2022 PLP 126 (YLRN)

ROZI KHAN BARRECH, J.

The Criminal Revision Petition bearing No.110 of 2019 has been filed under sections 435 and 439, Cr.P.C. by the petitioner against the judgment dated 23.07.2019, passed by the learned Sessions Judge Mastung ("appellate court") in Criminal Jail Appeal No.04/2019 as well as judgment dated 27.12.2018, passed by the learned Judicial Magistrate, Mastung ("trial court") in criminal P.P.C. Case No.17/2018, whereby he was convicted under Section 381-A and sentenced to suffer R.I. for three years and to pay fine of Rs.40,000/- in default whereof he was to further suffer SI for six months. The petitioner was, however, extended benefit of section 382-B, Cr.P.C. The Criminal Revision Petition bearing No.111/2019 has been filed to question the validity of judgment dated 23.07.2019 passed by the appellate court and the judgment dated 29.12.2018 passed by the trial court, whereby he was convicted under section 381-A and sentenced to suffer RI for three years and to pay fine of Rs.40,000, in default whereof he was to further suffer SI for six months. The petitioner was, however, extended benefit of section 382-B, Cr.P.C. 7 Facts of Criminal Revision Petition No. 110/2019 are that FIR No.14 of 2018 was registered on the complaint of one Abdullah son of Haji Abdul Hai with Police Station City Mastung on 17.04.2018 with the allegation that on the said date the complainant parked his alto car bearing registration No. ALT-332 in Mastung Bazar beside the Laboratory Model School and when he returned to the spot after 4/5 minutes, his car was no more there. Hence the crime report. After completion of the usual investigation in both the cases, the challans were submitted before the trial court, whereby the charge was framed and read over to the petitioner to which he did not plead guilty and claimed trial. After a full dressed trial, the trial court convicted and sentenced the petitioner in the above terms. Being aggrieved from the judgment passed by the trial court, the petitioner filed an appeal under section 408, Cr.P.C. before the learned Sessions Judge, which was dismissed vide impugned judgment dated 23.07.2019, where-after the Revision Petition No. 110 of 2019 was filed.

3. The facts leading to filing the Criminal Revision Petition No.111/2019 are that the complainant Abdul Karim son of Qadir Bakhsh lodged the FIR No. 80/2018 dated 22.10.2018 with Police Station City Mastung with the allegation that on 21.08.2018 at 1:00 p.m. he parked his vehicle bearing registration No. PG-5157 at RCD road Mastung. At about 6:00 p.m., when he went for prayer and came back, he found that his vehicle was missing. Hence, the crime report. After completion of the usual investigation, the challan was submitted before the trial court, whereby the charge was framed and read over to the petitioner to which he did not plead guilty and claimed trial. After full dressed trial, the trial court convicted and sentenced the petitioner in the aforesaid terms. Being aggrieved from the judgment passed by the trial court, the petitioner filed an appeal under section 408, Cr.P.C. before the learned Sessions Judge Mastung, which was dismissed vide impugned judgment dated 29.12.2018, whereafter the Revision Petition No. 111 of 2019 was filed.

4. I have heard the learned counsel for the petitioner, who argued the matter at some length and later on stated that he would not press the petitions on merit and requested that the sentences awarded to the petitioner may be ordered to run concurrently as required under section 35, Cr.P.C. read with section 397, Cr.P.C. in both FIRs i.e. FIR No. 14 of 2018 and FIR No. 80 of 2018 of PS City Mastung. The learned counsel appearing on behalf of the state raised no objection if both sentences awarded to the petitioner are ordered to run concurrently. Since both, the petitions have not been pressed on merits and the question of law involved therein are same; therefore, the same are being disposed of through this common judgment. Learned counsel for the petitioner did not press the petition on merit; therefore I will refrain from discussing the merits of the case. In FIR No. 14 of 2018, the petitioner was convicted by the trial court vide judgment dated 27th December 2018 for an offence under section 381, P.P.C. and sentenced for a period of three years R.I with the benefit of section 382-B, Cr.P.C. The petitioner assailed the impugned judgment passed by the trial court before the appellate court, which was dismissed vide impugned judgment dated 23.07.2019. In FIR No. 80 of 2018, the petitioner was convicted by the trial court vide judgment dated 29.12.2018 for an offence under section 381, P.P.C. and sentenced for a period of three years R.I with the benefit of section 382-B, Cr.P.C. The petitioner assailed the impugned judgment passed by the trial court before the appellate court, which was dismissed vide impugned judgment dated 23.07.2019. Both the appeals were dismissed by the appellate court without rendering any observation with regard to the concurrence of the sentences awarded to the petitioner by the trial court.

5. Before dilating upon the prayer made by learned counsel for the parties 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 be several punishments prescribed, there-for 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." The provisions of sections 35 and 397, Cr.P.C. furnish a complete answer to the instant case. A 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 directs 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.

6. 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 the running of different sentences inflicted on an offender, at separate trials, for different offences, without any clog of time, place and nature of the 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.

7. I am conscious of the fact that the trial court has ample discretion under section 397, Cr.P.C. to direct the subsequent and previous sentence of imprisonment to run concurrently, however, the trial court seized of the subsequent trial and the appellate/ revisional court in appeal/revision arising there-from is competent to direct that the subsequent conviction and sentence would run concurrently with previous one.

8. The Hon'ble Supreme Court, in the case, reiterated the law in a number of cases including Mst. Zubaida v. Falak Sher and others 2007 SCMR 548, Mst. Shaista Bibi and another v. Superintendent, Central Jail, Mach and 2 others PLD 2015 SC 15 and Sajjad Ikran and others v. Sikandar Hayat and others 2016 SCMR

467. More recently, in Rahib Ali v. State 2018 SCMR 418, the Hon'ble Supreme Court held as under: "Generally, where a convict is undergoing sentence in earlier conviction and later in a separate trial(s) stands convicted and sentenced for imprisonment for life or otherwise for a shorter term, sentence in subsequent trial commences after sentence in earlier trial is exhausted. However, the trial court seized of subsequent trial and the Appellate Courts in appeal arising there from are empowered under section 397 Cr.P.C, to direct that the subsequent sentence(s) to run conjointly with previous sentence(s) of imprisonment of life or otherwise as the case may be. In the cases cited as Mst. Zubaida v. Falak Sher and others (2007 SCMR 548), this court attending to question of multiple convictions in more than one crime and trial took charitable view, of section 397, Cr.P.C. while declining leave; observed that section 397, Cr.P.C. empowers the court to direct the subsequent sentence would run concurrently with the previous sentence. In the case of Shaista Bibi and another v. Superintendent, Central Jail, Mach and 2 others (PLD 2015 Supreme Court 15) this Court examined provision of section 35 Cr.P.C., together with section 397 Cr.P.C., also took charitable view and adopted interpretation beneficial to the accused by ordering concurrent running of sentence in two different trials. In a more recent pronouncement in the case of Sajjad Ikram and others v. Sikandar Hayat and others (2016 SCMR 467) this Court at page 473 held that: "The provisions of section 397, Cr.P.C., confers wide discretion on the Court to extend such benefit to the accused in case of peculiar nature and Court further observed that there is nothing wrong in treating the sentence of imprisonment for life of convict/appellants on three counts to run concurrently." For what has been discussed above, both the appeals are dismissed. However, it is held that all the sentenced awarded to the petitioner Mujeeb-ur-Rehman son of Saleh Muhammad in FIR No. 14 of 2018 and FIR No. 80 of 2018 of Police Station City Mastung are directed to concurrently. The office is directed to send a copy of this judgment immediately to the Superintendent District Jail, Quetta, who is directed to do the needful at his end, in accordance with the law. JK/185/Bal. Revisions dismissed.