2016 P Cr. L J 1854
[Balochistan (Sibi Bench)]
Before Muhammad Noor Meskanzai, C.J. and Muhammad Kamran Khan Mulakhail, J
FAQEER MUHAMMAD ---Applicant
Versus
The STATE---Respondent
Criminal Miscellaneous Jail Application No. (S) 127 of 2014, decided on 11th February, 2015.
(a) Criminal Procedure Code (V of 1898) ---
----Ss. 35 & 397---Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979),
S. 17(4) ---Pakistan Arms Ordinance (XX of 1965), S. 13(e) ---Haraabah with murder, possessing
unlice nsed arms ---Sentence in case of conviction of several offences at one trial ---Scope ---
Applicant/accused had sought concurrence of sentences awarded in two cases of Haraabah and
possessing unlicensed arms ---Applicant, initially was awarded punishment of dea th under
S.17(4) of Offences Against Property (Enforcement of Hudood) Ordinance, 1979, but
subsequently his sentence of death was reduced to that of imprisonment for life ---Applicant
under S.13(e) of Pakistan Arms Ordinance, 1979 was awarded sentence of 4 years' R.I. ---
Applicant, had sought his conviction to run concurrently, instead of consecutively ---Under S.35,
Cr.P.C., when a person was convicted at one trial of two or more offences, Trial Court was
obliged to sentence him for approved offences, accordi ng to the separate prescribed punishment -
--Such punishment when consisting of imprisonment, would commence one after the expiry of
the other, unless, the court directed that such punishments would run concurrently ---Sentences of
imprisonment in two or more offences tried at one trial would run consecutively and direction
that such punishment would run concurrently, was an exception---Provisions of S.35, Cr.P.C.,
was only applicable, when a person was convicted at one trial of two or more offences ---In the
present case, both the offences, were committed with distinct and separate criminal objectives
sought to be achieved at different points of time; in such circumstances justification to seek
concurrent running of all the offences, in peculiar circumstances, would not arise at all---Trial
Court under S.397, Cr.P.C. had ample discretion to direct the subsequent and previous sentences
of imprisonment to run concurrently, but in the absence of such direction, the sentences would
run consecutively ---Where two or m ore offences not connected, taking place at different times
on and with different persons, court could neither in exercise of inherent powers under S.561- A,
Cr.P.C., nor in exercise of supervisory jurisdiction under Art.199 of the Constitution, direct or
substitute an order for running subsequent sentence concurrently with previous sentence ---
Involvement of applicant in more than one case had shown his desperate character ---Application
filed by accused being meritless, was dismissed, in circumstances.
Ali Khan Kakar v. Hammad Abbasi 2012 SCMR 334 and Ghulam Farid v. The State
2013 SCMR 16 ref.
(b) Penal Code (XLV of 1860) ---
----S. 53---Awarding of punishment ---Purpose behind infliction of sentence ---Purpose behind
infliction of sentence, was two fold; fir stly, it would create such atmosphere, which could
become a deterrence for the people, who had inclination towards crime; secondly, to work as a
medium in reforming the offenders ---Sentence should be neither so severe that offenders could,
out of frustrati on, become desperate and hardened criminals; nor should it be so mild that it
encouraged the offender to commit the offence again---Courts, while judging adequacy of the
sentence, were required to consider different factors, such as, previous conviction,
circumstances, mode and manners, in which offence, was committed, age and character of
offender, heinousness of crime, injury to individuals and the society etc.
Abdul Sattar Durrani, Additional Prosecutor General for the State.
Date of hearing: 10th Sept ember, 2014.
ORDER
MUHAMMAD KAMRAN KHAN MULAKHAIL, J. ---Through this Criminal
Miscellaneous Jail Application, sent via Superintendent Central, Mach the applicant Faqeer
Muhammad son of Taj Muhammad has sought concurrence of sentences awarded to him by the
learned Additional Sessions Judge, Naseerabad at Dera Murad Jamali ("trial court") in the
following terms:
"Pursuant to above discussion I arrive at conclusion that the prosecution succeeded to
establish under section 17(4), Harabah against accused Faqir Muhammad and accused
Manzoor Ahmed. Therefore they are convicted in above offence and they are sentenced
to death. They be hanged by neck till death. The punishment will be executed after
confirmation of Hon'ble Federal Shariat Court of Islamabad. The case along with
fure[sic] sets be sent to the Hon'ble Federal Shariat Court of Islamabad for confirmation
of sentence or otherwise."
Whereas, in connected arms case he was convicted and sentenced as follows:
"Pursuant to above discussion I came to conclusion that prosecution succeeded in its case
under section 13- E of Arms Ordinance, 1965. Therefore, accused is convicted and
sentenced (R.I) for 2 (two) years with a fine (Rs.2,000/ -) in default accused further suffer
(S.I) for 4 (four) months in above offence. The benefit of section 382- B, Cr.P.C. is also
extended in favour of accused."
2. Brief facts of the case are that a decoity took place in the Officers Club, Dera Murad
Jamali, during the night between 9th and 10th September, 2000 in which the television se t, its
receiver and remote control had been stolen and the night Chowkidar of the Club Samandar
Khan was murdered. The deceased's brother Wali Muhammad lodged the FIR early in the
morning of 10th September at Police Station Dera Murad Jamali (District Nase erabad), stating
therein that his brother Samandar Khan was a Sepoy in the Levies and was also serving part -time
as Night Chowkidar in the Officers' Club and early in the morning at 7:30 a.m. one Maula Bux,
the day -chowkidar of the Club, informed him that when he went to the Club to resume his duty
he found that Samandar Khan had been murdered during the night and his dead body was lying
in the Club premises and the door lock of the room was lying broken and the TV and its receiver
were missing. On receivin g this message, he rushed to the Club premises along with Manzoor
Ahmed and some other persons and found severe injury on the forehead of his deceased brother
who was lying dead in the verandah of the Club. He also saw footprints of three persons on the
place of incident. Thereafter he went to the police station and lodged the report. Challan against
the applicants was submitted before the learned Additional Sessions Judge, Naseerabad at Dera
Murad Jamali ("trial court"). On the stated allegations, a formal charge was framed and read over
to the applicant, to which he did not plead guilty and claimed trial. After a full dressed trial the
applicant was convicted and sentenced in the aforesaid terms by learned trial court. The applicant
assailed the judgments passed by the trial court before the Hon'ble Federal Shariat Court in
Criminal Application Nos. 60(Q) of 2001. The application filed by the applicant was also
dismissed by the Hon'ble Federal Shariat Court; however, the sentence of death awarded to the
applicant was reduced to that of life imprisonment. The applicant has filed this application
seeking his convictions to run concurrently.
3. Before dilating upon the prayer made by learned counsel for the applicant, 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 one trial. ---(1) When a
person is convicted at one trial of two or more offences, the court m ay, 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 case of consecutive sentences, it shall not be necessary for the Court, by reason
only of the a ggregate 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
offender 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 application, [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 li fe
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 pe rson 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."
4. The Criminal Appeal No. 60/Q of 2010 filed by the applicant against the aforesaid
convictions have also been dismissed by Hon'ble Federal Shariat Court vide judgment
07.06.2007. The difficulty arisen to the applicant is that, the trial Court did not pass any order as
to whether the aforesaid convictions and sentences were to run concurrently or consecutively.
The provisions of sections 35 and 397, Cr.P.C. furnish a complete answer to the instant
case. 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, according
to the separate punishments prescribed; therefore, such punishments when consisting of
imprison ment will commence one after the expiry of the other, unless the Court direct that such
punishments shall run concurrently. It means that the sentences of imprisonment in two or more
offences tried at one trial shall run consecutively and the direction tha t 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 offences. Its subsection (1) is of general
application and is not in any way, re stricted 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, both the offences, were committed
with distinct and separate criminal objectives sought to be achieved at 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 ment ioned 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.
5. A careful and minute perusal of the aforesaid 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 applicant, in present cases, had been convicted at different trials, for the
offences committed at different times and places.
6. We are conscious of the fact that the trial 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 absence 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 section 561- A 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 o r substitute an order for running subsequent sentence
concurrently with previous sentence.
7. The sentences awarded to the applicant are severe in nature. In this context, we are of the
opinion that the purpose behind infliction of sentence is two fold; fi rstly, 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 encourages the offender 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 manners, in which offence was committed, age
and character of an offender, heinousness of crime, injury to individuals and the society etc.
While considering the case of the applicant on the said criterion, and as per the judgment dated
07.06.2007 rendered by the Hon'ble Federal Shariat Court in Criminal Appeal No. 60/Q of 2010,
we are of the view that the applicant committed qatl- i-amd of the deceased Ali Dost within the
purview of section 302(b) of the Pakistan Penal Code , 1860 with an unlicensed Kalashnikov.
After finding him guilty, the learned trial court convicted and sentenced him, as mentioned
hereinbefore. The powers, conferred upon the Courts under section 397 of the Cr.P.C. for
ordering the various sentences award ed 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. The applicant has also been extended benefit of section 382- B of the Cr.P.C. in
both the cases. The involvement of the applicant in more than one case shows his desperate
character. Reliance is placed on the cases of Ali Khan Kakar v. Hammad Abbasi (2012 SCMR
334) and Ghulam Farid v. The State (2013 SCMR 16)
For the aforesaid reasons, while turning down the request of the applicant made by his
counsel, the application, being meritless, is hereby dismissed accordingly.
HBT/47/Bal. Application 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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