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Petitioner: MUHAMMAD ZAHIR alias TIKO VS Respondent: THE STATE
Court Name: Balochistan High Court Judge(s): Raja Fayyaz Ahmed, Akhter Zaman Malghani Title: MUHAMMAD ZAHIR alias TIKO vs THE STATE Case No.:Criminal Miscellaneous Application No,786 of 2002 Criminal Appeal No,332
JUDGMENT
Reported As: 2004 P C R L J 764 Result: Petition dismissed Judgment JUDGMENT ' RAJA FAYYAZ AHMAD, C.J.--- By this miscellaneous application submitted on behalf of the convict Muhammad Zahir alias Tiko by his learned counsel, benefit of the provisions of section 382-B, Cr.P.C. Has been sought for to be extended in favor of the applicant/ convict which was omitted to be granted or declined by the learned trial Court and by this Court while deciding Criminal Appeal No,332 of 1998 vide judgment, dated 21-4-1999. 2. The brief facts of the case are that applicant (Muhammad Zahir) alongwith co-accused persons Abdul Rehman, Essa Khan, Musa Khan and absconding accused persons namely Muhammad Ismail and Abdul Karim were tried on the charge under sections 302/324/109/34, P.P.C. For committing Qatl-i-Amd of deceased Muhammad Umer and Abdul Samad and for causing injuries as well as attempt to commit Qatl-i-Amd of injured Saeed Ahmed by means of kalashnikov firing in furtherance of their common intention by the learned Special Judge, S.T.A. Kalat Division at Mastung. Eventually after conclusion of the trial, the learned Special Judge vide judgment, dated 31-10-1998 passed in Special Case No,10 of 1997 found the accused persons Abdul Karim, Muhammad Ismail and Muhammad Zahir (applicant) guilty on the charge under section 302/34, P.P.C. And sentenced them each for life imprisonment and each to pay Rs,2,00,000 as Diyat to the legal heirs of the deceased persons whereas; accused Abdul Rehman, Muhammad Essa and Muhathmad Musa were acquitted on the charge. ' Applicant (Muhammad Zahir) assailed his conviction and the sentence awarded to him vide abovesaid judgment by filing Criminal Appeal No,332 of 1998 before this Court. After hearing the learned counsel for the appellant as well the learned counsel for the State and the complainant
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vide judgment, dated 21-4-1999 the conviction as well as the sentence awarded to the appellant was maintained, accordingly; the appeal filed by the applicant (Muhammad Zahir) was dismissed. 3. The learned counsels for the applicant as well as the learned Advocate-General have been heard at length. Mr. Imranul Haq Khan, Advocate contended that neither learned Special Judge, S.T.A. Court nor the Appellate Court specifically in the judgment passed by this Court declined to extend benefit of provisions of section 382-B, Cr.P.C. To the applicant/convict, hence; the apparent omission on the part of the learned Courts to extend benefit of the provisions of the abovesaid section of Cr.P.C. Being mandatory in nature deserves to be granted to applicant/ convict by this Court in exercise of the inherent powers vesting in the Court under section 561-A, Cr.P.C. The learned counsel argued that since benefit of the period for which the applicant remained in the custody as under-trial prisoner by virtue of section 382-B, Cr.P.C. Was not declined to him by either of the Courts nor any reason in such behalf was recorded. By either of the Courts, therefore, at any stage notwithstanding the judgment passed by this Court in appeal, mandatory provisions of section 382-B, Cr.P.C. Have to be given effect to in order to prevent abuse of process of Court and to secure ends of justice. According to the learned counsel it is a fit case in which inherent powers vesting in the Court need be exercised which omitted from consideration while deciding the appeal. In support of his contention, the learned counsel placed reliance on the reported judgments i,e, 1995 SCMR 671, PLD 1998 SC 152, 1999 SCMR 2765, 2001 SCMR 1987, PLD 1984 Lah. 461, 1991 PCr.LJ 90 and 1994 PCr.LJ 438. 4. The learned Advocate-General controverting the arguments put forth on behalf of the applicant, contended that admittedly the learned trial Court as well as the Honourable High Court respectively on merits of the case after appraisal of entire evidence found the accused/applicant guilty on the charge for having caused Qatl-i-Amd of two innocent persons by means of firing, therefore, keeping in view the gravity of the offence neither trial Court nor the High Court in appeal found the applicant to be entitled to avail benefit of section 382-B, Cr.P.C. Else, in the normal course such benefit to have been specifically extended in favor of the convict/appellant and the stated omission on the part of the trial Court as well as by the Appellate Court could not by itself be taken as an entitlement of the applicant to avail the benefit of mandatory provisions of section 382-B, Cr.P.C. Which in view of the gravity of the offence committed by the applicant with the other co- convicts disentitled him to such benefit as a matter of right. According to the learned Advocate- General non-mentioning of the extension of benefit of provisions of section 382-B, Cr.P.C. In the judgment passed by the learned Appellate Court would amount to refusal to extend the benefit of provisions of the said section in favor of the convict/appellant and therefore, the reasons for such refusal are not required to be recorded in the judgment which can safely be gathered from the facts and circumstances of the case including evidence subjected to appraisal by such Court, culminating into positive findings recorded by Court. The learned Advocate-General maintained that keeping in view the gruesome murders, no case for exercise of inherent powers vesting in the Court has been made out, and therefore, the application deserves to be dismissed. To supplement his view point reliance was placed on the judgment reported in 1991 SCMR 151, 1993 SCMR 224, 1994 PCr.LJ 2115 and 2001 SCMR 416. 5. We have considered the contentions put forth, noted above, by the applicant's learned counsel and the learned Advocate-General in the light of the provisions of section 382-B, Cr.P.C. And the case-law cited on behalf of the parties. The judgment passed by the learned trial Court as well as by this Court in appeal has also been perused. It is an admitted feature of the case that neither trial Court nor Appellate Court respectively while passing the sentence for life imprisonment under section 302/34. P.P.C. Omitted to take into consideration the entitlement or otherwise of the convict to the benefit of section 382-B, Cr.P.C. Nor by this Court while deciding Criminal Appeal No,332 of
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1998 vide judgment, dated 214-1999 whereby appeal filed by the applicant/convict was dismissed and the sentence passed by the trial Court was maintained. ' In a like nature case where the Lahore High Court, Multan Bench, Multan vide its judgment, dated 14-2-1993 passed in Criminal Appeal No,113 of 1989 and Murder Reference No,189 of 1989 neither granted nor refused to extend benefit of provisions of section 382-B, Cr.P.C. And, Honourable Supreme Court while hearing criminal appeal against the judgment of the Honourable High Court in its brief order passed in the case of Ghulam Muhammad v. The State reported in 2001 SCMR 1987 held that as there is no mention of section 382-B, Cr.P.C. Passed by the High Court, as such, it cannot be said that the benefit of said section has been denied, accordingly; it was further observed by the Honourable apex Court that benefit of section 382-B, Cr.P.C. Should have been allowed to the appellant, therefore, the same was allowed to the appellant and appeal was disposed of accordingly. ' The Honourable Supreme Court in the case of Noor Muhammad alias Noora v. The State reported in 1995 SCMR 671 cited by the appellant's learned counsel refused to gram leave to appeal from the judgment passed by the Lahore High Court, Lahore by holding that benefit of section 382-B, Cr.P.C. Could only be granted where a Court decided to pass a sentence of imprisonment and as death sentence of the accused had been converted into imprisonment for life not by any decision of the Court but as a result of general amnesty announced by the Executive Authorities in the year 1988, therefore, benefit provided under section 382-B, Cr.P.C. Was not in terms available to the accused. ' In the judgment cited by the applicant's learned counsel i,e, 1994 PCr.LJ 438 (FSC) Sabir Khan v. The State while accepting the criminal miscellaneous application, it was held by the Honourable Federal Shariat Court that benefit of section 382-B, Cr.P.C. Could be extended to the accused even after disposal of his appeal by Federal Shariat Court, which accordingly was extended in favor of the accused on the ground that the accused was the only earning member of the family and such pleaded fact was not refuted by the record. ' As regards omission of the trial Court to give effect to the provisions of section 382-B, Cr.P.C. While passing sentence of imprisonment on an accused found guilty on the charge; the Honourable High Court of Peshawar accepted the petition filed by the accused under section 561-A, Cr.P.C. In its reported judgment i,e, 1991 PCr.L.I 90 passed in the case of Muhammad Ilyas Khan v The State held that the Courts while passing sentence of imprisonment must state in the order/judgment whether benefit of section 382-B, Cr.P.C. Is extended to accused or not and if the accused does not deserve such concession they must record reasons, albeit; brief for refusing to extend the benefit of section. It was further observed by the Honourable Court that omission to give effect to a statutory requirement has to be remedied in the exercise of unlimited inherent powers invested in the High Court under section 561-A, Cr.P.C. And no one is to suffer for the act of the Court, therefore, omission on the part of the trial Court having not considered the entitlement of the accused to the benefit of section 382-B, Cr.P.C. Had resulted in miscarriage of justice and High Court in exercise of its inherent powers could correct the errors made by the trial Court, accordingly; the Honourable High Court having found the accused entitled to the benefit of section 382-B, Cr.P.C. Was allowed to avail the benefit of section 382-B, Cr.P.C. For the substantial period of more than one year in which he remained under custody as under-trial prisoner. ' The applicant's learned counsel also placed reliance on a reported judgment of Lahore High Court in the case of Zulfiqar Ali v. The State passed in Criminal Miscellaneous Application PLD 1984 Lah. 461. In this case the petitioner alongwith others was convicted and sentenced to death with a fine of Rs,1,000 under section 302/34, P.P.C. By the trial Court. In appeal a Division Bench of the Lahore High Court altered his conviction to section 304/34, Part I, P.P.C. And sentenced him to ten years' R.I. In addition to a fine of Rs,1,000. The Court while passing the sentence of imprisonment on the relevant date, however, omitted to take into consideration the charge, if any; for which such
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accused was detained in custody during or before trial within the meaning of section 382-B, Cr.P.C. After a lapse of about 5 years from the date of the order passed in appeal by the High Court, the petitioner applied for the benefit of section 382-B, Cr.P.C. To be extended in his favor as the same was not considered by the High Court at the time of the passing of the order of sentence. Also, a number of other connected petitions raising the same or other questions arising out of section 382-B, Cr.P.C. Were pending, therefore, all such petitions were disposed of by the Honourable Lahore High Court by a common judgment reported in PLD 1984 Lah. 461. Dealing the question with reference to the provisions of section 382-B, Cr.P.C. It was held that the trial Court after taking into consideration circumstances of each case.Viz. Severity of illegal act, role played by accused; conduct of prisoner during trial; dilatory tactics played by prosecution or defence and quantum of sentence already awarded etc. Must itself pass a clear order of sentence of imprisonment and then not to leave for jail authorities to decide to grant or refuse benefit of section 382-B, Cr.P.C. Or to say how much of benefit to be allowed in a particular case by such authorities, rather; decision of the Court must indicate not only that benefit is to be given, but also the extent of the benefit under section 382-B, Cr.P.C. To be adjudicated upon which must be reflected in fmal sentence of imprisonment to be announced, therefore, the same is neither automatic nor can be left to be determined by the jail authorities and such power can also be exercised by Appellate Court, if trial Court had omitted to apply section 382-B, Cr.P.C. When it passed the order of sentence. It was further held that the High Court in its inherent jurisdiction can recall or alter order, if any mandatory provision of law had been violated and the inadvertence or omission on the part of the Court to consider provisions of section 382-B, Cr.P.C. And should not place prisoner in a disadvantageous or losing position, therefore, High Court has the powers under section 561-A, Cr.P.C. To alter or review its previous order. The Honourable High Conn while dealing the question in view of provisions of section 382-B, Cr.P.C. In relation to the sentence of life imprisonment held that sentence of life iimprisoment is not included in the term "imprisonment" used in section 382-B, Cr.P.C. Or by necessary intendment, therefore, section 382-B, Cr.P.C. Does not apply to the cases of "life imprisonment". ' The learned counsel for the applicant Mr. Imran-ul-Haq also placed reliance on the case-law i,e, 1999 SCMR 2765 leave refusing order in the case of Gul Muhammad and others v. The State passed in Criminal Petition No,156 of 1998 in which it was observed by the Honourable apex Court that the Judge of the High Court, while recalling the order passed by his predecessor had concurred that the view earlier taken by the trial Court that sufficient opportunity had already been provided to the accused to cross-examine the prosecution witnesses and therefore, no justification was available to call them for re-examination, accordingly; it was held that the discretion having been exercised properly by the High Court, the same did not warrant any interference. The Honourable Court attending to the contentions of the petitioners' learned counsel observed and pointed out that in appropriate case High Court, in exercise of its inherent powers can correct its own order or recall an erroneous order. ' In the case of Ghulam Murtaza v. The State, reported in PLD 1998 SC 152 leave to appeal was granted to consider whether benefit of section 382-B, Cr.P.C. Could be extended to the accused, who was already sentenced to imprisonment for life by converting his sentence of death awarded by the trial Court. The question was considered and dilated upon elaborately by the Honourable Supreme Court with reference to the provisions of section 382-B, Cr.P.C. In the light of facts of the case. The object behind insertion of section 382-B, Cr.P.C. In the Code of Criminal Procedure and its scope was examined and considered in depth in the case of Muhammad Rafi v. The State 1995 SCMR 1525. Also the scope of section 382-B, Cr.P.C. Was examined at length by the Honourable Supreme Court in the case of Mukhtaruddin v. The State 1997 SCMR 55 and after referring to the case-law following conclusions were recorded:--
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"After having considered the above provisions of section 382-B, Cr.P.C. And the case-law, we are 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 proceedings 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 hereinabove 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 favor of the Court of having adverted to the same. ' 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 appellant 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 of 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 is the normal sentence, and imprisonment for life if there is any one or more judicially recognized mitigating circumstance/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 circumstance not to impose death sentence. The above circumstances 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 reason 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."
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' Having considered the judgment passed by the Shariat Appellate Bench of the Honourable Supreme Court in the case of Liaqat Ali v. The State PLD 1995 St 485 that unless there are exceptional circumstances in the 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 cases while awarding sentence will take into consideration the period for which the accused remained in detention during his trial and such period will normally be adjusted in the sentence awarded to the accused by allowing him the benefit of section 382-B, Cr.P.C. After having examined facts of the case the Honourable Court, as was not able to discover any extraordinary circumstances which warranted denial of benefit of section 382-B, Cr.P.C. To the appellant, accordingly; appeal filed by Ghulam Murtaza was allowed with the direction that the appellant will be entitled to the benefit of section 382-B, Cr.P.C. 6. As hereinabove noted in para. No,4 (supra), the learned Advocate-General in order to supplement his contentions placed reliance on the reported judgment referred to hereunder:-- ' The Honourable Supreme Court in the case of Asghar Ali v. The State 1991 SCMR 151 in its leave refusing order while considering the contention raised on behalf of the petitioner that though by virtue of the order of the President of Pakistan the sentences of all convicts sentenced to death converted to life imprisonment, the petitioner is also entitled to the benefit of section 382-B, Cr.P.C., refused to extend such benefit to the petitioner as he was found guilty of butchering his wife and his minor daughter without any plausible reason. ' The Single Bench of the Honourable Lahore High Court in the case of Sarwar and others v. The State 1994 PCr.LJ 2115 refused to grant benefit of section 382-B, Cr.P.C. On the ground that injury had caused serious damage to the victim which could not be compensated either in terms of money or otherwise. ' In the leave refusing order of the Honourable Supreme Court in the case of Shehbaz Afghan v. The State 1993 SCMR 224 attending to the merits of the case observed that it cannot be ignored that the petitioner had committed a heinous crime from whose possession 3.5 kilograms Charas, 2 kilograms opium and 500 grams of heroin was recovered and was awarded comparably very high punishment by the trial Court, but the Federal Shariat Court reduced it considerably, therefore, the benefit sought by the learned counsel in pursuance of all the submissions made by him having been adequately granted to the accused by the Federal Shariat Court as well as by the trial Court in not awarding him the maximum punishment, benefit of section 382-B, Cr.P.C. Was not allowed in favor of the accused. ' In the cited reported judgment i,e, 2001 SCMR 416 the Honourable Supreme Court dismissed the Criminal Petitions Nos.110, 111 and 144 of 2000 in the case of Ehsan Ali and others v. Muhammad Arif and others; the Honourable Court while dilating upon the question as regards the extension of benefit of section 382-B, Cr.P.C. Laid down guiding principles for the application of the provisions of section 382-B, Cr.P.C. Reproduced hereinbelow:-- "(i) That section 382-B, Cr.P.C. Is attracted when a Court decides to pass a sentence of imprisonment either in the trial or appellate or revisional proceedings against an accused for the offence charged with and in case the sentence is already passed, there would be no legal bar for the appellate or revisional Court to the grant of benefit of the said provisions to convict who would be entitled to agitate said plea before the Appellate Court in case the trial Court had failed to consider the said provisions of law while imposing the sentence or was wrongly denied the benefit of the same and the Appellate Court would be bound to examine the above question and to rectify the error, mistake, if any, committed by the Court below; (ii) that in case the Appellate Court substitutes death sentence to that of imprisonment for life or rigorous imprisonment for a certain period, it would be obligatory on its part to take into consideration the provisions of section 382-B, Cr.P.C.;
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(iii) that the Court has discretion not to grant the benefit of section 382-B, Cr.P.C. To a convict but the said discretion is to be exercised judiciously on sound judicial principles; and (iv) that the provisions of section 382-B, Cr.P.C. Are mandatory, in the absence of express manifestation of the application of the mind by the Court that it has addressed itself to the above provisions at the time of imposing the sentence on the convict concerned, no presumption can be raised in favor of the Court having adverted to the same." ' In the above mentioned order, the Honourable Court with reference to the facts, circumstances and conduct of the petitioner observed that when the complainant party was returning empty- handed having got removed encroachment of their land were waylaid wantonly attacked by the petitioner, who came armed with pistol and committed heinous offence of murder and further that the…
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