2007 PLP 1424 (SCMR)

NASIR-UL-MULK, J.

The appellants were convicted by the Additional Sessions Judge, Quetta, on 31-7-1994 under section 302/34, P.P.C. on two counts in case F.I.R. No.49 of 1987 registered at Police Station Industrial Area, Quetta and on each count sentenced to imprisonment for life: By another judgment of the same date, the appellants were convicted again under section 302/34, P.P.C. on one count and sentenced to imprisonment for life in case F.I.R. No.40 of 1989 dated 2-4-1989 registered at Police Station Sariab, Quetta. Their appeals were dismissed by the High Court of Balochistan and leave to appeal was declined by this Court. Thereafter, they moved an application under section 561-A, Cr.P.C. before the High Court of Balochistan, praying that the sentences of imprisonment for life in the two cases be ordered to run concurrently. By the impugned judgment, dated 6-12-2000, the application was dismissed against which leave to appeal was granted by this. Court on 30-1-2001 to consider that "the impugned judgment as well as the earlier judgments referred to herein before indicates that although offences in both the crimes were committed in the jurisdiction of different police stations but the accomplishment of the object seems to be series of the same transaction. In addition to it, it appears that in trials of both the cases, evidence was same particularly inculpatory confessional statements of the petitioners recorded by them before the Magistrate in the Province of N.-W.F.P. during investigation pending against them in a case registered over there vide F.I.R. No.222 of 1997 at Police Station Chamkany, Peshawar, N.-W.F.P. wherein they have disclosed the motive and manner for committing the murder of Engineer Faheem, Mst. Kishwar Kamal alias Lela and Syed Faqir. Therefore, inter alia, for these reasons I am of the opinion that the question of directing their sentences to 'run concurrently requires examination by this Court keeping in view the principles laid down in this behalf in the judgments in the case of Javed Sheikh v. The State 1985 SCMR 153, Muhammad Ramzan v. The State 1989 SCMR 1405, Bashir and 3 others v. The State PLD 1991 SC 1145 and Bhai Khan v. The State PLD 1992 SC

14. Therefore, leave to appeal may be granted to examine the petitioner's case thoroughly in the Court.

2. Mr. Muhammad Zaman Bhatti, learned Advocate Supreme Court appeared for the appellants and Mr. Mehmood Raza, learned Additional Advocate-General Balochistan, represented the State. We heard learned counsel and examined with their valuable assistance, the relevant laws in the light of the material facts.

3. The appellants both Afghan refugees, were arrested in Peshawar in a case under the Explosive Substances Act, 1908, and during investigation they disclosed in their confessional statements, the murders of three fellow Afghan refugees, Mst. Kishwar Kamal and Syed Faqir, regarding which F.I.R. No.49 of 1987 was eventually registered, and Engineer Faheem for whose murder F.I.R. No.40 of 1989 was recorded. According to the confessional, statements, the motive for the three murders was stated to be the same and the crime was committed also on the same day but Engineer Faheem was murdered by strangulation at a place different than the one where, Mst. Kishwar Kamal and Syed Faqir, were murdered, also by strangulation. The incident took place within the limits of the two different police stations and the appellants were, therefore, tried in the two cases separately though the judgment was announced on the same day.

4. Section 397 of the Cr.P.C. provides that the sentences of imprisonment of a person convicted for offences in different cases are to run consecutively unless the Court passing the subsequent sentence orders that it shall run concurrently with the previous sentence. It is, therefore, left to the discretion of the trial Court to order the concurrent running of the sentences of imprisonment in separate cases. Unless such discretion is exercised in favour of the convict the sentences shall run 'consecutively. In the present case, neither the trial Court nor the High Court or this Court in the petitions for leave to appeal had exercised the discretion in favour of the appellants. Even otherwise, on merits too, keeping in view the gruesome murders of three persons for a petty object committed by the appellants, we do not feel inclined to exercise this discretion in their favour. The cases of Javed Sheikh v. The State and Bashir and others v. The State mentioned in the leave granting order relate to sentences of imprisonment awarded at the same trial and the sentencing limits imposed by section 3,5 of the Criminal Procedure Code and thus, the same are not relevant to the running of sentences of imprisonment awarded in separate cases. The judgment in Muhammad Ramzan v. The State is rather to the effect that sentences of imprisonment passed in two separate judgments arising out of two separate F.I.Rs. are to run consecutively. The fourth case referred to in the leave granting order, "Bhai Khan v. The State", relates to the question of remission and, therefore, of no relevance to the issue before us.

5. In view of the above, we do not find any legal flaw in the impugned judgment of the High Court declining to exercise its jurisdiction under section 561-A, Cr.P.C. Consequently, the appeal is dismissed. N.H.Q./A-31/SC Appeal dismissed.