2005 PLP 866 (YLR)

Javed Sheikh v. The State 1985 SCMR 153; Muhammad Ittefaq v. The State 1986 SCMR 1627; Mukhtar Ahmad alias Mokha and another v. The State 1999 PCr. LJ 1905 and Gullat Shah v The State 1992 SCMR 1424 ref. Ch. Abdul Rasheed for Applicant. Rana Muhammad Siddique for the State. While disposing of Criminal Appeal No.1386 of 1999 and Murder Reference No.5 of 2000 vide judgment dated 6‑4‑2004, the conviction of Ghulam Murtaza appellant‑applicant under section 302, P.P.C, was maintained and the sentence of death awarded to him by the Additional Sessions Judge Sialkot, vide judgment dated 16‑12‑1999 was altered to imprisonment for life. The remaining sentences remained intact. Benefit of section 382‑B, Cr.P.C. was also granted. With the said modification in the sentence the appeal was dismissed. No direction was given for concurrent running of the sentences of imprisonment for life under section 302, P.P.C. and the sentence of seven years. R.I. with a fine of Rs.1,000 for causing injuries to Azam Masih and in default of payment of the said fine to undergo R.I. for six months. He was also directed to pay an amount of Rs.1,000 as compensation in the form of Daman to said injured Azam Masih, or in default of payment of compensation, he was to suffer simple imprisonment even after the expiry of the substantial sentences until payment of compensation.

2. The learned counsel for the applicant‑appellant on the mandate of to section 35(1), Cr.P.C. contends that the sentences awarded to the applicant under sections 302 and 324, P.P.C. are to run concurrently as consecutive running of the sentences would be violative of proviso (a) to the section 35(2), Cr.P.C. Reliance has been placed on the cases reported as Javed Sheikh v. The State 1985 SCMR 153; Muhammad Ittefaq v. The State 1986 SCMR 1627 and Mukhtar Ahmad alias Mokha and another v. The State 1999 PCr.LJ 1905.

3. On the other hand, the learned counsel for the State on the strength of section 35(1) read with section 397, Cr.P.C. and the case reported as Gullat Shah v. The State 1992 SCMR 1424 contends that the cases where the Court has sentenced a convict to death and that sentence is committed into life imprisonment, sections 35(1) and 397, Cr.P.C. would in terms be not attracted and the Court cannot pass any order with regard to its being concurrent or otherwise.

4. We have considered the respective contentions of the learned counsel for the parties and note that the error in the case cropped in because the trial Court had awarded death sentence to the petitioner under section 302, P.P.C. and seven years R.I. with fine, as stated above, under section 324, P.P.C. Case of Gullat Shah 1992 SCMR 1224, relied upon by the learned State counsel, is distinguishable and not applicable to the facts and circumstances of the present case, because in the said case the accused was found guilty and convicted under section 302, P.P.C., and sentenced to death with a fine by the Additional Sessions Judge, Mianwali, on three counts. The appeal was dismissed by the High Court. During the pendency of the appeal accused gained amnesty of 1988 in reduction of sentence of death to life imprisonment on three counts and it was prayed that it should be kept open for him to re‑agitate the question of death sentence in case it is revived on account of any change of law or on account of an order of Court relating to the said amnesty; secondly, that the sentence of life imprisonment on account of three counts should be ordered to run concurrently, and thirdly that the appellant should be given benefit of section 382‑B, Cr.P.C. the Honourable Supreme Court allowed the first relief, but observed that the appellant does not justify the grant of any relief regarding other two prayers and it was in that eventuality observed that sections 35(1) and 397, Cr.P.C. would in terms be not attracted. This being so, the consecutive running of sentences in this case would be violative of proviso (a) to section 35(2) opt the Cr.P.C. Reference in this regard may be made to the case of Javed Sheikh v. the State 1985 SCMR 153 and Muhammad' Ittefaq v. The State 1986 SCMR 1627. The present case on all counts is covered by the judicial pronouncements of the Honourable Supreme Court, as such this application is accepted and in the interest of justice it is directed that the sentences of the petitioner, i.e. imprisonment for life and 7 years' R.I. are directed to run concurrently. H.B.T./G‑79/L Application accepted.