P L D 2010 Quetta 7
Before Qazi Faez Isa, C. J.
AURANGZAIB SHAH alias AURANG SHAH and others ---Appellants
Versus
THE STATE ---Respondent
Criminal Jail Appeal No.33 of 2009 and Criminal Ap peals Nos.16 and 17 of 2008, decided
on 11th August, 2009.
Penal Code (XLV of 1860) ---
----Ss. 395 & 71 ---West Pakistan Arms Ordinance (XX of 1965), S.13 -E---Criminal
Procedure Code (V of 1898), S.35 ---Sentence ---Validity ---Sentences awarded to two acc used
under S.395 P.P.C. and S.13 -E of the West Pakistan Arms Ordinance, 1965, if allowed to run
consecutively, as directed by Trial Court, would exceed the maximum punishment
permissible under S.13 -E of the West Pakistan Arms Ordinance, 1965, which would b e in
violation of the provisions of Ss. 35, Cr. P. C. and 71 P. P. C ---Said sentences were
consequently ordered by High Court to run concurrently ---Sentence awarded to third accused
although did not exceed the maximum prescribed punishment, yet the same ha d presented an
anomalous situation, as he would serve a longer sentence than the other two accused if his
sentences were permitted to run consecutively ---Same benefit, therefore, was also extended
to the said accused and sentences awarded to him by Trial C ourt were also directed to run
concurrently ---Appeals were disposed of accordingly.
Muhammad Hanif and others v. The State and others 2001 SCMR 84; Khan Zaman and,
others v. The State 1987 SCMR 1382; Javaid Shaikh v. The State 1985 SCMR 153; Juma
Khan and another v. The State 1986 SCMR 1573; Muhammad Ittafaq v. The State 1986
SCMR 1627; Abdul Ghafoor v. The State 2007 YLR 700; Ahmed Jan v. The District and
Sessions Judge and another PLD 1994 Quetta 1; Shah Hussain v. The State (Jail Petition
No.56 of 20 05); Abdul Hamid v. The State 1990 PCr.LJ 568 and Muhammad Asif v. The
State PLD 2003 Lah. 512 ref.
Amanullah Kanrani for Appellant (in Criminal Jail Appeal No.33 of 2009).
Syed Pervaiz Zahoor for the State (in Criminal Jail Appeal No.33 of 2009).
Amanullah Kanrani and Sheikh Ghulam Ahmed for Appellant (in Criminal Appeal No.16 of
2008).
Syed Pervaiz Zahoor for the State (in Criminal Appeal No.16 of 2008).
Sheikh Ghulam Ahmed and Amanullah Kanrani for Appellant (in Criminal Appeal No.17 of
2008).
Syed Pervaiz Zahoor for the State (in Criminal Appeal No.17 of 2008).
Date of hearing: 11th August, 2009.
JUDGMENT
QAZI FAEZ ISA, CJ. ---By this common judgment, I intend to dispose of Criminal Appeals
Nos. 16,17/2008 and Criminal Jail Appeal No.33/ 2009 as the same arise out of the same facts
and common questions of law are involved in all the appeals.
Mr. Amanullah Kanrani, learned counsel for the appellants submits that F.I.R. No.71/2006
was lodged at Police Station Dasht District Mastung on 4 -11-2006 against 10 persons under
section 17 (3) Harraba (Offences Against Property) Ordinance, 1979. After registration of the
F.I.R, recovery of weapons was made from the appellants, thus separate F.I.Rs under section
13-E of the Arms Ordinance, 1965 were l odged bearing Nos. 72/2006, 73/2006 and 74/2006
on 10 -11-2006 at Police Station Dasht, District Mastung. In respect of all the four F.I.Rs, the
trial was conducted simultaneously by the Sessions Judge, Mastung.
In respect of F.I.R. No.71/2006, all the te n accused persons were convicted under section
395, P.P.C. and they preferred Appeal, bearing No.12(Q)/2008, before the Honourable
Federal Shariat Court which was pleased to acquit seven of the accused persons, however the
convictions of Aurangzaib Shah, H airuddin and Nasaruddin (the appellants herein) were
maintained, but their sentences were reduced to R.I. for 5 years.
The present appeals arise out of the conviction awarded under section 13 -E of the Arms
Ordinance, 1965. Learned Assistant Advocate -Gene ral and State counsel oppose the appeals
on merits, whereupon counsel for the appellants stated that he would not press the appeals on
merit and will be satisfied if the sentences awarded in respect of both the offences, i.e. under
section 395 P.P.C. and 1 3-E of the Arms Ordinance, 1965 are ordered to run concurrently
instead of consecutively.
Following is the position in respect of each appellant:
(1) Aurangzaib Shah was convicted under section 395 P.P.C, to suffer R.I. for 5 years
and fine of Rs.25,00 0 and upon failure to pay fine to undergo a further term of one
year simple imprisonment. Under section 13 -E of the Arms Ordinance, 1965 he was
awarded R.I. for three years and fine of Rs.2000 and in default further simple
imprisonment of six months. A Kal ashnikov and 15 live cartridges were recovered
from him.
(2) Nasruddin was convicted under section 395, P.P.C, to suffer R.I. for 5 years and
fine of Rs.25,000 and upon failure to pay fine to undergo a further term of one year
simple imprisonment. Under section 13 -E of the Arms Ordinance, 1965 he was
awarded R.I. for three years and fine of Rs.2000 and in default further simple
imprisonment of six months. A Kalashnikov and two live cartridges were
recovered from him.
(3) Hairuddin was convicted under s ection 395, P.P.C, to suffer R.I. for 5 years
and fine of Rs.25,000 and upon failure to pay fine to undergo a further term of
one year simple imprisonment. Under section 13 -E of the Arms Ordinance, 1965
he was awarded R.I. for two years and fine of Rs.1500 and in default further
simple imprisonment of six month. A .30 bore TT Pistol and six live cartridges
were recovered from him.
Mr. Amanullah Kanrani, learned counsel for the appellants submits that maximum
punishment that could have been awarded section 13-E of the Arms Ordinance, 1965 is
seven years and as regards two of the appellants Aurangzaib Shah and Nasruddin they
have been sentenced to 8 years R.I. each, if the sentences under section 395, P.P.C. and
under section 13 -E of the Arms Ordinance, 1965 run punishment consecutively, which is
one year more than the maximum permissible. In this regard he relies upon section 35
of the Cr.P.C. and section 71 of P.P.C. which are reproduced herein below:
35, Cr.P.C. Sentence in case of conviction of several offences at one trial .---
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 whi ch such
Court is competent to inflict; such punishments when consisting of imprisonment
to commence to one after the expiration of the other order ass the Court may
direct unless the Court directs that such punishments shall run concurrently.
71, P.P.C. Limit of punishment of offence made up of several offences .--Where
anything which is an offence is made up of parts, any of which parts is itself an
offence, the offender shall not be punished with the punishment of more than one
of such his offences, unl ess it be so expressly provided.
Where anything is an offence falling within two or more separate definitions of
any law in force for the time being by which offences are defined or punished, or
where several acts, of which one or more than one would b y itself or themselves
constitute an offence, constitute, when combined, a different offence,
the offender shall not be punished with a more severe punishment than the Court
which tries him could award for any one of such offences.
Learned counsel for the appellants also relies upon the following precedents:
1. 2001 SCMR 84
(Muhammad Hanif and others versus the State and others)
"For the reasons given above, the appeal is partly accepted and it is ordered that
the sentence actually suffered by the appellant out of the sentence of 10 years'
R.I. under section 307, P.P.C. awarded by the trial Court shall be deducted from
the sentence of imprisonment for life under section 302, P.P.C. awarded by the
Lahore High Court. The petition for leave to appeal is converted into appeal and
partly allowed in the terms that the appellant shall pay a sum of Rs.25,000 as
compensation, within the contemplation of section 544 -A, Cr.P.C. to the legal
heirs of the deceased or suffer 6 months' S.I. in default."
2. 1987 SCMR 1382
(Khan Zaman and others versus The State)
"In respect of these contentions he cites' Javaid Shaikh v. The State 1985 SCMR
153. Relevant portion of the judgment reads as follows:
"A perusal of proviso (a) to subsection (2) of the section 35 , Cr.P.C, indicates
that it prohibits the giving of consecutive sentence in one trial beyond the period
of fourteen years, the maximum sentence, short of the death sentence, which
could be imposed on an offender before the promulgation of the Law Reforms
Ordinance, 1972. The said provision (section 35, Cr.P.C.) appears to be in
consonance with the scheme and intendment of the Pakistan Penal Code that an
offender should only suffer the maximum sentence of imprisonment for any
heinous crime (as it stood until 1972) which should not exceed fourteen years.
Therefore the imposition of the sentence of life imprisonment (which means 25
years' R.I.), plus seven years' R.I. under section 307, P.P.C. would be
inconsistent with the intendment of the provisions of provi so (a) to subsection
(2) of the section 35, Cr.P.C. inasmuch as the maximum punishment prescribed
for heinous offences shall be exceeded. The difficulty in this case can be
overcome if the sentences awarded to the appellant in respect of two convictions
under section 302, P.P.C. and under section 307, P.P.C. in one and the same trial
are directed to run concurrently instead of running consecutively".
He also cited the following two cases wherein the same view was taken: -
Juma Khan and another v. The Sta te 1986 SCMR 1573; and Muhammad Ittafaq
v. The State 1986 SCMR 1627.
3. We have also heard the learned Assistant Advocate -General who is present in
Court.
4. Respectfully following the above -noted decisions of this Court we condone the
delay of 2 days in filing the petition, convert the petition into appeal and allow
the same. We order that the following portion of the impugned judgment:
"The sentences shall run consecutively." shall stand omitted and shall now be
read as: -
"The sentences shall urn concurrently."
3. 1986 SCMR 1573
(Juma Khan and another v. The State)
"After hearing both the learned counsel, we are inclined to accept the prayer of
the petitioners and to clarify that the sentences of imprisonment for life on each
count imposed u pon them are to run concurrently and not consecutively.
We may adds that under section 35 of the Cr.P.C. the total period of
imprisonment on trial cannot exceed 25 years. If the sentences imposed on the
petitioners in this case are allowed to take affect consecutively the sentence
would exceed 25 years. This, of course, is not permitted by section 35 of the
Cr.P.C.
We would, accordingly, clarify that the sentences of imprisonment for life
imposed upon the petitioners under section 302, P.P.C. on each co unt, shall run
concurrently and not consecutively. Order accordingly."
4. YLR 2007 page 700 (Karachi).
(Abdul Ghafoor v. The State)
"From the perusal of the judgment in Special Case Nos. 110 of 1997 and 111 of
1997 it appears that both the cases wer e registered at the same police station on
the same date one after another. The Investigating Officer is the same and in the
second case the recovery was made on the pointation of the applicant himself
after recovery in first case. From the judgment it app ears that both the crimes are
one and the same and the prosecution has malafidely separated it into two
crimes. The power available under section 397, Cr.P.C. can be exercised where
the transaction/incident is one and the same. The trial Court while passin g the
conviction and sentence in second case ought to have exercised this discretion in
favour of the applicant. Non-exercise of discretion in favour of applicant amounts
to miscarriage of justice and can be interfered in revisional jurisdiction. The trial
Court has also not done substantial justice by one exercising jurisdiction in
favour of the applicant.
From the circumstances of the case it can be said that the second crime is off -shoot of
the first crime. To meet the ends of justice, we feel it will be in the interest to
justice of order that both the sentences be run concurrently. The revision is
allowed in the above terms."
4. PLD 1994 Quetta 1
(Ahmad Jan v. The District and Sessions Judge and another)
"Reverting to above -referred unreported Karachi case, it may be seen that
cumulative effect of section 35 (c), Cr.P.C. specifying aggregate consecutive
sentences, and section 397, Cr.P.C. about suffering of sentence on the expiration of
another conviction and exercise of inherent powers by allow ing special benefit to
run sentences concurrently has been discussed. With utmost respect we are
inclined to observe that, conclusions drawn therein do not have general
application. There is no cavil to 'the principle of law, that High Court enjoys
plenary powers to promote ends of justice by remedying abuse of the process of
law. But facts and circumstances of each case have to be dealt with on its own
merits."
5. Jail Petition No.56 of 2005
(Shah Hussain v. The State)
(Unreported Judgment passed by the Honourable Supreme Court of Pakistan).
"40. The petitioner in the instant case was sentenced to 10 years' R.I. and
imprisonment for life on two counts. His sentences were ordered to run
consecutively. The aggregate sentence of the petitioner would th us come to sixty
years, which is contrary to the provisions of section 35, Cr.P.C. proviso (a) to
section 35, Cr.P.C. prohibits the giving of consecutive sentence in one trial
beyond the period of 14 years. This issue came up for examination by this Court
in the case of Javed Shaikh v. State (PLD 1985 SC 153) wherein it was held as
under: --
"Life imprisonment is, according to section 57 of the P.P.C. to be reckoned as
equivalent to 25 years' R.I. This is one of the punishments which can be imposed
on an o ffender, on account of the substitution of the punishment for
transportation for life -which was one of the punishments that could be imposed
on an offender under section 53 of the P.P.C. and was reckoned as equivalent to
fourteen years before its amendment by the Law Reforms Ordinance, 1972. No
objection can, therefore, be taken to the imposition of the sentence of life
imprisonment, after the promulgation of the Law Reforms Ordinance, 1972.
However, the question is whether the appellant can also be sentenc ed to undergo
a further sentence of seven years under section 307, P.P.C. for his having
attempted to murder Manzoor Hussain, P. W.5?
A perusal of proviso (a) to subsection (2) of section 35, Cr.P.C. indicates that it
prohibits the giving of consecutive sentence in one trial beyond the period of
fourteen years, the maximum sentence, short of the death sentence, which could
be imposed on an offender before the promulgation of the Law Reforms
Ordinance, 1972. The said provision (section 35, Cr.P.C.) appears to be in
consonance with the scheme and intendment of the Pakistan Penal Code that an
offender should only suffer the maximum sentence of imprisonment for any
heinous crime (as it stood until 1972) which should not exceed fourteen years.
Therefore, the im position of the sentence of life imprisonment (which means 25
years' R.I., plus seven years' R. I. under section 307 P.P.C. would be inconsistent
with the intendment of the provisions of proviso (a) to subjection (2) of section
35, Cr.P.C. inasmuch as the maximum punishment prescribed for heinous
offences shall be exceeded. The difficulty in this case can be overcome if the
sentences awarded to the appellant in respect of the two convictions under
section 302, P.P.C. and under section 307 P.P.C. in one and the same trial are
directed to run concurrently instead of running consecutively."
Syed Pervaiz Zahoor, learned counsel for the State places reliance upon the
following case -laws which are on the same point: --
1. 1990 P.Cr.LJ 568
(Abdul Hamid v. Th e State)
7. The rule laid down in section 397, Cr.P.C. is that a sentence is to commence
on the expiration of a sentence to which a person has been sentenced previously,
unless the Court directs that the subsequent sentence shall run concurrently with
such previous sentence. Consecutive sentence is, therefore, the general rule
while concurrent sentence is only an exception. Depending on the particular
circumstances of a case, concurrent sentences may be awarded where the two
offences are akin and intimate ly connected with each other."
2. PLD 2003 Lah 512
(Muhammad Asif v. The State)
"9. It has further been argued that the appellate Court was fully empowered to
exercise powers under section 397 of the Cr.P.C. which is also exercisable by the
trial Co urt in view of the powers vesting under section 426 of the Cr.P.C.
10. This Court agrees with these arguments and while invoking the provision of
section 397, Cr.P.C. directs that the sentences in both the case F.I.Rs
Nos.53/1996 and 63/1996 shall run co ncurrently."
If sentences are not allowed to run concurrently in respect of Aurangzaib Shah and
Nasaruddin the same would exceed the maximum punishment as permissible under
section 13 -E of the Arms Ordinance, 1965. This would be contrary to the provision of
sections 35, Cr.P.C. and 71, P.P.C. It is accordingly ordered that the sentences awarded
to Aurangzaib Shah and Nasaruddin to run concurrently. As regards the case of
appellant Hairuddin whose sentence though does not exceed the maximum prescribed
puni shment, an anomalous situation presents itself. He was awarded a lesser sentence,
undoubtedly because .a Pistol, which is a less dangerous weapon than a Kalashnikov
was recovered from him. However, he would serve a longer sentence than Aurangzaib
Shah and Nasaruddin, if his sentences are permitted to run consecutively. Accordingly,
the same benefit is also extended to him and Hairuddin's sentences are also ordered to
run concurrently.
For the foregoing reasons, the sentences awarded to all the three appel lants under
section 395, P.P.C. and 13 -E of the Arms Ordinance, 196 are ordered to run
concurrently.
With the above modification in the sentences, the appeals are disposed of.
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