2021 PLP 1302 (YLR)

WIQAR AHMAD, J.

This order is directed to dispose of the petition filed by petitioner under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 (hereinafter referred as "the Constitution").

2. Petitioner is shown to be aged about 89/90 years and incarcerated in District Jail Timergara. He is convicted in two separate cases, one registered vide FIR No. 19 dated 15.01.20004 under section 302, P.P.C. at Police Station Kabal District Swat, while other registered vide FIR No. 30 dated 19.01.2004 under section 13 of the Arms Ordinance (hereinafter referred to as "A.O.") at Police Station Kabal. Petitioner namely Gul Muhammad had undergone two separate trials under the above-mentioned two FIRs and have been convicted and sentenced for both the offences separately. He is presently undergoing his sentence under section 302, P.P.C. without having the benefit of section 382-B Cr.P.C. and his probable date of release would be 23.09.2021, as stated by the jail authorities in their comments. After completing his sentence under section 302(b), P.P.C., petitioner shall then start his sentence of three years imprisonment under section 13 A.O. and his probable date of release is 22.03.2023. Petitioner has further contended in his petition that he had been bedridden, lying in jail premises without having proper attendance of family members and was lying in a miserable condition.

3. Arguments heard and record perused.

4. The following reliefs may be considered on the face of grievances of the petitioner in instant petition; (a) ordering of concurrent running of sentences; (b) grant of benefit under section 382-B, Cr.P.C.; (c) grant of remission to the convict/ petitioner for his remaining sentence of imprisonment. The accused/appellant was convicted vide judgment dated 16.03.2005 of the Court of learned Additional Sessions Judge-II Swat for commission of an offence under section 302(b), P.P.C. and sentenced to the punishment of death. In his Criminal Appeal No. 193/2005, filed before this Court his sentence of death was converted to life imprisonment vide judgment dated 22.12.2005 of this Court. There were no mention in the said judgment whether this Court had been giving him the benefit of section 382-B, Cr.P.C. or were declining the same. He had undergone a separate trial under section 13 A.O, and had been sentenced to three years rigorous imprisonment with a fine of Rs. 10,000/- and to undergo one year simple imprisonment in case of non-payment of fine. Benefit of section 382-B, Cr.P.C. had however been extended to him in the said case. The judgment of conviction and sentence under section 13 A.O was passed by the Court of learned Additional Sessions Judge Swat vide his judgment dated 22.06.2005, appeal where-against has also been dismissed by this Court.

5. So far as concurrent or consecutive running of sentences are concerned, section 397, Cr.P.C. empowers a trial Court or an appellate Court to make an order that sentences in two different trials shall run concurrently or consecutively. Said section is reproduced hereunder for ready reference; "Section 397, Cr.P.C. Sentence on offender already sentenced for another offence. When a person already undergoing a sentence of imprisonment or imprisonment for life is sentenced to imprisonment, or imprisonment for life, such imprisonment, or imprisonment for life shall commence at the expiration of the imprisonment, or imprisonment for life to which he has been previously sentenced, unless the Court directs that the subsequent sentence shall run concurrently with such previous sentence." Section 35, Cr.P.C. is also relevant for the present discourse, which is reproduced as well; 35. (1) Sentence in case of conviction of several offences at one trial. 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 34 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: Maximum term of punishment. (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, as . 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 convictions for several offences at one trial shall be deemed to be a single sentence. Reading of section 397 and section 35, Cr.P.C. reveal that it is discretionary with a Court to order running of sentences in two different trials concurrently or consecutively, but if no such order is passed, then the sentences shall run consecutively. On the basis of said provision of law, Superintendent District Jail Timergara has contended in his comments that sentences of the petitioner shall run consecutively.

6. The matter has come before this Court at a very belated stage, one of a question before this Court would naturally be whether this Court, neither being a trial Court nor an appellate Court in the case, may make an order in respect thereof, in exercise of its constitutional jurisdiction. This Court is having its inherent jurisdiction vested in it under section 561-A, Cr.P.C. as well as its constitutional jurisdiction vested in it by Article 199 of the Constitution. Section 561A, Cr.P.C. is itself of wider amplitude wherein any order may be passed in the interest of justice and for preventing the abuse of process of law. But the jurisdiction this Court has been having under section 199 of the Constitution is even of much more wider amplitude authorizing this Court to pass any order for doing complete justice in a case. Reliance in this respect is placed on the judgments reported as 2000 YLR 1861, PLD 2008 Lahore 497 and 2010 PCr.LJ 1681.

7. Charitable view is normally taken by Courts of law, in the matter of sentences affecting deprivation of life or liberty of a person while exercising enabling powers under section 35 and section 397, Cr.P.C, as held by the Hon'ble Apex Court in the case of "Rahib Ali v. The State" reported as "2018 SCMR 418". Relevant part of the judgment is reproduced hereunder for ready reference;

13. In view of the discussion made above, position that emerges is that the Courts in Pakistan generally take charitable view in the matter of sentences affecting deprivation of life or liberty of a person and unless some aggravating circumstances do not permit so, liberally exercise enabling power under section 35 and section 397, Cr.P.C. respectively to order concurrent running of sentence in one trial and so also consolidation of earlier sentence while handing down sentence of imprisonment in a subsequent trial. The Hon'ble apex Court while faced with a similar situation in the case of Mst. Shahista Bibi and another v. Superintendent, Central Jail Mach and 2 others reported as PLD 2015 Supreme Court 15 had held as follows; "The plea of the learned counsel for the State that previously the review petition of the appellant was dismissed, therefore, it should be construed as a bar to entertain a second review petition being barred by law, is misconceived one. We have attended to this plea but it is hardly entertainable being bereft of legal grounds and is based on erroneous reasons of the law and the rules on the subject because the previous review petition was with regard to the commutation of sentence from death to life. Even otherwise, for doing substantial justice in a true sense in hardship cases like the present one, technicality of law and rule shall not operate as an absolute bar in the way of the Court because giving preference to the technicality of law would defeat substantial justice and denial of justice to a person entitled to it, would be worst kind of treatment to be meted out to him and that too by the apex Court of the country.

14. If the sentences are allowed to run consecutively, the appellant/appellants, as earlier discussed, would meet natural death during the imprisonment. This undeniable fact was even not disputed by the learned counsel for the State. The very object, for which the Government of Pakistan commuted the sentences of death to life imprisonment and the benefit so accrued to the accused would be denied to him/them in this way and that concession, thus given, would stand nowhere and may evaporate within no time like air bubbles vanish in the air within a twinkle of an eye." This Court while deciding appeal of petitioner had held that mitigating circumstances did exist in his case and the case was not having any aggravating circumstances.

8. The Hon'ble apex Court in the case of Hamid and another v. Shafiq-ur-Rehman and another reported as 2013 SCMR 583 had ordered concurrent running of sentences in the following manner;

4. All the offences for which the appellant had been convicted by the learned courts below had been committed in one and the same transaction and, thus, it shall serve the interests of justice if all the sentences of imprisonment passed against the appellant are ordered to run concurrently with each other. We understand that while reducing the appellant's sentence from death to imprisonment for life the learned Division Bench of the Lahore High Court, Lahore had inadvertently omitted ordering running of the sentences of imprisonment concurrently and we may, thus, supply the omission in that regard. This appeal is, therefore, dismissed as far as the convictions and sentences of the appellant are concerned but it is ordered that all the sentences of imprisonment passed against the appellant shall run concurrently with each other. This appeal is disposed of in these terms." In the case of Javaid Iqbal v. S.H.O. and others reported as 2013 PCr.LJ 1394, Hon'ble Lahore High Court has inter alia extended benefit of section 382-B, Cr.P.C. to convict of a military trial. Similar benefit has also been extended by Hon'ble Sindh High Court in the case of "Qasim v. Federation of Pakistan reported as PLD 2016 Sindh

1. The Hon'ble Islamabad High Court in the case of "Muhammad Azam v. Federation of Pakistan and others" reported as 2018 MLD 1176 had also ordered concurrent running of sentences despite the fact that one of the sentence had been passed in a criminal case while another sentence was for undergoing civil prison, arising out of an order in execution of a decree, of civil Court.

9. The Hon'ble Apex Court in the case of "Muhammad Anwar v. Muhammad Akram and others" reported as "PLD 2016 SC 65" had no doubt held that when a sentence is ordered to run consecutively by a trial Court or appellate Court, such a sentence could not be ordered to run concurrently by the High Court, in a case which was having the element of brutality. Ratio of the judgment of the Hon'ble Apex Court is not applicable to the case in hand for the reason that existence of mitigating circumstances, had been found, by this Court, while deciding appeal in the case in hand.

10. Both the issues i.e. concurrent running of the sentences, as well as giving benefit under section 382-B, Cr.P.C. do not seem to be a deliberate decision of this Court, recorded expressly or alluded to impliedly, but appears to be the result of lack of proper assistance. In such a situation, both the sentence i.e. sentence of life imprisonment under section 302(b), P.P.C. vide judgment dated 22.12.2005 of this Court in Criminal Appeal No. 193 of 2005, as well as sentence dated 22.06.2005 of the Court of learned Additional Sessions Judge Swat in Criminal Case No. 11/A.O of the year 2004 are ordered to run concurrently. Benefit of section 382-B, Cr.P.C. is also ordered to be given to the petitioner namely Gul Muhammad in his sentence of life imprisonment under section 302(b), P.P.C..

11. Now coming to the question of remitting remaining sentence of his term of imprisonment, it is important that the jail authorities do not deny the state of health of petitioner, as described in the writ petition. The jail authorities have also annexed report of medical officer of District Jail Timergara with their comments, which is also reproduced hereunder for ready reference; MEDICAL REPORT REGARD-ING HEALTH AND AGE OF THE FATHER OF PETITIONER Respectfully Sheweth;

1. As per available record in this Jail i.e. Conviction Warrant/ CNIC and History Ticket, age of the convict is eight five/eight six (85/86). However from his physical appearance he seems to be more than 86 years old.

2. Petitioner is not presently suffering from any acute or chronic illness nor any other disability. However, he is extremely weak due to age factor and unable to walk properly due to which he is bedridden. Moreover, he has been admitted in Jail Hospital and is properly being taken care of by the paramedical staff and "Numberdars". Petitioner is an old and infirm person who is bedridden and lying in jail hospital. Law and Constitution vests the powers of granting of remission in various authorities on the executive side. Prison Rules contained in the Jail Manual also clothed the jail authorities with the powers to release a lifer who has undergone a minimum of 15 years substantive imprisonment under Rule 140 of Jail Manual. Said rule being relevant is reproduced hereunder for ready reference; "Rule 140. (i) Imprisonment for life will mean twenty-five years rigorous imprisonment and every lifer prisoner shall undergo a minimum of fifteen years substantive imprisonment. (ii) The case of all prisoners sentenced to imprisonment for life shall be referred to Government, through the Inspector General, after they have served fifteen years substantive imprisonment for consideration with reference to section 401 of the Code of Criminal Procedure. (iii) The cases of all prisoners sentenced to cumulative periods of imprisonment aggregating twenty-five years or more shall also be submitted to Government, through the Inspector General, when they have served fifteen years substantive sentence for orders of the Government. When law vests powers in some authority, it is always with a purpose and object. If such a discretion or power is not exercised in appropriate and deserving cases, the very purpose of law may be defeated. There will hardly be a case more appropriate for exercise of such discretion or power than the case in hand. We, therefore, direct Superintendent District Jail Timergara to place the case of petitioner for grant of remission to the appropriate authority. Worthy Secretary Home, Government of Khyber Pakhtunkwa, shall also consider release of petitioner on probation under the "Good Conduct Prisoners' Probational Release Act, 1926", pending decision of the appropriate authority regarding grant of the remission. The needful be done as soon as possible but not later than 10 days, after receipt of copy of this judgment. The petition in hand is disposed of accordingly. JK/303/P Bail granted.