MUHAMMAD RAFIQ Versus STATE

The accused‑petitioner/Muhammad Rafique was charged for the murder of Iftikhar Rafique, F.C. No.1361 and‑ was convicted under section 302, P.P.C. and sentenced to life imprisonment.. He was further directed to pay compensation to the tune of Rs.50,000 to the heirs of the deceased and on his failure to do so, to further undergo R.I. for six months, vide judgment, dated 16‑4‑1996 passed by the learned Sessions Judge, Bahawalpur. Upon appeal, the said sentence was confirmed vide judgment, dated 18‑7‑2001.

2. Instant petition has been filed on the ground that neither the trial Court nor the Appellate Court, while passing judgments, dated 16‑4‑1996 and 18‑7‑2000 adverted to the provisions of section 382‑B, Cr.P.C. and failed to extend the benefit of the accused/petitioner.

3. Arguments have been heard and record perused.

4. It is submitted by the learned counsel for the petitioner that it was mandatory on the part of the trial Court as well as Appellate Court to invoke the provisions of section 382‑B, Cr.P.C. while passing final order of conviction. This omission, it is submitted, entitles the petitioner' to seek the said relief by way of instant petition. He further contended that in case the said benefit has not been extended the same, can be granted even later on. In support of his contention he has placed reliance upon Hakim Khan v. The State (1994 PCr.LJ 873), Ghulam Murtaza v. The State (PLD 1998 SC 152), Javed Iqbal v. The State (1998 SCMR 1539) and Muhammad Saleem v. The State (1996 P. Cr. LJ 1598).

5. Conversely, the learned Assistant Advocate‑General has supported the judgments referred above and stated that accused/petitioner has rightly been declined the relief provided under section 382‑B, Cr.P.C.

6. There is no doubt that while passing judgment of conviction by the learned Sessions Judge, Bahawalpur, dated 16‑4‑1996 benefit of section 382‑B, Cr.P.C. has not been extended to the accused/petitioner. Similar is the position as it appear from a bare perusal of judgment of appeal, dated 28‑7‑2000. It is also fact that law requires that if the benefit of section 382‑B, Cr.P.C. is being declined then its reasoning must be given by the Court concerned. It is fact that while passing judgment of conviction, dated 16‑4‑1996 no reasoning has been given for not extending the benefit of section 382‑B, Cr.P.C. However, this is not the position as it emerges from the judgment of the Appellate Court, dated 18‑7‑2000. A perusal of judgment, dated 18‑7‑2000 shows that benefit of section 382‑B, Cr.P.C. has intentionally been declined. Although no explicit reasoning for refusing such relief appears in the judgment, yet the same can be ream from the findings recorded in paragraph No.17, which reads as follows:‑‑‑

"Had there been any revision petition, filed by the State or by the complainant, the penalty imposed upon the accused/appellant must have been enhanced."

This observation, which appears in paragraph No.17 of the judgment of the Appellate Court, dated 18‑7‑2000, clearly speaks the intention and the reasoning for not extending the benefit of section 382‑B, E Cr.P.C. to the accused/petitioner. The language of the order contained in paragraph No.17 of the judgment of the Appellate Court goes to show that the Appellate Court did not consider it proper to extend the said benefit.

7. In the light of facts stated above, the II petition being devoid of force is dismissed.

N.H.Q./M‑762/L ??????????????????????????????????????????????????????????????????????????????? Petition dismissed.