CrPC ---Ss. 35, 397 & 561-A--Sentences run concurrently in two different criminal cases registered at two different districts--

 PLJ 2022 Lahore 519

Criminal Procedure Code, 1898 (V of 1898)--

----Ss. 35, 397 & 561-A--Sentences run concurrently in two different criminal cases registered at two different districts---Tried by different Courts--Petitioner having been booked in criminal case and was tried by a ASJ, Lahore--Petitioner alongwith co-accused was further convicted in criminal case registered at District Kasur--Petitioner assailed the vires of impugned judgments before High Court which were dismissed and subsequently upheld by the August Supreme Court of Pakistan--Section 397 of, Cr.P.C. deals with various sentences passed in a single trial of two or more offences--Section 397, Cr.P.C.; enables and empowers the trial and or Appellate/Revisional Court, as the case may be, in a subsequent trial or in appeal or revision arising out of subsequent trial to order for the consolidation of sentence in subsequent trial--Writ Petition is allowed and the sentences passed against the petitioner in above mentioned two F.I.Rs is ordered to run concurrently.

                                           [Pp. 520, 521, 524 & 525] A, B, C, D, F & G

PLJ 2016 SC 255; PLD 2015 SC 15; 2016 SCMR 467;
2018 SCMR 418 ref.

Criminal Procedure Code, 1898 (V of 1898)--

----Ss. 35--Pakistan Penal Code, 1860, S. 71--Several Punishment/ Sentences to a person chaged for multiple offence in some trial may run concurrently.                                 [P. 524] E

Rai Bashir Ahmad, Advocate for Petitioner.

Ch. Manzoor Ahmad Warraich, AAG for State.

Date of hearing: 26.1.2022.

 PLJ 2022 Lahore 519
Present: Muhammad Tariq Nadeem, J.
IJAZ alias JUJJI--Petitioner
versus
STATE, etc.--Respondents
W.P. No. 80463 of 2021, decided on 26.1.2022.

Order

Through the instant writ petition filed under Article-199 of the Constitution of Islamic Republic of  Pakistan, 1973 read with all other enabling provision of law, the petitioner Ijaz alias Jujji, who is convicted prisoner presently confined at Central Jail Kot Lakhpatt, Lahore, has agitated his grievance as under:

“In view of the circumstances and submissions made above, it is most respectfully prayed that the imprisonments and sentences awarded to the petitioner in case FIR No. 842/2000 dated 18.11.2000 under Sections 302/324 /452/364/148/149/337/ 337-F(iv), 337-F(vi), Police Station Phoolnagar, District Kasur and sentence awarded in case FIR No. 121/2003 dated 21.03.2003 under Sections 302/324/34, PPC, Police Station Manga Mandi, District Lahore may kindly be declared that all the sentences awarded in the above noted two different cases shall run concurrently and not consecutively.

It is further prayed that a direction may kindly be issued to Respondent No. 2 that if the sentences awarded to the petitioner have been served out by the petitioner, treating the sentences as running concurrently, then the Respondent No. 2 may kindly be ordered to release the petitioner.”

2. Tersely, the facts of the case are that the petitioner having been booked in case FIR No. 121 dated 21.03.2003 under Sections 302, 324, 34, PPC, registered at Police Station Manga Mandi Lahore, was tried by a learned Additional Sessions Judge, Lahore, who convicted and sentenced the petitioner vide judgment dated 10.12.2015 as under:

U/S. 302(b)/34, PPC	Life imprisonment as Tazir for committing Qatl-e-Amd of Muhammad Afsar and to pay compensation of Rs. 4,00,000/- under Section 544-A, Cr.P.C. to the legal heirs of deceased and in default thereof to further undergo six months S.I
U/S. 337-F(iii), PPC	To rigorous imprisonment for three years as Tazir and Daman Rs. 20,000/- for causing Injury No. 1 Jurh Ghair Jaifah Mutlahima on the person of Shakeel Ahmad, PW.
U/S. 337-F(iii), PPC	To rigorous imprisonment for three years as Tazir and Daman Rs. 20,000/- for causing Injury No. 2 Jurh Ghair Jaifah Mutlahima on the person of Shakeel Ahmad, PW.
U/S. 337-F(iii), PPC	To rigorous imprisonment for three years as Tazir and Daman Rs. 20,000/- for causing Injury No. 3 Jurh Ghair Jaifah Mutlahima on the person of Shakeel Ahmad, PW.

3. Petitioner along with co-accused was further convicted in case FIR No. 842/2000 dated 18.11.2000 registered at Police Station Phool Nagar, District Kasur vide judgment dated 18.06.2011 passed by the learned Additional Sessions Judge, Pattoki, District Kasur in following sections:

U/S. 452 read with Section 34, PPC	Rigorous imprisonment seven years and to pay fine of Rs. 50,000/- cash and in default thereof to further undergo 06 months S.I.
U/S. 324 read with, Section 34, PPC	Sentenced to 10 years imprisonment for attempt to commit qatal-e-amd of Manzoor And Yaqoob PWs on two counts and to pay fine of Rs. 50,000/- each in default to suffer six months S.I. each
U/S. 337-F(vi), PPC	Rigorous imprisonment for seven years with a daman of Rs. 50,000/- for causing injuries to Yaqoob injured for Injuries No. 2 and 3 declared as Jurrah-e-Mankala.
U/S. 337-F(iv), PPC	To rigorous imprisonment for seven years as Tazir and Daman Rs. 50,000/for causing Injury No. 1 declared as Jurrh-e-Mudhihah.
U/S. 364/34, PPC	To undergo life imprisonment and to pay fine of Rs. 50,000/- and in default to suffer six month S.I.
U/S. 302(b)34, PPC	Life imprisonment with a compensation of Rs. 2,00,000/- under Section 544-A, Cr.P.C. to the legal heirs of the deceased and in default six months S.I.

Feeling aggrieved from the judgments of Courts below, the petitioner assailed the vires of impugned judgments before the High Court which were dismissed and subsequently upheld by the August Supreme Court of Pakistan. The petitioner is undergoing to two sentences of life imprisonment along with other sentences awarded in the above noted two cases and the Respondent No. 2 has not treated the same as concurrent sentences.

4. Heard. Perused the record.

5. I find that in the above said case, the petitioner was tried and convicted but the learned Courts below while passing the impugned judgments, no order regarding the sentences awarded in two different cases shall run concurrently has been passed. The moot point of discussion before this Court is that whether this Court has jurisdiction to pass an order for considering the

i)        sentences passed against the petitioner in two different cases shall run concurrently or not. And

ii)       that whether benefit of Section 382-B, Cr.P.C. can be granted in Constitutional jurisdiction.

It is by now well embedded and deeply entrenched universal principle of law that while interpreting the provision of punitive law, Courts are required to strive in search of an interpretation, which prefer the liberty of a person instead of curtailing the same and that too unreasonably and unfairly unless, the statutory law clearly directs otherwise.

Generally a sentence of imprisonment (subject to Sections 381, 401 and 426, Cr.P.C.) comes into effect the moment it is passed and unless the trial, appellate or revisional Court as the case may be orders consolidated computation of several conviction sentences passed in singular trial, the sentences run in row, however, Section 35 of the, Cr.P.C. enables the trial and or higher Courts of appeal to order consolidation of several imprisonment sentences in the same trial.

If remissions were to be calculated, the minimum period of substantive sentence of a lifer to undergo would be 15 years. Section 35 of the Code of Criminal Procedure, 1898, also deals with the question of maximum sentence of imprisonment in case of conviction for more than one offence at one trial. For facility of reference the said provision is reproduced below:

“35. Sentence in case of conviction of several offences at one trial.--(1) When a person is convicted at one trial of two or more offences, the Court may, subject to the provisions of Section 71 of the Pakistan Penal Code, sentence him, for such offences, to the several punishments prescribed there for which such Court is competent to inflict; such punishments when consisting of imprisonment to commence the one after the expiration of the other in such order as the Court may direct, unless the Court directs that such punishments shall run concurrently.

(2) In the case of consecutive sentences, it shall not be necessary for the Court, by reason only of the aggregate punishment for the several offences being in excess of the punishment which it is competent to inflict on conviction of a single offence, to send the offender for trial before a higher Court:

Provided as follows:--

(a)      in no case shall such person be sentenced to imprisonment for a longer period than fourteen years;

(b)      if the case is tried by a Magistrate, the aggregate punishment shall not exceed twice the amount of punishment which he is, in the exercise of his ordinary jurisdiction, competent to inflict.

(3) For the purpose of appeal. The aggregate of consecutive sentences passed under, this section in case of conviction for several offences at one trial shall be deemed to be a single sentence.”

Courts in Pakistan generally, take charitable view in the matter of sentences affecting deprivation of life or liberty of a person and unless some aggravating circumstances do not permit so, liberally exercise enabling power under Section 35 and Section 397, Cr.P.C. respectively to order concurrent running of sentence in one trial and so also consolidation of earlier sentence while handing down sentence of imprisonment in a subsequent trial.

I may observe Section 35, Cr.P.C. subject to Section 71 of Pakistan Penal Code empowers not only the trial Court to hand down several punishment/sentences to a person charged for multiple offence in same trial and in its discretion direct that such conviction/sentence may run concurrently.

6. To meet out with this proposition Section 397, Cr.P.C. is reproduced as under:-

“397. Sentence on offender already sentenced for another offence. When a person already undergoing a sentence of imprisonment or imprisonment for life is sentenced to imprisonment, or imprisonment for life, such imprisonment, or imprisonment for life shall commence at the expiration of the imprisonment, or imprisonment for life to which he has been previously sentenced, unless the Court directs that the subsequent sentence shall run concurrently with such previous sentence.

          Provided that where a person who has been sentenced to imprisonment by an order under Section 123 in default of furnishing security is, while undergoing such sentence, sentence to imprisonment for an offence committed prior to the making of such order, the latter sentence shall commence immediately.”

A bare perusal of above Section 397, Cr.P.C. reveals that procedure to be observed for the sentences awarded to an accused in cases regarding sentences to run consecutively or concurrently should be passed at the time of deciding the case and if for any reason or there to some inadvertent mistake the same is not passed, the matter could be settled by invoking the jurisdiction of this Court.

Section 397, Cr.P.C. further provides that when a person is sentenced at a time when he is already undergoing imprisonment, then his subsequent sentence is to commence upon the expiration of the earlier sentence unless the Court has specifically given directions that subsequent sentence to run concurrently with the previous sentence. This section deals with various sentences passed in a single trial of two or more offences. The sentences are to run consecutively unless the Court directs otherwise. Thus Section 397, Cr.P.C. perfectly covers the present case.

9. I may well observe that Section 35, Cr.P.C. subject to Section 71 of Pakistan Penal Code empowers not only the trial Court to hand down several punishment/sentences to a person charged for multiple offence in same trial and in its discretion direct that such conviction/sentence may run concurrently (per proviso thereto, in no case be more than 14 years in aggregate) even the Appellate Court while hearing the appeal against the conviction may direct several sentences/punishment handed down in same trial; to run concurrently.

Whereas Section 397, Cr.P.C.; enables and empowers the Trial, and or Appellate/Revisional Court, as the case may be, in a subsequent trial or in appeal or revision arising out of subsequent trial to order for the consolidation of sentence in subsequent trial with the sentence(s) handed down in earlier trial(s) as may be maintained or modified in appeal/revision arising there from. In case earlier, conviction was not brought to the notice of the learned trial Court at the time of handing down the subsequent conviction/sentence the trial or Appellate/ Revisional Court could exercise such jurisdiction even after the sentence of imprisonment in subsequent trial is announced in exercise of its inherent jurisdiction under Section 561-A, Cr.P.C. read with Section 397, Cr.P.C., provided of course, where the trial, or superior Courts of appeal have specifically and consciously ordered the

sentences either in same trial or in subsequent trial to run consecutively.

Thus, in the light of above said provisions of law, there remains no doubt that this Court has jurisdiction under Section 561-A read with Section 35 and or Section 397, Cr.P.C. as the case may to ordered such multiple sentences in same transaction/trial or in a separate and subsequent trial and so also this considering the sentences of the petitioner to run consecutive would not serve the interest of justice rather the same would be contrary to the law discussed above.

10. In view of above and while placing reliance upon the cases of “Mst. Shahisa Bibi and another vs. Superintendent Central jail, Mach and 2 others" (PLD 2015 SC 15), Sajjad Ikram and others vs. Sikandar Hayat and others" (2016 SCMR 467), “Rahib Ali vs. The State” (2018 SCMR 418) and Sajjad lkram and others vs. Sikandar Hyat, etc. (PLJ 2016 SC 255), this writ petition is allowed and the sentences passed against the petitioner in above mentioned two F.I.Rs. is ordered to run concurrently. Superintendent Central Jail, Kot Lakhpatt, Lahore, where the convict is presently confined, is directed to do the needful.

(K.Q.B.)          Petition allowed