2012 P Cr. L J 1028
[Balochistan]
Before Muhammad Hashim Khan Kakar and Ghulam Mustafa Mengal, JJ
GHOUS BAKHSH and others ---Appellants
Versus
THE STATE---Respondent
Criminal Jail Appeals Nos.31, 32 and 33 of 2009, decided on 12th March, 2012.
(a) Criminal Procedure Code (V of 1898) ---
----S. 35--- Penal Code (XLV of 1860), Ss. 302(b)/324/337- F(iv)/ 337 -F(vi)/397/394/511---
Qatl-e-amd, attempt to commit qatl- e-amd, ghayr -jaifah (mudiah), ghayr -jaifah (munaqqillah),
robbery or dacoit y with attempt to cause death or grievous hurt, voluntarily causing hurt in
committing robbery, attempting to commit offences punishable with imprisonment for life or for
a shorter term ---Sentence in case of conviction of several offences at one trial ---Sc ope---Accused
had been convicted and sentenced for different crimes and his contention was that it was obligatory upon the Trial Court to have passed an order regarding running of his convictions and sentences concurrently in view of S.35, Cr.P.C., and tha t the sentences awarded to him were
severe in nature---Validity ---Rule under S.35, Cr.P.C., was 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 was an exception---Under S.35, Cr.P.C., court could direct a concurrent running of sentence only when accused was convicted at one trial for two or more distinct offences, whereas in the present case accused had been convicted at three separate trials,
all four offences, though some of them were identical in nature, were committed with distinct
and separate criminal objectives sought to be achieved at four different points of time, and as
such justification to seek concurrent running of sentences for a ll the offences, did not arise ---
Accused had committed daylight robbery while depriving the complainant of 250 sheep, attempted to snatch his motorcycle as well and caused injuries to the relative of one of the complainants ---Involvement of accused in a number of cases showed his desperate character ---
Accused had been awarded minimum sentence provided for the offences committed by him and
he had also been extended the benefit of S.382- B, Cr.P.C.---Appeals being meritless were
dismissed, accordingly.
(b) Criminal Procedure Code (V of 1898) ---
----Ss. 35 & 397 ---"Sentence in case of conviction of several offences at one trial" and "sentence
of offender already sentenced for another offence" ---Distinction ---Basic difference between the
two provisions Ss.35 & 397, Cr.P.C. was that section 397, Cr.P.C prescribed for running of
different sentences inflicted on an offender, at different trials, for different offences, without any
clog of time, place and nature of offence, whereas S.35, Cr.P.C., was contingent on the conviction of a person for several offences at one trial.
(c) Criminal Procedure Code (V of 1898) ---
----S. 561- A---Constitution of Pakistan, Art. 199 ---Concurrent running of sentences ---Scope ---
Where two or more offences were not connected and had taken place at different times and with
different persons, High Court could neither in exercise of inherent power section 561- A, Cr.P.C.,
nor in exercise of supervisory jurisdiction under Article 199 of the Constitution, direct or substitute an order for running a subsequent sentence concurrently with a previous sentence ---
Sentences in such cases cannot be justifiably ordered to run concurrently.
(d) Criminal Procedure Code (V of 1898) ---
----S. 397---Sentence on offender already sentenced for another offence ---Scope ---Powers
conferred upon the court under S.397, Cr.P.C., for ordering various sentences awarded in
different cases to run concurrently, were discretionary in nature and were to be exercised after taking into consideration the allegation and circumstances of each individual case.
(e) Criminal trial---
----Sentencing of offender ---Purpose ---Purpose behind infliction of sentence was twofold; firstly,
it would create such atmosp here, which could become a deterrence for the people who have
inclination towards crime and; secondly, to work as a medium in reforming the offenders.
(f) Criminal trial ---
----Sentencing of offender ---Guidelines for courts ---Sentence should neither be so severe that the
offenders, could, out of frustration, become desperate and hardened criminals, nor should it be so
mild that it encourages the offenders to commit the offence again--- Courts, while judging
adequacy of the sentence, were required to cons ider different factors, such as, previous
conviction, circumstances, mode and manner in which offence was committed, age and character of an offender, heinousness of the crime, injury to the individual and the society etc.
Jameel Ramzan for Appellant.
Miss Sarwat Hina, Additional P. -G. for the State.
Date of hearing: 22nd December, 2011.
JUDGMENT
MUHAMMAD HASHIM KHAN KAKAR, J. ---Through these criminal jail appeals, sent via
Superintendent Central Jail, Mach, appellant Ghous Bakhsh son of Khuda Ba khsh has assailed
the judgments dated 28th May, 2009, passed by the Sessions Judge, Kalat Division at Mastung.
2. The appellant was tried by the Sessions Judge, Kalat Division at Mastung in three separate
cases, arising out of F.I.Rs. No.60 of 2003. 55 of 2004 and 73 of 2004, registered at Police Station, Soorab and respectively vide judgments dated 28th May, 2009, he was convicted and sentenced in the following manner: --
(i) under section 387 read with section 511 of the P.P.C. to suffer three (3) year s' RI and to pay a
fine of Rs.2,000 (rupees two thousand only), in default whereof to further undergo six (6)
months' S.I., with the benefit of section 382- B of the Cr.P.C.;
(ii) under section 394 of the P.P.C. to suffer RI for seven years, with a fine of Rs.50,000 (rupees
fifty thousand only), in default whereof to further suffer two (2) years' S.I., with the benefit of
section 382- B of the Cr.P.C., and
(iii) under section 337- F(iv) to suffer three (3) years' R.I., with a fine (daman) of Rs.50,000
(rupees fifty thousand only) payable to the injured, with the benefit of section 382- B of the
Cr.P.C.
3. It would be appropriate to give a small compass of aforesaid F.I.Rs. in order to re ach at a just
and proper conclusion of the case, which is as under: --
(i) The stated facts of F.I.R. No.60 of 2003, under section 17(2) of the Offences Against Property
(Enforcement of Hudood) Ordinance, 1979 registered at Police Station Soorab by compla inant
Ahmed Khan, show that the appellant along with his two companions attempted to snatch his motorcycle and during this period, the appellant also made two fires, which hit the tank of the motorcycle;
(ii) The contents of F.I.R. No.55 of 2004 reflect that the complainant registered the said case
under sections 392, 393, 398 read with section 34 of the P.P.C. at Police Station Soorab, wherein he alleged that the appellant along with his companions tied the hands and feet of his shepherd and, after assau lt, snatched away 250 sheep and that his shepherd identified the appellant, and
(iii) Complainant Sikandar son of Shah Muhammad in his F.I.R. No.73 of 2004, under section
324 read with section 34 of the P.P.C., registered at Police Station Soorab, allege d that on 6th
October, 2004 at about 12- 00 noon, appellant Ghous Bakhsh and co- accused Mehmood son of
Fateh Muhammad, in furtherance of their common intention, made firing upon his relative
Hazoor Bakhsh with Kalashnikov, due to which he sustained injuries.
4. Mr. Jamil Ramzan, learned counsel for the appellant, at the very outset, submitted that besides
convictions and sentences of the appellant in the aforesaid crimes, he was also convicted and sentenced in Crime No.94 of 2004 of Police Station Soor ab under section 302(b) of the P.P.C. to
suffer life imprisonment for committing the murder of one Shafi Muhammad, with a fine of Rs.200,000 (rupees two hundred thousand only) as compensation to be paid to the heirs of the deceased. He was further convicted and sentenced under section 324 of the P.P.C. to suffer five (5) years for causing firearm injuries to Ghulam Mustafa, Kamal Khan, Shah Jehan and Muhammad Gul and to pay a fine of Rs.10,000 (rupees ten thousand only). He was also convicted and sentenced under section 337- F (vi) of the P.P.C. for three (3) years with a daman
of Rs.10,000 (rupees ten thousand only) payable to injured Ghulam Mustafa. Learned counsel further contended that the sentences in Crime No.94 of 2004 were ordered to run concurr ently,
with the benefit of section 382- B of the Cr.P.C., however, the trial Court did not make any
order regarding concurrence of the sentences in the murder case i.e. arising out of F.I.R. No.94 of 2004 with the convictions and sentences of the appellant, subject -matter of the instant appeals.
He further contended that, after awarding life imprisonment in Crime No.94 of 2004, it was obligatory upon the trial Court to have passed an order regarding running of the convictions and sentences concurrently in view of section 35- A of the Cr.P.C., but the trial Court has
failed to exercise its jurisdiction. He prayed that the aforesaid convictions and sentences may be
ordered to run concurrently.
5. Before dilating upon the contentions, so raised by learned counsel for the appellant, 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 on e 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 the several punishments prescribed therefor 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 ca se 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 offe nder 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 appeal, [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."
6. During the course of arguments, learned counsel for the appellant did not assail the impugned
judgments to the extent of quantum of sentences awarded in the above noted cases, however, the
difficulty has arisen to the appellant that the trial Court did not pass any order as to whether the
aforesaid convictions and sentences were to run concurrently or consecutively. We are not
impressed by the contention of learned counsel, particularly when sections 35 and 397 of the Cr.P.C. furnish a c omplete answer to the assertion. 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, to separate punishments prescribed therefor, such
punishments when consisting of imprisonment will commence one after the expiry of the other,
unless the Courts direct that such punishments shall run concurrently. It means that the rule is that the sentences of imprisonment in two or more offences t ried 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 offence s. 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, all four offences, though some of them identical in nature, were committed with distinct and separate criminal objectives sought to be achieved at four 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.
7. A careful and minute perusal of the aforesai d provisions of law clearly demonstrates that the
basic difference between the two provisions is that section 397 of the Cr.P.C. prescribed for running of different sentences inflicted on an offender, at different trials, for different offences, without any clog of time, place and nature of 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 appellant, in present cases, had been convicted at different trials, for the offences committed at different times and places.
8. We are conscious of the fact that the trial Court as well as the appellate Court has ample
discretion under section 397 of the Cr.P.C. to direct the subsequent and previous sentences of imprisonment to run concurrently, but in the a bsence of exercise of such discretion, the sentences
shall run consecutively. In a case, where two or more offences not connected, taking place at different times and with different persons, this Court can neither in exercise of inherent power under sectio n 561 of the Cr.P.C., nor in exercise of supervisory jurisdiction under Article 199 of
the Constitution of the Islamic Republic of Pakistan, 1973 direct or substitute an order for running subsequent sentence concurrently with previous sentence. Sentences i n such cases
cannot be justifiably ordered to run concurrently. The appellant having been convicted at three
separate trials and not at same trial for two or more offences, as such, section 35 of the Cr.P.C. is
not relevant.
9. We are not in agreement wi th learned counsel for the appellant that the sentences awarded to
the appellant are severe in nature. In this context, we are of the opinion that the purpose behind
infliction of sentence is two fold; firstly, it would create such atmosphere, which could become a deterrence for the people who have inclination towards crime and; secondly, to work as a medium in reforming the offenders. Sentence should be neither so severe that the offenders, could, out of frustration, become desperate and hardened criminals , nor should it be so mild that
it encouraged the offenders to commit the offence again. The Courts, while judging adequacy of the sentence, are required to consider different factors, such as, previous conviction, circumstances, mode and mariners, in whic h offence was committed, age and character of an
offender, heinousness of crime, injury to individuals and the society etc. While considering the cases of the appellant on the said criterion, we are of the view that the record reflects that the appellant h as committed robbery during daylight while depriving the complainant of 250 sheep,
attempt to snatch the motorcycle as well as causing injuries to the relative of one of the complainants. After finding him guilty, the Sessions Judge, Kalat at Mastung convi cted and
sentenced him, as mentioned hereinbefore. It may be observed that in all the cases, the appellant has been awarded minimum sentence provided for the offences committed by him. The powers, conferred upon the Courts under section 397 of the Cr.P.C. for ordering the various sentences
awarded in different cases to run concurrently, are discretionary and are to be exercised after taking into consideration the allegation and circumstances of each individual case. As already observed, the appellant has been awarded minimum sentences provided for the offences
under sections 337- F(iv), 387, 394 and 511 of the P.P.C. and the trial Court has already taken
lenient view while awarding sentences. Besides, the appellant has also been extended benefit of section 382- B of the Cr.P.C. in all the cases. The involvement of the appellant in a number of
cases shows his desperate character.
For the aforesaid reasons, while turning down the request of the appellant made by his counsel, the appeals, being meritless , are hereby dismissed accordingly.
M.W.A./21/Bal. Appeals 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,
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