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Petitioner: ASLAM PERVAIZ VS Respondent: THE STATE
Court Name: Lahore High Court Judge(s): Fazal-e-Mahmood, Chaudhry Muhammad Sharif Title: ASLAM PERVAIZ vs THE STATE Case No.:Criminal Miscellaneous No, 281 of 1982 /BWP in Criminal Appeal No, 87 of
JUDGMENT
Reported As: PLD 1984 Lahore 204 Result: Petitions dismissed Judgment JUDGMENT ' FAZL-I-MAHMOOD, J.-This Criminal Miscellaneous Application has been filed on behalf of Aslam Pervaiz convict under section 382-B of the Criminal Procedure Code simpliciter claiming the benefit of this provision on the plea that it was not granted to him by another Division Bench of this Court while pronouncing judgment in his appeal (Criminal Appeal No, 87 of 1980/BWP and Murder Reference No, 3 of 1981/BWP on 22nd February, 1982). 2. The brief facts are that applicant Aslam Pervaiz, alongwith two others, had been tried on charge of murdering Muhammad Akram and convicted and sentenced under section 302/34, P. P. C. To suffer death penalty by learned Sessions Judge, Bahawalpur on 14-9-1980. He was also fined Rs, 2,000 and in default of it to undergo rigorous imprisonment for three months. He was further ordered to pay a sum of Rs, 2,000 as compensation to the legal heirs of the deceased or in default to suffer further rigorous imprisonment. 3. The convicts filed Criminal Appeal No, 87 of 1980/BWP and the matter also came up before the Court for confirmation of death sentences by way of Murder Reference No, 3 of 1981/BWP. Both the matters were heard by another Division Bench of this Court. The judgment was signed and pronounced on 22-2-1982, with the result that the appeal of co-accused Sher Muhammad and Muhammad Ilyas was accepted and they were acquitted. In so far as Aslam Pervaiz applicant is concerned, it was accepted partly to the extent that his conviction under section 302, P. P. C. Was altered to one under section 326, P. P. C. And he was sentenced to undergo seven years' R. I. And fined Rs, 4,000. In default of payment of fine, he was to suffer further rigorous imprisonment for one
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year. The fine if realised, half of it was to be paid to the heirs of the deceased. His death sentence was not confirmed and Murder Reference was answered accordingly. 4. This Criminal Miscellaneous application under section 382-B, Cr. P. C. Was filed about five weeks after the judgment had been signed and pronounced by the Division Bench. The prayer made is that benefit of section 382-B, Cr. P. C. May kindly be granted to the petitioner and the period of his detention in custody during trial may be directed to be considered towards the sentence. The application is based on the following grounds :- "(a) That since section 382-B, Cr. P. C. Invests the petitioner with a right to take the benefit of such period during which the petitioner bad remained in custody and he claims the right to be granted. (b) That due to inadvertence the petitioner could not make a reference to the said section and for that reason no view was expressed about the same at the time of decision of the abovesaid Criminal appeal of the petitioner on 21-22/2-1982. (c) That since no decision was taken on this point, according to period of detention during trial as sentence will not be the review of the previous judgment. (d) That it would be in the interest of justice if the recommendation is made to the Director of Prisons to instruct the Jail Authorities to keep this provision in view while calculating the sentence even though no observation about it is made in the judgment of any Court." 5. The learned counsel appearing in support of this application seems to be labouring under a misconception regarding the scope and import of section 382-B, Cr. P. C. We feel that section 382- B, Cr. P. C. Is not a remedial provision like those for an appeal, revision or review. This section of the Criminal Procedure Code only provides that where a Court decides to pass 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. This obligation has been cast primarily upon the Court passing original order of conviction and sentence as held by the Supreme Court in All Sher v. The State (1). The relief in terms of this section can also be obtained from a Court of appeal or in revision through competently instituted proceedings on showings by the accused/convict that it is due and justified in the facts and circumstances of each case. 6. In ground (b) noticed above, there is a frank admission of inadvertence on the part for the applicant in failing to make a reference to section 382-B of the Criminal Procedure Code which in other words means not asking for the benefit under it and as a result of the omission, non- expression of any views by this Court at the time of the decision of the criminal appeal on 22-2- 1982. We have no means of finding out whether this omission on the part of the applicant's counsel was due to inadvertence or not. It seems to us to be the result of his satisfaction with the decision at that time, as can be inferred from the circumstance that the applicant has not challenged his conviction and sentence any further. In this case, the maximum punishment prescribed for the offence under section 326, P. P. C. Is imprisonment for life or sentence upto ten years which has not been awarded. The treatment of the accused with leniency is thus clearly reflected in the judgment though not specifically stated. In such a situation, a belated plea ought not to be entertained and we refuse to land ourselves for a game of (I) .13 L D 19g0 SC 317 hide and seek and permit laying foundations of a somewhat undesirable practice of a second round before the same Court on the basis of an afterthought when the matter has become a transaction part and closed and the scheme of law also bars such a course. 7. It must be observed that every judgment of a superior Court carries with it a strong presumption of being a considered and solemn decision. The onus will lie heavily on a person who wishes to dislodge such presumtion. The confessed failure of the applicant to raise the plea of benefit of section 382-B, Cr. P. C. During the hearing of the criminal appeal cannot by any plausible process of reasoning be construed to be a fault or failure of the Court. This plea ought to be raised and
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benefit claimed in each case. The benefit under section 382-B, Cr. P. C. Is not extendable mechanical! Or as a matter of course. A burden lies on an accused or convict to satisfy the Court that the delay in trial was not the result of his dilatory tactics, but occasioned solely on account of law's delays. This of necessity would re quire some sort of inquiry by the Court for its judicial satisfaction. It is only when the Court is satisfied that the accused/convict is in no manner to blame for the delay, that the Court would order that period of hi custody in jail for the offence in respect of which the sentence of imprisonment is being passed be treated as period already undergone, or in view of such period the Court may correspondingly award lesser sentence of imprisonment. Adoption of either course is a mere matter of form without changing the substance. The provision under consideration does not stand on the footing of those mandatory provisions which affect the jurisdiction of the Court itself in the category of incurable illegalities which bring about vitiative infirmities in the decision rendered by the Court. The plea on question of this nature ought to be raised and benefit claimed by the accused or convict as the case may be, at proper stages during the trial. If wrong refused, then it can be got redressed in appeal or revision on making out a proper case. The alleged omission to take into consideration the period spent in custody by an accused for an offence in respect of which senter of imprisonment is passed, either because it was not specifically claimed at the proper stage or if claimed the Court did not grant it, would bay no bearing on the validity of the judgment or conviction which verdict must precede the award of sentence. The quantum of sentence within the limit laid down by law is a matter essentially resting in the judicial discretion o the Court to be decided on the facts on each case after taking into consideration a variety of relevant factors and circumstances and the merits in the light of sound judicially pronounced principles including mitigating circumstances. In a case where a Court has awarded a sentence of imprisonment to an accused which runs beyond the maximum punishment prescribed by law for that offence the decision to that extent would be without jurisdiction or conversely if the law prescribes a fixed penalty or two alternate punishments or while prescribing the maximum sentence also lay down that it shall not be less than that provided for that offence then an infraction of the mandate of law will render the decision illegal and with out jurisdiction to the extent of it being violative of statutory law. In this former category of cases, it is for the accused to seek redress from the Court which has the power to undo the wrong through competent instituted proceedings and in the latter case it would be for the State or the complainant similarly to agitate the matter in the like manner. 8. Apart from the above features of this case, we must hold on the authority of the decision of the Supreme Court In re : Juan Sullivan v. The State (1) that this Division Bench of the Court cannot undertake the exercise to review or alter the judgment rendered in criminal appeal by another Division Bench. In the precedent case, the appellant had been convicted by a Special Judge. On appeal, a learned Judge of the High Court of West Pakistan, Karachi Bench, upheld the conviction of the appellant but reduced his sentence of imprisonment to the term already undergone. The fine was remitted, except to the extent of the eleven hundred U. S. Dollars, which had been taken from his person. The appellant then approached the learned Supreme Court by way of special leave to appeal inter alia on the plea that the High Court gave him no relief when he applied for the remission of the sentence of fine on the pound that the authorities had released 1100 Dollars in favour of his wife for her passage money, when she came out of Jail, with the permission of, the State Bank and the money was thus not available towards payment of the fine imposed on him. He had no other resources on which he could draw for the payment of the fine. The High Court turned down this prayer on the ground that a judgment in a criminal case could not be reviewed in the face of the provisions of section 369 of the Criminal Procedure Code. Leave was granted in this case. The Supreme Court held that "the High Court were apparently right in holding that section 369 of the Criminal Procedure Code precluded them reviewing the order." The Supreme Court in
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these circumstances reduced the fine of the appellant Juan Sullivan to a sum of Rs, 100 or in default of payment to suffer one week's rigorous imprisonment. In the present case, the applicant if he felt aggrieved by non-grant of concession under section 382-B of Cr. P. C., ought to have approached the learned Supreme Court through a petition for special leave to appeal as was done in the precedent case noted above, to seek appropriate relief. The application under section 382-B, Cr. P. C. Which has been submitted, when this if Court after pronouncing and signing the judgment in the criminal appeal had become functus officio, is incompetent as there is a clear bar standing in it way by virtue of section 369, Cr. P. C. To alter or review the judgment even though to the extent of sentence of imprisonment or the period of sentence the convict shall actually have to undergo under the appellate judgment. 9. The scheme of section 382-B, Cr. P. C. No doubt obliges the Court deciding to pass a sentence of imprisonment on an accused for an offence to take into consideration the period if any, during which such an accused was detained in custody for such offence but the Court is invariably not bound to grant this benefit. The matter would rest in the judicial discretion of the Court to be decided in the peculiar facts and the attending circumstances of each case, inter alia, the role played, severity of the offence, otherwise lenient view taken by the Court in the light of sentence prescribed and conduct of the accused during trial. We find support for our views from the case of Muhammad Aslam etc. v. The State (2). In the precedent case, relief was prayed for from the Supreme Court under section 382-B of the Criminal Procedure Code by the convicts who had been convicted and sentenced under section 302, P. P. C. By the trial Court to imprisonment for. Life in addition to fine and in default thereof to further undergo rigorous imprisonment. The High Court had dismissed their criminal appeal. The Supreme Court while rejecting the plea for the grant of benefit of section 382-B, Cr. P. C. Observed :- "It may be mentioned that the accused (petitioners in C. P. No, 85/81) filed a belated application that they should be given the benefit of (1) 1931 SCMR 618 (2) 1982 SCM R 709 section 382-B, Cr. P. C. But considering the severity of the attack and the number of injuries caused by them to the deceased and the fact that they have already been dealt with leniently, we do not consider it a fit case for granting the relief prayed for by them." In the present case, the applicant cannot reasonably be heard to say, in view of the punishment prescribed for the offence, that he has not been treated with leniency by award of a sentence of seven years' R. I. We cannot review or revise the question of quantum of sentence inclusive of the grant or refusal of benefit of section 382-B, Cr. P. C. Without undertaking a second exercise to examine the case on merits and proper sentence to be awarded. We do not think that adoption of this course is permissible under the prevailing scheme of the Criminal Procedure Code. We also find ourselves in no position to substitute our discretion for the discretion exercised by the learned Division Bench which decided the appeal of the present applicant. The applicant is doubly to blame himself for the alleged omission on the part of the Division Bench by admittedly not raising the plea and additionally in not following the normal legal course of approaching the Supreme Court by way of special leave to appeal which remedy, according to the learned counsel, the applicant has failed to avail. 10. In the facts and circumstances of the matter under disposal, the provisions of section 382-B, Cr. P. C., on proper interpretation, do not appear to be strictly applicable. By virtue of this section the Court when passing a sentence of imprisonment on an accused for an offence, is required to take into consideration the period during which that accused was detained in custody "for such offence". The expression "for such offence" clearly refers to the offence in respect 'of which sentence of imprisonment is being passed. We rely on the decision of the learned Supreme Court in re: Abdul
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Aziz and another v. Muhammad Ibrahim (1), wherein it has been authoritatively laid down as to how the word "such" should be construed. The Supreme Court ruled : "Considering its implication that it refers generally and naturally to its last antecedent the use of this word is with a definite purpose, 1. e. To identify the ownership of the building with that before mentioned in the introductory part of clause (ii). In this connection we would also refer to the rule as to how the word 'such' should be construed as stated by Maxwell in his book on the Interpretation of Statutes, 12th Edition at page 30 ; "Where the word 'such' occurs in a section it must not be ignored, but must be read as referring back to the preceding provisions, even thought this gives rise to a result which appears anomalous." ' The petitioner was detained in custody for the offence of murder under section 302/34, P. P. C. But has been convicted and sentenced to imprisonment for an altogether different offence under section 326, P. P. C. In such a situation, prima facie, it appears extremely doubtful, under the existing state of law, if the applicant can claim the benefit of section 382-B, Cr. P. C. Strict Jens as a matter of right. This may well be the reason for non-raising of the plea by the applicant and in turn the Court may have considered this provision not attracted to the peculiar facts and circumstances of the case. We find no warrant in law while interpreting this section to substitute the N word 'such' occurring in the last part of the section with the word 'any' as (1) PLD 1977 SC 442 ' this would undoubtedly run counter to the expressed manifest legislative intent and materially change its true import and scope. The substitution if made would read "the period, if any, during which such accused was detained in custody for any offence". We, however, wish to leave the question open for deeper and detailed consideration in a case properly coming up before us for decision. 11. We may also refer here advantageously to the decision of the ' Supreme Court in the case of Amiruddin v. The State and another (1) and the following observations made in the report :- "According to section 369 of the Code no Court when it has signed its `judgment', shall alter or review the same except to correct a clerical error. But strictly speaking an order allowing or cancelling bail does not amount to a judgment within the meanings of this section. In Gulzar Hassan Shah v. Ghulam Murtaza and 4 others (PLD 1970 SC 335) this Court has held that an order passed under section 498 of the Code is not a `judgment' within the meanings of section 369 of the Code so as to operate as a bar against its alteration or review. In this connection the Court further observed that the general principle of finality of judgment no doubt attaches to the decisions or orders of the High Court passed in criminal cases. Nonetheless, in the opinion of the Court in rare and exceptional cases the High Court has inherent power to revoke, review or alter its own earlier decisions in cases which were not governed by sections 369, 424 and 430, with a view to give effect to any order under the Code or to prevent abuse of the process of the Court or otherwise to secure the ends of justice. At the same time the Court further observed that it was not possible to enumerate the circumstances in which the inherent power can be invoked." On a careful appreciation of the ratio of the precedent case, we are strongly of the view that the application under disposal is not maintainable for the simple reason that the decision of the criminal appeal of the applicant is albeit a judgment of this Court. It is not one of those cases were it can be said that either the case was decided without hearing the party or the order was without jurisdiction. The decision of this Court rendered in the criminal appeal of the applicant cannot reasonably be said to be not governed by any of the provisions specified by the learned Supreme Court I. e. Sections 369, 424 or 430, Cr. P. C. It is far from us to deviate from or even attempt to find an escape from the binding dicta of the Supreme Court even 0 with best of intentions. We must firmly repel the insinuation made to draw fine distinction in the Supreme Court judgments which on
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deeper consideration turn out to be more artificial than real. We are unable to appreciate the distinction between asking for re-opening of a final judgment of this Court in criminal appeal on the basis of benefit of section 382-B, Cr. P. C. Or any other legal or factual grounds, including those touching upon the merits despite express statutory bars. We are not minded to undermine the solemnity and finality of the judgments of this Court on belated or ill-merited pleas of convicts. The rigours of the law cannot be relaxed to open floodgates. Where and how would the Court draw the line in each case in those cases which are not exceptional and are not outside the pale of the prohibition laid down by the Supreme Court. Our jurisdiction in terms of section 369, Cr, P. C. Is confined to correcting clerical errors. It cannot be urged with any degree of reasonableness that the alleged omission to consider' (1) PLD 1977 SC 602 ' or grant benefit under section 382-B, Cr. P. C. Can have even a remote semblance of such an error. 12. We would now like to address ourselves to the further question whether acceptance of the plea of the applicant by passing an order to give him the benefit in terms of section 382-B, Cr. P. C. Would amount to altering or reviewing of the judgment. We have in the earlier part of the judgment, made it sufficiently clear that the grant or refusal of benefit under section 382-B, Cr. P. C. Involves examination of a variety of fattors followed by a judicial finding as a result of an inquiry into factual aspects. It is not Q the form but the substance and the effect of an order passed by a Court which will provide a true test for decision of the question whether it amounts to altering or reviewing the judgment. This Court has already examined the scope of the words "alter or review" occurring in section 369, Cr. P. C. In a decision reported as Crown v. Habib Ullah (1). In the words of Kayani J., it was observed :- " (2) Alternation or Review.-These words do not appear to have been used id any special sense. An alteration means a change, whether in character or appearance, and a document would be altered if it is made different in some respect, whether that and is achieved by a mere insertion or by the substitution of something for something else. There would thus be an alteration of the judgment when an argument is added even in support of the existing arguments. The judgment would, tharefore, be altered if certain words are inserted in it, whether they do or do not alter the sense. An alteration which changes the sense also, whether wholly or partially, will be covered by the term `review'. Now since the insertion of the words in question will not alter the purport of the judgment, which is that a sentence of death has been passed, but only indicate the mode in which that purport is to be accomplished, it will not amount to a review of the judgment. There will nevertheless be an alteration." ' We may further refer to the judicially defined meanings of the word "alter" as given in the Black's Law Dictionary (Third Edition) :- "To make a change in; to vary in some degree; to change some of the elements or ingredients or details without substituting an entirely new thing or destroying the identity of the thing affected." We may also refer to the import of the word "review" as given in the said Dictionary. It has been said to mean "To re-examine judicially. A re consideration; second view or examination; revision; consideration forpurposes of correction." After examining the interpretation placed on the words "alter" or "review" as noticed above, we entertain no doubt that the exercise to be undertaken by us by judicially deciding the question of grant or refusal of benefit under section 382-B, Cr. P. C., apart from the other reasons already listed by us, would definitely amount to both altering and T reviewing the judgment in material respects. It will entail of necessity an inquiry into factual questions and examination of the contentions of the convict and the State and then rendering a decision. It must be observed at this stage that the learned Advocate-General, Punjab Sh. Riaz Ahmad assisted by Mr. Rashid Aziz Khan, Additional Advocate-General and Mr. Riaz-ud Din Abmad
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Khan, Advocate who appeared for the State have strongly opposed the application. Therefore, by no stretch of imagination, it can (1) PLD 1952 Lab. 547 reasonably be urged on behalf of the applicant that the decision of the question of relief prayei for would not amount to a second view or examination or consideration for the purpose of correction. We are therefore, perfectly clear in our mind that the decision of the question based on section 382-B would amount to altering or reviewing the judgment which is expressly prohibited under the Criminal Procedure Code. 13. In so far as the reliance on section 561-A, Cr. P. C. Is concerned, it's would suffice to observe that it is not available in those cases where exercise of this power would entail overriding the express prohibitions contained in the Criminal Procedure Code. This power is available on the plain reading of section 561.A to make such orders as may be necessary to give effect to any order under the Code. The phraseology employed by the Legislature needs to be noted with care. The exercise of this power is pre-conditioned, v by necessity, to give effect to…
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