MUHAMMAD YUNUS SURAKHVI, C.T.--The above titled both the appeals have been directed against the consolidated judgment passed by the Shariat Court on 20-12-2001 announced on 28- 12-2001, whereby the appeal filed by convict-appellant, Jahangir, was dismissed and the appeal filed by Mst. Sianuff Begum, widow of deceased, and complainant was dismissed to the extent of respondents Nos.2 to 8, whereas the same was accepted to the extent that the sentence of life imprisonment awarded by the trial Court to Jahangir was converted into 25 years' rigorous imprisonment.
2. The necessary facts, giving rise to the present appeals, are that a case for allegedly committing the offences under section 5 of the Islamic Penal Laws Enforcement Act, 1974 read with sections 147, 148, 149 and 109, A.P.C. Was registered against the convict-appellant, Jahangir and others at Police Station Kotli on the written application of the complainant, Abdul Khaliq.
3. It is stated in the application that on 8-7-1993 at about 5 p.m. Abdul Rehman's, the brother of complainant, came back to his house. The complainant told him that Jahangir, Alamgir, Muhammad Saleem and Mst. Maqbool Jan opened fire towards his house during early hours of the day. They also abused and threatened him to murder. When Abdul Rehman's became aware of the incident, he for the purpose of lodging report went towards Sarsawa Police Post. The complainant reminded his brother, Abdul Rehman's, that it was apprehended that the accused party might kill him, therefore, he should change the normal route of going towards the Police Post. The complainant followed his brother. When Abdul Rehman's reached a place known as Mehra at about 5-30 p.m., the accused party raised a 'Lalkara'. Abdul Rehman's on hearing 'Lalkara' turned and saw Jahangir anti Alamgir armed with .12 bore guns, Jahangir, accused, fired at Abdul Rehman's with his .12 bore gun. The fire hit the forehead and face of Abdul Rehman's in consequence of which he fell down and succumbed to the injuries. Alamgir, accused, also opened fire during the occurrence, whereas Muhammad Saleem, accused, pelted stones on the deceased.
Mst. Qureshi Begum, Mst. Maqbool Jan, Muhammad Riaz and others had been raising 'Lalkaras'. On hue and cry of the complainant, Wazir son of Diwan Ali and Khurshid son of Kareem Khan were attracted to the place of occurrence. They witnessed the occurrence The accused ran away from the place of occurrence after the commission of offence. It is further alleged that Muhammad Sarwar alias Kala son of Karamdad and Farman Ali son of Akka Khan, resident of Aryam, instigated and supported Mst. Qureshi Begum for the commission of offence. The motive behind the occurrence is stated to be a dispute of land between the parties.
4. On this report lodged at Police Post Sarsawa a case was registered against the accused persons vide F.I.R. No.105 of 1993 for the commission of offences under section 5 of the Islamic Penal Laws Enforcement Act read with sections 147, 148, 149 and 109, A.P.C. After the registration of case, the police started the investigation. The Investigating Officer came at the place of occurrence and prepared the injury report Exh.'PN' regarding the deceased. The dead body was taken to hospital for autopsy through the inquest report Exh.P.O. The blood-stained clay was taken into possession vide the seizure memo. Exh.P.G. And crime empty of .12 bore gun was also seized from the place of occurrence vide seizure memo. Exh.P.H. During the investigation the blood-stained clothes of deceased were seized through seizure memo. Exh. P.E. The weapon of offence, .12 bore gun, was also recovered at the instance of convict-appellant through seizure memo. Exh. 'PC' on 18-4-1993.
After the completion of investi--gation the police extended the benefit of section 169, Cr.P.C. To Muhammad Sarwar and Farman Ali, accused. The challan was submitted before the trial Court on 15-8-1993.
5. Feeling dissatisfied with the police investigation, the complainant, Abdul Khaliq, filed a private complaint before the trial Court for the offences under section 5 of the Islamic Penal Laws Enforcement Act read with sections 147, 148, 149 and 109, A.P.C. Against all the accused persons named in the F.I.R. The charge was framed on 30-1-1993. All the accused persons pleaded not guilty and expressed their ignorance about the occurrence. Upon this, the Court ordered the prosecution to produce evidence in support of its case.
6. The prosecution in support of its case examined as many as 17 witnesses. Alongwith Abdul Khaliq, Wazir Muhammad and Khurshid are the eye-witnesses. The prosecution story, as stated by the prosecution witnesses, is that Mst. Qureshi Begum was married to Naik Muhammad, father of deceased. After his death she contracted a second marriage in 1979. She gave birth to a male child, namely Shaukat Ali in 1984. At the time of admitting the said child in the school, she got entered the name of Naik Alam as father of the child in the school register. It is alleged that Mst.
Qureshi Begum did so to get share from the property of Naik Alam. The civil suits between the parties were also pending before the Civil Court of competent jurisdiction. According to prosecution version the deceased wrote certain letters and moved certain applications to Inspector-General of Police and other authorities to proceed against Mst. Qureshi Begum by accusing her of bad character. The prosecution version is that on account of above enmity on 8-7- 1993 Mst. Qureshi Begum, Farman Ali and Alamgir met in the Hotel of Ashraf Pathan, which is situated in Sarsawa Bazar. They hatched up a conspiracy over there to kill Abdul Rehman's. On the same day, the accused party fired at the house of Abdul Rehman's. After knowing about the firing, when Abdul Rehman's was going towards the Police Post Sarsawa to lodge a report against the accused party, he was done to death. The trial Court after applying its mind on all the aspects of .The case arrived at the conclusion that the prosecution has succeeded in proving its case against Jahangir beyond any reasonable doubt. Consequently he was convicted and was sentenced to suffer life imprisonment. Farman Ali and Muhammad Sarwar were acquitted for want of proof whereas Alamgir, Muhammad Saleem, Muhammad Riaz, Qureshi Begum and Mst. Maqbool Jan were given the benefit of doubt and were acquitted vide judgment of the trial Court dated 30-3- 1998.
7. The above judgment of the trial Court was assailed by Mst. Sianuff Begum and another as well as by Jahangir, convict --appellant, before the Shariat Court. The convict-appellant, Jahangir, also challenged the order of his conviction recorded by the trial Court through Appeal No. 18 of 1998, whereas Appeal No. 19 of 1998 was filed by Mst. Sianuff Begum and another to enhance the sentence awarded by the trial Court to convict-appellant, Jahangir and to convict the other accused respondents under law.
8. The Shariat Court vide its impugned judgment passed on 20-12-1998 dismissed the appeal filed by convict-appellant, Jahangir; however, the appeal tiled by Mst. Sianuff Begum and another was dismissed to the extent of respondents Nos.2 to 8, whereas the same was accepted to the extent that the sentence of life imprisonment awarded by the trial Court to Muhammad Jahangir was converted into 25 years' rigorous imprisonment as 'Tazeer' under section 3 read with section 24 of the Islamic Pena. Laws Enforcement Act, 1974.
9. In the first instance while dealing with the appeal of convict-appellant, Jahangir, Mr. Liaqat Ali Khan, the learned counsel for the appellant, contended that a false case has been registered against the convict-appellant and he has wrongly been convicted by both the Courts below.
10. Ch. Muhammad Riaz Alam, the learned counsel for respondents Nos.2 and 3, raised a preliminary objection that the appeal filed by convict-appellant, Jahangir, is barred by limitation of 12 days. The learned counsel submitted that the judgment was announced on 28-12-2001, whereas the appeal was filed on 11-3-2002. The total period consumed by the appellant is 73 days out of which one day was spent in obtaining the copy of the judgment and if the same is excluded from the total period the appeal is barred by limitation of 12 days for which no sufficient explanation been furnished by the convict-appellant.
11. Mr. Liaqat Ali Khan, the learned counsel for the convict-appellant, contended that the impugned judgment was announced on 28-12-2001 and the appellant was informed through Superintendent Jail, District Kotli. The appellant applied in the Shariat Court Mirpur Circuit for the supply of attested copy of judgment on 8-1-2002 through his real mother which was provided on the same day. The copy of judgment was misplaced by appellant's mother during transit from Mirpur to Kotli. Then the appellant again applied for attested copy of the impugned judgment to the Copying Officer, Kotli Circuit, through his real mother on 9-2-2002 as it was expected that the record of the Shariat Court would been sent to Camp Kotli from Mirpur Circuit. The appellant was given the date 2-3-2002 for obtaining the attested copy of the impugned judgment. On 2-3-2002 wnen the appellant's mother approached the Copying Officer, Camp Kotli, for the supply of the attested copy of impugned judgment, then it was disclosed that the record of the Shariat Court has not so far been received from Mirpur. It was alleged that the mother of appellant remained ill and no other male member of the family of convict-appellant was available to lodge the appeal. However, the appellant's mother approached the Shariat Court Camp Mirpur on 9-3-2002 for obtaining the attested copy of impugned judgment and it was disclosed by the Copying Officer of the Shariat Court that the record has been transmitted to the Supreme Court. She then applied to Supreme Court for supply of attested copies of the impugned judgment and other necessary documents and after obtaining the same the appeal was filed. Therefore, according to the learned counsel for the convict- appellant, the appeal is within time provided the period from 9-2-2002 to 4-3-2002 is excluded from the total period provided for the appeal.
12. In our view the explanation furnished by the convict-appellant, Jahangir, appears to be improbable and not satisfactory. The claim of the appellant that her mother applied .For getting the copy of impugned judgment at Kotli seems to be baseless and without any foundation. There seems to be no reason to apply for supplying of the copy of impugned judgment at Kotli. The file of the case was at Mirpur, the case was heard at Mirpur and the impugned judgment was also passed at Mirpur. There is an application moved by Mst. Qureshi Begum, the mother of convict- appellant Jahangir, on 27-2-2002 at Kotli for obtaining the copy of impugned judgment wherein the Copying Officer ordered that the copy may be provided to, Mst. Qureshi Begum. Thereafter it does not appear as to whether on this application the copy of the impugned judgment was obtained or not and what happened with the said application.
13. Mr. Liaqat Ali Khan, the learned counsel for the convict-appellant, Jahangir, in the alternative contended that if the appeal filed by Jahangir is held to be barred by limitation, even then at the time of awarding the sentence, the matter can be looked into by this Court in the other appeal filed by Mst. Sianuff Begum and another for enhancement of sentence to convict-appellant, Jahangir, and also for the conviction of rest of the respondents. The learned counsel contended that the trial Court as well as the Shariat Court have failed to appreciate the evidence in a judicial manner. The eye-witnesses are related to deceased and they are inimical to the accused party. Tile prosecution evidence was not believed to the extent of seven accused persons and the same has been believed in respect of convict-appellant without any legal justification. The learned counsel also pressed into service the submission that the place of occurrence remains unidentified and it has been substituted. He referred to the statements of Muhammad Irshad and Wazir Muhammad who stated that a water point passes near .The place of occurrence, whereas the same has not been shown in the site plan which shows that the actual place of occurrence has been suppressed by the prosecution. Another point raised by the learned counsel for the convict --appellant is that the weapon of offence was not seized at the instance of convict-appellant, it is not mentioned in the seizure memo. Exh.'P.C.' that the convict-appellant pointed towards the place from where the said weapon was recovered. The learned counsel emphasised that the prosecution evidence is full of contradictions and discrepancies and the trial Court was not justified in convicting the appellant by relying on it. He finally submitted that by accepting the appeal, the convict-appellant be acquitted. In the alternative the learned counsel contended that there had been a vicious propaganda as well as a pre-planned conspiracy hatched against the mother of convict- appellant, Mst. Qureshi Begum, by Abdul Rehman's, deceased. Abdul Rehman's had been writing letters to higher authorities as well as moving applications to police that Mst. Qureshi Begum was a woman of easy virtue. He had also been blaming the sister of the convict-- appellant to be of loose character. This fact might have prompted the convict-appellant who is a young man of 24 years, to take revenge from Abdul Rehman's by taking away his life.
14. Ch. Muhammad Riaz Alam, the learned counsel for Mst. Sianuff Begum and complainant, sated that the prosecution has succeeded in proving its case against the convict-appellant and other accused persons beyond any reasonable doubt. The eye--witnesses in the case are independent and their statements are confidence-inspiring and there is nothing on the record to prove enmity between the prosecution witnesses and the accused persons so that it could be said that the prosecution witnesses have any reason to falsely implicate the accused persons in the case.
According to the learned counsel it is a settled principle that mere relationship is not sufficient to discard the evidence. The learned counsel submitted that the place of occurrence has been duly described in the promptly lodged F.I.R. The eye-witnesses and the Investigating Officer have given a detailed description of the place of occurrence. The officer, who prepared the site plan, appeared before the Court as a witness and established the prosecution version. All the above mentioned witnesses were subjected to cross-- examination but the defence failed to obtain anything favourable to the accused in their support regarding the substitution of the place of occurrence and the place of occurrence stands established in the light of prosecution evidence. The learned counsel further submitted that the weapon of offence was recovered at the instance of convict- appellant and the learned counsel for the defence while cross-examining the witnesses of seizure memo. Exh.'P.C.' admitted the fact by putting questions in a manner that the weapon of offence was recovered at the instance of convict-appellant. The attestees of seizure memo Exh.'P.C.' appeared before the Court and succeeded in establishing that the weapon of offence was seized at the instance of convict-appellant, besides their statements, the statement of Investigating Officer also lends support to the prosecution version. The learned counsel vehemently argued that the statements of eye-witnesses were not disbelieved to the extent of respondents Nos. 2 to 8. The trial Court has extended the benefit of doubt to the acquitted respondents Nos.2 to 8 on the ground that the allegation against them gets no support from any independent source but, according to the learned counsel, the observation of the trial Court in respect of acquitted respondents is not correct. According to the learned counsel the acquitted respondents were present at the place of occurrence at the relevant time, they participated in the occurrence and shared the intention with the principal accused, therefore, the trial Court was not justified in acquitting them. The trial Court after arriving at the conclusion that the prosecution has proved its case against the convict- appellant, was not justified to award lesser punishment. The learned counsel finally submitted that respondent No. 1, Jahangir, may be convicted under section 5 of the Islamic Penal Laws Enforcement Act and penalty of death may be imposed upon him and respondents Nos.2 to 8 may also be convicted under law.
15. We have given our due consideration to the arguments advanced by the learned counsel for the parties and perused the relevant record with utmost care. The contention raised by the learned counsel for the convict-appellant that the prosecution witnesses are related to deceased and were inimical to him and to other accused-- respondents merits no consideration. There is nothing on the record to show enmity between the eye-witnesses and the accused. If we assume for the sake of arguments that some remote relationship is present between the deceased and the eye- witnesses, even then they cannot be disbelieved for the simple reason that the law is clear on the point that mere relationship is no ground for discarding the evidence of a witness.
16. The argument with regard to place of occurrence being unidentified is equally devoid of any merit. The eye-witnesses have given the detailed description of the place of occurrence. During the cross-examination the case of the prosecution seems to have been admitted by the learned counsel for the defence. Even the presence of eye-witnesses at the place of occurrence stands admitted by the defence. The eye-witnesses have given a detailed description of the place or occurrence. During the cross-examination no question was asked by the defence with regard to identification of the place of occurrence. It may be pointed out that the blood-stained clay was taken into possession by the police from the place of occurrence vide the seizure memo. Exh.'P.G.'. A crime empty of .12 bore gun was also seized through seizure memo. Exh.'P.H.' and there is nothing on record in support of the argument of the learned counsel for the defence that the place of occurrence is not the same as has been alleged by the prosecution.
17. Much stress has been laid down by Mr. Liaqat Ali Khan that the weapon of offence, .12 bore gun, was not seized .At the instance of convict-appellant and as such the recovery of crime weapon does not corroborate the prosecution story. The weapon of offence, .12 bore gun, was seized vide seizure memo. Exh.'P.C.'. Abdul Khaliq and Muhammad Arshad are the witnesses of this recovery memo. They were subjected to lengthy cross-examination but the defence failed to obtain from them anything favourable to the convict-appellant. The marginal witnesses of the recovery and the Investigating Officer have successfully established that the weapon of offence was recovered at the instance of convict-appellant. It was half-heartedly contended by the learned counsel that the prosecution version was disbelieved to the extent of accused-- respondents Nos.2 to 8 and without any justification it was relied upon in respect of convict-appellant. In the first instance the aforesaid version is factually incorrect and without any substance. The prosecution version was not disbelieved to the extent of accused-respondents Nos.2 to 8. However they have been given benefit of doubt as no corroborative evidence lending support to the version of eye-witnesses is available on the record. It is celebrated principle of law that the old principle of falsus in uno falsus in omnibus has since long been discarded by the superior Courts in Indo-Pakistan as well as in this part of the world. In a criminal case it has now become the rule of law that the Court has to sift the grains of truth from the chaff on falsehood and those portions of evidence or witnesses which are not found trustworthy, are to be discarded. On the other hand the rest of the parts of evidence of witnesses which ring true are to be believed. The accused-respondents who have been given the benefit of doubt, with regard to them the evidence of conspiracy has not been proved by the prosecution. The only witness with regard to allegation of conspiracy appeared before the Court and turned hostile while making the statement. The other witnesses cited by the prosecution on the same subject died before making the statement and there is nothing on the record to prove the allegation of conspiracy, therefore, the trial Court has not committed any error or illegality while acquitting Muhammad Sarwar and Farman Ali for the alleged offences. Similarly by extending the benefit of doubt to Alamgir, Muhammad Riaz, Muhammad Saleem. Qureshi Begum and Maqbool Jan, the trial Court had not fallen in any error. The allegation against Alamgir was that he fired during the occurrence but neither the weapon of offence nor any crime empty was seized during the investigation. Similarly Muhammad Riaz was alleged for pelting stones on the deceased but neither any stone was seized from the place of occurrence nor any blunt injury was found on the person of deceased during the post-mortem. The allegation of raising 'Lalkara' against Mst. Qureshi Begum and others is also of no consideration in the light of record because it appears from the prosecution evidence that the same was raised after the convict-- appellant had fired at the deceased.
18. The motive behind the occurrence is a dispute of land between the mother of convict-appellant (Mst. Qureshi Begum) and the deceased. The deceased wrote letters and applications against her to the Inspector --General of Police and other higher authorities by accusing her and her daughter of bad character. Therefore it cannot be ruled out that the convict-appellant might have nourished a grudge against the deceased on account of above mentioned factors which prompted him to take revenge from Abdul Rehman's.
19. The trial Court as well as the Shariat Court have advanced no cogent reasons for awarding the lesser penalty to the convict --appellant, particularly when the offence of intentional murder against the convict --appellant is proved beyond any reasonable shadow of doubt. We are not unmindful of the fact that the convict-appellant being a young man of 24 years could not probably control his emotions and was flared up to kill the deceased on account of the allegations leveled by the deceased against his mother, Mst. Qureshi Begum and his sister that they were women of easy virtue. This type of allegation can even prompt a man of mature age but a young man of 24 years is by all means normally persuaded to take revenge from him who was involved in the character assassination of his mother and sister.
20. The offence of murder is proved against the convict-appellant, Jahangir, beyond any reasonable shadow of doubt and so has been observed by the trial Court as well as by the Shariat Court. It is a settled principle of law that when an offence of murder of 'Qatl-e-Amd' is proved against an accused person the normal sentence to be awarded to him is the death penalty unless there be some mitigating circumstances which exonerate him from the death penalty and consequently instead of death another sentence is awarded to him. The convict --appellant was sentenced by the trial Court for life imprisonment but the Court fixed no limit of imprisonment. The Shariat Court while accepting the appeal of complainant Abdul Khaliq enhanced the sentence of convict-- appellant from 14 years into life imprisonment of 25 years under section 3 of the Islamic Penal Laws (Enforcement) Act, 1974.
"There is no doubt that when an offence is proved, it has to be met with the maximum sentence provided therefor. However, there is no yard--stick to restrict or curb the discretion of the trial Court while passing the sentence. It is the circumstances of each case which justify the severity or leniency in passing the legal sentence, unless the law itself provides the minimum sentence, in which case the discretion does not matter. In the case in hand it was open to the Court to impose any sentence provided by section 3 of the Islamic Penal Laws Enforcement Act, 1974. The trial Court as well as' the First Appellate Court in its wisdom felt pleased to impose the sentence of imprisonment instead of 'Qisas' or death. We, in view of the circumstances of the case also feel inclined to hold the same view and endorse the reasons given by the Courts below for not awarding the sentence of 'Qisas' or death.
The life imprisonment as provided in sections 55 and 57 of the Azad Penal Code, when the trial Court passed the sentence on 24-3-1997 was 14 years, which now stands substituted by 25 years under Act No. XXVII of 1994.
Though 14 years (substituted by 25 years) is provided as the term of imprisonment under the above referred sections of the Penal Code for the offence of murder as stated above, but the case in hand being under the Islamic Penal Laws Act, any of the sentences provided under the I.P.L. Is to be awarded in this case. As discussed above, the normal and maximum sentences provided for the offence of murder under section 5 of I.P.L. Is 'Qisas' and 'death' depending upon the nature and standard of evidence as provided by I.P.L. However, the Court is also empowered to award any of the other sentences; provided by section 3 of the I.P.L. One of which is imprisonment, which has been awarded in this case. Section 3 of I. P. L. Is neither subject to penalties provided by Penal Code, nor does it provide any period or term of imprisonment to be awarded for the offences provided under the Islamic Penal Laws Act, particularly murder, with which we are dealing in this case.-- It appears that the Legislature has left the term of imprisonment to be fixed by the Court seized with the matter and to pass such order as the circumstances of the case warrant or require. The Courts below in this case, have in their wisdom, thought proper to sentence the accused persons to life imprisonment, which is fixed in the light of the provisions of the Penal Code. The term of imprisonment provided by the Penal Code fixes a maximum limit of imprisonment i.e. 14 years in this case. The term of 14 years is also in the line with the spirit of the I.P.L. But this cannot be said to be the maximum term for the purpose of section 3 of I. P. L. It simply provides and the length of is left to the discretion of the Court to be fixed in the manner it fits in the circumstances of each case.
Thus the term of imprisonment in this case is fixed as 14 years, though it shall not be deemed as life imprisonment in view of the spirit of the provision of section 3 of I. P. L. "
21. From the above referred authority it becomes crystal clear that while awarding the sentence under section 3 of the Islamic Penal Laws Enforcement Act, the period of life imprisonment is not fixed by the Legislature and the same has been left open to the discretion of the Court seized with the case. In the instant case the trial Court under section 3 of the Islamic Penal Laws Enforcement Act awarded the sentence of life imprisonment to convict-appellant Jahangir but it was not clearly stated as to what would be the length of the sentence. In the Shariat Court when the appeal was filed by the convict-appellant and by the complainant for enhancement of sentence to convict- appellant and for the conviction of other accused-- respondents it felt advised to fix the period of sentence of life imprisonment as 25 years. The learned counsel for the appellant contended that when the offence was committed on 8-7-1993, the period of life imprisonment was fixed as 14 years under the AJ&K Penal Code and the same was awarded normally under the Islamic Penal Laws Enforcement Act, 1974 in past, therefore, the Shariat Court committed illegality by enhancing the period of life imprisonment from 14 years to 25 years.
22. In our view the aforesaid contention of the learned counsel for the appellant is misconceived because under section 3 of the Islamic Penal Laws Enforcement Act, 1974 as said earlier, the limit of period of sentence is not fixed which may even exceed more than 14 years or more than 25 years. It was probably for this reason that the Shariat Court enhanced the sentence of life imprisonment from 14 years to 25 years and the Shariat Court while doing so was justified under the Islamic Penal Laws Enforcement Act. Therefore, in our view the Shariat Court committed no illegality by enhancing the sentence of imprisonment of 25 years which can even be awarded as discussed earlier under section 3 of the Islamic Penal Laws Enforcement Act. As discussed earlier that when a murder case is proved against an accused person the normal sentence to be given to him is the death penalty but in the instant case we are of the view that it appears from the record that deceased Abdul Rehman's had been making vicious propaganda against the mother and sister of the accused that they were women of easy virtue and he had been writing letters and moving applications to high officials including the Inspector-General of Police to proceed against them, therefore, it cannot be ruled out that the convict-- appellant who is a young man had nourished a grudge by such accusations and consequently, prompted by such accusation he committed offence of murder, therefore, the Shariat Court was justified to award him the sentence of life imprisonment of 25 years instead of death penalty. Since the convict-- appellant had also the expectancy of life by the sentence awarded to him by the two Courts below, therefore, this is also one of the circumstances for not awarding him the death sentence.
23. Now we revert to the argument as to whether the benefit of section 382-B, Cr.P.C. Can be given to the convict-appellant for the period he remained in jail. From the judgment of the trial Court as well as the Shariat Court it appears that the matter of consideration of section 382-B, Cr.P.C. Was not discussed by the trial Court as well as the Shariat Court. However, the learned counsel. For the convict-appellant argued before us that keeping in view the provisions of section 382-B, Cr.P.C., the period spent in jail should be deducted from the imprisonment awarded to the convict-- appellant. Before dilating upon the question the relevant provision is reproduced below: "382-B. Period of detention to be considered while awarding sentence of punishment. ---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."
The perusal of above referred section reveals that the Court deciding to pass the sentence of imprisonment has to take into, consideration the period, if any, during which such an accused was detained in custody for the offence but the Court is not invariably bound to grant this benefit. The matter rests in the judicial discretion of the Court to be decided in the peculiar facts and attending circumstances of each case, i.e. The role played, the severity of the offence, otherwise lenient view taken by the Court in the light of sentence described, conduct of accused during the trial and prolonged nature of the trial for extraneous reasons etc. The benefit is not to be extended mechanically or as a matter of -routine. However, this is the duty of the Court to take into consideration the period of detention of the accused but whether this period is to be computed towards the sentence of imprisonment to be passed against the accused, is discretionary power of the Court; it depends upon the circumstances and the facts of each case. The Supreme Court of Pakistan in the cases reported as Muhammad Aslam v. The State 1982 SCM R 709 refused to give the benefit of section 382-B, Cr.P.C. To the accused persons in view of the severity of the attack, number of injuries caused on the deceased and for the fact that the accused have already been dealt with leniently. The Supreme Court of Azaad Jammu and Kashmir in four consolidated cases reported as State v. Muhammad Akram 1987 PCr.LJ 728 has refused to extend the benefit of this section to the accused persons holding that the circumstances of the case do not justify it. It has, however, extended the benefit in the case' reported as Khawaja Imtiaz Ahmad v. The State PLD 1988 SC (AJ&K) 134 on the ground of age, for accused being a young college-going student and in the case reported as Mian Talib Hussain v. State 1992 SCR 120 in view of the circumstances of-that case. The survey of the case-law reveals that the Courts have generally deemed the extension of benefit of section 382-B, Cr.P.C. As discretionary and not mandatory. If the circumstances of the case justify the extension of the benefit, the Court must extend the benefit and not otherwise. In the circumstances of this case the Court has already taken a lenient view while awarding the sentence of life imprisonment which has been fixed as 25 years under section 3 of the Islamic Penal Laws Enforcement Act. The offence committed by the accused person is punishable with 'Qisas' or death but the Court, instead of death penalty, has sentenced the accused to imprisonment of 25 years which is a lenient view. Hence there is no justification to compute the period of detention of sentence of imprisonment.
24. In the light of what has been stated above, finding no force in the appeal filed by the convict- appellant, Jahangir, the same stands dismissed. Similarly, the appeal filed by Mst. Sianuff Begum ana Abdul Khaliq for enhancement of sentence of convict-appellant, Jahangir, and for conviction of other accused-respondents also fails.