefit is generally granted under section 382-B, Cr.P.C. Whereas a large number of prisoners are unconscious of the procedure, therefore, instead of directly approaching this Court they raise hue and cry on every Gusht. Superintendent Central Jail, Machh further submitted that he is facing acute problem in Central Jail, Machh and matter can be resolved if this Court would issue a general direction of giving benefit of section 382- B, Cr.P.C. To all the prisoners who have been convicted. The Superintendent was asked to move a proper application which he did on 7-8-1997.
8. ' The matter then remained pending only to consider whether such an omnibus order can be passed. This required a thorough perusal of authorities on the point. We have perused the case of Ghulam Haider v. The State reported in 1991 PCr.LJ 471. In this case is has been observed that period during which accused had remained in custody as under-trial prisoner was not considered fit to be deducted from sentences awarded to him and the same were ordered to run full course. A further observation was made as under: "Merely by remaining in custody from a certain date an accused does not qualify for entitlement to the benefit of section 382-B, Cr.P.C. Section 382-B, Cr.P.C. Merely enjoins upon a Court, while passing a sentence of imprisonment to take into consideration the period during which the accused was detained in custody as an undertrial prisoner. The clause ' it shall take into consideration does not mean that the Court has no choice and its hands are fettered and it must of necessity reduce the substantive sentence by the period an accused has remained in custody as an undertrial prisoner. The clause just means, as is clear from its phraseology, that the Court should not ignore while awarding the sentence, the period of detention of the accused as an under trial prisoner and should determine the length of imprisonment accordingly. When a Court awards a sentence, it must be presumed that it has done so after taking into account the provisions of section 382-B, Cr.P.C. And therefore, no further benefit is thereafter left to be computed and bestowed upon the accused."
9. ' A similar view has been taken by Lahore High Court in case reported in 1991 PCr.0 1030. It was observed therein that accused had no justification to pick up quarrel with his brother-in-law (deceased) for demanding future share of his wife in the inheritance of hef father who was still alive, and thus accused was not entitled to the benefit of section 382-B, Cr.P.C. Another case on the point was of Abdul Walid v. The State 1991 SCM R 270 in which benefit of section 382-B, Cr.P.C. Was extended to the accused. In 1993 SCMR 224 while dilating upon application of section 382-B, Cr.P.C.
10. In cases of offences against property an observation was made that the principles of section 382- B, Cr.P.C. Could be applied in such cases unless prohibited by any law or any principle having the force of law.
11. ' Yet another important question as regards application of section 382-B, Cr.P.C. Came before Lahore High Court in the case of Razia Bibi v. Muhammad Arshad 1994 M LD 1 and it was concluded that High Court under section 561-A, Cr.P.C. Is competent to consider the entitlement of an accused to the benefit of section 382-B, Cr.P.C. At any stage even after the decision of the case and can extend such benefit to him if earlier omitted from consideration. It was further observed that Jail Authorities, cannot, however, give effect to section 382-B, Cr.P.C. For the benefit of an accused who was not allowed the same by the Court. This view was further confirmed by Lahore High Court in case of Khalid Ahmed v. The State 1994 M LD 1739.
12. ' The interpretation of section 382-B, Cr.P.C., its object and history came for consideration before Supreme Court in case of Muhammad Rafiq v. The State 1995 SCM R 1523. Perusal of the said case shows that the Honourable Supreme Court has dealt with in detail as regards the object of section 382-B, Cr.P.C. And outlined the history of the same with corresponding sections of Indian Code of Criminal Procedure and Criminal Justice Act, 1967. It was observed that section 67 of Criminal Justice Act, 1967 and section 428 of the Indian Code of Criminal Procedure are pari materia and the object being recognition by the law makers of a more rational treatment of the presentence period in jail. However, while concluding the Honourable Supreme Court desired that section 382-B of the Code were also couched in language as clear and unambiguous as the sections in the Indian and the English enactments. Were, but unfortunately it does not. However, provisions of section 382-B, Cr.P.C. Being a statutory limitations upon the Court's discretion to determine the length of imprisonment, Court must take into consideration the pre-sentence period spent in jail.
13. ' With this background and the illuminating judgments on the point wel 897 (Raja Muhammad Khurshid, J) have no hesitation to conclude that the Courts in our country are competent to extend benefit of section 382-B, Cr.P.C. In appropriate cases after considering the entire circumstances of particular case. The authorities as mentioned hereinabove would show that in some of the cases this benefit has been declined whereas in the others same has been extended to accused persons.
14. ' Thus, no omnibus order can be passed in this regard. However, every application moved by any convict can be considered on its own merits and keeping in view the circumstances of the case.
15. Such applications could be filed through Superintendent Central Jail in the High Court for consideration.
16. ' As far as present accused is concerned, we are not inclined to extend this benefit for the simple reason that circumstances of the case are such that discretion cannot be extended to him for the reason that he has killed as many as 5 persons of his family only to grab their property. The deceased included the womenfolk who after getting high education were posted on very high posts. The petition is disposed of accordingly.
17. Note. A copy of this judgment be sent to Inspector-General, Prisons, Balochistan for onward transmission of the same to Superintendents Central/District Jails for information.