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Criminal Miscellaneous No. 231/M of 1982 in Criminal Appeal No. 265 of 1977, decided on 19th April, 1982.

-- S. 382-B-Sentence, period, computation of---Petitioner's sentence of imprisonment for life maintained but benefit of S. 382-B not given to petitioner same having not been adverted to---Contention that at time of passing of sentence word contained in section being may' as such discretion deemed to be not exercised in favour of petitioner, held, had no force-Provisions of S. 3b2-B having not been adverted to at time of hearing of appeal its benefit given to petitioner in circumstances of case.---[Sentence].

Ch. Muhammad Hussain-I for Petitioners.

Farooq Bedar for the State.

---This is a petition for granting the benefit of the provisions of section 382-B, Cr. P. C. to Ali and Siraj petitioners while computing their sentence of imprisonment for life. Ali and Siraj petitioners have been convicted under section 302/34, P. P. C. and each of them was sentenced to imprisonment for life plus fine of Rs 2,000 or in default to undergo six months' R. I. Each of them was further ordered to pay compensation to the heirs of the deceased amounting to Rs. 2 000 or in default to undergo six months' further R I. The case was registered against them on 2nd June, 1972. However, they are stated to have absconded and were arrested about six months thereafter. Eversince then they remained behind the bars until the judgment of the trial Judge against them was passed on 28th February, .1977 whereby they were convicted and sentenced as stated above. In appeal Mr. Justice Khalilur Rahman vide his judg ment dated 6th November, 1979 maintained the conviction and sentence awarded to them. The awarding of the benefit of the provisions of sec tion 382-B, Cr. P. C. has not been discussed at the time of hearing of the appeal as the learned Single Judge did not advert to it. Learned counsel for the State argued that at the time when the judgment was passed as against Ali and Siraj petitioners, section 382-B, Cr. P. C. contained the word may' which meant that the Court had discretion to grant the said benefit and that since that discretion had not been exercised in favour of A granting the benefit, the petitioners cannot claim the same thereafter. We note that the word may' was changed to shall' by an amendment in 1979. But we are of the view that the learned Single Judge did not advert to it at the time of hearing of the appeal and, therefore, it cannot be said that he had exercised discretion one way or the other.

In the light of what has been discussed above, we direct the Jail Authorities to give the benefit of the provisions of section 38.2-B, Cr. P. C. to Ali and Siraj petitioners at the time of the computation of their sentence of life imprisonment. This petition is accordingly disposed of.

Bail granted.

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