MUHAMMAD ARIF Versus THE STATE

Appellant Muhammad Arif was tried for the offence under section 156(1)(8) of the Customs Act, 1969, by Mr. Nazim Hussain Siddiqui, Special Judge (Customs and Taxation) Karachi, who found him guilty for the said offence and vide judgment, dated 24‑7‑1990 sentenced him to suffer R.I. for three years and to pay a fine of Rs.1,00,000 (Rs. one lac) or in default to suffer R.I. for one year.

2. On 17‑3‑1990 at about 5 a.m. the appellant was intercepted at Terminal 111, Karachi Airport while leaving for Amman by Flight No.191, and from his possession 2300 grams of powder of heroin was secured. Such inventory was prepared by Nasir Hamid Khan, Preventive Officer, Pakistan Customs and notice under section 171 of the Customs Act, 1969, was served upon him. After usual investigation the appellant was sent up to stand trial.

3. At the trial the appellant pleaded guilty. The learned Special Judge accepted his plea and took a lenient view for the following reasons:‑‑

"Accused pleaded guilty to the charge voluntarily. He has also filed an application Exh.3‑B, in which he pleaded guilty and prayed for lenient view. His plea of guilt is not because of any inducement, threat or promise from any quarter. On the contrary, it is for the reason, that, now, he has realised, that he had committed the said offence. Today, in Court also he expressed remorse for having committed the said offence. Accordingly, I convict accused Muhammad Arif under section 156(1)(8) of the Customs Act, 1969, and sentence him to suffer R.I. for three years and to pay a fine of Rs.1,00,000 (Rupees one lacy, or in default thereof to suffer R.I. for one year. The punishment awarded would meet the ends of justice."

3. The appellant accepted the verdict. He, however, woke up from sound slumber on 26‑8‑1991 when he filed this appeal through his counsel which is time‑barred by more than eleven months. The grounds on which the condonation of the delay in filing this belated appeal are sought are two‑fold, firstly, the poverty of the appellant, and secondly the refusal of Superintendent Central Prison Karachi to forward his appeal. Both these grounds are not tenable. Poverty is no excuse to file an appeal after expiry of appeal period by eleven months. The appellant could have preferred a jail appeal if he was not in a position to engage an Advocate. Again there is no reason as to why the Superintendent, Central Prison Karachi, would have refused to forward his appeal, if he was really interested to do so.

4. The provisions of Limitation Act, 1908, are designed to discourage litigation of this nature, which are based on considerations of public policy and expediency. This Court can excuse the delay and admit a time‑barred appeal A for sufficient reasons. No sufficient reasons, however, exist in this case and the abnormal delay in filing the appeal, therefore, cannot be condoned.

5. Section 412, Cr.P.C. again bars this appeal as by pleading guilty to the charge the appellant has waived his right to question the legality of conviction. The extent or legality of the sentence could be assailed in such appeal, but leniency was already shown to appellant.

6. Finally, there survives the question whether the benefit of section 382‑B, Cr.P.C., which was not extended to appellant is a mandatory requirement. The scope, import and scheme of section 382‑B, Cr.P.C. were examined by a Division Bench in Aslam Parvaiz v. The State reported in P L D 1984 Lab. 204, wherein it was held that benefit under section 382‑B, Cr.P.C. is not extendable mechanically or as a matter of course. A burden lies on the 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 delay. This of necessity would require some sort of inquiry by the Court for its judicial satisfaction. It is on y when the Court is satisfied that the accused/convict is in no manner to be blamed for the delay, that the Court would order that period of his 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. While analysing the scheme of section 382‑B, Cr.P.C. it was observed that this provision does not stand on the footing of those mandatory provisions which affect the jurisdiction of the Court in the category of incurable illegalities.

7. While examining the implications of section 382‑B, Cr.P.C. in Nathu Khan v. The State reported in 1985 M L D 641, it was remarked that although word `may' used in section 382‑B, Cr.P.C. has been substituted by word shall yet it is subject to judicial discretion and in an offence of rape, accused, on technical ground, cannot claim benefit as a matter of right.

8. Looking to the gravity of offence, the accused was deprived of benefit under section 382‑B, Cr.P.C. In Rehmat Sher v. The State reported in 1987 P Cr. L J 855.

9. This view was followed by Sajjad Ali Shah, J, (as he then was) in Islamuddin v. The State, reported in 1988 P Cr. L J 1576. I cannot do better than quoting his Lordship's observation in extenso:‑‑

"The question that arises for consideration is whether section 382‑B, Cr.P.C. provides that if such request is made for the benefit of reduction of sentence invariably every request is to be granted or the Court has power to refuse such request as well. Section 382‑B, Cr.P.C. has been added by Law Reforms Ordinance and perusal of the language contained therein shows that it has been made mandatory for the Court at the time of passing sentence to take into consideration the period, if any, during which accused was detained in custody. The word used is `shall' which makes it mandatory, but this applies only for the purpose of taking into consideration the period, accused had remained in custody as undertrial prisoner. It does not necessarily mean that in every case the request is to be granted. It further appears from the language used in this section that it has been left open to the trial Court to grant this benefit in appropriate cases and it is not necessary that whole period, the accused remained undertrial prisoner, is to be deducted, but even part of it can also be deducted. The object of this section is to compensate the accused if he has remained incarcerated for a long period as undertrial prisoner and bail was not granted to him. In that context such benefit could be given to him for the whole period or part of it while he remained in detention during the trig' and further such benefit could be given in appropriate cases and not necessary in all cases. It is imperative for the trial Judge to consider this question but it is further discretionary matter to grant the request or not depending upon the peculiar circumstances of the case."

10. On all the above scores the appeal is liable to be dismissed and is accordingly dismissed in limine alongwith Miscellaneous Application No.1309 of 1991. The appellant be informed accordingly.

N.H.Q./M‑1469/K Appeal dismissed in limine.