2017 P Cr (PLP)

SHAHNAWAZ TARIQ, J.

Applicant Naeem T.T alias Kashif son of Mohammad Hanif sent an application dated 22.10.2014, from jail through Superintendent Central Prison, Karachi, which was placed before the Hon'ble Chief Justice of this Court and vide order dated 29.11.2014, said application was converted into instant Criminal Miscellaneous Application and notice was issued to Prosecutor General and production order for the applicant.

2. From the perusal of the application along with the copies of the judgments it has reflected that applicant was involved in Sessions Case No.289/2010, vide FIR No.107/2010, under section 395, P.P.C., lodged at Police Station Ibrahim Hyderi, another Sessions Case No.287/2010, vide FIR No.109/2010, under section 395, P.P.C., lodged at Police Station Ibrahim Hyderi and in third FIR No.154/2010, under section 13-D, Arms Ordinance, lodged at Police Station Zaman Town, Karachi.

3. The applicant was convicted in all cases referred supra as follows:- (i) In Sessions Case No.289/2010 to undergo R.I for 4 years and fine of Rs.50,900/- and in case of default, he shall suffer R.I. for 4 months. (ii) In second Sessions Case No.287/2010, applicant was convicted to undergo R.I. for 4 years and fine of Rs.50,000/- and in case of default he shall suffer R.I. for 3 months. (iii) In Criminal Case No.294/2010, FIR No.154/2010, applicant was convicted to undergo R.I. for 18 months. The applicant was extended the benefit of section 382-B, Cr.P.C. in all three cases, but no order to run the sentences concurrently was passed by the learned trial Courts, as such all the sentences are running consecutively.

4. Applicant is produced by the jail authority before the Court, and he submitted that he was selling flowers and Agarbatti at the graveyard and residing in a katcha hut near said grave yard. He further submitted that during the night of the incident, he was sleeping on the handcart, and in the meantime an encounter was held between the culprits and police party, whereby two culprits were expired at spot and the applicant also sustained bullet injury whereupon he was also challaned as one of the companion of the culprits. He further contended that during his detention, his parents had expired and due to the poverty he is unable to engage a counsel to defend him. Applicant produced copy of order dated 21.06.2013, passed in Criminal Miscellaneous Application No.96/2013, filed by the co-accused Mohammad Shafiq, who was also convicted in said three cases with the similar quantum of sentences which were also running consecutively, and High Court had ordered to run all the three sentences concurrently. The applicant further submitted that his application may be allowed under the rule of consistency.

5. Learned A.P.G conceded the plea raised by the applicant and he further contended that instant Criminal Miscellaneous Application is in consonance with the provisions of section 397, Cr.P.C. and section 35(2)(a), Cr.P.C.

6. From perusal of the available record and consideration of the arguments advanced by the parties reflect that the applicant was convicted in three cases, out of which Sessions case No.289/2010 vide FIR No.107/2010, and Sessions case No.289/2010,vide FIR No.107/ 2010 along with co-accused by the Court of learned Sessions Judge, Malir Karachi, with the same quantum of sentences, and in third case by the Court of learned XVI Judicial Magistrate, Karachi East, but no order to run the above sentences concurrently was passed by the trial Courts.

7. In the case of Muhammad Ittefaq v. The State, 1986 SCMR 1627, the Hon'ble Supreme Court has observed that sentence of imprisonment for life awarded on two counts but no direction made for concurrent running of sentences. Consecutive running of such sentences being violative of proviso (a) to section 35(2), Cr.P.C., omission rectified and sentences ordered to run concurrently.

8. In the case of Javed Shaikh v. The State, 1985 SCMR 153, the Hon'ble Supreme Court has observed that consecutive sentence of life imprisonment (25 years) imposed on convict under section 302, P.P.C. and sentence of seven years rigorous imprisonment awarded to him under section 307, P.P.C, held, was inconsistent with intendment of provision of section 35(2), proviso (a), Cr.P.C., inasmuch as maximum punishment prescribed for heinous offence shall be exceeded sentence of life imprisonment imposed on convict under section 302, P.P.C. and sentence of seven years rigorous imprisonment awarded to him under section 307, P.P.C. therefore, were to run concurrently and not consecutively.

9. It is essential to mention that co-accused Mohammad Shafiq vide order dated 21.06.2013 in C.M.A. No.96/2013, had already been granted same relief as such the applicant is also entitled for the same treatment under the rule of consistency.

10. Moreover, High Court has been conferred with the powers under section 561-A, Cr.P.C read with section 397, Cr.P.C. and section 35(2)(a), Cr.P.C. to rectify any such error or omission committed by the trial Court whereby the sentences are running consecutively, to pass order that the different sentences awarded to the accused in different cases to run concurrently. In view of the above case law and considering the crippling circumstances of the applicant, instant Criminal Miscellaneous Application stands allowed and all the sentences awarded to the applicant in above three cases are ordered to be run concurrently. HBT/N-7/Sindh Application allowed.