2011 PLP 916 (MLD)

MANZOOR AHMAD MALIK, J.

This appeal is directed against the judgment dated 3-9-2004 passed by the learned Additional Sessions Judge, Faisalabad, whereby, both the appellants, namely, Muhammad Amir Rashid and Adeel Ahmad were convicted for the murders of Zargham and Mst. Saira and for causing injuries to Mst.Amina Gulzar and sentenced as under:- (i) Under section 449, P.P.C. Both the appellants were sentenced to ten years' RI each with a fine of Rs.50,000 (Rupees fifty thousand only) each; (ii) Under section 324, P.P.C. For causing injuries on the person of Mst.Amina Gulzar, both the appellants were sentenced to ten years' RI each with a fine of Rs.50,000 (Rupees fifty thousand only) each,; (iii) Under section 302(b), P.P.C. Both the appellants were sentenced to undergo imprisonment for life each with a further direction to pay a compensation of Rs.2,00,000 (Rupees two lac only) each as provided under section 544-A, Cr.P.C. to the legal heirs of Zargham deceased in default whereof to further undergo six months' S.I. each. Both the appellants were also convicted under section 302(b), P.P.C. for the murder of Mst.Saira and sentenced to imprisonment for life each with a direction to pay a compensation of Rs.2,00,000 (Rupees two lac only) each to the legal heirs of Mst.Saira in default whereof to further undergo six months' SI each. (iv) All the sentences awarded to both the appellants were directed to run consecutively (one after the other and not concurrently). We have noted that case of the appellants was separated from their third co-accused Nabeel Ahmad and they were tried as Juveniles as provided under the Juvenile Justice System Ordinance, 2000. The said Nabeel Ahmad was tried as a major. Through a separate judgment, he was sentenced to death on two counts including other sentences. He preferred Criminal Appeal No.1507 of 2004 (Nabeel Ahmad v. The State) against his convictions and sentences while the learned trial Judge sent Murder Reference No.795 of 2004 to this Court which matter shall be heard and decided separately through a separate judgment.

2. Learned counsel for the appellants, at the very outset, submits that he would not press this appeal on merits provided the sentences of both the appellants are directed to run concurrently and benefit of section 382-B, Cr.P.C. is extended to them because no plausible reasons have been given in the impugned judgment of conviction for withholding such benefits to the appellants.

3. On the other hand, the learned Deputy Prosecutor-General Punjab, has not opposed the prayer made by the learned counsel for the appellants.

4. We have noted that both the appellants have been convicted and sentenced for more than one offence in one trial i.e. under section 449 P.P.C., appellants have been sentenced to ten years' R.I. each with a fine of Rs.50,000 (Rupees fifty thousand only) each; under section 324 P.P.C., for causing injuries on the person of Mst.Amina Gulzar, to ten years' R.I. each with a fine of Rs.50,000 (Rupees fifty thousand only) each and under section 302(b), P.P.C., they have been sentenced to undergo imprisonment for life each with a direction to pay a compensation of Rs.2,00,000 (Rupees two lac only) each as provided under section 544-A, Cr.P.C. to the legal heirs of Zargham deceased in default whereof to further undergo six months' S.I. each. Both the appellants were also convicted under section 302(b), P.P.C. for the murder of Mst.Saira and sentenced to imprisonment for life each with a direction to pay a compensation of Rs.2,00,000 (Rupees two lac only) each to the legal heirs of Mst.Saira in default whereof to further undergo six months' S.I. each. However, all the above sentences have been directed by the learned trial Court to run consecutively and while doing so the learned trial Judge has not offered any reason what to talk of plausible reasons. Even there is nothing on record that the appellants were previous lifers. The settled law is that in one trial, the total sentences shall be deemed to be a single sentence aggregate of which could not be more than a life sentence at one trial. A similar question came up. for consideration before the Hon'ble Supreme Court of Pakistan in the case of Mst.Zubaida v. Falak Sher and others (2007 SCMR 548), wherein, the learned Apex Court of the country has been pleased to observe at page 549 as under:-- "

5. The only question requiring examination is whether the sentences or imprisonment for lire awarded to the convicts Ansar and Khuda Yar; on four counts, were to run consecutively or concurrently. Section 57, P.P.C. lays down that in calculating fractions of terms of punishment, imprisonment for life shall be reckoned as equivalent to imprisonment for 25 years. However, the Provincial Government is empowered by section 401, Cr.P.C. to remit or commute the sentence. Rule 140 of the Prison Rules also provides that the term of imprisonment for life would mean 25 years. If remissions were to be calculated, the minimum period of substantive sentence of a lifer to undergo would be 15 years. Section 35 of the Code of Criminal Procedure, 1898, also deals with the question of maximum sentence of imprisonment in case of conviction for more than one offence at one trial. For facility of reference, the said provision is reproduced below:-- "

35. Sentence in 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 therefore 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) 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 person 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, in 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". (6) It would be clear from reading of the above provision that aggregate of punishment of imprisonment for several offences at one trial were deemed to be a single sentence. Therefore, there could not be more than a life sentence at one trial. However, under section 397, Cr.P.C. the position of a person is different, who while already undergoing a sentence of imprisonment for life, is subsequently, convicted and sentenced on another trial. His subsequent sentence would commence at the expiration of imprisonment for life' for which he has been previously sentenced. But even in such cases, the said provision expressly enables the Court to direct that the subsequent sentence would run concurrently with the previous sentence. It is, therefore, abundantly clear that there was nothing wrong in treating the sentences of imprisonment for life of the convicts on four counts to run concurrently".

5. We have also noted that the impugned judgment of conviction is, also silent about the reasons for not awarding benefit of the provisions of section 382-B, Cr.P.C. to the appellants which is a mandatory provision and needed discussion by the learned trial Court in case the learned trial Judge was not inclined to exercise such a discretion in favour of the appellants as the appellants are not connected with the offences under the National Accountability Bureau Ordinance, 1999 or The' Anti-Terrorism Act, 1997 or the offence of Karo Kari, etc. The question of exercise of the such a discretion was dilated upon by the Hon'ble Supreme Court of Pakistan in the case of Muhammad Ilyas v. The State (2009 SCMR 1042), wherein, at page 1044, the Hon'ble Court has been pleased to observe as under:- " .It is true that Courts have discretion either to grant or decline benefit of section 382-B, Cr.P.C. to a convict, but it is equally true that the discretion should be exercised judicially and keeping in view the established principles qua exercise of discretion .". In this regard further reliance is placed on Muhammad Umar alias Umri v. The State (2009 SCMR 891), wherein, in the absence of any exceptional circumstances, the Hon'ble Supreme Court of Pakistan was pleased to extend benefit of the provisions of section 382-B, Cr.P.C. to the convict. The point mooted in the case in hand was also exhaustively dilated upon by the Hon'ble Supreme Court of Pakistan in the case of Shah Hussain v. The State (PLD 2009 Supreme Court 460), wherein, at page 491, the learned Apex Court of the country, has been pleased to observe as under: "

41. In view of the above discussion, our conclusions and directions are as under:- (1) After the use of word "shall" for the word "may" in section 382-B, Cr.P.C., at the time of passing the sentence, it is mandatory for the trial Court to take into consideration the pre-sentence custody period in the light of the principles discussed above; (2) The refusal to take into consideration the pre-sentence custody period at the time of passing the sentence is illegal inasmuch as if a Court sentences a convict to imprisonment for life, which is the alternate but maximum sentence for the offence of murder, but does not make allowance for the pre-sentence custody period, it would be punishing the convict prisoner with imprisonment for life plus the pre-sentence custody period, that is to say, more than the maximum legal punishment; (3) The convict-prisoners who are granted the benefit of section 382-B, Cr.P.C., shall be entitled to remissions granted by any authority in their post-detention or during their pre-sentence detention in connection with such offence. However, the same shall not be available to the convicts of offences under the National Accountability Bureau Ordinance, 1999, Anti Terrorism Act, 1997, the offence of Kato Kari, etc., where the law itself prohibits the same; (4) The law laid down in Abdul Malik's case that under Article 45 of the Constitution, the President enjoys unfettered powers to grant remissions in respect of offences and no clog stipulates in a piece of subordinate legislation can abridge this power of the President, is hereby reaffirmed".

6. In view of the peculiar facts and circumstances of the case and after having sought guidance from the, above quoted precedent case-law of the Hon'ble Supreme Court of Pakistan on the subject, the prayer made by the learned counsel for the appellants, which has not been opposed by the learned Deputy Prosecutor-General on behalf of the State, is allowed: Therefore, while dismissing this appeal and maintaining the convictions and sentences awarded to the appellants by the learned trial Court, the impugned judgment of conviction is modified to the extent that all the sentences of imprisonments of the appellants are directed to run concurrently and. benefit of section 382-B, Cr.P.C. is also extended to them. Before parting with the judgment we are inclined to observe that there is a mention at page 26 of the impugned judgment that "the office is directed to prepare the reference and submit the same before the Hon'ble Lahore High Court, Lahore". It appears the learned trial Judge has inadvertently written the said sentence as there was no need of sending "Reference" to this Court qua the appellants as the "Reference" is only sent to this Court qua the convicts awarded sentence of death and he has rightly done so by sending Murder Reference N3.795 of 2004 qua third co-accused-convict of the appellants, namely, Nabeel Ahmad which "Reference" is being answered by this Court, separately. N.H.Q./M-32/L Order accordingly.