2016 M L D 1012
[Balochistan]
Before Mrs. Syeda Tahira Safdar and Muhammad Ejaz Swati, JJ
ALI KHAN ---Petitioner
Versus
SUPERINTENDENT CENTRAL JAIL, MACH and 2 others ---Respondents
C.P. No.861 of 2014, decided on 7th March, 2016.
(a) Criminal Procedure Code (V of 1898) ---
----Ss.35 & 397 ---Conviction of several offences at different trials ---Concurrent running of
sentences ---Scope ---Contention of accused was that he had already served more than forty five
years imprisonment ---Validity ---Case of the accused had been specifically dealt with by the
Supreme Court and relief claimed had been declined ---High Court could not go beyond the
judgment of Supreme Court ---Constitutional petition was dismissed in circumstances.
Mst. Bibi Shahista and an other v. Superintendent, Central Jail Mach PLD 2015 SC 15;
Shah Hussain v. The State PLD 2009 SC 460; Bhai Khan v. The State PLD 1992 SC 14; Hameed
Akhtar Niazi v. Secretary Establishment Division Government of Pakistan 1996 SCMR 1185;
Government of Punjab , through Secretary Education, Civil Secretariat Lahore v. Sameena
Parveen 2009 SCMR 1 and Syed Mahmood Akhtar Naqvi v. Federation of Pakistan PLD 2013
SC 195 distinguished.
(b) Constitution of Pakistan ---
----Art. 189 ---Decision of Supreme Court ---Binding effect ---Scope ---Decision of Supreme Court
was binding on all the courts in Pakistan.
Azmatullah Kasi, Masoom Khan Kakar and Manzoor Rehmani for Petitioners.
Muhammad Saleem, Additional Advocate General for Respondents.
Date of hearing: 30th November, 2015.
ORDER
MRS. SYEDA TAHIRA SAFDAR, J. ---The petitioner Ali Khan son of Fateh Khan
filed the instant petition for issuance of an order to release him from the custody, while
contending that he had already served more than forty five (45) years in imprisonment, including
the remission, thus as per the law governing the matter his further detention would be in
violation of the law.
2. The Prosecutor General (PG) was put on notice to appear to assist the court to determine
the point of law involved in the case in hand. The learned counsel for the petitioner to support
the case referred to the judgments of Honorable Supreme Court reported in: --
Mst. Shahista Bibi and another v. Superintendent, Central Jail Mach PLD 2015 SC 15
Shah Hussain v. The State PLD 2009 SC 460
It was stated that the referred judgments were relevant to the case of the petitioner, thus the
benefit arising thereof was to be extended in his favour, but was denied without any legal
justification. In view of the stateme nt so made, it was asked from the learned counsel for the
petitioner that whether the reported judgments have applicability to the case of the petitioner, in
presence of the fact that the case of the petitioner had already been decided by the Honorable
Supreme Court while dealing with the case titled as Ali Khan Kakar v. Hammad Abbasi,
reported in 2012 SCMR 334. It was further asked from the learned counsel to explain that in
presence of a specific order passed in his (petitioner's) case by the Honorable Su preme Court,
whether he (petitioner) could be benefited by the referred judgments given on a later date, that
too, in some other cases. He was further asked to address effects of the referred judgments,
benefit whereof was claimed, that either the referred judgments were in Rem or in Personam, and
whether it could have a retrospective effect.
3. The learned Additional Advocate General filed para -wise comments on behalf of
respondent No. 2 Inspector General Prisons Balochistan. The maintainability of the i nstant
petition before this court was objected while contending that the petitioner might have
approached the Honorable Supreme Court as the decision was of the court. It was further averred
that the remissions allowed by law had already been extended in c ase of the petitioner, thus no
further order required in the matter.
4. The perusal of the case file reveals that the petitioner was booked in a case pursuant to
FIR No. 140 of 1987, registered at Police Station Ganj Mandi, Rawalpindi on 9th April 1987.
The court of Sessions Judge/Special Judge, Camp Adaila Jail, Rawalpindi took cognizance of the
offence, and vide judgment dated 9th April 1988 the petitioner was convicted for the charge of
murder on ten counts, and was awarded death penalty. The appeal pr eferred against the order of
conviction was heard and decided by the Lahore High Court, Rawalpindi Bench, and vide
judgment dated 9th June 1997 the appeal was declined, however death penalty was converted
into life imprisonment for ten counts. It was order ed that the sentences shall run consecutively.
The petitioner was also tried for the offence punishable under the Explosive Substances Act
1908, and he was sentenced to death, in appeal the sentence awarded was also converted into life
imprisonment, with a n order to run the sentences consecutively. Thus as a whole a period of 239
years imprisonment was awarded to the petitioner, as a result of the orders. It is to remind that
the appeals preferred by the petitioner before the Honorable Supreme Court met wit h the same
fate.
5. The petition in hand was with the request to issue an order for release of the petitioner,
because he had already undergone the sentences awarded to him, thus his further custody would
be violative of law and principle of justice. It was observed that the relief claimed by the instant
petitioner had already been dealt and declined by the Honorable Supreme Court vide judgment
dated 17th October 2011. This judgment was passed in the petitions H.R.C. No. 3087 of 2006,
C.M.A. No. 28 -Q of 2 006, and Civil Petition No. 1393 of 2010, titled as Ali Khan Kakar and
others v. Hammad Abbasi. The applicability of Sections 35 and 397 Criminal Procedure Code
was addressed and it was concluded that: --
"8. Section 35 of the Cr.P.C. relates to one trial on different counts whereas Section 397,
Cr.P.C. pertains to a situation when an offender who is already convicted and sentenced,
is tried, convicted and sentenced under different offences and in other criminal
transactions. In the latter category of case s the law mandates that 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 impris onment or imprisonment for life to which
he has been previously sentenced". However, the law vests a discretion in Court that
notwithstanding the afore -referred mandate; the Court can direct that the subsequent
sentence shall run concurrently with such pre vious sentence." The discretionary power
vested in the Court to direct the sentence to run concurrently is to be exercised in the light
of the facts and circumstances of each case i.e. depending on the nature and gravity of the
offence. All the afore -refer red cases pertain to bomb blasts and the consequent murders
which must have caused a sense of suicidal insecurity. In all these cases, the appeals were
dismissed by the High Court and even by this Court. The courts have already exercised
their discretion a nd no case for Suo Motu Review at this belated stage is made out. In the
afore -referred circumstances CMA No. 28 -Q/2006 and HRC No.3087/2006 are
dismissed."
This was the judgment pertained to the case where the petitioner was one of the parties, and a
decision was given similar to that of the issue in hand. In addition the contents of the referred
judgment described the facts that the appeal against the order of conviction filed by the petitioner
was declined by the Honorable Supreme Court prior to the referred judgment. Thus the moot
question would be that when the relief claimed in the present petition had already been declined
by the Honorable Supreme Court, that too specifically to the extent of the petitioner, whether on
the basis of some subsequent judgment the same relief could be allowed or benefit thereof could
be extended in favour of the petitioner. The learned counsel for the petitioner pressed hard with
reference to the judgment reported in PLD 2015 SC 15, which was in fact in the case of one
Shahista Bibi and Abdul Qayyum. It was averred that the judgment dated 17th October, 2011
was also passed in the case wherein Abdul Qayyum was the petitioner, thus the judgment passed
later in time in favour of him (Abdul Qayyum) would have its effect in the case of the petitioner
also, and the benefit arise therefrom have to be extended in favour of the petitioner. The learned
counsel in support placed reliance on the judgments: --
Mst. Bibi Shahista and another v. Superintendent, Central Jail Mach PLD 2 015 SC 15
Shah Hussain v. The State PLD 2009 SC 460
Bhai Khan v. The State PLD 1992 SC 14
Hameed Akhtar Niazi v. Secretary Establishment Division Government of Pakistan 1996
SCMR 1185
Government of Punjab, through Secretary Education, Civil Secret ariat Lahore v.
Sameena Parveen 2009 SCMR 1
Syed Mahmood Akhtar Naqvi v. Federation of Pakistan PLD 2013 SC 195
The last three judgments pertain to services matter, thus not relevant, nor helpful in the case in
hand. As far the judgment reported in P LD 1992 was concerned, it only pertained to
commutation of sentences, which was not matter in issue in the case in hand, thus not relevant.
As far the case reported in PLD 2009 was concerned, it pertained to the benefit available under
Section 382 B, Cr.P. C., thus neither relevant, nor helpful to resolve the issue in hand. The only
judgment relevant in the case in hand was PLD 2015 SC page 15, benefit whereof claimed by the
petitioner.
6. It was observed that though the relief pertaining to concurrent run ning of the sentences as
mandated by Sections 35 and 397, Cr.P.C. was also declined to said Abdul Qayyum and Shaista
Bibi vide judgment dated 17th October, 2011 by the Honorable Supreme Court, however it was
allowed in 2015 to them (Abdul Qayyum and Shaist a Bibi) on a subsequent petition. The perusal
of the referred judgment reveals that the findings were recorded only to the extent of the referred
persons before the Honorable Supreme Court, no general principle was determined thereby. Thus
in the given sta te of affairs the petitioner would not be benefited from the decision recoded later
in time in some other case. It was also for the reason that the case of the petitioner was
specifically dealt by the Honorable Supreme Court in the year 2011, and a specifi c finding was
given, whereby the relief claimed was declined, and the judgment still hold the field. In view
thereof this court in no means could go beyond the judgment of the Honorable Supreme Court.
7. In addition thereto the petitioner was booked in a case registered at concerned Police
Station at Rawalpindi. He was convicted by a court also having jurisdiction at Rawalpindi, while
the appeal was heard by a Bench having jurisdiction within the local limits of Rawalpindi. Thus
this court surely lacks te rritorial jurisdiction, which otherwise restricted to the limits of the
Province of Balochistan.
In view of the above discussion as the verdict of Honourable Supreme Court in case of
the petitioner vide judgment dated 17th October, 2011 still hold the f ield, and the request to the
extent of the benefit arising under sections 35 and 397, Cr.P.C. was already declined, thus this
court in exercise of its constitutional jurisdiction not empowered to allow the relief in the terms
as prayed in the instant petit ion. Article 189 of the Constitution of Islamic Republic of Pakistan,
1973 is clear enough to bound down not only this Court, but also courts in Pakistan by the
decisions of the Honourable Supreme Court for the purpose.
The petitioner has failed to make out a case the petition is dismissed for the reasons
mentioned in the preceding paras.
ZC/24/Bal Petition dismissed.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
let us know.