PLJ 2024 Cr.C. 973 (DB)
[Lahore High Court, Rawalpindi Bench]
Present: Sadaqat Ali Khan and Ch. Abdul Aziz, JJ.
SHER AFZAL--Petitioner
versus
STATE etc.--Respondents
Crl. Misc. No. 729-M of 2024, heard on 29.5.2024.
Criminal Procedure Code, 1898 (V of 1898)--
دفعہ 397 اور 497- پاکستان پینل کوڈ (1860 کا ایکس ایل وی)، دفعہ 302/324/34- سزا کے دو مختلف مقدمات میں سزا اور سزا ایک ساتھ چلتی ہے- درخواست گزار کی عمر قید کی دونوں سزاؤں کو بیک وقت دینے میں کوئی غلط اور نقصان نہیں ہے- یہ عدالت سی آر پی سی کی دفعہ 397 کے تحت سی آر پی سی کی دفعہ 497 کے ساتھ پڑھی جا سکتی ہے۔ بشرطیکہ جہاں اپیل کی اعلیٰ عدالت نے خاص طور پر اور شعوری طور پر سی آر پی سی کی دفعہ 397 کی شق کے فوائد سے انکار نہ کیا ہو۔
----Ss. 397 & 497--Pakistan Penal Code, (XLV of 1860), Ss. 302/324/34--Conviction and sentence in two different cases of Qatl-i-amd--Sentence run concurrently--There is no wrong and harm in treating both he sentences of imprisonment for life of petitioner to Concurrently--This court in terms of Section 397 of Cr.P.C. read with Section 497 of Cr.P.C can be invoked, provided, of , course, where superior court of appeal specifically and consciously has not denied benefit of provision of section 397 of Cr.P.C.
[Pp. 975 & 976] D & E
2018 SCMR 418 ref.
Criminal Procedure Code, 1898 (V of 1898)--
سی آر پی سی کی دفعہ 397 کی شق واضح طور پر عدالت کو یہ ہدایت دینے کے قابل بناتی ہے کہ مجرم کی اگلی سزا پچھلی سزا کے ساتھ ساتھ چلے گی - عدالت ہر معاملے کے حقائق اور حالات کا تجزیہ کرتے ہوئے یہ ہدایت دینے کی مجاز ہے کہ ہر معاملے کی سزا یہ ہدایت دینے کی مجاز ہے کہ دو مختلف مقدمات میں مجرم کی سزائیں بیک وقت چلیں گی۔
----S. 397--Provision of section 397 of Cr.P.C. expressly enables court to direct that subsequent sentence of convict would run concurrently with previous sentence--court while analyzing facts and circumstances of every case is competent to direct that sentences of every case is competent to direct that sentences of a convict in two different trials would run concurrently. [P. 975] A
Criminal Procedure Code, 1898 (V of 1898)--
سی آر پی سی کی دفعہ 397 کی دفعات عدالت اور کسی کو کسی خاص نوعیت کے معاملے میں مجرم کو اس طرح کا فائدہ دینے کے لئے وسیع صوابدید فراہم کرتی ہیں۔
----S. 397--Provisions of Section 397 of Cr.P.C bestows wide discretion on court and unfettered one to extend such benefit to convict in a case of a peculiar nature. [P. 975] B
Criminal Procedure Code, 1898 (V of 1898)--
----ایس 397- سی آر پی سی کی دفعہ 397 کی شق کے تحت قانون سازی انتہائی ہمدردانہ ہے اور اس نے عدالتوں کو یہ اختیار دیا ہے کہ وہ مجرم کی پچھلی سزا کے ساتھ ساتھ اگلی سزا کا حکم دے سکتی ہیں۔
----S. 397--The legislation under provision of sec/ 397 of Cr.P.C is quite compassionate having tender feelings and has empowered courts tot order subsequent sentence to run concurrently to previous sentence of a convict. [P. 975] C
Malik Waheed Anjum, Advocate for Petitioner/Convict.
Mr. Sajjad Ahmad Bhatti, DPG for State.
Mr. Muhammad Bashir Paracha, Advocate for Complainant.
Date of hearing: 29.5.2024.
Judgment
Sadaqat Ali Khan, J.--Sher Afzal (petitioner) being convict seeks an order to run concurrently his sentences of imprisonment awarded to him in two different following trials/cases.
2. The petitioner was convicted and awarded death sentence in case FIR No. 72 Dated 26.06.2005 under Section 302, P.S. Jand, Attock by the trial Court vide judgment dated 23.12.2009, on the same date i.e. 23.12.2009, he was also convicted and sentenced to death in case FIR No. 145 Dated 30.09.2006 under Sections 302 & 34, PPC P.S. Jand, Attock.
3. Death sentence of the petitioner in case FIR No. 72 of 2005 mentioned above has not been confirmed and converted into imprisonment for life by the Division Bench of this Court vide judgment dated 10.02.2016 (Crl. A. No. 539 of 2009) but death sentence of the petitioner in case FIR No. 145 of 2006 stated above has been confirmed by the Division Bench of this Court vide judgment dated 10.02.2016 (Crl. A. No. 540 & M.R. No. 88 of 2009) which was challenged before the Supreme Court of Pakistan and has been converted into imprisonment for life vide judgment dated 03.01.2022 (Crl. A. No. 450 of 2019) but record shows that it was not brought into the notice of the Supreme Court of Pakistan that other Crl. A. No. 451 of 2019 filed by the petitioner against his conviction and sentence of life imprisonment was also pending and benefit of Section 397, Cr.P.C. has also not been requested. Thereafter, Crl. A. No. 451 of 2019 was disposed of being not pressed by the Supreme Court of Pakistan vide judgment dated 06.11.2023 in order to avail remedy before the High Court by filing of writ petition in view of provisions of Section 397, Cr.P.C. seeking order to run concurrently both the sentences of imprisonment of the petitioner discussed above.
4. Relevant Section 397, Cr.P.C. in this respect is hereby reproduced:-
[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, whilst undergoing such sentence, sentenced to imprisonment for an offence committed prior to the making of such order, the latter sentence shall commence immediately.]
5. The said provision of law expressly enables the Court to direct that subsequent sentence of the convict would run concurrently with the previous sentence. It has been clarified in Section 397, Cr.P.C. that the Court while analyzing the facts and circumstances of every case is competent to direct that the sentences of a convict in two different trials would run concurrently. The provisions of Section 397, Cr.P.C. confer wide discretion on the Court to extend such benefit to the convict in a case of peculiar nature. In a situation like the present one, the Court of law cannot fold up its hands to deny the benefit of the said beneficial provision to convict because such denial would amount to ruthless treatment to him and would certainly jeopardize his life undergoing such a long imprisonment and benefit conferred upon the petitioner by the Court from death to imprisonment for life certainly evaporates if discretion of directing the sentences to run concurrently is denied to him rather would bring at naught and ultimately the object of the same would squarely be defeated and that too, under the circumstances when the provisions of S. 397, Cr.P.C. bestows wide discretion on the Court and unfettered one to extend such benefit to the convict in a case of a peculiar nature like the present one. Thus, construing the beneficial provisions in favour of the convict would clearly meets the ends of justice and interpreting the same to the contrary would certainly defeat the same. The legislation under the provision of Section 397, Cr.P.C. is quite compassionate having tender feelings and has empowered the Courts to order the subsequent sentence to run concurrently to the previous sentence of a convict. This is the entire discretion and appanage of the Court to exercise its powers moderately and judiciously. When the universal principle of law is to be given effect in case of punishment, it is for the Courts to struggle and favour in order to interpret the law where liberty of convict is to be given preference instead of curtail it without animated reasons and justness.
6. Once the legislation has conferred the above discretion upon the Court then in hardship cases, Courts are required to take into consideration the same with immense seriousness to the benefit of a convict to minimize and liquidate the hardship treatment.
7. Extending the benefit of beneficial provision in favour of the petitioner would clearly meet the ends of justice, therefore, in view of the facts and circumstances of this case, this Court observes that there is no wrong and harm in treating both the sentences of imprisonment for life of the petitioner to run concurrently.
8. In cases where sentences of convict in different trial have not been ordered to run concurrently rather trials, appellate and revisional Courts are silent on this point, then in appropriate cases
as in present case inherit jurisdiction of this Court in terms of
Section 561-A, Cr.P.C. read with Section 397, Cr.P.C. can be invoked, provided, of course, where the superior Court of Appeal specifically and consciously has not denied the benefit of provisions of section 397, Cr.P.C. (2018 SCMR 418 “Rahib Ali v. The State”).
9. In view of above, this petition is allowed, it is directed that sentences of the petitioner in case FIR No. 72 dated 26.06.2005 under Section 302, PPC P.S. Jand, Attock and FIR No. 145 dated 30.09.2006 under Sections 302 & 34, PPC P.S. Jand, Attock shall run concurrently with benefit of Section 382-B, Cr.P.C.
(K.Q.B.) Petition allowed
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