2006 P Cr (PLP)

Khair Muhammad alias Khairoo petitioner was tried in case F.I.R. No.245 dated 3-11-1987 under sections 302/148/149, P.P.C. registered at Police Station Dajal District Rajanpur, by the learned Sessions Judge, Rajanpur and vide judgment, dated 15-10-2001 the said learned trial Court sentenced him to death and a fine of Rs.50,000 to be paid to the legal heirs of the deceased or in default thereof to undergo six months' S.I. On appeal filed by him bearing Criminal Appeal No.749 of 2001 a learned Division Bench of this Court vide judgment dated 13-5-2004 maintaining the conviction of the petitioner sentenced him to suffer imprisonment for life instead of death. Benefit of section 382-B, Cr.P.C. was also granted to him.

2. The petitioner was also convicted by the learned Additional Sessions Judge, Rajanpur in case F.I.R. No.237 dated 8-12-1990 under sections 302/148/149, P.P.C. registered at Police Station Dajal and vide judgment, dated 15-1-1998 sentenced him to suffer imprisonment for life with a fine of Rs.30,000 to be paid to the legal heirs of the deceased or to undergo six months' S.I. in default thereof. Benefit of section 382-B, Cr.P.C. was also granted to him. The petitioner filed Criminal Appeal No.54 of 1998 against his conviction and sentence. The said appeal came up for hearing on 28-9-2005 when the learned counsel for the appellant stated that the appellant had served out the sentence awarded to him. As such the said appeal was disposed of as having become infructuous.

3. Through this petition under section 561-A, Cr.P.C. the petitioner seeks a direction to the effect that the afore-mentioned sentences of the, petitioner incase F.I.R. No.245 of 1987 dated 3-11-1987 and case F.I.R. No.237 dated 8-12-1990 both registered at Police Station Dajal, District Rajanpur may be directed to run concurrently and the Superintendent Central Jail, Faisalabad may be directed accordingly.

4. Learned counsel for the petitioner has invoked the provisions of section 397, Cr.P.C. on account of the fact that the sentence of death awarded by the learned trial Court in aforementioned case F.I.R. No.245 of 1987 having been converted into imprisonment for life in appeal, the sentences awarded in both cases are liable to run concurrently. Section 397, Cr.P.C. reads as follow:- "

397. Sentence of 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." While arguing the case, the learned counsel for the appellant further contends that the legislature intended imprisonment for life to be not more than 25 years as provided in section 57 of the Pakistan Penal Code and if both sentences awarded to the petitioner were allowed to run consecutively it would defeat the aforementioned provisions of law.

5. After hearing the learned counsel for the appellant, as well as the learned counsel for the State, we feel that the legislature by enacting section 397, Cr.P.C. and section 57 of the Pakistan Penal Code intended that the imprisonment for life should not be more than 25 years and the concept of life being only one span, therefore, the imprisonment for life can only be for one life. Since this Court in such an eventuality can always take corrective measures in view of the powers conferred upon it by section 57, P.P.C. read with sections 234, 397 and 561-A, Cr.P.C., therefore, in the interest of justice while relying on the dictum laid down in Muhammad Hanif v. The State 2001 SCMR 84; Juma Khan and another v. The State 1986 SCMR 1573; Ali Akbar Shah .v. The State PLD 2004 Kar. 589; Zareen Shah v. Superintendent, Central Jail, Machh and another 1997 PCr. LJ 1 185 and Zakir Ali v. The State PLD 1977 Kar. 833 we accept this petition and order the sentences in both the cases to run concurrently. H.B.T./K-35/L???????????????????????????????????????????????????????????? Petition accepted.