GHULAM GILLANI vs THE STATE and 2 etherss

ORDER

' IJAZ AHMAD CHAUDHRY, C.J.---This constitutional petition has been filed by Ghulam Gillani/petitioner for the grant of benefit of section 382-B, Cr.P.C.

2. The petitioner was booked in case F.I.R. No,115 of 2004 registered with Police Station, Katha Saghral, District Khushab in respect of offences under section 13/20/65 of the Arms Ordinance, thereafter, he was tried by Magistrate Section 30, Khushab, who convicted him in the aforesaid case and sentenced him to SI for one year with a fine of Rs,10,000 and in case of default of payment of fine he was to further undergo SI for two months vide judgment dated 7-5-2007. Earlier on, he was also convicted in another case F.I.R. No,106 of 2004 registered with the said Police Station in respect of offences under sections 302/324/34, P.P.C. By learned Additional Sessions Judge, Khushab vide judgment dated 29-8-2005 under section 302-B, P.P.C. And sentenced to imprisonment for life with further direction to pay an amount of Rs,50,000 as compensation, failing which to further undergo RI for six months and under section 337-F(ii), P.P.C. To two years' RI with Daman of an amount of Rs,5,000.

3. Now the grievance of the petitioner is that the Jail authorities as per the Jail rules have not so far started to count his conviction passed in the latter judgment as according to them, firstly the petitioner had to undergo the major part of his conviction and then the short sentence will start. It has been further alleged that neither any direction was passed for running of the sentence concurrently nor the petitioner was granted benefit of section 382-B, Cr.P.C. In the judgment passed against him on 7-5-2007 and thus the request is that he may be allowed benefit of section 382-B, Cr.P.C. In respect of calculation of his sentences recorded in F.I.R. No,115 of 2004 registered with Police Station, Katha Saghral, District Khushab for offence under section 13/20/65 of the Arms Ordinance.

4. Learned Additional Advocate-General on the other hand has not seriously opposed the prayer.

5. I have considered the submissions made by the applicant through the instant writ petition. It is now well settled that grant of benefit of section 382-B, Cr.P.C., is a mandatory and in normal circumstances A cannot be refused. The Hon'ble Supreme Court of Pakistan in Ehsan Elahi v.

Muhammad Arif and others (2001 SCM R 416) has laid down guiding principles for the application of provision of section 382-B, Cr.P.C. Which read as under:-- "(i) The 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.

(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 382-8, Cr. P. C. Are mandatory and in the absence of express manifestation of the application of the mind by the Court that if 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 favour of the Court having adverted to the same."

5. After going through the judgment passed by the learned trial Court I have noticed that the sentence awarded to the petitioner is short and keeping in view the facts and circumstances of the case, I do not find any extraordinary reason to decline the relief sought for through writ petition.

Even otherwise, the learned Additional Advocate-General has not opposed the prayer. Accordingly, this petition is accepted and it is. Directed that benefit of section 382-B, be extended to the applicant while calculation of his sentence passed in Case No,115 of 2004 registered with Police Station, Katha Saghral, District Khushab for offence under section 13/20/65 of the Arms Ordinance.