2005 P Cr (PLP)

SHEIKH ABDUR RASHID, J.

The petitioner was tried in case F.I.R. No.278 of 1990 under sections 302, 307, 148, 149, P.P.C. registered at Police Station Bhikki District Sheikhupura and was convicted under section 302, P.P.C. by the learned Special Judge Court No.IV Suppression of Terrorist Activities, Lahore vide judgment dated 9-10-1991 and was sentenced to death on four counts with a fine of Rs.4,00,000 i.e. on each count and in default in the payment of fine to further undergo 5 years R.I. on each count. He was also convicted under section 307, P.P.C. and was sentenced to 10 years R.I. on four counts with a fine of Rs.50,000 on each count. In default in the payment of fine to further undergo R.I. for two years on each count. In appeal the learned Division Bench of this Court, vide judgment, dated 15-7-1997 converted the sentence of death into life imprisonment on each of the four counts and it was further ordered that the sentence of life imprisonment shall run concurrently and the benefit of section 382-B, Cr.P.C. was also made available to the petitioner. The sentence of fine under section 302, P.P.C. and the sentence of imprisonment in lieu of default thereof and the petitioner s conviction under section 307, P.P.C. and sentence of 10 years R.I. on each count and the sentence of fine and imprisonment in default in the payment of fine awarded by the trial Court were maintained.

2. The petitioner had served out his sentence of life imprisonment on 10-11-1998 and now is undergoing the sentence in lieu of default in the payment of fine which is Rs.1,00,000 on four counts, in default in the payment of which to undergo 5 years on each count and Rs.50,000 on four counts and in default in the payment of which to undergo two years R.I. on each count respectively. According to the petitioner he has completed his sentence in lieu of default of payment of fine on 10-11-2003 by serving out 5 years sentence undergone concurrently but the respondents have refused to release him from jail and have calculated the period of imprisonment in lieu of fine to 28 years by treating all the sentences awarded to the petitioner in lieu of fine consecutively.

3. The petitioner had urged the respondents to treat all the sentences awarded in lieu of fine as concurrent and had offered to pay the remaining proportionate fine to secure his release to which the respondents had refused to agree. Through this petition it is prayed that his sentence in lieu of default in payment of fine be treated as concurrent and the respondents be directed to receive the balance of fine in the manner of calculation made by the petitioner under Rule 44 of Pakistan Prison Rules and thereafter to release the petitioner from jail.

4. Vide judgment, dated 15-7-1997 of this Court the petitioner s sentence of death penalty on four counts was converted into life imprisonment on four counts which was to run concurrently with all the benefit of section 382-B, Cr.P.C. Similarly the petitioner s sentence under section 307, P.P.C. of 10 years on each count was also to run concurrently along with the life imprisonment. The question, which arises now, is whether the sentence of imprisonment awarded in lieu of default in payment of fine on each count after petitioner had served out his substantial sentence of life imprisonment has to run concurrently or consecutively. If worked out on consecutive basis the petitioner s sentence in lieu of default in payment of fine on all counts come to 28 years and if the petitioner is made to suffer the said 28 years of sentence then it will be violative of section 65 of the P.P.C. which stipulates that the term of imprisonment in default in the payment of fine shall not exceed 1/4th of the term of imprisonment which is the maximum fixed for the offences. If the offence be punishable with imprisonment as well as fine. In this case the petitioner had been awarded the maximum sentence of life imprisonment and the sentence in lieu of default in the payment of fine cannot exceed its 1/4th. Therefore, the sentence of imprisonment awarded to the petitioner in lieu of default in the payment of fine on each count will also run concurrently so as not to exceed 1/4th of the term of imprisonment substantially awarded to the petitioner.

5. The learned Assistant Advocate-General appearing on behalf of the State has conceded to the proposition, therefore, by allowing this petition we direct as under:-- (a) The sentence of imprisonment awarded to the petitioner in lieu of default in the payment of fine on all counts, after he has served out his substantial sentence of life imprisonment, shall run concurrently. (b) That if the petitioner before the expiration of the term of imprisonment fixed in default of payment offers to pay the proportionate amount of fine for the unexpired period of sentence, then the respondents shall in compliance with section 69,P.P.C. and Rule 44 of Pakistan Prison Rules will make the requisite calculations of fine and upon its payment will release the petitioner from jail, in case he is not required in any other case. H.B.T./M-845/L Order accordingly.