2024 M L D 1955
[Balochistan]
Before Muhammad Ejaz Swati, ACJ and Sardar Ahmed Haleemi, J
EJAZ ---Appellant
Versus
The STATE---Respondent
Criminal Miscellaneous (Jail) Appeal No. 306 of 2023, decided on 4th September, 2024.
Criminal Procedure Code (V of 1898) ---
----Ss. 35 & 397---Penal Code (XLV of 1860), Ss. 302(b), 324, 427 143, 147, 399, 353 &
34---Pakistan Arms Ordinance (XX of 1965), S. 13---Qatl -i-amd, attempt to commit qatl-
i-amd, mischief causing damage, rioting, attempt to commit robbery or dacoity when
armed with deadly weapon, assault or criminal force to deter public servant from discharge of his duty, common intention---Punishment ---Concurrence of sentences ---Four
separate trials ---Principle of hardship---Applicability ---Serving of 10 years' sentence ---
Effect ---Petitioner was convicted in four different cases and was sentenced to
imprisonment for life and other imprisonments ---Petitioner sought his sentences in all the
four trials to run concurrently---Validity ---Section 397, Cr.P.C, demonstrates that when a
convict is serving his substantive sentence of imprisonment and subsequently is convicted in another offence or trial, the Court has the discretion to consolidate the computation of several sentences passed in different cases ---Perusal of the nominal role of convict
submitted by the concerned Jail Authority revealed that the accused had been awarded a sentence of thirty -seven (37) years with a fine of Rs. 154,000/ - or in default of payment of
fine, to suffer imprisonment for eighteen (18) months in the said cases ---Accused had
served ten (10) years and earned eight (08) years, five (05) months, seventeen (17) days remission, while eighteen (18) years, ten (10) months and thirteen (13) days were remaining ---Aim of imprisoning a person is to reform him in the period of incarceration,
so he may join the society as a peaceful and law -abiding citizen ---In view of the peculiar
facts and circumstances, the case of accused was one of hardship, as such, he was entitled to the relief claimed for ---Criminal Miscellaneous was allowed, consequently, the
sentences awarded to the accused in all the four cases were ordered to run concurrently with benefit of S.382- B Cr.P.C.
Mst. Shahista Bibi and another v. Superintendent, Central Jail, Mach and others PLD
2015 SC 15; Sajjad Ikram and others v. Sikandar Hayat and others 2016 SCMR 467 and Rahib Ali v. The State 2018 SCMR 418 rel.
Najeebullah Kakar for Appellant.
Ms.Noor Jahan Kahoor, Additional P.G. for the State.
Date of hearing: 21st August, 2024.
JUDGMENT
SARDAR AHMED HALEEMI, J .--- This Criminal Miscellaneous Jail Appeal has
been filed by the appellant through Superintendent Central Prison, Gaddani with the prayer that the sentences awarded to him in cases i.e. FIR No.14 of 2023, under Sections 324, 34 P.P.C, Police Station Pasni, District Gwadar; FIR No.28 of 2013, under sections 302, 34 P.P.C Police Station, Pasni, Gwadar; FIR No.32 of 2014, under sections 427, 147, 143, 399, 353, 324, 186, 147, 143 P.P.C, Police Station Pasni, Gwadar and FIR No.35 of 2014, under section 13 -D of Arms Ordinance, 1965 may be ordered to run concurrently.
2. Learned counsel for the pauper appellant contended that the appellant is the sole
bread earner of his family and due to his confinement, his parents and family are facing
hardship and living in a miserable condition; that the appellant is in confinement more than
10 years and lastly prayed for the concurrent of aforementioned sentences.
3. Conversely, the learned Additional Prosecutor General did not oppose the request of
learned counsel for the appellant.
4. Heard the learned counsel for the parties and perused the available record with their
able assistance.
5. Perusal of record reveals that the appellant has been convicted and sentenced in four
different criminal cases, the details whereof are as follows:
i. In FIR No.14 of 2013 dated 04- 03-2013 under sections 324, 34, P.P.C. Police
Station Pasni, Gwadar, the appellant was convicted under section 324, P.P.C. and sentenced to suffer F.I for seven years with fine of Rs.50,000/ - and in default thereof
to further suffer S.I for six months by the learned Additional Sessions Judge, Gwadar
(the trial Court) vide judgment dated 26- 02-2015. Under section 337 -D as tazir to
suffer R.I for five years and to pay Arsh 1/3rd of Diyat amount i.e. Rs.641,281/ - to
injured Mst. Aamina or in case of default in payment of Arsh accused/appellant shall
remain in custody till realization of Arsh amount.
6. The appellant assailed his conviction and sentence in Criminal Appeal No.55 of 2015
before this Court, which was not pressed on merits, however, the appellant requested for moderate reduction which request was allowed, consequently, the quantum of sentences reduced the sentence under Section 324 P.P.C was reduced from seven years R.I to four years R.I. and also sentence under section 337 -D P.P.C as tazir was reduced from five years
to three years, whereas the remaining sentences remained intact.
ii. In FIR No.28 of 2013 dated 30- 05-2013 under sections 302, 34, P.P.C. Police
Station Pasni Gwadar, the trial Court vide judgment dated 26 -02-2015 convicted the
appellant under section 302(b) P.P.C. and sentenced to death with fine of Rs.200,000/ - and in default to further suffer S.I. for six months with benefit of
section 382 -B, Cr.P.C.
7. Against the above conviction and sentence, the appellant filed Criminal Appeal
No(T). 45 of 2015, whereas Murder Reference No.03 of 2015 was transmitted for confirmation of death sentence or otherwise before this Court. The appellant's conviction and sentence were maintained by this Court, however, the sentence of death was converted into life imprisonment with the benefit of section 382 -B, Cr.P.C., and consequently the
murder reference was answered in negative.
iii. In FIR No.32 of 2014 dated 11.07.2014 under sections 427, 402, 186, 149, 399, 353, 324, 147, P.P.C. the trial Court vide judgment dated 26- 02-2015 convicted and
sentenced the appellant as under:
(i) Under section 324 P.P.C to suffer R.I for five years with fine of Rs.40,000/ - and
in default thereof to further suffer S.I for six months;
(ii) Under section 353 P.P.C to suffer R.I for two years with fine of Rs.4,000/ - and in
default thereof to further suffer S.I for two months;
(iii) Under section 186 P.P.C to suffer R.I for three years with fine of Rs.1,500/ - and
in default thereof to further suffer S.I for fifteen days;
(iv) Under section 427 P.P.C to suffer R.I for one year with fine of Rs.3,000/ - and in
default thereof to further suffer S.I for one month. All the sentences were directed to run concurrently with benefit of section 382- B Cr.P.C.
8. The appellant also did not press the Criminal Appeal No.54 of 2015 filed against the
conviction and sentence, however, requested for a moderate reduction in the quantum of sentence, which request was allowed, and the sentence under Section 324 P.P.C was reduced from five years to three years R.I, whereas, the remaining sentences were directed to remain intact vide judgment dated 23.05.2016.
iv. In FIR No. 35 of 2014 dated 17 -07-2014 under section 13- D Arms Ordinance,
1965, the trial Court vide judgment dated 26 -02-2015 convicted the appellant under
section 13 -D of Arms Ordinance, 1965 for seven years R.I with fine of Rs.40,000/ -
or in default thereof to further suffer six months S.I with the benefit of section 382-
B, Cr.P.C.
9. The appellant through Criminal Appeal No.56 of 2015 challenged his above
conviction and sentence and he did not press the appeal on merits and requested for a moderate reduction in the quantum of sentence which was reduced from seven years R.I. to five years R.I. while the remaining sentences remained intact vide judgment dated 23 -05-
2016.
10. The pivotal question before us is as to whether this Court under Section 561 Cr.P.C
is competent to compute the multiple sentences awarded in different trials. For convenience, the provision of Section 397 Cr.P.C is reproduced, which reads 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.
11. The foregoing provision of law demonstrates that when a convict is serving its
substantive sentence of imprisonment and subsequently, convicted in another offence or trial, the Court has the discretion to consolidate the computation of several sentences passed in different cases.
12. A perusal of the nominal role of convict Ejaz son of Ali submitted by the concerned
Jail authority reveals that the appellant has been awarded a sentence of thirty -seven (37)
years with a fine of Rs.154,000/ - or in default of payment of fine, to suffer imprisonment for
eighteen (18) months in the aforementioned cases. The appellant had served ten (10) years and earned eight (08) years, five (05) months, seventeen (17) days remission, while eighteen
(18) years, ten (10) months and thirteen (13) days are remaining. The aim of imprisoning a
person is to reform him in the period of incarceration, so he may join the society as a
peaceful and law -abiding citizen. Reliance in this regard is placed in the case of Mst.
Shahista Bibi and another v. Superintendent, Central Jail, Mach and others (PLD 2015 SC 15), wherein it has been held as under: -
"8. Besides the provisions of section 35, Cr.P.C. the provisions of section 397, Cr.P.C. altogether provide entirely a different proposition widening the scope of
discretion of the Court to direct that sentences of imprisonment or that of life
imprisonment awarded at the same trial or at two different trials but successively, shall run concurrently. Once the Legislation has conferred the above discretion in the Court then in hardship cases, Courts are required to seriously take into consideration the same to the benefit of the accused so that to minimize and liquidate the hardship treatment, the accused person is to get and to liquidate the same as far as possible. In a situation like the present one, the Court of law cannot fold up its hands to deny the benefit of the said beneficial provision to an accused person because denial in such a case would amount to a ruthless treatment to him/her and he/she would certainly die while undergoing such long imprisonment in prison. Thus, the benefit conferred upon the appellant/appellants through amnesty given by the Government, if the benefit of directing the sentences to run concurrently is denied to him/them, would brought at naught and ultimately the object of the same would be squarely defeated and that too, under the circumstances when the provision of S.397, Cr.P.C. confers wide discretion on the Court and unfettered one to extend such benefit to the accused in a case of peculiar nature like the present one. Thus, a construing the beneficial provision in favour of the accused would clearly meet the ends of justice and interpreting the same to the contrary would certainly defeat the same. 10. On the touchstone of the supra judgments of the apex court and keeping in view the relevant provision of law, we have come to the safe conclusion that the convict -petitioner Shafiq -ur-Rehman is
entitled to the relief, asked for within the meaning of section 397 Cr.P.C."
13. A similar view has been taken in the case of Sajjad Ikram and others v. Sikandar
Hayat and others (2016 SCMR 467). The operative part is reproduced as under:
"12. The aggregate punishment of imprisonment for several offences at one trial were
deemed to be a single sentence. However, the position of an accused person is different who while already undergoing a sentence of imprisonment for life, is subsequently convicted and sentenced in another trial. Such subsequent sentence in view of section 397, Cr.P.C. would commence at the expiration of imprisonment for life for which he had been previously sentenced but even then in such cases, the said provision expressly enables the Court to direct that the subsequent sentence would run
concurrently with the previous sentence. It is clear from section 397, Cr.P.C. that the
Court, while analyzing the facts and circumstances of every case, is competent to direct that sentences in two different trials would run concurrently. In that eventuality, the Court has wide power to direct that sentences in one trial would run concurrently.
The provision of section 397, Cr.P.C. confers wide discretion on the Court to extend
such benefit to the accused in a case of peculiar nature, like the present one. Thus
extending the beneficial provision in favour of the appellant, would clearly meet the end of justice. We, therefore, observe that there is nothing wrong in treating the sentences of imprisonment for life of the convict/appellants on three counts to run concurrently, in view of facts and circumstances discussed above. -
14. Further, the Hon'ble Supreme Court has elaborated powers conferred under Section
397 Cr.P.C in the case of Rahib Ali v. The State (2018 SCMR 418), wherein it has been held as under: -
"Whereas section 397, Cr.P.C.; enables and empowers the trial, and or Appellate/ Revisional court, as the case may be, in a subsequent trial or in appeal or
revision arising out of subsequent trial to order for the consolidation of sentence in subsequent trial with the sentence(s) handed down in earlier trial(s) as may be maintained or modified in appeal/revision arising there from. In case earlier, conviction was not brought to the notice of the at the time of handing down the subsequent conviction sentence the Trial or Appellate/Revisional Court could exercise such jurisdiction even after the sentence of imprisonment in subsequent trial is announced in exercise of its inherent jurisdiction under section 561- A, Cr.P.C.
read with section 397, Cr.P.C., provided of course, where the trial, or superior courts of appeal have specifically and consciously ordered the sentences either in same trial or in subsequent trial to run consecutively.
17. In the light of discussion made above, there remains no doubt that the High Court and so also this Court have jurisdiction under section 561 -A read with section 35 and
or section 397, Cr.P.C. as the case may to order such multiple sentences in same transaction/trial or in a separate and subsequent trial to run concurrently".
15. On the touchstone of the supra judgments of the apex Court and in view of the
peculiar facts and circumstances, the appellant's case is one of hardship, as such, he is entitled to the relief claimed for.
For the above reasons, the Criminal Miscellaneous Jail Appeal No. 306 of 2023 is
allowed, consequently, the sentences awarded to the appellant Ejaz son of Ali in cases FIR No.14 of 2023, under Sections 324, 34 P.P.C, Police Station Pasni, District Gwadar; FIR No.28 of 2013, under sections 302, 34 P.P.C Police Station, Pasni, Gwadar; FIR No.32 of 2014, under sections 427, 147, 143, 399, 353, 324, 186, 147, 143 P.P.C, Police Station Pasni, Gwadar and FIR No.35 of 2014, under section 13- D of Arms Ordinance, 1965 shall
run concurrently with benefit of Section 382- B Cr.P.C.
A copy of this judgment is transmitted to the Superintendent, Central Prison,
Gaddani for information and compliance.
JK/81/Bal. Appeal allowed.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,
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