1999 P Cr (PLP)

8. Learned counsel for the State on the other hand submitted that as the judgment has been passed in appeal the rectification cannot he ordered.

9. I have given due consideration to the valuable arguments on both the sides.

10. Section 35 of the Criminal Procedure Code (V of 1898) is relevant for the disposal of this criminal miscellaneous which is reproduced for ready reference:-- "

35. Sentence to 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 therefor 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) Maximum term of punishment. 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 persons 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, m 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."

11. The Honourable Supreme Court in case of Javed Shaikh v. The State 1985 SCMR 153 observed with respect to the above provision as under:-.- "Life imprisonment is, according to section 57 of the P.P.C., to be reckoned as equivalent to 25 years' R.I, This is one of the punishments which can be imposed on an offender, on account of the substitution of the punishment for transportation for life which was one of the punishments that could be imposed on an offender under section 53 of the P.P.C. and was reckoned as equivalent to fourteen years before its amendment by the Law Reforms Ordinance, 1972. No objection can, therefore, be taken to the imposition of, the sentence of life imprisonment, after the promulgation of the Law Reforms Ordinance, 1972. However, the question is whether the appellant can also be sentenced to undergo further sentence of seven years under section

307. P. P. C. for his having attempted to murder Manzoor Hussain P.W.5? A perusal of proviso (a) to subsection (2) of section 35, Cr.P.C indicate that it prohibits the giving of consecutive sentence in one trial beyond the period of fourteen years, the maximum sentence, short of the death sentence which could be imposed on an offender before the promulgation of the Law Reforms Ordinance, 1972. The said provision of section 35, Cr.P.C. appears to be in consonance with the scheme and intendment of the Pakistan Penal Code that an offender should only suffer the maximum sentence of imprisonment for any heinous crime (as it stood until 1972) which should not exceed fourteen years. Therefore, the imposition of the sentence of life imprisonment (which means 25 years' R.I.) plus seven years' R.I. under section 307, P.P.C. would be inconsistent with the intendment of the provisions of proyiso (a) to subsection (2) of section 35, Cr.P.C. inasmuch as the maximum punishment prescribed for heinous offences shall be exceeded The difficulty in this case be overcome if the sentences awarded to the appellant to respect of the two convictions under section 302, P.P.C. and under section 307, P.P.C. in one and the same trial are directed to run concurrently instead of running consecutively. This appeal succeeds to the extent that the sentence of life imprisonment imposed upon the appellant under section 302, P.P.C. and the sentence of seven years' rigorous imprisonment awarded to him under section 307, P.P.C. are order to run concurrently and not consecutively."

12. In the case of Juma Khan and another v. The State 1986 SCMR 1573 where two persons were tried for the double murder and were sentenced to death, on each count, by the learned trial Judge and on the appeal, the High Court maintained their conviction but reduced the sentence of death to imprisonment for life on each count. However, it was not specified whether the sentence of life imprisonment would run consecutively or concurrently. The petitioners preferred leave to appeal to the Honourable Supreme Court of Pakistan but the same was dismissed and the order of the High Court was maintained. Nothing was said in this judgment either about whether the sentences were to run consecutively or concurrently. Thereafter the petitioners were informed by the jail authorities that they would have to undergo the life imprisonment twice i.e. for two terms of 25 years each. The petitioners moved a petition before the Lahore High Court under section 561tA, Cr.P.C. for a clarification to the effect that the sentence imposed upon them were to run concurrently but the same was dismissed with the observation that it would amount to reviewing the High Court judgment which has already been upheld by the Honourable Supreme Court and the proper course for the petitioners was to move the Honourable Supreme Court for that objection. The petitioners then filed an application under Order XXXIII, Rule 6 of the Supreme Court Rules, 1980 for passing an appropriate order in regard to the nature of the sentence passed in the case. The Honourable Supreme Court accepted the prayer of the petitioners and clarified that the sentences of imprisonment for life on each count imposed upon the under section 302, P.P.C. to run concurrently and not consecutively

13. Similarly, in the case of Muhammad Ittefaq v. The State 1986 SCMR 1627 and in the case of Khan Zaman and others v. The State 1987 SCMR 1382 reliance was placed on the case of Javed Shaikh v. The State 1985 SCMR 153 and direction was issued by the Honourable Supreme Court that all sentences of imprisonment should tan concurrently.

14. The present case on all counts is covered by the above judicial pronouncements of the Honourable Supreme Court. As such Criminal Miscellaneous No.1433/M of 1998 is also accepted and the sentence of life imprisonment of the petitioners each on two counts is directed to run concurrently. The benefit of section 382-B, Cr.P.C. shall also be given to them, as it was an inadvertence that the same was not maintained in the order. Q.M.H./M.A.K./M-982/L Petition allowed.