2021 P Cr. L J 889
[Balochistan]
Before Abdullah Baloch, J
ASMATULLAH ---Petitioner
Versus
The STATE--- Respondent
Criminal Revision (Jail) No. 22 of 2020, decided on 11th August, 2020.
(a) Criminal Procedure Code (V of 1898) ---
----Ss. 35, 397 & 561- A---Conviction for several offences at one trial ---Concurrent
commutation of sentence ---Accused faced trial in two separate FIRs ---First FIR was lodged
under S. 392, P.P.C., said case was tried and accused was convicted and sentenced to suffer
three years imprisonment ---Second FIR was lodged under S. 380, P.P.C., said case was tried
and accused was convicted and sentenced to suffer one year' imprisonment ---Accused
assailed his conviction and sentence in both the cases in appeals which were dismissed ---
Accused filed present petition for concurrence of his sentences awarded in both the cases ---
Scope ---Record showed that both the cases were tried separately by the same court side by
side but on conclusion of trial the petitioner was convic ted and sentenced in both the cases
separately ---Appeals preferred but were dismissed ---Undoubtedly S. 35 Cr.P.C., empowered
not only the Trial Court but also the appellate as well as the revisional courts to direct for
running concurrently of the several sentences awarded to a person charged for multiple
offences, but in the same transaction, trial or FIR ---Provisions of S. 397, Cr.P.C., empowered
the trial as well as the appellate and revisional courts to direct for the consolidation of multiple sentences awarded in earlier or subsequent trials though tried separately by the
different courts on different dates and such powers could be exercised at any stage ---Court
had ample powers under S. 561- A, Cr.P.C. read with Ss. 35 & 397, Cr.P.C. to direct for
concu rrence and consideration of sentences awarded to an accused in multiple offences in
one transaction/trial or in multiple trials either awarded by the same court at the same time or on different occasions ---Revision petition was accepted and sentences award ed in both the
trials were ordered to run concurrently.
(b) Criminal trial ---
----Beneficial construction---Scope ---If two equal interpretations are possible then the one
favourable to the accused and his liberty must be adopted and preferred.
Rahib Ali v. The State 2018 SCMR 418 and Mst. Shahista Bibi and another v.
Superintendent Central Jail Mach and 2 others PLD 2015 SC 15 rel.
Abdul Malik Mengal for Petitioner.
Saeed Ahmed Kakar, State Counsel.
Date of hearing: 6th August, 2020.
ORDER
ABDULLAH BALOCH, J. ---This order disposes of Criminal (Jail) Revision Petition
No.22 of 2020 filed by the petitioner Asmatullah son of Muhammad Ismail through
Superintendent Central Prison Mach, seeking direction for concurrence of his sentences awarded in two separate cases/FIRs i.e, FIR No.107 of 2017, Police Station Shalkot Quetta
and FIR No.108 of 2017 Police Station Shalkot Quetta.
2. Facts of the case are that the petitioner Asmatullah faced trial in two separate FIRs
i.e. the 1st FIR bearing No.107/2017 was lodged at Police Station Shalkot Quetta, under section 392, P.P.C. The case was tried by the learned Judicial Magistrate/MFC -VI Quetta,
who on conclusion of trial vide judgment dated 12th December 2017 convicted the petitioner under section 392, P. P.C. and sentenced to suffer three (03) years' R.I. with fine of Rs.
10,000/ - in default thereof to further suffer two (02) months' S.I. The second FIR No.108 of
2017 was also lodged on the said police station under section 380, P.P.C. and the case was tried by the said Court i.e. Judicial Magistrate/MFC -VI Quetta, who on conclusion of trial
convicted the petitioner under section 380, P.P.C. and sentenced to suffer R.I. for one (01) year with fine of Rs.5000/ - and in default thereof to further suffer one (0 1) month's S.I.
3. The petitioner assailed his conviction and sentenced in both the cases before the
learned Additional Sessions Judge Sariab Quetta, who vide separate judgment dated 28th February, 2018 dismissed both the appeals and maintained the convict ion and sentence
awarded by the learned trial Court. Whereafter, the petitioner has filed this petition through Superintendent Central Prison Mach for concurrence of his sentences awarded in both the cases and accordingly Mr. Abdul Malik Mengal, Advocate w as appointed as counsel for
pauper petitioner.
4. Heard the learned counsel for parties and perused the available record, which reflects
that the petitioner has faced trial in two separate FIRs bearing Nos.107 and 108 of 2017 by the Court of learned Judici al Magistrate/MFC -VI Quetta in two different offences i.e. section
392, P.P.C. and section 380, P.P.C., while on conclusion of trial in both the FIRs, the same was resulted into awarding sentences to the petitioner in both the cases separately. However, the fact remains that both the cases were tried separately by the same Court side by side, but
on conclusion of trial the petitioner was convicted and sentenced in both the cases separately. The appeals preferred before learned Additional Sessions Judge Sari ab Quetta were
dismissed. The moot question involves in the matter pertains to the interpretation of sections 35 and 397, Cr.P.C. thus for facilitation it would be appropriate to reproduce both the sentences 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 may, subject to the
provisions of section 71 of the Pakistan Penal Code sentence him, for such offences,
to the several punishments prescribed , therefore 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 conc urrently.
(2) In the case 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 o ffence, 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 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."
5. I have comparatively studied the provisions of sections 35 and 397, Cr.P.C. along
with secti on 561- A, Cr.P.C. and have come to the conclusion that undoubtedly section 35,
Cr.P.C. empowers not only the trial Court, but also the Appellate as well as the Revisional Courts to direct for running concurrently of the several sentences awarded to a person charged for multiple offences, but in the same transaction, trial or FIR. While, the provisions
of section 397, Cr.P.C. empowers the trial as well as the appellate and revisional Courts to
direct for the consolidation of multiple sentences awarded in ear lier or subsequent trials
though tried separately by the different Courts on different dates and such powers can be exercised at any stage. It has also been remained the consistent view of the Superior Court that if two equal interpretations were possible then the one favourable to the accused and his
liberty must be adopted and preferred. Guideline in such behalf has been taken from the
judgment of Rahib Ali v. The State, reported in 2018 SCMR 418, wherein it has been held as
under:
16. Before parting wit h this judgment, we may well observe that section 35, Cr.P.C.
subject to section 71 of Pakistan Penal Code empowers not only the trial Court to hand down several Punishment/sentences to a person charged for multiple offence in same trial and in its discret ion direct that such conviction/ sentence may run
concurrently (per proviso thereto, in no case be more than 14 years in aggregate) even the Appellate Court while hearing the appeal against the conviction may direct several sentences/punishment handed down in same trial: to run concurrently. 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 consol idation 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 court at the time of handi ng 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 ordered such multiple sentences in same
transaction/trial or in a separa te and subsequent trial to run concurrently."
Similar view has been taken by the Hon'ble Supreme Court of Pakistan in the case of
Mst. Shahista Bibi and another v. Superintendent Central Jail Mach and 2 others, reported in 2015 PLD Supreme Court 15. The o perative portion reads 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 impriso nment 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 squa rely defeated and that too,
under the circumstances when the provision of section 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, 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.
9. It is also hard and fast principle relating to interpretation of criminal law, which curtails the liberty of a person that it should be construed very strictly and even if two
equal interpretations are possible then the favourable to the accused and his liberty
must be adopted and preferred upon the contrary one."
6. Thus, in view of the abo ve principles laid down by the Hon'ble apex Court, this Court
has ample powers under section 561- A, Cr.P.C. read with sections 35, 397, Cr.P.C. to direct
for concurrence and consideration of sentences awarded to an accused in multiple offences in one trans action/trial or in multiple trials either awarded by the same Court at the same time
or on different occasions, hence the petition is accepted and the sentences awarded in both
the trials of case bearing FIR Nos.107 and 108 of Police Station Shalkot Quetta , under
sections 392 and 380, P.P.C. to be run concurrently. Copy of this order be transmitted to Superintendent Central Prison Mach for compliance.
JK/145/Bal. Petition 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,
let us know.