2000 PLP 1932 (MLD)

MIAN NAZIR AKHTAR, J.‑‑‑This petition has been filed for an order to the effect that the sentence awarded to the convict/petitioner under section 302 of the P.P.C. will run concurrently with his sentence of imprisonment under section 307 of the P.P.C.

2. Briefly stated the facts of the case are that Allah Rakha, petitioner and two co‑accused named Mukhtar Ahmad and Muhammad Rafique was tried by the learned Sessions Judge, Bahawalpur for offences under section 302/307/34 of the P.P.C. for causing murder of Haq Nawaz and attempting to murder. Abdur Rauf P. W . The trill Court found the accused persons guilty under section 302/34 of the P.P.C. and sentenced the petitioner and, Muhammad Rafiq co‑accused to imprisonment for life with a fine of Rs.2,000 each or in default of payment to undergo R.I. for one year. Mukhtar Ahmad co‑accused was sentenced to death with a fine of Rs.5,000 or in default of payment to suffer R.I. for one year. They were also convicted under section 307. of the P.P.C. and sentenced to 7 years' R.I., each. The substantive sentences of imprisonment were ordered to run consecutively.

3. The convicts filed a joint appeal (Criminal Appeal No.41 of 1987) in this Court. Mukhtar Ahmad also filed a separate Appeal bearing No.43 of 1987. The two appeals were heard alongwith Murder Reference No.9 of 1987 by a Division Bench of this Court which dismissed both the appeals to the extent of Allah Rakha, petitioner and Mukhtar Ahmad. The appeal to the extent of Muhammad Rafiq co‑accused was allowed and he was acquitted by the Court vide judgment, dated 23‑6‑1990. It is noteworthy that while dismissing the appeals, this Court did not specifically pass any order whether the sentences awarded to the petitioner on two counts would run concurrently or consequently. However, the effect of dismissal of the appeal was that the order of the trial Court that the sentences would run consecutively remained in the field. The death sentence awarded to Mukhtar Ahmad was converted to life imprisonment in the light of the general amnesty granted in the year 1988. He filed Criminal Appeal No.310 of 1994 in the Supreme Court of Pakistan praying therein that the sentence awarded to him under section 302 and section 307 of the P.P.C., should be ordered to run concurrently. The said prayer was allowed by the Hon'ble Supreme Court of Pakistan vide order, dated 3‑5‑1995. Now the petitioner has filed the present application for grant of the same relief as has been granted to Mukhtar Ahmad co- accused.

4. We have heard the learned counsel for the parties. Admittedly, the petitioner had not challenged the judgment dated 23‑6‑1990 passed by this Court whereby his appeal was dismissed and his conviction and sentence under section 302/307 of the P.P.C. were maintained. Resultantly, his substantive sentence of life imprisonment and sentence of 7 years' R.I. under section 307 of the P.P.C. had to run consecutively. After commutation of the sentence of death of Mukhtar Ahmad co‑accused to life imprisonment the Hon'ble Supreme Court has granted his prayer for running the two sentences concurrently with the following order:‑‑ "After hearing learned counsel for the appellant, we direct that sentence awarded to the appellant under section 302, P.P.C., will run concurrently with the substantive, sentence of imprisonment awarded to him under section 307, P.P.C." Since the petitioner and Mukhtar Ahmad were jointly tried, the interest of justice required that the same treatment be meted out to both the convicts in the matter of their sentence. Such an order can be passed in exercise of inherent powers under section 561‑A of the Cr.P.C. in order to secure the ends of justice. The petitioner's learned counsel has relied on the following judgments in support of his prayer:‑‑ (i) Javed Shaikh v. The State (1985 SCMR 153), (ii) Juma Khan and another v. The State (1986 SCMR 1573), (iii) Khan Zaman and others v. The State (1987 SCMR 1382), (iv) Mukhtar Ahmad alias Mokha and another v. The State (1999 P.Cr.LJ 1905) and (v) Gul Muhammad and others v. The State 1999 SCMR 2765. In the case of Javed Shaikh the Hon'ble Supreme Court , examined the provisions of section 35 of the Cr.P.C. and held that imposition of the sentence of life imprisonment (for 25 years' R.I.) plus 7 years' R.I. under section 307 of the P.P.C. would be inconsistent with the intendment of the provisions of proviso (a), subsection (2) of section 35 of the Cr.P.C. inasmuch as the maximum punishment prescribed for the heinous offence would be exceeded. Therefore, the Court accepted the appeal and ordered that the two sentences shall run concurrently. A similar view was expressed in the cases of Juma Khan and another and Khan Zaman and others. In Juma Khan's case the High Court had dismissed the application filed under section 561‑A of the Cr.P.C. for an order to the effect that the sentences on two counts should run concurrently. However, the Supreme Court allowed the prayer and held that under section 35 of the Cr.P.C. the total period of imprisonment at one trial cannot exceed 25 years. The views expressed in the case of Javed Shaikh and Juma Khan referred to above and in another case titled "Muhammad Ittefaq v. The State" (1996 SCMR 1627) were followed in the case of Khan Zaman and others. In the case of Mukhtar Ahmad alias Mokha and another, the application filed under section 561‑A of the Cr.P.C. for rectification of the judgment was accepted and the substantive sentence of imprisonment on two counts was ordered to run concurrently. In the case of Gul Muhammad and others, the Hon'ble Supreme Court of Pakistan was pleased to hold that in an appropriate case the High Court had power even to correct its own order or to recall an erroneous order in exercise of inherent jurisdiction under section 561‑A of the Cr.P.C.

5. For the foregoing discussion, we accept the petition and clarify that the sentence of life imprisonment awarded to the petitioner under section 302 of the P.P.C. shall run concurrently with his sentence of 7 years' R.I. under section 307 of the P.P.C. N. H. Q./A‑112/L Petition accepted.