2016 P Cr (PLP)

MUHAMMAD KAMRAN KHAN MULAKHAIL, J.

Through this Criminal Miscellaneous Jail Application, sent via Superintendent Central, Mach the applicant Faqeer Muhammad son of Taj Muhammad has sought concurrence of sentences awarded to him by the learned Additional Sessions Judge, Naseerabad at Dera Murad Jamali ("trial court") in the following terms: "Pursuant to above discussion I arrive at conclusion that the prosecution succeeded to establish under section 17(4), Harabah against accused Faqir Muhammad and accused Manzoor Ahmed. Therefore they are convicted in above offence and they are sentenced to death. They be hanged by neck till death. The punishment will be executed after confirmation of Hon'ble Federal Shariat Court of Islamabad. The case along with fure[sic] sets be sent to the Hon'ble Federal Shariat Court of Islamabad for confirmation of sentence or otherwise." Whereas, in connected arms case he was convicted and sentenced as follows: "Pursuant to above discussion I came to conclusion that prosecution succeeded in its case under section 13-E of Arms Ordinance, 1965. Therefore, accused is convicted and sentenced (R.I) for 2 (two) years with a fine (Rs.2,000/-) in default accused further suffer (S.I) for 4 (four) months in above offence. The benefit of section 382-B, Cr.P.C. is also extended in favour of accused."

2. Brief facts of the case are that a decoity took place in the Officers Club, Dera Murad Jamali, during the night between 9th and 10th September, 2000 in which the television set, its receiver and remote control had been stolen and the night Chowkidar of the Club Samandar Khan was murdered. The deceased's brother Wali Muhammad lodged the FIR early in the morning of 10th September at Police Station Dera Murad Jamali (District Naseerabad), stating therein that his brother Samandar Khan was a Sepoy in the Levies and was also serving part-time as Night Chowkidar in the Officers' Club and early in the morning at 7:30 a.m. one Maula Bux, the day-chowkidar of the Club, informed him that when he went to the Club to resume his duty he found that Samandar Khan had been murdered during the night and his dead body was lying in the Club premises and the door lock of the room was lying broken and the TV and its receiver were missing. On receiving this message, he rushed to the Club premises along with Manzoor Ahmed and some other persons and found severe injury on the forehead of his deceased brother who was lying dead in the verandah of the Club. He also saw footprints of three persons on the place of incident. Thereafter he went to the police station and lodged the report. Challan against the applicants was submitted before the learned Additional Sessions Judge, Naseerabad at Dera Murad Jamali ("trial court"). On the stated allegations, a formal charge was framed and read over to the applicant, to which he did not plead guilty and claimed trial. After a full dressed trial the applicant was convicted and sentenced in the aforesaid terms by learned trial court. The applicant assailed the judgments passed by the trial court before the Hon'ble Federal Shariat Court in Criminal Application Nos. 60(Q) of 2001. The application filed by the applicant was also dismissed by the Hon'ble Federal Shariat Court; however, the sentence of death awarded to the applicant was reduced to that of life imprisonment. The applicant has filed this application seeking his convictions to run concurrently.

3. Before dilating upon the prayer made by learned counsel for the applicant, it would be appropriate and advantageous to reproduce sections 35 and 397 of the Cr.P.C., which deal with the proposition in question, as under:-- "

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, therefor which such Court is competent to inflict; such punishment 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 High Court; Provided as follows: (a) in no case shall such person be sentenced to imprisonment for a longer period than 14 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. (c) for the purpose of application, [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." Similarly section 397 of the Cr.P.C. speaks as under:-- "

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."

4. The Criminal Appeal No. 60/Q of 2010 filed by the applicant against the aforesaid convictions have also been dismissed by Hon'ble Federal Shariat Court vide judgment 07.06.2007. The difficulty arisen to the applicant is that, the trial Court did not pass any order as to whether the aforesaid convictions and sentences were to run concurrently or consecutively. The provisions of sections 35 and 397, Cr.P.C. furnish a complete answer to the instant case. Perusal of section 35 of the Cr.P.C. shows that when a person is convicted at one trial of two or more offences, the trial Court is obliged to sentence him for approved offences, according to the separate punishments prescribed; therefore, such punishments when consisting of imprisonment will commence one after the expiry of the other, unless the Court direct that such punishments shall run concurrently. It means that the sentences of imprisonment in two or more offences tried at one trial shall run consecutively and the direction that such punishment shall run concurrently is an exception. The provision of section 35 of the Cr.P.C. is only applicable, when a person is convicted at one trial of two or more offences. Its subsection (1) is of general application and is not in any way, restricted in nature. Under section 35 of the Cr.P.C., the Court can direct a concurrent running of sentences only when the accused is convicted at one trial of two or more distinct offences, whereas in the instant case, both the offences, were committed with distinct and separate criminal objectives sought to be achieved at different points of time, as such, justification to seek concurrent running of all the offences, in peculiar circumstances, does not arise at all. Sentence of fourteen (14) years, as mentioned in proviso (a) to section 35 of the Cr.P.C. is to be read as twenty five (25) years, meaning thereby that an accused in the same trial cannot be sentenced to imprisonment for a longer period than imprisonment for life. Under section 35 of the Cr.P.C., the total period of imprisonment at one trial cannot exceed twenty five (25) years.

5. A careful and minute perusal of the aforesaid provisions of law clearly demonstrates that the basic difference between the two provisions is that section 397 of the Cr.P.C. prescribed for running of different sentences inflicted on an offender, at different trials, for different offences, without any clog of time, place and nature of offence, whereas section 35 of the Cr.P.C. enjoined that it would come into play, when a person was convicted at one trial of two or more offences. Since direction under section 35 of the Cr.P.C. is contingent on the conviction of a person for several offences at one trial, as such, said section does not attract in the circumstances of the present case, because the applicant, in present cases, had been convicted at different trials, for the offences committed at different times and places.

6. We are conscious of the fact that the trial Court has ample discretion under section 397 of the Cr.P.C. to direct the subsequent and previous sentences of imprisonment to run concurrently, but in the absence of exercise of such discretion, the sentences shall run consecutively. In a case, where two or more offences not connected, taking place at different times and with different persons, this Court can neither in exercise of inherent power under section 561-A of the Cr.P.C., nor in exercise of supervisory jurisdiction under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 direct or substitute an order for running subsequent sentence concurrently with previous sentence.

7. The sentences awarded to the applicant are severe in nature. In this context, we are of the opinion that the purpose behind infliction of sentence is two fold; firstly, it would create such atmosphere, which could become a deterrence for the people who have inclination towards crime and; secondly, to work as a medium in reforming the offenders. Sentence should be neither so severe that the offenders, could, out of frustration, become desperate and hardened criminals, nor should it be so mild that it encourages the offender to commit the offence again. The Courts, while judging adequacy of the sentence, are required to consider different factors, such as, previous conviction, circumstances, mode and manners, in which offence was committed, age and character of an offender, heinousness of crime, injury to individuals and the society etc. While considering the case of the applicant on the said criterion, and as per the judgment dated 07.06.2007 rendered by the Hon'ble Federal Shariat Court in Criminal Appeal No. 60/Q of 2010, we are of the view that the applicant committed qatl-i-amd of the deceased Ali Dost within the purview of section 302(b) of the Pakistan Penal Code, 1860 with an unlicensed Kalashnikov. After finding him guilty, the learned trial court convicted and sentenced him, as mentioned hereinbefore. The powers, conferred upon the Courts under section 397 of the Cr.P.C. for ordering the various sentences awarded in different cases to run concurrently, are discretionary and are to be exercised after taking into consideration the allegation and circumstances of each individual case. The applicant has also been extended benefit of section 382-B of the Cr.P.C. in both the cases. The involvement of the applicant in more than one case shows his desperate character. Reliance is placed on the cases of Ali Khan Kakar v. Hammad Abbasi (2012 SCMR 334) and Ghulam Farid v. The State (2013 SCMR 16) For the aforesaid reasons, while turning down the request of the applicant made by his counsel, the application, being meritless, is hereby dismissed accordingly. HBT/47/Bal. Application dismissed.