1987 PLP 1382 (SCMR)

ASLAM RIAZ HUSSAIN, J.‑‑Khan Zaman, Muhammad Yousa Falaksher and Muhammad Ramzan, seek leave to appeal against t judgment of the High Court, dated 15‑8‑1983. They were tried f the murder of Mst. Sarwar Khatoon and Muhammad Amin. The tri Court convicted them under section 302/149/148, P.P.C. and we sentenced, inter alia, to death. But on appeal, the learned High Court vide its impugned judgment, dated 15‑8‑1983, dismissed the appeal but altered their death sentence to lesser penalty imprisonment for life on each count relating to each of the two murder committed by them, but enhanced the fine to Rs.30,000 each. It was however, observed that "The sentences shall run consecutively .

2. Before us the learned counsel for the petitioners did not press the petition on merits but only submitted that in view of the provision of proviso (a) of section 35(2), Cr.P.C. the petitioners could not have been sentenced for more than 25 years and as such operation of the High Court's order referred to above that their sentence shall run consecutively, should be set aside. He submitted that imprisonment for life in a murder case is 2 years and if the petitioners are ordered to undergo life imprisonment on each count for the two murders committed by them consecutively they shall have to undergo 50 years, R.I. each. He submitted that this would he contrary to the provisions of proviso (a) of section 35(2), Cr.P.C. The relevant portion reads as follows:‑ S.35. Sentence in cases of consecutive of several offences at one, trial. (1) ................................. (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 to trial before a higher Court. Provided as follows: (a) Maximum term of punishment (a) In no case shall such person be ordered to imprisonment for a longer period than twenty‑five years; (b) ...................................................... (3) .............................. In support of these contentions he cited Javaid Shaikh v. The State 1985 S C M R

153. Relevant portion of the judgment reads as follows:‑ "A perusal of proviso (a) to subsection (2) of section 35, Cr.P.C. indicates that it prohibits the giving of consecutive sentence in one trial beyond the period of fourteen years, the maximum sentence, short of the death sentence, which could be imposed on an offender before the promulgation of the Law Reforms Ordinance, 1972. The said provision (section 35, Cr.P.C.) appears to be in consonance with the scheme and intendment of the Pakistan Penal Code that an offender should only suffer the maximum sentence of imprisonment for any heinous crime (as it stood until 1972) which should not exceed fourteen years. Therefore, the imposition of the sentence of life imprisonment (which means 25 years R.I.), plus seven years' R.I. under section 307, P.P.C. would be inconsistent with the intendment of the provisions of proviso (a) to subsection (2) of section 35, Cr.P.C. inasmuch as the maximum punishment prescribed for heinous offences shall be exceeded. The difficulty in this case can be overcome if the sentences awarded to the appellant in respect of two convictions under section 302, P.P.C. and under section 307, P.P.C. in one and the same trial are directed to run concurrently instead of running consecutively." He also cited the following two cases wherein the same view was taken: Juma Khan and another v. The State 1986 SCMR 1573; and Muhammad Ittafaq v. The State 1986 SCMR 1627.

3. We have also heard the learned Assistant Advocate‑General who is present in Court.

4. Respectfully following the above‑noted decisions of this Court we condone the delay of 2 days in filing the petition, convert the petition into appeal and allow the same. We order that the following, portion of the impugned judgment: "The sentences shall run consecutively." shall stand omitted, and shall now be read as:‑ "The sentences shall run concurrently." M.B.A/K‑14/S Order accordingly.