2012 PLP 334 (SCMR)

CIVIL PETITION NO. 1393 OF 2010 Learned counsel for the respondent submits that this petition has inadvertently been clubbed along with HRC No. 3087 of 2006 though the issues involved in both these cases are distinct. The submission made has substance. Office is directed to fix this petition on its own turn. C.M.A. NO. 28-Q OF 2006 AND H.R.C. NO.3087 OF 2006 TASSADUQ HUSSAIN JILLANI, J.

On an application filed by Mr. Khushdil Khan, Director, Regional Directorate of Human Rights, Balochistan, Quetta, to the effect that on a visit to Central Jail Mach, he found that six convict prisoners were undergoing imprisonment for life beyond their life span and that it is a case of public importance relatable to enforcement of fundamental rights warranting interference by this Court, on 21-9-2011 a notice was issued to the Advocate-General Punjab and Advocate-General Balochistan to file concise statements and assist this Court as to whether this Court can interfere at this stage when their appeals stand dismissed by this Court to either reduce the sentences awarded or direct the sentences to run concurrently.

2. Following persons were tried, convicted and sentenced in difference cases in terms of the table given below:-- S. No. Name with father's name Nature of crime Sentence Date of start of sentence Approximate date of Release (if alive) Remarks

1. Ali Khan Fateh Bomb blast 300 years 9-4-1988 9-4-1988 + 300 years. 9-4-2288

2. Manna son of Haji Murad Bomb blast 57 years 12-3-1987 12-3-1987 + 57 years. 12-3-2044

3. Abdul Samad son of Banaras Bomb blast 189 years 12-3-1987 12-3-1987 + 189 years. 12-3-2176

4. Abdul Fateh son of Raz Muhammad Bomb blast 189 years 12-3-1987 12-3-1987 + 189 years. 12-3-2176

5. Mulla Abdul Qayyum son of Alladad Bomb blast 214 years 12-3-1987 12-3-1987 + 214 years. 12-3-2201

6. Qadir Bux son of Sadullah Murder 67 years 18-5-1983 18-5-1983 + 67 years. 18-5-2050

3. Facts necessary for disposal of this case briefly stated are that the afore-referred convicts were tried in different F.I.Rs. and were convicted and sentenced, their appeals up to this Court stand dismissed. Convict Ali Khan Fateh was tried for the murder of 10 persons and he was convicted under section 302 and sentenced to death on 10 counts. He was also convicted under section 3 of the Explosive Substances Act, 1908 and sentenced to death and convicted under section 307/34, P.P.C. and sentenced to imprisonment for life. In terms of the written statement filed by the Additional Advocate-General Balochistan, other convicts were convicted and sentenced in different cases, their appeals stand dismissed up to this Court (except that of Abdul Manan, who it is stated, never filed any appeal). A detailed breakup as given in the concise statement is as follows: Concise Statement Showing The Factual Position of the Convicted prisoners in H.R.C Case NO. H.R.C NO.3087 of 2006. Application by Ali Khan Kakar , 28-Q Of 2006 , Complaint From Director of Human Rights Balochistan Queta . 1333 of 2010, Ali Khan Kakar. 1 2 3 4 5 6 7 Sr Name and percentage of convict Case of F.I.R No Crime/under section and sentence awarded by the trail court Judgment of hon'ble High Court Judgment of hon'ble Supreme Court Present status 1 Moula Abdul Qayum Son of Allah Dad (i) 16/1987 PS City Quetta (a) 3.6 Explosive act (Death Sentence) (b) 307, 109, P.P.C (Life Imprisonment RI with fine of Rs 1000000 or 03 years) (c) 436 P.P.C (07 years RI with fine of Rs 200,000 or 01 years compensation of Rs 25,00,000 or 06 Months) All sentences were ordered to run consecutively. Copy of judgment of trail court dated 30-9-1987, i.e special court of Balochistan Quetta is attached as Annexure-B Appeal Dismissed by the Hon'ble Supreme Court of Pakistan, on 27-8-1990, while disposing of Criminal Appeals Nos 30. 33 and 35 of 1987. Copy of the judgment of Hon'ble High court is attached as Annexure-C The death sentence awarded to the convict in F.I.R No16 of 1987 and 17 of 1987 were altered into Life Imprisonment after announcement of amnesty of the president of Pakistan. Dated 6-12-1988 received through Letter No I.G Prs/J-3-66/88/4066-76 Dated 7-12-1988 Appeal Dismissed by the Hon'ble Supreme Court of Pakistan on 27-8-1990, while disposing of Criminal Appeals Nos 4-Q to 7-Q, 8-Q to 11-Q, Q-12, Q-13, Q-14 to Q-15 and Q-16 to Q-17 of 1989 copy of judgment of the Hon'ble Supreme Court of Pakistan is attached as Annexure-D Years Months Days (i) substantive sentence served up to 9-92011 23 11 09 (ii) Total Under trail Period in all cases 02 02 12 (iii) Remissions earned 16 06 00 (iv) Total sentence served including remissions and under trial period 42 07 21 Un-expired portion of sentence 171 04 09 Probable date of Release on 21-6-2082 if fine paid (ii) 17/1987 PS City Quetta (a) 3 Explosive Act (Death Sentence ) (b) 4 Explosive Act (Life imprisonment) (c) 5 Explosive Act (14 Years) Sentences under sections 4 and 5 Exclusive Act run Concurrently. (d) 302 P.P.C (Death Sentence) (e) 307 PPC (25 Years RI with fine of Rs 1000000 or 05 years) (f) 544-A Cr P.C (Fine of Rs 250000 Or 06 Months RI) (g) 436 PPC (07 years RI with fine of Rs 100000 Or 18 Months) All Four Sentences will run consecutively. Copy of judgment of trial court dated 30-9-1987, is attached as Annexure-E -Do- -Do- (iii) 26/1987 PS City Quetta (a) 4 Explosive Act (25 years RI) (b) 5 Explosive Act (14 years RI) Both sentences will run concurrently. Copy of warrant of trial court dace 30-9-1987 is attached as Annexure F -Do- -Do- (iv) 27/1987 Ps City Quetta (a) 4 Explosive Act (25 years RI) (b) 5 Explosive Act (14 years RI) Both sentences will run concurrently. Copy of warrant of trial court dated 30-9-1987 is attached as Annexure-G -Do Total Sentences: 214 years RI with fine Rs 1720000 Or 11 years and 96 Months RI. 2 Abdul Samad son of Basaras (i) 16/1987 PS City Quetta (a) 3,6 Explosive Act (Death Sentence) (b) 307 , 109, P.P.C. (Life Imprisonment RI with fine of Rs 1000000 Or 3 Years) (c) 436, P.P.c (7 years RI with fine of Rs 20000 Or 1 Year) All sentences were order to run consecutive Copy of judgment trial court dated 30-9-1987, i.e Special court of Balochistan Quetta is attached as Annexure-E Appeal dismissed by the Hon'ble High Court Balochistan on 8-3-1988, while disposing of Criminal Appeal Nos.30,33 and 35 of 1987. Copy of the judgment of Hon;ble High Court is attached as Annexure-C. The Death Sentence awarded to the convict in FIRs Nos 16 of 1987 and 17 of 1987 were altered into life Imprisonment after announced of amnesty of the president of Pakistan, Dated 6-12-1988 received through letter No I.G Prs/1-3-66/88/4066.76b Dated 7-12-1988. Appeal dismissed by the Hon'ble supreme Court of Pakistan on 27-8-1990, while disposing of Criminal Appeal Nos 4-Q to 7-Q , 8-Q to 11-Q, 12-Q, 13-Q, 14-Q to 15-Q and 16-Q to 17-Q of 1989 Copy of judgment of the Hon'ble Supreme Court of Pakistan is attached as Annexure-D Years Months Days (i) Substantive Sentence Served up to 9-9-2011 23 11 09 (ii) Total Under Trial Period in all cases 01 07 24 (iii) Remission Earned 15 00 00 (iv) Total Sentences served including remission and under trial period 40 07 03 Un-Expired portion of Sentences 148 04 27 Probable date of Release on 13-7-2159 if fine paid (ii) 17/1987 PS City Quetta (a) 3/6, Explosive Act (Death Sentence) (b) 302 P.P.C (Death Sentence RI with fine Rs 100000 Or 03 years) (c) 307 P.P.C (25 years with fine of Rs 1000000 Or 05 Years ) (d) 436, P.P.C (7 years with fine of Rs 100000 Or 05 Years ) All Four Sentences of trial court dated 30-9-1987, is attached as Annexure-E. -Do- -Do- (iii) 26/1987 PS City Quetta. (a) 4 Explosive Act (25 years RI) (b) 5 Explosive (14 years RI) Both sentences will run concurrently) Copy of warrant of Trial Court dated 30-9-1987 is attached as Annexure-F. -Do- -Do- (iv) 27/1987 PS City Quetta (a) 4 Explosive Act (25 years 113) (b) 5 Explosive (14 years RI) Both sentences will run concurrently) Copy of warrant of Trial Court dated 30-9-1987 is attached as Annexure-F. -Do- -Do- Total sentence 189 Years RI with fine of Rs 1300000 or 13 years and 6 months RI 3 Fateh Khan Son of Raz Muhammad (i) 16/1987 PS City Quetta (a) 3,6 Explosive Act (Death Sentence) (b)307,109, P.P.C (life Imprisonment RI with fine of Rs 1000000 Or 3 years ) (c) 436, P.P.C ( 7 years RI with fine of Rs 20000 Or 01 years. Compensation of Rs 250000 or 06 Months) Compensation of Rs 100000 or 06 Months) Compensation of Rs 25000 or 06 Months) All Sentences were order to run consecutively. Copy of judgment of trial court dated 30-9-1987 i.e. special court of Balochistan Quetta is attached as Annexure-B Appeal dismissed by the Hon'ble High Court of Balochistan on 8-3-1989 while disposing of Crimainal appeal Nos 30, 33, and 35 of 1987 Copy of the judgment of Hon'ble High Court is attached as Annexure-C The death sentence awarded to the convict in F.I.R No.16/1987 and 17/1987 were altered into life imprisonment after announcement of amnesty of the president of Pakistan, Dated 6-12-1988 received through letter No.I.G. Prs/j-3-66/88/4066-76 Dated 7-12-1988 Appeal Dismissed by the Hon'ble Supreme court of Pakistan on 27-8-1990, while disposing of criminal appeal Noy 4-Q, to 7-Q, 8-Q to 11-Q, 12-Q to 13-Q, 14-Q to 15-Q and 16-Q to 17-Q of 1989 Copy of judgment of the Hon'ble Supreme Court of Pakistan is attached as Annexure-D. Years Months Days (i) Substantive Sentences up to 9-9-2011 21 11 09 (ii) Total under Trial period in all cases 01 01 05 (ii) Remission Earned 14 00 00 (iv) Total Sentence served including remission and under trial period 39 00 14 Un-Expired portion of sentences 99 11 16 Probable date of Release -2-22111 if fine paid (ii) 17/1987 PS City Quetta. (c) 3 Explosive Act (Death sentence) (d) 302 P.P.C (Death Sentence RI with fine of Rs 100000,03 years) (e) 307 P.P.C (25 years RI with fine of 1000000 or 5 years) (f) 436 P.P.C (7 years RI with fine of 100000 or 18 months) All sentences will run concurrently Copy of judgment of Trial Court dated 30-9-1987 is attached as Annexure-E. -Do- -Do- Total sentence 139 Years RI with fine of Rs 1695000 or 15 years 4 Ali Khan Footballer Son of Fateh Khan (i) 140/198PS Ganj Mandi Rawalpindi (a) 302/34 P.P.C (Death Sentence for 10 court with fine of Rs 500000) (b) 3 explosive Act (Death Sentence ) (c) 367/34 P.P.C (25 years ) Copy of warrant of trial court dated 9-4-1988 i.e. Session judge Rawalpindi is attached as Annexure-II. The criminal Appeal was dismissed on 09-06-1987 by the Hon'ble Lahore High Court, Bench at Rawalpindi , and death Sentence commuted and substituted of ten counts into life Imprisonment for each count and also up held the fine sentence imposed by the trial court. The Sentence under section 307/34, P.P.C and section 3 of Explosive act 1908 were maintained with the order that all sentence shall run consecutively. However sentence of Death under section 3 of Explosive Act 1908 was altered into life imprisonment in the light of order of government of Pakistan received through the inspector General of Prisons Punjab Lahore vide No. IB/g-1/3829-56 dated 1-10-1992. copy of judgment of Hon'ble High Court Rawalpindi Bench Attached as Annexure-K The jail petition Ni 101 of 1997. and Suo Motu Review petition No 13 of 2002 in said case were dismissed by the Hon'ble Supreme Court of Pakistan on 26-10-1998 and 7-9-2002, respectively and the sentence were held. Copy of the order of Hon'ble Supreme court of Pakistan dated 7-9-2002 in Suo Motu Review petition No 13 of 2002 is attached as Annexure-M. Years Months Days (i) Substantive Sentences served up to 9-9-2011 23 05 01 (ii) Total under Trial period in all cases 01 00 00 (ii) Remission Earned 16 00 10 (iv) Total Sentence served including remission and under trial period 40 05 11 Un-Expired portion of sentences 259 06 19 Probable date of Release 6-9-2270 if fine paid Total sentence 300 years RI with fine of RS 500000 or 2 years 5 Abdul Manan Son of Murad 47 of 1988 Police Station Sadder Quetta (a) 402(B), P.P.C Death sentence with the order of Entire Property shall be confiscated in favour of state. (b) 307 P.P.C (Life Imprisonment with fine of Rs 1000000 or 2-1/2 years RI) (c) 13 E Arms Ordnance, (7 years with fine of Rs 5000 or 06 Months) That the above mentioned sentences were order to run consecutively. Copy of judgment along with committal warrant of trial court dated 29-10-1989 i.e. Special court of Balochistan Quetta are attached as Annexure-N. The criminal Appeal No 48 of 1989 in the case of Hon'ble High Court of Balochistan vide judgment dated 9-6-1991 altered the Death sentence under section 402(b) P.P.C into life Imprisonment while maintained the sentence under section 307 P.P.C and 13-E Arms Ordinance with the direction that the sentence hall run consecutively. Copy of judgment of Hon'ble High Court of Balochistan is attached as Annexure-(P) It is future pointed out that criminal Misc jail Application No 1 of 2001 and C.P No 590 of 2003 regarding to run the sentence concurrently and illegal confinement were also dismissed by Hon'ble High Court Of Balochistan on 15-5-2001 8-1-2004 respectively copies of the order are attached as Annexure-(R) That as per statement of the convict and jail record No Appeal preferred by the convict before the Hon'ble Supreme Court Of Pakistan Years Months Days (i) Substantive Sentences served up to 9-9-2011 21 10 11 (ii) Total under Trial period in all cases 01 07 17 (ii) Remission Earned 12 04 15 (iv) Total Sentence served including remission and under trial period 35 10 03 Un-Expired portion of sentences 21 01 17 Probable date of Release 4-4-2032 if fine paid Total sentence 57 years RI with fine of RS 1005000 or 3 years 3(sic.) Raja Aleem Khan Abbasi, Deputy Attorney-General submitted that the two provisions relevant whereby the Court can direct the sentences either to run consecutively or concurrently are sections 35 and 397, Cr.P.C; that having gone through the concise statement filed by the Advocate-General Punjab and Advocate-General Balochistan, he is of the view that the Courts have concurrently directed the sentences to run consecutively and this Court at this stage may not interfere with the same as their appeals stand dismissed even by this Court. He referred to a judgment of this Court reported at Shah Hussain v. State (PLD 2009 SC 460) to contend that it is entirely the discretion of the Court to direct how the sentences should run when an accused is tried in one trial and convicted on different counts and it all depends on the nature and gravity of each case. The cases in hand, he further contended, indicates that the afore-referred persons were tried under sections 3/4/5 and 6 of the Explosive Substances Act, 1908 read with sections 120-B/436/307/34 of the Pakistan Penal Code; that in one case the convict was guilty of committing 10 murders and even in the remaining cases, the murders are more than one and in any case, they were not part of the same transaction as each one of them was tried in more than one F.I.Rs. relatable to different criminal transactions.

4. Mr. Azam Khan Khattak, learned Additional Advocate-General Balochistan submitted that 5 out of 6 afore-referred convicts hail from Balochistan; that all these convicts were tried, convicted and sentenced in different F.I.Rs.; that the cases are serious as they used bombs and hand grenades to cause the murder and mayhem.

5. Mr. Khushdil Khan, ex-Director, Human Rights, Balochistan submitted that there is no doubt that the afore- referred prisoners were tried under different offences but as human beings the question whether in the afore-referred circumstances, the sentences should run concurrently or consecutively requires that the matter be decided with an element of mercy and compassion.

6. We have given anxious consideration to the submissions made, have gone through the relevant provisions of law and the precedent case law to which reference was made at the bar.

7. The two relevant provisions concerning the manner in which the sentences should run are sections 35 and 397, Cr.P.C, which read as follows:-- "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 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) 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, 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.

397. 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: Provided that where a person who has been sentenced to imprisonment by an order under section 123 in default of furnishing security is, whilst undergoing such sentence, sentenced to imprisonment for an offence committed prior to the making of such order, the latter sentence shall commence immediately."

8. Section 35 of the Cr.P.C. relates to one trial on different counts whereas section 397, Cr.P.C. pertains to a situation when an offender who is already convicted and sentenced, is tried, convicted and sentenced under different offences and in other criminal transactions. In the latter category of cases the law mandates that 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". However, the law vests a discretion in Court that notwithstanding the afore-referred mandate, the Court can direct "that the subsequent sentence shall run concurrently with such previous sentence". The discretionary power vested in the Court to direct the sentence to run concurrently is to be exercised in the light of the facts and circumstances of each case i.e. depending on the nature and gravity of the offence. All the afore-referred cases pertain to bomb blasts and the consequent murders which must have caused a sense of suicidal insecurity. In all these cases, the appeals were dismissed by the High Court and even by this Court. The Courts have already exercised their discretion and no case for Suo Motu Review at this belated stage is made out. In the afore-referred circumstances CMA No. 28-Q/2006 and HRC No.3087 of 2006 are dismissed. S.A.K./A-59/SC Applications dismissed.