BASHIR Versus THE STATE

SHAFIUR RAHMAN, ACTG. C J .‑‑‑ In all these petitions and appeals a common question of law of public importance is involved, namely, the interpretation of section 35 of the Criminal Procedure Code for determining the limitation on the power of the Courts to award concurrently or consecutively the maximum sentences of imprisonment. This question for examination has been placed before a larger Bench as it also entails reconsideration of the decisions given in Javed Shaikh v. The State (1985 SCMR 153), Juma Khan and another v. The State (1986 SCMR 1573), Muhammad Ittefaq v. The State (1986 S C M R 1627) and Khan Zaman and others v. The State (1987 SCMR 1328).

2. Arguments on this question of law were heard on an earlier occasion on 3‑8‑1988, and thereafter on 7‑1:1991 and now finally before a differently constituted Bench of Judges on 25‑3‑1991.

3. The factual background in which this question has come up is separately indicated as hereunder:‑‑

(i) Cr. M.P.15‑R ‑of 1988 in CrA. 144 of 1979

All the four petitioners who are brothers were tried for offences under section 302/326/324/34, P.P.C. They were all convicted for these offences by the trial Court. Their convictions were maintained by the High Court and the Supreme Court. Ultimately, under the order of the Supreme Court, they all stand convicted under section 302/34, P.P.C. and sentenced to life imprisonment, under section 326/34, P.P.C. sentenced to 10 Years' R.I. and under section 324/34, P.P.C. sentenced to 3 years' R.I. The Supreme Court while reducing the sentence of Bashir to life imprisonment ordered as hereunder:‑‑

"The remaining sentences ‑of imprisonment which have been ordered to run consecutively and the sentences of fine, are however, maintained."

By this Criminal Miscellaneous Petition the convicts have taken up the grounds that "the consecutive running of the sentences is violation of proviso (a) to section 35(2) of the Criminal Procedure Code" and that "as such proviso (a) to subsection (2) of section 35, Cr.P.C. indicates that it prohibits the giving of "CONSECUTIVE SENTENCES" in one trial beyond the period of 25 years, the maximum sentence, short of the death sentence which could be imposed on all offenders. The said provision (section 3‑5, Cr.P.C.) is in consonance with the scheme and intendment of the Pakistan Penal Code that an offender should only suffer to maximum sentence of imprisonment for any heinous crime should not exceed the sentence of life imprisonment".

The prayer made is that the sentence of life imprisonment under section 302/34, P.P.C., of 10 years' R.I. under section 326/34, P.P.C. and of 3 years' R.I. under section 324/34, P.P.C. be ordered to run concurrently instead of consecutively.

(ii) Cr.M.P. 18‑11/90 in Cr. Appeal 133Z81

The petitioners in this case were tried for the offences under sections 302, 307 (two counts), 452 (two counts) read with sections 149 and 148, P.P.C They were con victed by the trial Court and their convictions were maintained by the Supreme Court by our judgment dated 11‑5‑1985 (1985 SCMR 1415). While imposing life imprisonment of the offence under section 302, P.P.C., their convictions under section .307/149 (two counts)‑‑ sentence of 5 years' R.I. on each count, and under section 452/149, P.P.C. (two counts) sentence of 2 years' R.I. on each count, were maintained. However, no order was made or direction given with regard to the sentences being consecutive or concurrent.

The petitioners claim to have undergone the sentence of imprisonment for life but the Jail authorities refused to relieve them on the ground that no order for the sentence of imprisonment being concurrent having been passed, the sentences were to run consecutively. In order to claim an order that the sentences must run concurrently, they relied on section 35(2) of the Criminal Procedure Code read with the judgments of this Court in the cases of Javed Shaikh (1985 SCMR 153), Juma Kha (1986 SCMR 1573), Muhammad Ittefaq (1986 SCMR 1627) and Kh& Zaman (1987 SCMR 1382).

(iii) Cr.P.L.A. No.169‑11 of 1989

The five petitioners in this case were tried for the offences under sections 302, 307, 449, 149 and 148, P.P.C. They were sentenced to death under section 302/149, P.P.C., under section 307/149 to 10 years R.I under section 449/149 to 10 years' R.I., and one year' R.I. under section 148, P.P.C. Their conviction and sentence was maintained up t the High Court. By general amnesty that was announced in the year 199 their death sentence was converted into life imprisonment. Th petitioners moved an application in the High Court under section 5614 of the Criminal Procedure Code for getting all the sentences o imprisonment including of life imprisonment as concurrent, and also claimed the benefit of section 382‑B, Cr.P.C. The High Court refused t exercise the jurisdiction in the matter as the question of their conviction and sentence had finally been disposed of by the Supreme Court. Hence this petition was made seeking a direction to the, Jail authorities to treat the sentences awarded to the petitioners as concurrent and also allowing them the benefit of section 382‑B of the Criminal Procedure Code.

(iv) Criminal Appeal No.164 of 1987

In this appeal the convicts stand convicted under section 302/149, P.P.C. to life imprisonment, under section 376, P.P.C. to 10 years' R.I. an under section 307, P.P.C. to 7 years' R.I. One of the arguments raised o which leave to appeal has been granted is that "neither the trial Court not the High Court has directed that the substantive sentences o imprisonment for the different offences should run concurrently consequently, the said sentences of imprisonment ,A] take effect consecutively. As a result the limit imposed by the proviso (a) t section 35(2), Code of Criminal Procedure will stand exceeded. This will be illegal and in conflict with the view taken by this Court in Javaid, Shaikh v. The State (1985 SCMR 153). This contention needs examination. Leave to appeal is granted to consider legality of the sentences imposed upon,Zahoora, Afzal, Feroz and Arif.

(v) Criminal Appeal No.176 of 1986

Muhammad Tariq respondent stood convicted of the offence under section 302, P.P.C. on two counts and sentenced on one count to death and on another to life imprisonment. His Petition for Leave to Appeal in the Supreme Court failed and also a review petition. However, on a mercy petition the Governor of the Punjab commuted the sentence of death awarded to him for the murder of Khadim Hussain to life imprisonment. He was, therefore, required to undergo imprisonment for life on each count. There being no order under section 35 of the Criminal Procedure Code as to whether the two sentences of imprisonments were to run concurrently or consecutively Muhammad Tafiq filed a petition in the High Court seeking a direction that they should be ordered to run concurrently. This was heard alongwith two other matters of similar nature and the High Court following the decision of this Court in Javed Shaikh's case (1985 SCMR 153) upheld the contention and ordered the sentences to run concurrently. The State has objected to such a direction and has come up in appeal before this Court.

(vi) Criminal Appeal No.186 of 1986

Bashir and three others stand convicted under section 302/34, P.P.C. and 307/34, P.C. They were awarded imprisonment for life for the former and seven years' R.I. for the second charge. Their appeals failed in the High Court. This Court while granting leave to appeal on merits also noted the legal ground taken therein noted in the following words:‑‑

"It was lastly contended by the learned counsel that the petitioners have been awarded life imprisonment (i.e. 25 years) under section 302 of the Pakistan Penal Code and further sentenced to seven years' rigorous imprisonment under section 307, P.P.C. which sentences, in the absence of any order that the same will run concurrently are, therefore, to run consecutively. This was not in consonance with the provisions of section 35, Cr.P.C. Reference is invited to Javed Shaikh v. State (1985 SCMR 153) in support of his contention."

(vii) Civil Appeal No.440 of 1986

Abdur Rashid alias Malangi was tried under section 302/307, P * P.C. by the Additional Sessions Judge, Lahore and convicted for both the offences. He was sentenced to death under section 302 and to seven years' R.I. under section 307, P.P.C. The conviction and sentence were maintained up to the Supreme Court. However, on a mercy petition, the Governor of the Punjab on 5‑1‑1983 commuted his sentence. of death to life imprisonment. Thereafter, by a Writ Petition (No.373 of 1984) Abdur Rashid moved the High Court for treating the sentences as concurrent. This Writ Petition was allowed alongwith the two others on the basis of a decision of this Court in Javed Shaikh's case. The State has come up in appeal against the decision of the High Court.

(viii) Civil Appeal No.441 of 1986

Lal, Shahara and Allah Yar were convicted under section 302/34, P.P.C. (two counts) and under section 324/34J.P.C. They were sentenced to death on each count under section 302/34, P.P.C. and required to suffer one year R.I. under section 324/34, P.P.C. It was ordered that in case both the sentences of death were altered to sentences of imprisonment then sentence awarded in default of payment of fine and the sentence under section 324/34, P.P.C. shall run concurrently. Their conviction and sentence were maintained up to this Court. However, on a mercy petition, the President of Pakistan commuted their sentence of death to that of imprisonment for life. This decision was conveyed ' to the Superintendent Jail, Faisalabad by Sessions Judge, Faisalabad by letter dated 11‑6‑1980 stating therein that "since the original order of conviction does not speak of the sentences to run concurrently, it will be presumed under section 35(l), Cr.P.C. to run consecutively."

Lal and Shahara convicts, after two years of that letter filed Writ Petition (No.4907 of 1982) praying that their sentences be directed to run concurrently. This petition was dismissed in limine on 21‑12‑1982 by learned Judge in Chamber. No further proceedings were taken against that order.

Barkha, a real brother of Shahara and Allah Yar and a cousin of Lal, without disclosing the institution of the earlier Writ Petition (No.4907/1982) filed another Constitution Petition (Writ Petition No.1641/1983) for the same relief which was dismissed by the same learned Judge on 16‑11‑1983. He preferred an Intra‑Court Appeal (I.C.A. No.252 of 1983) and it was disposed of by a consolidated judgment.

The contention in this case was that there was a direction of the trial Court that in case the death sentence was converted into life imprisonment, the sentences of imprisonment were to. run concurrently. The High Court allowed this appeal (I.C.A. 252/1983) in view of decision of this Court in Javed Shaikh's case. The State has objected to it and has preferred this appeal.

(ix) Civil Appeal No.442 of 1986.

Muhammad Aslam, respondent No.2 was tried alongwith others for offences under section 302/307/452/148/149, P.P.C. He was convicted under section 302/34, P.P.C. and sentenced to life imprisonment (three counts) under section 307/34, P.P.C. and sentenced to, three years' R.I. (four counts) and under section 452/34, P.P.C. sentenced to one year R.I. The trial Court directed that the sentences of Muhammad Aslain under sections 307/34, P.P.C. and 452/34, P.P.C. shall run. concurrently with the sentence passed under section 302/34, P.P.C. The High Court maintained the conviction* and sentence of Muhammad Aslam. So did the Supreme Court. The only direction given by the Supreme Court was that as , the occurrence had taken place before the Law Reforms Ordinance, the sentence of life imprisonment shall stand substituted for transportation for life.

Mst. Aziz Begurn (respondent No.1) mother of Muhammad Aslant riled a Writ Petition (No.768 of 1986) in the High Court contending that he had served the entire sentence and was entitled to come out of the prison and his continued detention in jail was illegal. The jail authorities took the view, and so did the State that "there was no direction in the judgment of the learned Additional Sessions Judge that the sentences of life imprisonment (to be treated as transportation for life in view of Supreme Court judgment) on each count under section 302/34, P.P.C. for the murder of Mst. Niggo, Gulab Din and Maqsood were to Tun concurrently, and therefore, the sentences of transportation for life under section 302/34, P.P.C. on three counts would run consecutively under section 35, Cr.P.C. though the sentences awarded under sections 307/34 P.P.C. and 452/34, P.P.C. would run concurrently with the sentences under section 302/34, P.P.C. Sentences of Muhammad Aslam, convict, come to 14 x 3 = 42 years plus three years i.e. 45 years. Giving all the benefits of remission and relief under section 382‑B, Cr.P.C. the probable date of release of the convict comes to 25‑6‑20tl in case he pays the fine of Rs.15,000." A Full Bench of the High Court seized of the matter took the view that the judgment of the Additional Sessions Judge/trial Court had in fact directed that all sentences of imprisonment would run concurrently and not consecutively. The Court observed as hereunder:‑‑

"...the judgment of the learned trial Judge dated 17‑4‑1975 is clear and admits of no ambiguity. The learned trial Judge after convicting Muhammad Aslam and his co‑accused on various charges and on different counts, in para.37 of his judgment, used the word 'sentence' in a singular form and not in plural sense. It is clear from this judgment that the learned trial Judge was clear in his mind that all sentences of imprisonment would run concurrently and not consecutively. This petition is, therefore, allowed with no order as to costs."

The State has objected to such interpretation of the judgment of the trial Court by the High Court.

4. The case which came up for reconsideration in the present appeals and petitions/applications had also' similar facts as are involved in these applications/appeals. For example, in the case of Javed Shaikh (1985 SCMR 153), the trial Court had convicted the accused under section 302, P.P.C. to life imprisonment and under section 307, P.P.C. to seven years' R.I., ordering at the same time that the sentences shall run consecutively. In that case leave was granted to consider "whether, in view of the provision of section 35, Cr.P.C. which prohibits making of consecutive sentences aggregating more than fourteen years, the sentences, as awarded to the convict were proper in law". It was decided by a Bench of four learned Judges of which I also happened to be a member, as hereunder.‑

"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 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 proviso (a) to subsection (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 Court are directed to run concurrently instead of running consecutively."

5. In the case of Juma Khan (1986 SCMR 1573) for the double murder the High Court had maintained the conviction under section 302, P.P.C. but converted the sentence into life prisonment without specifying whether the sentences were to run concurrently or consecutively. The jail authorities were treating it on the strength of section 35(l) of the Criminal Procedure Code to be consecutive. The convict had moved an application under section 561‑A of the Criminal Procedure Code for directing the jail authorities to treat the sentences concurrent. The High Court had referred them to, the Supreme Court whereupon an application under Order XXXIII, Rule 6 of the Supreme Court Rules, 1980, was riled and was dealt with by two learned Judges holding as hereunder:‑‑

"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 upon them are to run concurrently and not consecutively.

We may add that under section 35 of the Cr.P.C. the total period of imprisonment at one trial cannot exceed 25 years. If the sentences imposed on the petitioners in this case are allowed to take effect consecutively the sentence would exceed 25 years. This, of course, is not permitted by section 35 of the Cr.P.C. (See also Javed Shaikh v. The State 1985 SCMR 153)."

6.In the case of Muhammad Ittefaq (1986 SCMR 1627), a Bench of five Judges of which I happened to be member, has disposed of the Criminal Miscellaneous Petition arising out of a Criminal Appeal, as hereunder:‑‑

"While restoring order of the trial Court, no direction was made for the concurrent running of the sentences of imprisonment for life on two counts under section 302, P.P.C., read with section 34, P.P.C. and the sentences of imprisonment awarded again on two counts under section 307, P.P.C. read with section 34, P.P.C. This error crept in because the trial Court had awarded death sentences to the petitioner. The consecutive running of the sentences is violative of proviso (a) to section 35(2) of the Criminal Procedure Code. Reference in this regard may be made to Javed Shaikh v. The State 1985 SCMR 153. In one other case namely Criminal Review ‑Petition No.4‑R of 1985, there was also an omission and this Court had ordered for the concurrent running of sentences of imprisonment.

Accordingly, we, in the interest of justice, direct that all these sentences of imprisonment should run concurrently."

7.In the case of Khan Zaman (1987 SCMR 1382) the High Court had converted the death sentence into life imprisonment on two counts. The appeal in the Supreme Court was not pressed on merits but benefit of section 35(2), Cr.P.C..was invoked relying on the case of Javed.Shaikh and the two other cases of Junia Khan and Muhammad Ittefaq. The petition was converted into an appeal and the order of the High Court directing the sentences to run consecutively was substituted by the expression that the sentences shall run concurrently.

8. In none of the decisions of this Court the specific provision of section 35, Cr.P.C. was considered in its entirety specifically and exhaustively. It was assumed that it applied to trials held by the Sessions Judges for offences under section 302, P.P.C. etc. Of relevance in the context are section 53 of the P.P.C. as it stood before its amendment in 1990 under the Qisas and Diyat Law, section 57 of the P.P.C., sections 35, 397 and 369 of the Criminal Procedure Code. These are reporduced hereunder:‑‑

Section 53 of P.P.C.

"The pum*shment of which offenders are liable under the provisions of this Code are:‑‑‑

First, Death;

Secondly, Imprisonment for life

Thirdly, (Omitted by Act 2 of 1950)

Fourthly, Imprisonment, which is of two descriptions namely:‑

(1) Rigorous, that is, with hard tabour;

(2) Simple;

Fifthly, Forfeiture of property;

Sixthly, Fine

Section 57 of P.P.C.

"Fractions of terms of punishment.‑‑In calculating fractions of terms of punishment; imprisonment for life shall be reckoned as equivalent to transportation for twenty‑rive years."

Section 35 of Cr.P.C.

"35. Sentence in case, of conviction of several offences at one trial.‑‑(l) 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 punishments, 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) Maximum term of punishment.‑‑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 offence, to send the offender for trial before a higher 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 (other than a Magistrate acting under section 34), the aggregate punishment shall not exceed twice the amount of punishment which he is, in the exercise on his ordinary jurisdiction, competent to inflict.

(3) For the purpose of appeal, the aggregate of consecutive sentences passed under this section in case of conviction for several offences at one trial shall be deemed to be a single sentence."

Section 397 of Cr.P.C.

"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 susbequent sentence shall run concurrently with such previous sentence:

Provided further, 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."

Section 309 of Cr.P.C.

"369. Court not to alter judgment,‑‑Save as otherwise provided by this Code or by any other law for the time being in force, or in the case of a High Court by the Letters Patent of such High Court, no Court, when it has signed its judgment, shall alter or review the same, except to correct a clerical error."

9. The exact law invoked in the matters for consideration before us and on the decisions which are required to be reconsidered was limited to the proviso to subsection (2) of section 35 of the Criminal Procedure Code. An effort was made by the learned counsel for the petitioners/appellants to contend that this proviso was in fact a proviso to both subsection (1) and subsection (2) of section 35, Cr.P.C. However, the physical placement of the proviso and its contents both relate to and extend over subsection (2) and not to other subsection (subsection (1)). The principles governing the interpretation of a proviso and the serious limitations from which it suffers have been indicated by this Court recently in K.E.S.C. Progressive Workers' Union through its Chairman v. K.E.S.C. Labour Union through its General Secretary and 7 others (Civil Review Petitions Nos.64 to 66 and 98 of 1990), decided on 11‑2‑1991 reported as 1991 SCMR 888 in the following words:‑‑

"The accepted principles of interpreting a proviso have been enunciated as hereunder:‑‑

(i) Wilberfore on Statute Law, Vage 303:‑‑

"A proviso is of great importance when the Court has to consider what cases come within the enacting part of a section and it is always to be construed with reference to the preceding parts of the clause to which it is appended."

(ii) Maxwell on the Interpretation of Statutes, Twelfth Edition by P.St.J. Langan, page 189:‑‑

"It will, however, generally be found that inconsistencies can be avoided by applying the general rule that the words of a proviso are not to be taken 'absolutely in their strict literal sense', but that a proviso is "of necessary...limited in its operation to the ambit of the section which it qualifies."

(iii) The Interpretation of Statutes and General Clauses Acts,, Seventh

Edition (1984) 1 N.S. Bindrapa Ze _77‑

"A proviso must be considered with relation to the principal. matter to which it stands as a proviso. To treat the proviso as ii independent enacting clause instead of being dependent on the main enactment is to sin against the fundamental rule of construction, as, observed by Moulton, LJ., in R.v. Dibdin (1910 P. 57, 125 affirmed in 1912 A.C. 533). Proviso and sub‑clauses should be governed by the operative portion of the section."

(iv) Craies on Statute Law. Seventh Edition by S.G.G. Ed ar it e 219:‑‑

'The Courts, as, for instance, in Ex.P. Piirtington, (1844) 6 OB 649, 653, Re‑Brocklebank, (1889) 23 QBD 461, and Hill v. East and West India Dock Co. (1884) 9 App. Cas. 448, have frequently pointed out this fallacy, and have refused to he led astray by arguments such as these which have been addressed to us, which depend solely on taking words absolutely in their strict literal sense, disregarding the fundamental consideration that they appear in the proviso."

(v) The Construction of Statutes by Earal T. Crawford. Page 605 ‑‑‑

As a general rule, however, the operation of a proviso should be "As a confined to that clause or portion of the statute which directly precedes it in the statute."

(vi) Bennion on Statutory Interpretation, page 572:-

In these case of precision drafting, the proviso is to be taken as limited in its operation to the section or other provision it qualifies.

Some of the illustrative cases in which this statement of law has found clear expression are ; Leah v. Tow Worlds Publishing Co. Ltd.(1951) 1 Ch. 393, Lloyds and Scottish Finance Ltd. V. Modern Cars and Caravans (Kingston) Ltd. 1 Q. B. 764 and Messrs East & West Steamship Company v. Pakistan PLD 1958 SC (Pak.)

41. In the case of Leah, at page 398 it was held as hereunder:-

.... indeed it cannot be disputed, that a proviso must be construed anti treated as if it were, not a parallel positive enactment, but a limitation oil proposition which is direct and objective."

In the second case i e., Lloyds and Scottish Finaii‑ce‑L‑1d.., it was held by Queen s Bench Division at page 780 that "the proviso must of necessity be limited in its operation to the ambit of the section which it qualifies".

In the third case i.e., East & West Steamship Co., at page 72, the following observations were made by the Supreme Court:‑

"One of the plainest rules of statutory interpretation is that a proviso is to be regarded as something which excepts a particular case from a general principle. The effect of a proviso is to except something out of the preceding portion of the enactment or to qualify something enacted therein which but for the proviso would be within it."

10. In S. Sundarain Pillai etc. v. V.R.Pattabiraman (AIR 1985 SC 582) the interpretation, scope and effect of a proviso was dealt with, in the following words:‑‑

"Odgers in Construction of Deeds and Statutes' (Fifth Edn.) while referring to the scope of a proviso mentioned the following ingredients:‑‑

P.317. "Provisos‑‑These are clauses of exception or qualification in an Act, excepting something out of, or qualifying something in, the enactment which, but for the proviso would be within it."

P.318 "Though framed as a proviso, such a clause may exceptionally have the effect of a substantive enactment."

Sarathi in 'Interpretation of Statutes' at pages 294‑295 has collected the following principles in regard to a proviso:‑‑

"(a) When one finds a proviso to a section the natural presumption is that, but for the proviso, the enacting part of the section would have included the subject‑matter of the pioviso.

(b) A proviso must be construed with reference to the preceding parts of the clause to which it is appended.

(c) Where the proviso is directly repugnant to a section, the proviso shall stand and be held a repeal of the section as the proviso speaks the latter intention of the makers.

(d) Where the section is doubtful, a proviso may be used as a guide to its interpretation: but when it is clear, a pr9viso cannot imply the existence of words of which there is no trace in the section.

(e) The proviso is subordinate to the main section

(f) A proviso does not enlarge an enactment except for compelling reasons.

(g) Sometimes an unnecessary proviso is inserted by way of abundant caution.

(h) A construction placed upon a proviso which brings it into general harmony with the terms of section should prevail.

(i) When a proviso is repugnant to the enacting part, the proviso will not prevail over the absolute terms of a latter Act directed to be read as supplemental to the earlier one.

(j) A proviso may sometimes contain a substantive provision."

Relying on Dwarka Prasad v. Dwarka Pas Sard (AIR 1975 SC 1758), in the same judgment, the following observations were approved:‑‑

"If the rule of construction is that prima facie a proviso should be* limited in its operation to the subject‑matter of the enacting clause, the stand we have taken is sound. To expand the enacting clause, inflated by the proviso, sins against the fundamental rule of construction that a proviso must be considered in relation to the principal matter to which it stands as a proviso.

A proviso ordinarily is but a proviso, although the golden rule is to read the whole section, inclusive of the proviso, in such manner that they mutually throw light on each other and result in a harmonious construction."

11. If the above principles relating to interpretation of a proviso are applied to the interpretation of proviso under consideration, then different conclusions follow.

Subsection (2) the operative part, deals only with those Courts and those Courts only which have limited sentencing powers. The limited sentencing powers are provided for in sections 30, 32 and 34, Cr.P.C. whereby none of the Magistrates is authorised to pass a sentence of more than seven years' R.I. for an offence. High Courts and Sessions Judges have been empowered by section 31, Cr.P.C. to pass any sentence authorised by law.

12. It is clear, therefore, that section 35 (2) deals only with the sentencing power of the Magistrates at a trial and the proviso' has necessarily to be restricted to the Courts of the Magistrates with limited sentencing power. On no principle of interpretation can the proviso be extended so as to outstrip the substantive scope of subsection (2) of section 35, Cr.P.C. and to refer to the Courts whose, power of sentencing is not so limited.

13. In the cases before us, we are not dealing with the cases of sentencing by Magistrates or Courts having limited power of sentence. It is the sentence passed by the trial Court i.e. Sessions Judge who, as pointed out under section 31 of the Criminal Procedure Code, has no limitations on his powers except to pass a sentence authorised by law. There is no higher Court for a Sessions Judge within the meaning of subsection (2) of section 35, Cr.P.C. In the circumstances, this section has no application t ' o the trial by the Sessions Judge and to the conviction and sentence imposed by that Court and for that reason the decisions on which reliance has been placed and which have come up specifically for reconsideration and review, cannot 'be sustained. The legal question raised is answered accordingly.

14. The cases where the Court has sentenced a convict to death and subsequently by an executive order the death sentence is commuted into life imprisonment, the position is somewhat different. It is different because neither section 35 (1) nor section 397, Cr.P.C. in terms apply to such a case. The Court cannot pass any order with regard to its being concurrent or otherwise. In the absence of any provision directly applying to the case, the sentence so commuted shall be required to be undergone concurrently and not consecutively.

15. In passing one must note a significant amendment that has been introduced in the Indian Criminal procedure Code in section 397, Cr.P.C. which is materially different from our provision. It is in the form of subsection (2) and reads as hereunder:‑‑

"When a person already undergoing a sentence of imprisonment for life is sentenced on a subsequent conviction to imprisonment or imprisonment for life, the subsequent sentence shall run conrurrently with such previous sentence."

16. In view of the foregoing discussion and the interpretation of law ' directly in issue; we have come to the conclusion that our judgments in the cases of Javed Shaikh (1985 SCMR 153), Juma Khan and another (1986 SCMR 1573), Muhammad Itteaq (1986 SCMR 1627) and Khan Zaman and others (1987 SCMR 1382) do not correctly interpret section 35(2) of the Criminal Procedure Code and require review. We accordingly review the same, restricting the effect and import of subsection (2) of section 35, Cr.P.C. to the judgments and sentences by Courts other than and subsordinate to the Sessions Judge and the High Courts i.e., the Magistrates and the Assistant Sessions Judges, wherever in existence.

17. In view of the law laid down, the individual matters, which require disposal, are dealt with as hereunder:‑‑

(i) Cr. Misc. Petiton No.15‑R of 1988 in Criminal Appeal No.144‑R of 1979

As this Court had while reducing the sentence of Bashir to life imprisonment, consciously ordered as hereunder:‑‑

"The remaining sentences of imprisonment which have been ordered to run consecutively and the sentences of fine, are however, maintained."

Such an observation being lawful, does not need review either under section 369, Cr.P.C. or under the Supreme Court Rules, and hence this Miscellaneous Petition is dismissed.

(ii) Cr. Misc. Petition No.18‑R of 1990 in Crilninal Appeal No.133 of 4981

As the Court had given no direction under section 35(l) of the Criminal Procedure Code that the sentence should run concurrently, the provisions of this subsection will apply and there is no particular illegality in its taken effect. Consequently, the judgment needs no interference and the Miscellaneous Petition is dismissed.

(iii) Cr. P.L.A. No.169‑R of 1989

As in this case fife imprisonment had been ordered by an executive order and we have already held that the executive order shall imply concurrent running of the sentences, because none of the provisions of the Criminal Procedure Code will apply to such a sentence, this petition is converted into appeal and allowed to the extent that only sentences commuted to life imprisonment shall run concurrently with the other sentences awarded in the case. As regards the prayer of benefit under section 382‑B of the Criminal Procedure Code, it cannot be claimed outside the judgment A and independently of it from the Supreme Court.

(iv) Criminal Appeal No.164 of 1987

This appeal to the extent it challenges the consecutive sentences will fail because subsection (1) of section 35, Cr.P.C. will govern the case and its' operation will be lawful and in accordance with the provisions made by the legislature.

(v) Criminal Appeal No.176 of 1986

It is a case of commutation of sentence to life imprisonment and as held such sentence will run with other sentences. The State's appeal is allowed M only to the extent that only commuted sentence of life imprisonment will run concurrently and not the others which are governed by section 35(l). Javaid Shaikh's case having been reviewed the law laid down therein will not be available making the other sentences to run concurrently.

(i) Criminal Appeal No.186 of 1986

The legal question reserved for the larger Bench stands answered "ht appeal shall otherwise await disposal on merits.

(vii) Civil Appeal, No.440 of 1986

It is a case of commutation of sentence of death into life imprisonment. The effect, as held above, of commutation of sentences would be that the sentence of life imprisonment would run concurrently with the other sentences awarded. The judgment of the High Court is correct, though the reasoning and the ground therefore, is somewhat different. This appeal, therefore, fails and is dismissed.

( viii) Civil A peal No.441 of 1986

It being a case of commutation of sentence of death and the original order of the Court also providing that in case death was not confirmed and altered to the sentence of life imprisonment the sentence was to run N concurrently, the view taken by the High Court is correct. Hence, the appeal stands dismissed.

(ix) Civil A1212eal No.442 of 19L6

The order of the trial Court notwithstanding the alteration of the sentence from life imprisonment to transportation for life providing that the sentences shall run concurrently will hold good. The view taken by the High Court is correct and this appeal must on that account fail. Hence, it is dismissed.

18. All the applications stand disposed of accordingly. If in any appeal further question of fact or law is required to be examined, that appeal shall be individually taken up for disposal, the legal question raised therein having been answered.

RUSTAM S. SIDHWA, J.‑ ‑‑l have read the able judgment of my learned brother Shafiur Rahman, J. In criminal appeals (Cr.As. Nos.176 and 440 to 442 of 1986) leave was granted inter alia to examine the questions of law, including the interpretation of section 35, Cr.P.C. In criminal appeal (CrA.186/86) leave was granted to examine the question whether the sentences which were to run consecutively are not in consonance with the provisions of section,35, Cr.P.C. for which reference was invited to Javed Sheikh's case. In criminal appeal (CrA.164/87) leave was granted to consider the legality of the sentence imposed in view of the limit prescribed by section 35(2), proviso (a) which stood exceeded. In Miscellaneous Petitions 15‑R and 18‑R of 1988 the petitioners themselves have raised inter alia. the question of section 3~(2) proviso (a) as. having been violated. In criminal petition (Cr.P.169/89) the petitioner has merely prayed for the sentences to be ordered to run concurrently. Arguments on section 35, Cr.P.C. were heard, though the greater concentration was on proviso (a) to subsection (2) thereof. Since I wish to touch subsection (1) of section 35, Cr.P.C., I wish to express myself, separately and take the liberty to do so herewith.

2. The main question that arises for consideration is whether section 35, Cr.P.C.‑ compels a Court which has sentenced a person to life imprisonment and any other or similar sentence, to order the said sentences to run concurrently.

3. In order to understand the problem, it is necessary to set out certain sections of the Pakistan Penal Code and the Code of Criminal Procedure as they were in force before the Law Reforms Ordinance, XII of 1972 and thereafter.

BEFORE THE LAW REFORMS ORDINANCE, 1972

Pakistan Penal Code

53. The punishments to which offenders are liable under the provision of this Code are:‑‑

First, Death;

Secondly, Transportation for life;

Thirdly, (omitted);

Fourthly, Imprisonment, which is of two descriptions, namely.

:1) Rigorous, that is, with hard labour;

(2) Simple;

Fifthly, Forfeiture of property‑,

Sixthly, Fine

54. In every case in which sentence of death shall have been passed, the Central Government or the Provincial Government of the Province within which the offender shall have been sentenced may, without the consent of the offender, commute the punishment for any other punishment provided by this Code.

55. In every case in which sentence of transportation for life shall have been passed, the Provincial Government of the Province within which the offender shall have been sentenced may, without the consent of the offender, commute. the punishment for imprisonment of either description for a term not exceeding fourteen years..

57. In calculating fractions‑of terms of punishment, transportation for life shall be reckoned as equivalent to transportation for twenty years.

58. In every case in which a sentence of transportation is passed, the offender, until lie is transported, shall be dealt with in the same manner as if sentenced to rigorous imprisonment, and shall be held to have been undergoing his sentence of transportation during the term of his imprisonment.

59. In every case in which an offender is punishable with imprisonment for a term of seven years or upwards, it hall be competent to the Court which sentences such offender, instead of awarding sentence of imprisonment, to sentence the offender to transportation for a term not less than seven years, and not exceeding the term for which by this Code such offender is liable to imprisonment.

60. In every case in which an offender is punishable with imprisonment which may be of either description it shall be competent to the Court which sentences such offender to direct in the sentence that such imprisonment shall be wholly rigorous, or that such imprisonment shall be wholly simple, or that any part of such imprisonment shall be rigorous and the rest simple.

CODE OF CRIMINAL PROCEDURE

35.‑‑(l) 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 punishments, when consisting of imprisonment or transportation 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 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 offender for trial before a higher Court:

Provided as follows

(a) in no case shall such person be sentenced to imprisonment for a longer period than 14 years; if the case is tried by a Magistrate (other than a Magistrate acting under section 34), the aggregate punishment shall not exceed twice the amount of punishment which he is, in the exercise of his ordinary jurisdiction, competent to inflict.

(3) For the purpose of appeal, the aggregate of consecutive sentences passed under this section in case of conviction for several offences at one trial shall be deemed to be a single sentence.

368.‑‑(l) When any person is sentenced to death, the sentence shall direct that he be hanged by the neck till he is dead.

(2) Sentence of transportation shall specify the place to which the person sentenced is to be transported.

Section 397. When a person already undergoing a sentence of imprisonment I or transportation is sentenced to imprisonment or transportation, such imprisonment or transportation shall commence at the expiration of the imprisonment or transportation to which he has been previously sentenced, unless the Court directs that the subsequent sentence shall run concurrently with such previous sentence‑,

Provided that, if he is undergoing a sentence of imprisonment and the sentence on such subsequent conviction is one of transportation, the Court may, in its discretion, direct that the latter sentence shall commence immediately, or at the expiration of the imprisonment to which he has been previously sentenced:

Provided further, 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.

402.‑‑(l) The Provincial Government may, without the consent of the person sentenced, commute any one of the following sentences for any other mentioned after it:‑‑

Death, transportation for life, penal servitude, rigorous imprisonment for a term not exceeding that to which he might have been sentenced, simple imprisonment for a like term, fine,

(2) Nothing in this section shall affect the provisions of section 54 or 55 o the Pakistan Penal Code.

AFTER THE LAW REFORMS ORDINANCE, 1972

PAKISTAN PENAL CODE

53. In para. secondly the words "transportation for life" substituted by the words "imprisonment for life".

55 'he word "transportation" substituted by the word "imprisonment

57. The words "transportation" and "twenty" substituted by the word "imprisonment" and "twenty‑five years".

58. Section wholly omitted

59. Section wholly omitted

CODE OF CRIMINAL PROCEDURE

35.‑‑(1) The words "or transportation" omitted

368(2). Subsection (2) wholly omitted

397. The words "or transportation" substituted by the word "imprisonment for life" and the first proviso omitted by Central Act XXV of 1974.

402.‑‑(1) The words "transportation for life" in the second para of subsection (1) substituted by the words "imprisonment for life" by Central Act XXV of 1974.

4. The six different types of punishments to which offenders are liable) under the Pakistan Penal Code are stated in section 53 thereof. The first is death; the second Was transportation for life, but is now imprisonment for life; the third was penal servitude, which was omitted by Central Act 11 of 1950; the fourth is imprisonment, which is of two descriptions, namely (i) rigorous, that is, with hard labour and (ii) simple; the fifth is forfeiture of property; and the sixth is fine. The old sentence of transportation for life, which is now imprisonment for life, and the sentence of imprisonment are therefore two distinct types of punishment.

I

5. The old sentence of transportation for life meant a sentence of transportation or banishment overseas for the whole of the remaining period of the convict's natural life. See Nga Tha Byit (1893‑1900, LBR 13) and Vushori Lal v. Emperor (AIR 1945 PC 64‑‑72 IA. 149). Likewise, the now substituted sentence of imprisonment for life means a sentence of imprisonment within the country for the whole of the remaining period of the convict's natural life. See, Muhammad Hussain v. State (PLQ 1968 Lah 1) and State of Madhya Pradesh v. Rattan Singh (AIR 1976 SC 1551). The sentences of transportation and imprisonment for life are therefore sentences of indefinite duration running through the whole of the remaining period of the convict's natural life. Likewise, the old sentence of transportation for a term, as provided by section 59, PPC, meant a sentence of transportation or punishment for a limited period or term. Though in certain cases, not all persons sentenced to transportation for life or for a limited term were banished from the realm to serve out their sentences, the categorisation of these sentences as "transportation" was specifically adhered to in order to maintain that fear and awe to ensure that they served their purposes as strong deterrents. However, the sentence of imprisonment, whether rigorous or simple, is nothing but a confinement of a person in a penitentiary, goal or jail involving restraint of liberty. It is for a limited period as ordered by the Court.

6. Since the old sentence of transportation for life was of indefinite duration and it was not possible to predict how long a convict would live, to lay a basis for the remission system for the purpose of working out the remission, the said old sentence of transportation for life was treated as one for a definite period i.e. 20 years, as provided by section 57 of the Penal Code ‑and para. 198 (f) (ii) of the Punjab Jail Manual. By virtue of policy decisions taken by the Provincial Government from time to time and the rules framed under the Prisons Act, 1894, the case of a person sentenced to transportation for life in a case of murder could be sent up for release under section 401 of the Code of Criminal Procedure to the Provincial Government under para. 141 of the Punjab Jail Manual if the convict has completed an aggregate period of 14 years' imprisonment, including all remissions earned. If he was not released, he had to wait till 20 years' imprisonment was served. The same is the position now in respect of a sentence of imprisonment for life which is treated as one for 25 years under section 57 of the Penal Code, but it is basically for the limited purpose of the remission system. In the case of a sentence of imprisonment for life, the case of the convict can be sent up for release under Rule 140 of the Pakistan Prison Rules, 1978, after he has undergone a minimum of 15 years substantive imprisonment, exclusive of remissions. This substantive period of 15 years provided by the rules framed under the Prisons Act, 1894, also serves merely as a basis for the working of the remission system, namely, that where the life convict has completed a substantive: period of 15 years, excluding remissions of all kinds earned by him, his case can be forwarded to the Provincial Government for release, which the Provincial Government would normally make under section 401 of the Code of Criminal Procedure. Where the release is not so granted, the life convict has to wait for his release till 25 years have been served. With the recent enforcement on 4‑1‑1991 of the Criminal Law (Second Amendment) Ordinance (I of 1991), the powers of the Provincial Government, the Federal Government and. of the President to suspend, remit or commute any sentence under a4y of the powers available under the Penal Code and the Criminal Procedure Code have been made subject to consent of the victim or his heirs, as the case may be. Notwithstanding this change, it is clear that apart from matters specifically relating to the remission system, fictionally for all legal purposes a sentence of transportation for life then meant and imprisonment for life now means a sentence for the remaining span of the natural life of the convict.

7. The two types of sentences i.e. (a) transportation or imprisonment for life and (b) transportation or imprisonment for a term are two distinct sentences, each being used in contradistinction to the other, both in the Penal Code and in the Code of Criminal Procedure. This is apparent from the following factors. In the Penal Code, wherever a sentence of transportation for life was intended, it was so clearly expressed. This scheme was also adhered to in the Code of Criminal Procedure. Now, however, wherever a sentence of imprisonment for life is intended, it is so stated separately in both the Codes. Likewise, wherever a sentence of transportation for a term was involved, it was so separately expressed, and wherever a sentence of imprisonment for a term is involved, it is so separately expressed. This is also so in respect of provisions dealing with commutation. The commutation of the sentence of imprisonment for life to' imprisonment of either description for a term is provided separately by section 55 of the Penal Code. Likewise, the commutation inter alia of the sentences of imprisonment for life and of imprisonment, whether rigorous or simple, is provided by section 402 of the Code. It is only in two sections of the Code of Criminal Procedure, namely, sections 35 and 397, that the word "transportation" was used to convey both the punishments of transportation for life and transportation for a term. After the 1974 amendment, in section 397 the words "or transportation" were substituted by the words "imprisonment for life'. Here the classification between imprisonment for a term and for life was thus introduced. No such amendment was made in section 35. Here the classification of, imprisonment as for a term was allowed to stand. Both sections 35 and 397 deal with the rule of consecutive sentences. Thus, the sentence of imprisonment for life and the sentence of imprisonment, whether rigorous or simple, cannot be interchanged, one for the other, whilst interpreting section 35 (1) of the Code of Criminal Procedure, merely on the basis that they form part of the same genus or by any rule of liberal construction. The earlier classification of the word "imprisonment" as being one for a term being clear and having been maintained, has to be accepted as such.

8. With the above background, I would now examine section 35 of the Code of Criminal Procedure. Under subsection (1) of section 35, where a person is convicted at one trial of two or more offences, the Court may, subject to the provisions of section 71 of the Penal Code, sentence him for such offences to the several punishments prescribed therefore which such Court is competent to inflict. This provision brings to the fore cases involving joinder of charges, as provided by sections 234 to 236 and 239 of the said Code, where a vested right accrues to an accused to demand a single trial in respect of the several offences for which he may be charged, instead of being vexed by a string of trials covering those offences, and where the Court ' itself, by virtue of the special facts and circumstances before it, finds itself legally compelled to exercise its judicial discretion in favour of the accused and order a single trial. Thus, though it may be true that a person tried and convicted separately for each offence would have to suffer each of the punishments awarded in each of the cases consecutively, but where a single trial is legally permissible and held and a person is convicted therein for two or more offences, the remaining words of subsection (1) of section 35 clearly provide that such punishments, when consisting of imprisonment, would commence one after the other in such order as the Court may direct, unless the Court directs that they should run concurrent. The word 'imprisonment' is alone used. Prior to the amendment in 1974, the words used were "imprisonment or transportation". Thus (a) sentences of transportation for life or for limited terms and (b) sentences of imprisonment, such as rigorous or simple, for limited terms had to commence the one after the expiration of the other, unless the Court directed that they should run concurrently. The word 'imprisonment' then distinctly meant imprisonment for a limited term. However, two years after the enactment of the Law Reforms Ordinance, 1972, by section 4 of the Criminal Procedure (Amendment) Act, XXV of 1974, though the words 'or transportation' were omitted, the words 'or imprisonment for life' were not substituted in their stead. A host of amendments made by the said 1972 and 1974 enactments to the Penal Code and the Code of Criminal Procedure substituted the words 'imprisonment for life' for the words 'transportation for life' wherever they appeared. The substitution was made in section 397 of the Code which related to the sentence of an offender who had already been sentenced earlier. Here the rule of consecutive sentences is provided for. The omission of the words 'imprisonment for life' in sub‑section (1) of section 35 of the Code for the words or transportation' cannot therefore be treated as of any inadvertent import. It appears to be a deliberate omission and the reason for it is not far to seek. Previously, section 57 of the Penal Code provided a period of 20 years for the purposes of calculating factions of terms of imprisonment in respect of cases relating to transportation * for life, whereas after the enactment of the Law Reforms Ordinance, 1972, the said period for the purposes of life imprisonment was raised to 25 years. Considering that the period for the purposes of remission system was raised from 20 years to 25 years and the general run of hardened convicts that are convicted to life terms fall in middle age groups who can almost be compelled to serve out 25 years' imprisonment, if remissions are not granted, which would almost take them through their natural life, the necessity of substituting the words 'or imprisonment for life ' for the words 'or transportation' was not perhaps considered desirable and the word 'imprisonment' which covered punishment for a limited term, was allowed to remain. In these circumstances, a sentence of imprisonment for life cannot be permitted to run consecutively with any other or similar sentence. Like the sentence of death, which, when executed, excludes the execution of a similar * sentence, so the serving out of a sentence of life imprisonment by legal fiction would amount to the serving out of a sentence for the remaining span of the normal life of the convict, thus debarring any further execution of any other or similar sentence awarded in the same trial. Where a penal statute provides a clear benefit to an accused, it cannot be taken away or whittled down by any forced construction, and where a particular category or class which was previously consistently maintained, such as for "imprisonment, as involving punishment for a term, has been allowed to stand now alone by itself and life imprisonment has not been added, the intention of the draftsman is to take the case of life imprisonment out of the rule of section 35 (1) and I would hold that the observations in Javed Sheikh's case (1985 SCMR 153) that section 35 (1) of the Code covers life imprisonment, are not entirely correct and call for review.

9. At this stage I may mention that there is also section 382‑B of the Code where the words "sentence of imprisonment" appear and which section directs the Court, where it passes a sentence of imprisonment for an offence, to take into consideration the period, if any during which such accused has been detained in custody for such offence. This section was introduced by the Law Reforms Ordinance, 1972. It was not a part of the format of the Code as originally planned and conceived. Since this section provides a benefit to an accused, it can be beneficially construed in favour of the accused to cover the case of life imprisonment as well. In Qadir and Bashir v State (Cr. As. Nos. 142 and 143 of 1987), decided by a Bench of three Judges on 28‑4‑1991), this Court has construed the said section beneficially to include cases of life imprisonment. But section 35 (1) of the Code cannot be so beneficially construed, for it would work on injustice by placing life imprisonment in the category of imprisonment to which is only intended for a term.

10. The next question is, what is the effect of proviso (a) to subsection (2) of section 35 of the Code on the same matter? Does it imply that since all consecutive sentences shall not run for more than fourteen years, a sentence of life imprisonment awarded to an accused cannot be ordered to run consecutively with any other or similar sentence. My learned brother Shafiur Rahman, J. has dealt with this matter in some detail and I need not drag a greater length of chain. I agree with his view that section 3~(2) is only intended to cover cases dealt with by Magistrates and that it does not apply to cases dealt with by the Sessions Judge or the High Court. Accordingly, the earlier view expressed by this Court in Javed Sheikh's case, Juma Khan's case, Muhammad Ittefaq's case and Khan Zaman's case as regards the effect of section 35(2), proviso (a) of the Code, not being correct, also requires to be reviewed and I support my learned brother in that respect.

11. I would now turn my attention to the question of punishment. Chapter III of the Pakistan Penal Code deals with the question of punishments, whereas Chapter III of the Code of Criminal Procedure deals the powers of Courts to impose the same. I need not discuss in detail the rationale of punishments, other than state that it is the sacred and mandatory duty of the Courts to determine the right measure of punishment, so that no injustice is done. Though the nature of punishment may sometimes be circumscribed, generally the range available or offered is sufficient to place the case in the field of judicial discretion ' which has to be exercised, subject to accepted and sound judicial considerations. However, the necessity of proportion between the offence and penalty and some balance between the motivating factors and the result produced, have to be kept in mind, apart from so many other factors, which keep rising separately in each case and cannot admit of any codification. Last but not least, the duty of the trial Court to finally address itself to the question whether the sentences awarded should run concurrently or consecutively, irrespective of the rule contained in section 35(l) of the Code, and whether the detention undergone by an accused during his trial should be treated as period spent by him as a convict, for the purposes of the benefit available under section 382‑B of the Code, are as much mandatory for determination as the question of punishment itself. Basically, they are matters ancillary to the question of punishment, but otherwise highly important. Where there is a failure on the part of the trial Court to determine these questions, difficulty would arise, because of section 369 of the Code. However, during appeal or revision before the High Court, the High Court could itself, examine these questions, subject to limitations, if any, provided by law and principles laid down by this Court, and determine these matters. Again, where by inadvertence there is failure on the part of the High Court to determine these questions, I cannot see any reason why resort cannot be had to section 561‑A of the Code to cure the failure, in order to secure the ends of justice. Surely an attempt to cure inadvertent omissions in the nature of errors ancillary to punishment cannot be allowed to be frustrated by section 369 of the Code. Section 369 falls under Chapter XXVI of Part VI of the Code, whereas sections 424 and 430 fall in Chapter XXXI of Part VII of the Code. Under section 424, the rules contained in Chapter XXVI as to the judgment of a Criminal Court of original jurisdiction mandatory apply, so far as may be applicable, to the judgment of any Appellate Court other than a High Court. Under section 430, judgments and orders passed by an Appellate Court upon appeal are treated as final, except in the cases provided for in section 417 and Chapter XXXII. Section 417 deals with appeals against acquittal and Chapter XXXII deals with references and revisions. In view of sections 424 and 430, the bar of section 369 only applies to judgments of the High Courts given in the exercise of their criminal original jurisdiction, but not if given in the exercise of their criminal appellate jurisdiction. In Gulzar Hasan Shah v. Ghulam Murtaza (PLD 1970 SC 335) this Court, whilst dealing with the question whether an order of cancellation of bail of an accused could be recalled by the High Court, observed that "in rare and exceptional cases the High Court has inherent power to revoke, review or alter its own earlier decisions in cases which are not governed by sections. 369, 424 and 430 with a view to give effect to any order under the Code or to prevent the abuse of the process of any Court or otherwise to secure the ends of justice". This view was expressed after the learned Judge expressed the rule that he was conscious of the fact that general principles of finality of judgment attached to the decisions or orders of the High Court passed in criminal cases. This view was followed in Amiruddin v. State (PLD 1977 SC 602), which also related to a bail matter, and by a Full Bench of the Lahore High Court in Zulfiqar Ali v. State (PLD 1984 Lah. 461), which held that the High Court under section 561‑A could grant relief under section 382‑B of the Code in a case decided by itself where inadvertently it had omitted to grant relief under the latter section. Section 561‑A recognizes the inherent powers possessed by a High Court to secure the ends of justice and as a Court of law and justice the High Court has inherent jurisdiction over its own record and, to quote Muhammad Munir, C.J., from Crown v. Habibullah (PLD 1952 Lah. 587 at p.600) "if any order to supply the omission of the statutory direction is necessary, I have no doubt we have jurisdiction to make such order even though we might have become functus officio after signing our judgment and therefore incompetent to alter or review it." The power of the High Court to supply the inadvertent omission cannot therefore be denied to the High Court. Finally, where by inadvertence there is failure on the part of the Supreme Court to determine these questions, its own inherent powers under Order XXXII, rule 6 of its own Rules could be availed to secure the ends of justice.

12. 1 now turn to the question of commutation. The power to commute a sentence, whether under the Constitution, the Pakistan Penal Code or the Code of Criminal Procedure is vested either in the President, the Federal Government, or the Provincial Government within whose limits the offender has been sentenced. This power is within the field of the executive and definitely outside the scope of the judiciary. Presently there is no provision in the Constitution, the Pakistan Penal Code or the Code of Criminal Procedure which provides that the commuted sentence or sentences shall run concurrently, with others, if any awarded by the Court. The view of my learned brother that where a person is convicted at one trial for two or more offences and if one of them is sentence of death and the same is commuted to life imprisonment, "in the absence, of any provision directly applying to the case, the sentence so commuted shall be required to be undergone concurrently and not consecutively', impliedly accepts the fact that since sections 35 and 397, Cr.P.C. are not applicable, the rule stated in para. 8 applies as the case is taken out of the ambit of section 35 (1) of the Code.

13. Where a commutation is granted, the convict can always approach the person or authority granting the commutation to permit the commuted sentence or sentences to run concurrently, with the other sentences, if any awarded. The person who has the power to commute, also has the power to order that the same with others, may run concurrently. But this, however, does not prevent the High Court or the Supreme Court to examine the original sentences awarded, to see whether they should run concurrently or not. Where a sentence is commuted, it only acts as a substitute for the earlier sentence awarded. If during such examination, a sentence has already been commuted, it cannot deter the High Court or the Supreme Court from examining whether the sentences, as awarded before the commutation, deserve to run concurrently, and if it rinds that they should run concurrently, it can order accordingly.

14. In view of the above, I would deal with each case as follows‑.‑‑

(i) Cr. M. No. 15‑R of 1988 in Criminal Appeal No.144‑R of 1979

I agree with the view Of my learned. brother that this petition be dismissed.

(ii) Cr. M. No.18‑R of 1990 in Criminal Appeal No.133 of 1981

As stated in para. 8 above, the sentences should run concurrently.

Even otherwise the same Bench that heard Criminal Appeal No.133 of 1981 can examine the question whether it had not by inadvertence failed to order the sentences to run concurrently, in which case it can order accordingly under its inherent powers. This Bench should not go into this matter.

(iii) Cr,P.L.A. No.169‑R of 1989

I agree that this petition b6 admitted and the appeal be placed before the same Bench that heard the case finally in the Supreme Court so as to examine the question whether it had not by inadvertence failed to examine the question, or by inadvertence failed to order the sentences, as awarded before the commutation, to run concurrently, in which case it can open up the question or order accordingly under its inherent powers.

(iv) Criminal ApReal No.164 of 1987

This appeal has already been admitted to consider the legality of the sentence imposed. It should be placed before a Bench to determine this matter, so that this Court can also determine the ancillary question whether in the circumstances of the case, the sentences shQuld be ordered to run concurrently.

(v) Criminal Appeal No.176 of 1986

The High Court on the basis of Javed Sheikh's case has allowed the sentences to run concurrently. The State's appeal against this order is now before the Supreme Court.

As stated in para. 8 above, the sentences should run concurrently. The respondents can support the High Court's order on facts, even if the legal basis fails. In appeal the Supreme Court cannot shut its eyes to the question of legality of the sentence. This appeal should be placed before a Bench to dertemine this matter.

(vi) Criminal Appeal No.186 of 1986

This appeal has been admitted on merits. It should be placed before a Bench for necessary disposal.

(vii) Civil Appeal No.440 of 1986

Same view as in (v) above.

(viii) Civil A1212eal No.441 of 1986

There was a direction by the trial Judge. that if the sentences Of death were altered to sentences of imprisonment, the other sentences awarded would run concurrenlty. The High Court allowed appeal I.C.A. 252 of 1983 in view of this fact and Javed Sheikh's case. The State's Appeal is now before the Supreme Court. There being no merit in this appeal, the same be dismissed.

(ix) Civil Appeal No.442 of 1986

I agree with the view of my learned brother that the appeal be dismissed.

SALEEM AKHTAR, J.‑‑‑I have read the exhaustive judgments proposed by my learned brothers Shafiur Rahman, J. and Rustuin S. Sidhwa, J. So far question of reviewing the decision given in Javaid Shaikh v. The State (1985 SCMR 153) is concerned, I entirely agree with my learned brother Shafiur Rahman, J. for the reasons stated in paragraph 13 of the judgment.

2. With respect I have not been able to persuade myself to the view that where a person is convicted at one trial for two or more offences one of them being death sentence and if the same is commuted to life imprisonment then sentence so commuted shall be required to be undergone, concurrently and not consecutively. The remission or commutation of sentence is an executive act.

Section 53 of the P.P.C. provides different types of punishments while section 54 empowers the Federal or the Provincial Government to commute punishment for any other punishment provided by this Code in case in which the sentence of death shall have been passed. Section 55 confers the power to commute the sentence of imprisonment for life to punishment of imprisonment of either description not exceeding fourteen years. Section 401, Cr.P.C. confers a power on the Provincial Government which may at any time unconditionally or upon any conditions which the person sentenced accepts suspend the execution of his sentence or remit the whole or any part of the punishment to which he has been T sentenced. Subject to section 403‑B and without prejudice to sections 54 and 55, P.P.C. the Provincial Government is empowered under section 402, Cr.P.C. to commute the sentence for any other sentence mentioned in it. Under *section 402‑A, Cr.P.C. the powers conferred under sections 401 and 402 may in the case of sentence of death be exercised by the President. The President and the Governor have also the power to remit, reprieve, and grant pardon under the Constitution but it is not necessary to deal with it any further.

3. Reference to the aforestated provisions has been made to illustrate the source from where the power to remit or commute the sentence is derived by the Provincial or the Federal Government. The power conferred on the Government is discretionary and executive in nature. These provisions do not empower the Government to reverse, set aside or alter the judgment of the Court convicting and sentencing a person to a punishment. In G.L. Bhattacharya v. The State PLD 964 SC 503, the President had passed an order to reduce the sentence. Cornelius, CJ., while referring to Article 18 of the Constitution of 1962 (similar to Article 45 of the Constitution of 1973) observed as follows:‑‑

"It is plain that the order was made without reference to that Article for it states that the President had been pleased 'to reduce the sentence' while Article 18 gives power to 'grant pardons, reprieves and respites, and to remit, suspend or commute any sentence passed by any Court, tribunal or other authority, but does not empower the President to reduce a sentence. In fact, the function of determining a sentence is exclusively a judicial function and equally, it is a purely judicial function to enhance or reduce a sentence."

The enhancement or reduction of a sentence is a judicial function but once remission or commutation of sentence is granted partly, by any authority, the overall effect is that the convict is not inflicted with the entire punishment awarded to him. The judgment and sentence remains in the field for all purposes except that its infliction or execution is partly given up. In these circumstances it is to be considered whether a partial remittance or commutation as ordered by the Government will entitle the convict to claim that the sentences may run concurrently. Section 35 clearly provides that where the Court does not specifically mention in the order that the sentence shall run concurrently they will run consecutively. This is the exclusive jurisdiction of the Court to order the sentences to run concurrently. Then mere fact that the Government has decided to give up the infliction of punishment partly will hardly afford a ground to the convict to claim that the sentences should now run concurrently. Where the death sentence is commuted to life imprisonment, the judgment of the Court is not altered. Therefore, it has to be executed to the extent of commutation which though not legally but in effect may Amount to substitution by not enforcing the sentence ordered by the Court.

4. in view of the foregoing discussion the individual matters which require disposal may be dealt with as under:‑‑

1 agree with the judgment of my learned brother Shafiur Rahman, J. in the following matters:

(i) Cr. Miscellaneous Petition No. 15‑R of 1988 in Criminal Appeal

No.,144‑R of 1979.

(ii) Cr. Miscellaneous Petition No. 18‑R of 1990 in Criminal Appeal No. 133 of 1981.~

Criminal Appeal No. 164 of 1987

(iv) Criminal Appeal No. 186 of 1986

(v) Civil Appeal No. 441 of 1986.

(Vi) Civil Appeal No. 442 of 1980.

2.

Criminal Petition for Leave to Appeal No. 169‑K of 19 ‑‑‑ This petition be admitted to examine the question whether in absence of any specific direction by the Court can after commutation or remission of sentence the Court subseq~ently issue direction that the sentence, of imprisonment should run concurrently.

Criminal Appeal No. 176 of 1986.‑‑‑As Javaid Shaikh's case has been reviewed, this appeal should be placed before a Bench to consider the Above question.

Civil Appeal No. 440 of 1989, ‑Same view as above,

ORDER OF THE COURT

The Court is unanimously of the view that the judgments of this Court in Javed Shaikh v. The State (1985 SCMR 153), Juma Khan and another v. The State (1986 SCMR 1573), Muhammad Ittefaq v. The State (1986 SCMR 1627) Id.a& Khan Zaman and others v. The State (1987 SCMR 1382) require review and are hereby reviewed to hold that proviso (a) to subsection (2) of section 35, Criminal Procedure Code does not apply to cases of sentence awarded by the Sessions Court in original trial. it does not, therefore, apply to cases of imprisonment for life imposed in murder trial.

The Court by majority of opinion holds that‑

(i) the sentence of life imprisonment, unless ordered to rut, concurrently under subsection (1) of section 35, Cr.P.C. will run consecutively in view of its quantification in terms of years under section 57 of the Pakistan Penal Code; and

(ii) the executive order of commutation of sentence of death into life imprisonment takes effect forthwith making such sentence to run concurrently with any other sentence ordered by the Court.

The Court unanimously holds that Criminal Miscellaneous Petition No.15‑R of 1988 in Criminal Appeal No. 144‑R of 1979 and Civil Appeals Nos. 441 and 442 of 1986 be dismissed and are hereby dismissed and, that Criminal Appeal No. 186 of 1986 shall await disposal on merits.

By majority view, the Court holds that:

Cr. M.P. No.18‑R of 1990 in Cr. A. 133 of 1981 stands dismissed.

(ii) Cr‑P.LA. No. 169‑R of 1989 is converted into appeal and allowed to the extent that only sentence commuted to life, imprisonment shall run concurrently with the other sentences awarded in the case. As regards the, prayer of benefit under section 382‑B, of the Criminal Procedure Code, it cannot be claimed outside the judgment and independently of ‑it from the Supreme Court.

(iii) Criminal Appeal No. 164 of 1987 to the extent it challenges the consecutive sentence stands dismissed. In other respects it will await hearing.

(iv) Criminal Appeal No. 176 of 1986 is allowed only to the extent that only commuted sentence of life imprisonment will run concurrently and not the others which are governed by section 35(l) of the Criminal Procedure Code.

(v) Criminal Appeal No. 440 of 1986 is dismissed.

M.BA./B‑187/S Order accordingly.

.

THE END