GHULAM SARWAR Versus THE STATE
This constitutional petition was filed by a convict seeking to have his multiple sentences, awarded in a criminal trial, run concurrently rather than consecutively. The petitioner had been convicted under sections 302 and 324 of the Pakistan Penal Code 1860, and his death sentence was previously commuted to life imprisonment by the High Court, which also granted the benefit of section 382-B of the Code of Criminal Procedure 1898. The core legal question was whether the High Court, in its constitutional jurisdiction, could rectify a bona fide omission in a previous appellate judgment that failed to specify whether sentences should run consecutively or concurrently under section 35 of the Code of Criminal Procedure 1898. The Court held that the omission was inadvertent and that the sentencing bench had intended to extend all possible benefits to the petitioner. Consequently, the Court exercised its inherent powers under section 561-A of the Code of Criminal Procedure 1898 to direct that the sentences run concurrently. The principle laid down is that where a sentencing court fails to specify the nature of sentences for multiple offences, the High Court may rectify such an omission to meet the ends of justice.
- Can the High Court exercise inherent powers to direct that sentences run concurrently when the original appellate judgment failed to specify the nature of the sentences?
- Does the failure of a trial or appellate court to specify whether sentences are to run consecutively or concurrently constitute a bona fide omission remediable by the High Court?
- Is the High Court barred by section 369 of the Code of Criminal Procedure 1898 from rectifying an omission regarding the nature of sentences in a previous judgment?
- Section 302, Pakistan Penal Code 1860
- Section 324, Pakistan Penal Code 1860
- Section 148, Pakistan Penal Code 1860
- Section 149, Pakistan Penal Code 1860
- Section 71, Pakistan Penal Code 1860
- Section 35, Code of Criminal Procedure 1898
- Section 369, Code of Criminal Procedure 1898
- Section 382-B, Code of Criminal Procedure 1898
- Section 561-A, Code of Criminal Procedure 1898
ORDER
Brief facts of the case are that petitioner was tried by the learned Additional Sessions Judge, Lodhran vide order, dated 2-8-1997 in case F.I.R. No. 82 of 1994 under sections 302, 324, 148, 149, P.P.C. He was convicted under section 302, P.P.C. and sentenced to death and a compensation of Rs:50,000 to be paid to the legal heirs of the deceased. In case of default in the payment of compensation, he was also directed to undergo S.I. for six months. He was also convicted under section 324, A P. P. C. for causing injuries to Umerwada P.W. and sentenced to seven years R.I. He was also directed to pay Daman Rs.5,000 to the injured and in case of default, he shall suffer one month' S.I. He filed Criminal Appeal No. 295 of 1997, which was heard alongwith the Murder Reference No. 202 of 1997 by this Court and vide judgment, dated 27-9-1999, while; replying to the Murder Reference in the negative, his death sentence was not confirmed. It was observed by this Court that since this is a case of family honour, therefore, the petitioner deserved leniency and his sentence was converted from death to life imprisonment. He was also extended the benefit of section 382-B, Cr. P.C.
2. Through the instant Constitutional petition, petitioner prays that the sentence awarded to him under various sections of the P.P.C. may be directed to run concurrently as the learned Bench hearing the appeal had omitted to make any observation with respect to the nature of sentence i.e. whether the same shall run consecutively or concurrently as required under section 35, Cr.P.C.
3. It is argued by the learned counsel for the petitioner with reference to 2002 MLD 1435 that in Constitutional jurisdiction this Court has the jurisdiction to convert the nature of sentence. It is further argues that the Learned Bench hearing the appeal and murder reference had consciously given all possible benefits to the petitioner keeping in view the circumstances of the case. However, neither the petitioner could point out at the relevant time nor the Court itself attended this aspect of the case, therefore, it appears that the same had escaped sight of the Court which deserves to be attended now.
4. On the other hand, learned A.A.G. has opposed this petition by maintaining that the exercise being sought to be taken up by this Court amounts to review of judgment, which according to him is not permissible under section 369, Cr.P.C.
5. We have considered the arguments of the learned counsel for the parties.
6. The relevant part of the judgment, whereby the learned Bench hearing the murder reference and the petitioner's appeal had converted his sentence observed as follows:---
"This is a case of family honour, therefore, he deserves leniency and his sentence is converted from death to imprisonment for life. He is also allowed the benefit of section 382-B, Cr.P.C."
7. The above para indicates that keeping in view the circumstances of the case the Bench was all out to maintain the sentence but at the same time also wanted to extend all possible benefits under the law to the petitioner. Section 35 is the relevant provision to determine the said question, which is reproduced as follows:---
Sentence in case of conviction of several offences at one trial .-- (1) When a person is convicted at one trial of two or more offences the Court may, subject to the provisions of section 71 of the Pakistan Penal Code sentence him, for 'such offences, to the several punishments prescribed therefore which such Court is competent to inflict, such punishment when consisting of imprisonment to commence the one after the expiration of the other in such order as the Court may direct unless the Court directs, that such punishments shall run concurrently.
(2) ................................ ...................... ............. ...........
(3) ................................ ............... ............. ..
According to subsection (1) if the Court intends that the sentences should run consecutively, it is required from the Court who has tried the accused for several offences to specify in the judgment as to which of the sentences would start running first and which sentence will start after the completion of the first sentence thereafter, so on and so forth. In the instant case the Bench did not make any such observation; meaning thereby that the Court never intended to hold the sentences to be consecutive, which further strengthens the arguments of the learned counsel for the petitioner that the Bench hearing the appeal was extending all benefits to the petitioner except maintaining his conviction of life sentence. However, at the same time under section 35 it is also required that if the Court intends that the sentences should run concurrently a specific order should be passed in that regard. In the instant case, there is no such order as well. Meaning thereby that the Bench hearing the appeal was neither appraised by the petitioner or his counsel nor it could be taken note of by the Bench itself as to how the sentences will run. Therefore, it appears that it was a bona fide omission which requires to be taken note of to meet the ends of justice for which this Court has the inherent power under section 561-A, Cr.P.C. Resultantly, while exercising the same we are inclined to allow this petition and direct that the sentence awarded to the petitioner shall run concurrently.
H.B.T./G-38/L Petition Allowed.