1. ' MUHAMMAD MUJEEB ULLAH SIDDIQUI.---These three identical applications have been sent from jail with a prayer that the sentences awarded to them may be directed to run concurrently and benefit of section 382-B, Cr.P.C. May be extended to them.
2. ' Shorn of unnecessary details, the relevant facts, succinctly stated are that the three applicants Subhan Shah, Sultan Shah and Mohabat Shah all sons of Syed Juman Shah were convicted by Sessions Judge, Larkana in S.C. No,317 of 1987 for the offences punishable under section 302/34, P.P.C. And each of them were sentenced to death. They were further convicted under section 307/34, P.P.C. And were sentenced to undergo R.I for 5 years each.
3. ' The trial Court submitted a reference to this Court under section 374, Cr.P.C. For confirmation and the convicts also preferred jail appeal. The references for confirmation and jail appeals were heard together by a Division Bench of this Court on 23-5-2001. The convictions were upheld but death sentences were not confirmed. The death sentences were converted into life imprisonment. With the modification the appeals were dismissed. However, after modification of the sentences whereby death sentences were converted into life imprisonment, no order was made if the sentences were to run consecutively or concurrently. The mandatory order under section 382-B, Cr.P.C. Was also omitted.
4. ' In the above circumstances, the convicts have sent above applications from the jail.
5. ' Mr. Gul Hassan Solangi learned State Counsel contended that although the provisions contained in section 382-B, Cr.P.C. Are mandatory and the Honourable Judges of this Court sitting on the Bench converting the death sentence into life imprisonment ought to have extended the benefit of section 382-B, Cr.P.C. To the convicts but after the announcement of judgment and final disposal of death references and appeal, the relief can be allowed by the Honourable Supreme Court only and this Court has no jurisdiction. He therefore, submitted that the applications sent by the convicts from the fail are not maintainable. This Court cannot entertain the same and the applications are liable to be dismissed on the point of jurisdiction.
6. ' In support of his contention, he placed reliance on the judgment in the case of Ghulam Murtaza v.
7. The State PLD 1998 SC 152.
8. ' The view convassed by Mr. Solangi, appeared to us to be too marrow and technical. It did not appear to us to be in consonance with the principles of justice and after going through the cited judgment we formed opinion that, reliance placed on the cited judgment appeared to be misplaced, as no such dictum was laid down by the Honourable Supreme Court in the above case.
9. The Honourable Supreme Court had granted leave to appeal to consider whether benefit of section 382-B, Cr.P.C. Could be extended to the accused who was awarded the sentence of imprisonment for life by converting his sentence of death awarded by the trial Court. It was held by the Honourable Supreme Court that the provision contained in section 382-B, Cr.P.C. Was beneficial provision of law which was required to be construed liberally. It was further held that after Court decides to pass a sentence for 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 accused by ordering that such period shall be counted towards his sentence of life imprisonment or that his sentence of imprisonment shall be treated as reduced by that period. It was further held that benefit of section 382-B, Cr.P.C. Is available to an accused whose sentence of death under section 302; P.P.C. Has been subsequently altered to imprisonment for life. The Honourable Supreme Court further laid down the law that section 382-B, Cr.P.C. Is attracted when a Court decides to pass a sentence either in the trial or Appellate/Revisional jurisdiction proceeding against an accused for the offence charged with and that an Appellate Court is under an obligation to take into consideration the provisions of section 382-B, Cr.P.C. If it substitutes sentence of death to that of imprisonment for life or rigorous imprisonment for certain period. A salutary principle was further laid down that the provision of section 382-B, Cr.P.C. Being mandatory in the absence of express manifestation of application of mind of the Court about its having addressed itself to the said provision at the time of imposing sentence on the accused, no presumption can be raised in favour of the Court having adverted to the same. After laying down the above principle, the Honourable Supreme Court referred to the earlier judgment of Shariat Appellate Bench of the Honourable Supreme Court in the case of Liaqat Ali v. The State, PLD 1995 SC 485, wherein it was held that where the Courts below omitted to consider grant of concession of section 382-B, Cr.P.C. To the accused, the same benefit can be extended by the Honourable Supreme Court.
10. ' With these observations, the benefit of section 382-B, Gr.P.C. Was extended to the convicts. The Honourable Supreme Court has not adverted to the issue pertaining to jurisdiction of this Court for entertaining application submitted by a convict person from jail after announcement of judgment.
11. ' Mr. Gul Hassan Solangi learned State Counsel pointed out that while considering a similar application another Division Bench of this Court, comprising Faiz Muhammad Qureshi and Muhammad Moosa Leghari, JJ, have accepted his contention and have held that the omission on the part of this Court can be considered by the Honourable Supreme Court and the benefit under section 382-B, Cr.P.C. Can be extended by the Honourable Supreme Court only. It has been further observed in the order, dated 17-5-2001 in Criminal Miscellaneous Application No,15 of 2001 that after judgment was passed by this Court, the convict prisoner ought to prefer jail appeal or the learned counsel for the applicant had to approach the Honourable Supreme Court for this purpose which has not been done and therefore, on the basis of judgment of Honourable Supreme Court in the case of Ghulam Murtaza v. The State (supra). The application stands dismissed.
12. ' We requested the learned Additional A.-G. Mr. Muhammad Bachal Tunio and Mr. Mazhar Siddiqui a Senior Advocate present in Court to assist the Court, as prima facie the earlier view taken by our learned brothers Faiz Muhammad Qureshi and Muhammad Moosa Leghari JJ, in their order, dated 17-5-2001 appeared to be per-incurium.
13. ' The learned Additional. A.G. And Mr. Mazhar Ali Siddiqui provided valuable assistance to us and we will be failing in our duty if we do not express our gratitude to them.
14. ' As already shown above, the judgment Honourable Supreme Court in the case of Ghulam Murtaza v. The State is not an authority on the point of maintainability of criminal miscellaneous application seeking benefit of section 382-B, Cr.P.C. After the pronouncement of judgment and omission on the part of Court to address the issue pertaining to the extension of benefit under section 382-B, Cr.P.C.
15. But it is an authority on the point that if after conversion of death sentence to life imprisonment, the High Court or Supreme Court failed to advert to the provisions of section 382-B, Cr.P.C. It can be subsequently extended to the accused.
16. ' There is cateena of rulings directly on the point in issue and we will place reliance on the following judgments; ' Saleh v. Superintendent Central Prison Hyderabad (PLD 1982 Karachi 542) D.B.
17. ' Fazal-i-Haq v. The State (PLD 1982 Lahore 452) DB.
18. ' Ismail v. The State (NLR 1983 Criminal 610 Lahore) SB.
19. ' Akbar Khan v. The State (1991 PCr.LJ 845) SB.
20. ' Hakim Khan v. The State (1994 PCr.LJ 873 Lahore) DB.
21. ' Khalil Ahmed v. The State (1994 MLD 1739 Lahore) DB.
22. ' Sabir Khan v. The State (1994 PCr.LJ 438 FSC) DB.
23. ' Amir Bux v. The State (1995 MLD 610 Karachi) DB
(9) Muhammad Saleem v. The State (PLJ 1996 Cr.0 Lahore) 2087 SB).
(10) Jiwan Khan v. The State (1998 PCr.LJ 1797 Lahore).
(11) Muhammad Ahmed v. The State (PLJ 1998 Cr.0 (Lahore) 1741) DB
(12) Bashir v. The State (PLD 1991 SC 1145).
24. ' We would not like to cite the findings from all the above judgments for the sake of brevity and shall refer to the law as laid down in few judgments only. In the case of Saleh v. Superintendent Central Prison Hyderabad, it has been held by Mr. Justice Ajmal Mian (as he then was) as follows: "In our view this Court is competent under section 56 I -A, Cr. P.0 . To consider a miscellaneous application for determination, as to whether the convict was entitled to the benefit of section 382- B, Cr.P.C. The consideration of the above question does not involve any alteration/ modification of the sentence as referred to in section 369, Cr.P.C. It is a question of granting of adjustment/remission for the under trial period alongwith the other remissions which a convict is entitled to under the jail rules for the detention period. In this view of the matter section 369, Cr.P.C.
25. Is not attracted to."
26. ' In the case of Fazal-i-Haq v. The State, Abdul Shakoor-ul-Salam, J. (as his Lordship then was) speaking for the Division Bench cited with approval the finding of Allahabad High Court in the case of Sri Ram and another v. Emperor (AIR 1948 Allahabad 106) which was as follows: "The next question for consideration is whether we can interfere at this stage under section 561-A, Cr.P.C. The learned Government Advocate had drawn our attention to section 369 of the Code and has urged that this Court having disposed of the revision in the manner indicated by us above it has now no power to review nor can it in any way alter its judgment except to correct a clerical error. We are not prepared to accept his submission. Section 369 begins with the words "save as otherwise provided", and we consider that under section 561-A, Cr.P.C. Where this Court is satisfied that it is necessary, to secure the ends of justice, that it should interfere under its inherent powers it ought to do so."
27. ' The learned Division Bench of Lahore High Court on the basis of above finding entertained the miscellaneous application and extended the benefit of Section 382-B, Cr.P.C.
28. ' In the case of Amir Bux v. The State (1995 MLD 160), Mr. Wajihuddin Ahmed, J. (as he then was) speaking for the Division Bench held that, "where the error has crept in because of inadvertent omission, the powers of this Court, if the error occurred here can always be invoked under section 561-A of the Code because nothing in such Code is deemed to limit or effect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order passed under the Code of Criminal Procedure or to prevent abuse of process of law of any Court or otherwise to secure the ends of justice."
29. ' In fact the doubt if any in respect of the exercise of jurisdiction by this Court in entertaining miscellaneous application after announcement of judgment and for extending the benefit of section 382-B, Cr.P.C. To convicts, was laid to rest by larger Bench of Honourable Supreme Court in the case of Bashir v. The State, PLD 1991 SC 1145. Honourable Mr. Justice Rustam S. Sidwa held as follows: "Last but not least, the duty of the trial Court to finally address itself to the question whether the sentences. Awarded should run concurrently or consecutively, irrespective _ of the rule contained in section 35(1) of the Code, and whether the detention undergone by an accused during his trial should be treated as period spent by him as a convict, for the purposes of the benefit available under section 382-B of the. Code, are as much mandatory for determination as the question of punishment itself. Basically, they are matters ancillary to the question of punishment, but otherwise highly important. Where there is a failure on the part of the trial Court to determine these questions, difficulty would arise, because of section 369 of the Code. However, during appeal or revision before the High. Court, the High Court could itself, examine these questions, subject to limitations, if any, provided by law and principles laid down by this Court, and determine these matters. Again, where by inadvertence there is failure on the part of the High CoUrt to determine these questions, I cannot see any reason why resort cannot be had to section 561-A of the Code to cure the failure, in order to secure the ends of justice. Surely as attempt to cure inadvertent omissions in the nature of errors ancillary to punishment cannot be allowed to be frustrated by section 369 of the Code.
30. Section 369 falls under Chapter XXVI of Part VI of the Code, whereas sections 424 and 430 fall in Chapter XXXI of Part VII of the Code. Under section 424, the rules contained in Chapter XXVI as to the judgment of a Criminal Court of original jurisdiction mandatory apply, so far as may be applicable, to the judgment of any Appellate Court other than a High Court. Under section 430, judgments and orders passed by an Appellate Court upon appeal are treated as final, except in the cases provided for in section 417 and Chapter XXXII. Section 417 deals with appeals against acquittal and Chapter XXXII deals with references and revisions. In view of sections 424 and 430, the bar of section 369 only applies to judgments of the High Courts given in the exercise of their criminal original jurisdiction, but not if given in the exercise of their criminal appellate jurisdiction. In Gulzar Hasan Shah v. Ghulam Murtaza PLD 1970 SC 335 this Court, whilst dealing with the question whether an order of cancellation of bail of an accused could be recalled by the High Court, observed that in rare and exceptional cases the High Court has inherent power to revoke, review or alter its own earlier decisions in cases which are not governed by sections 369, 424 and 430 with a view to give effect to any order under" the Code or to prevent the abuse of the process of any Court or otherwise to secure the ends of justice." This view was expressed after the learned Judge expressed the rule that he was conscious of the fact that general principles of finality of judgment were attached to the decisions or orders of the High Court passed in criminal cases. This view was followed in Amiruddin v. State PLD 1977 SC 602, which also related to a bail matter, and by a Full Bench of the Lahore High Court in Zulfiqar Ail v. State PLD 1984 Lah. 461, which held that the High Court under section 561-A could grant relief under section 382-B of the Code in a case decided by itself where inadvertently it had omitted to give relief under the latter section. Section 561-A recognizes the inherent powers possessed by a High Court to secure the ends of justice and as a Court of law and justice the High Court has inherent jurisdiction over its own record and, to quote Muhammad Munir C.J. From Crown v. Habibullah PLD 1952 Lah. 587 at p.600" if any order to supply the omission of the statutory direction is necessary, I have no doubt we have jurisdiction to make such order even though we might have become functus officio after signing our judgment and therefore incompetent to alter or review it." The power of the High Court to supply the inadvertent omission cannot therefore be denied to the High Court. Finally, where by inadvertence there is failure on the part of the Supreme Court to determine these questions, its own inherent powers under Order XXXII, Rule 6 of its own rules could be availed to secure the ends of justice."
31. ' After the authorities pronouncement as above, no further discussion is required and we are convinced without any scintilla of doubt in our mind that this Court has the jurisdiction to entertain the applications under consideration and the judgment of our learned A brothers Faiz Muhammad Qureshi and Muhammad Moosa Leghari JJ., dated 17-5-2001 in Criminal Miscallaneous Application No,15 of 2001 does not contain the correct view. It appears that our learned brothers were not properly assisted and none of the judgments referred by us were brought to their notice. The ratio of Supreme Court judgment in Ghulam Murtaza v. The State was incorrectly convassed by Mr. Gul Hassan Solangi State counsel and was accepted by our learned brothers because of lack of assistance. Large number of Division Bench judgments of this Court and Lahore High Court and of course above all by the Honourable Supreme Court in the case of Bashir v. The State were not cited before our learned brothers, with the result that their judgement is perincurium and has no biding effect.
32. ' After holding that the criminal misc. Applications are maintainable and this Court can invoke its inherent jurisdiction under section 561-A, Cr.P.C. In order to secure the ends of justice, we will consider whether it is a fit case for extending the concession of section 382-B, Cr.P.C. To the three applicants/convicts. In the case of Sabir Khan v. The State (supra) a D.B. Of Federal Shariat Court extended the benefit of section 382-B, Cr.P.C. In similar circumstances for the reason that the petitioner was only earning member of the family.
33. ' In the present case we find that while converting death sentence, to life imprisonment by D.B of this Court, the main consideration was as follows: "However, we find the mitigating circumstances in the case in view of the fact that all the appellants are real brothers and the fourth one brother has already expired and there is no other male member in their family. We have reached to the irresistible conclusion that there are mitigating circumstances and accordingly we convert the death sentence awarded to the appellants into life imprisonment."
34. ' For the same reason, which prevailed with our learned brothers for converting the death sentence into life imprisonment, we hereby direct that the benefit of section 382-B, Cr.P.C. Be extended to all the three appellants/convicts and the sentences awarded to them shall run concurrently.
35. ' Consequent to the above findings, all the three criminal miscellaneous applications are allowed as above. After hearing the applications on 5-7-2001, they were allowed by short order. These are the detailed reasons in support of the short order announced in Court.
36. ' Before parting with this order, we would like to make a clarification. During the course of arguments before us, a book, "The Major Acts" complied by Mr. M. Mahmood Advocate and published by Pakistan Law Times Publications, Kabir Street, Urdu Bazar Lahore, 1999 edition was produced in which section 382-B, Cr.P.C. Was stated to be substituted in the year 1996 and reads as follows: . "382B. Reduction of period of sentence of imprisonment. The length of any sentence of imprisonment imposed upon an accused person in respect of any offence shall be treated as reduced by any period during which he was detained in custody for such offence."
37. ' However, on further probe and research and verification from Ministry of Law Islamabad, it transpired that section 382-B, Cr.P.C. Has not been amended/substituted, alter the year 1979. In the year 1996 a bill was initiated in Senate, being Senate Bill No,XI of 1996. However, this bill never got through and was never enacted as an Act of Majlis-e-Shura (Parliament). It appears that learned compiler Mr. M. Mahmood Advocate in his over enthusiasm to bring his book upto date, became over smart and substituted section 382-B on the basis of a bill initiated in the Senate without realizing that it was never enacted as Act. The compliers, printers and publishers of the law books are expected to be more careful and cautious as the mistake on their part in printing law books is likely to mislead the advocates and the Courts which may further lead to very serious consequences. The Additional Registrar of this Court at Larkana should intimate our displeasure to the publisher.