Muhammad Nadir Khan Durrani, J.--Convict Abdul. Salam, has approached this Court by filing of application through Superintendent Central Jail Mach with prayer to grant him the benefit of Section 382-B Cr.P.C. by including the period of his detention during trial towards his sentence.
2. Brief facts leading to the filing of the application are that applicant alongwith on Mst. Sakina and Eid Muhammad were arrested in case F.I.R. No, 237/98 Under Section 302/34 PPC on the charge that all of them in furtherance of common intention committed Qatl of Zarina, whereafter she was set ablaze. Challan of the case was put up in the Court of Additional Sessions Judge-I, Quetta. The trial culminated .by means of Judgment dated 21.2.2000 whereby all the three accused were convicted U/S. 302(b) PPC and sentenced to imprisonment for life and liable to pay compensation of Rs, 50,000/- each to the legal heirs of deceased Mst. Zarina U/S. 544-A Cr.P.C. and default of payment of compensation each to. suffer R.I. for two years. The Judgment dated 21.2.2000 was challenged before this Court by the applicant by filing of Criminal Appeal No, 28/2000 whereas the other two convicts namely Eid Muhammad and Mst. Sakina preferred Jail Appeals No, 14/2000 and No, 23/2000 respectively. By means of common Judgment dated 17.7.2002 the appeal filed by the appellants Abdul Salam and Mst. Zarina were dismissed, however, the Criminal Jail Appeal No, 14/2000 filed by Eid. Muhammad was accepted who was acquitted and ordered to be set at liberty, if not required to be detained in connection with any other case. After dismissal of his appeal the convict Abdul Salam, has approached this Court seeking benefit of Section 382-B Cr.P.C. as the same was neither granted to him by the trial Court nor by this Court.
3. Notice of the application was issued to Advocate-General who opposed the application contending that convict/applicant is not entitled for benefit of Section 382-B Cr.P.C. as he was found to be involved in a crime which was not only heinous but also immoral as the same was committed to achieve the illegitimate objects. The trial Court is stated to have awarded lesser punishment without giving any reason recognized by law. This Court also observed the said omission on the part of the trial Court, therefore, in such circumstances convict/applicant cannot be considered entitled, for further concession of Section 382-B Cr.P.C.
4. The record of the case examined, the submissions made by Mr. Salahuddin Mengal considered.
The request Made by the convict/applicant considered in the light of the relevant provisions of the Code of Criminal Procedure i,e, 382-B Cr.P.C. which reads as under: "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."
5. The language of above Section allows reduction of sentence of imprisonment imposed upon an accused for the period during which he was detained in custody for such offence, however, the said reduction is not allowed automatically. The same is to be ordered by the Court, therefore, there is no cavil to the proposition that the relief U/ S. 382-B Cr.P.C. is discretionary and cannot be claimed as a matter of right, however. the Court is under an obligation to take into consideration the provisions of Section 382-B Cr.P.C. and exercise its discretion judicially on sound judicial principles. This proposition has been debated in series of cases not by the High Courts but by the apex Court also.
6. In case Qadir and another vs. The State 1991 PLD Supreme Court 1065 his lordship Justice Abdul Shakurul Salam, concluded the case by making following observations:- The accused in that case was sentenced to imprisonment for 10 years. 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 grant benefit of Section 382-B, Cr.P.C. to a convict sentenced for imprisonment for life in its ordinary criminal jurisdiction."
7. In case Muhammad Rafiq vs. The State 1995 SCM R 1525 the Hon'ble Supreme Court of Pakistan held that: "From the guidance to be derived from these principles, the true approach to the exercise of the judicial discretion conferred upon 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 other factors as the conduct of the accused, his antecedents, nature of the offence, etc. Indeed, the Court will use its goods sense in determining the circumstances in which the discretion will not be exercised in favour of the accused. But as the discretion is a 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 trail, 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)."
8. In case Ghulam Murtaza vs. The State PLD 1998 Supreme Court 152 the Hon'ble Supreme Court concluded the case in following terms:- "From the preceding precedent it appears that unless there are any exceptional circumstances in a case which the Court considers sufficient for the purpose of denying the benefit of Section 382-B Cr.P.C. to the accused, the Court in all other cases, while awarding sentence, will take into consideration the period during which the accused remained in detention during his trial, and this period will normally be adjusted in the sentence awarded to the accused by allowing him the benefit of Section 382-B, Cr.P.C."
9. We have given due consideration to the Judgments referred to herein above and in the light of same examined the facts of this case which on the face of it reflects extraordinary circumstances as an innocent lady was murdered by the convicts only to satisfy their illicit desire to continue the immoral relation between them. This Court while disposing of the appeals preferred by the convicts against their conviction observed as following: "All these facts and the other pieces of circumstantial evidence discussed above including the confession of accused Mst. Sakina which remained un-rebutted, beyond shadow of any reasonable doubt proved the guilt as against the accused Sakina and Abdul Salam, who in furtherance of their common intention facilitated the murder of deceased Mst. Zarina an innocent lady, for the prosecution of their illicit liaison and illegitimate objects with the obvious motive, justified capital punishment to both the these accused persons under Section 302(b)/34 PPC and they deserved no leniency for lesser sentence of life imprisonment, but as the State did not file criminal revision for passing of appropriate sentence nor notice was issued by this Court in such behalf, therefore, while writing judgment we; did not deem it proper to issue such notice to these convicts, however; it may be observed that the learned trial Court on misconceived grounds awarded the lesser punishment which conduct in the given facts and circumstances of the case cannot be approved PLD 1991 SC. 150 ref."
10. Circumstances of this case are exceptional. This Court was already of the view that accused has been extended undue concession by awarding him lesser punishment, therefore, the benefit of Section 382-B Cr.P.C. was not granted to the appellants: Hence, taking into consideration the guidance derived from the Judgments of Hon'ble Supreme Court we are of the firm view that there existed no circumstance whatsoever for extending any discretionary benefit/concession to the convict. In such view of the matter we are unable to provide remedy U/S. 382-B Cr.P.C. to the convict/applicant. The application, therefore, being without any substance is dismissed.