MUHAMMAD ASHFAQ Versus State

ORDER

This application under section 561-A of the Cr.P.C. is filed on behalf of Muhammad Ashfaq petitioner/appellant with the following prayer:--

In view of the above submissions it is most humbly prayed that this Honourable Court may very graciously be pleased to accept this petition and pass an order for running both the sentences under section 302/34, P.P.C. and 392, P.P.C. concurrently in the interest of justice.

2. The matter pertains to case F.I.R. No.163, dated 3-12-1996 registered under section 302/34, P.P.C. and under section 17 of Offences Against Property (Enforcement of Hadd) Ordinance VI of 1979, at Police Station Qila Kalarwala, District Sialkot.

3. Vide his judgment dated 29-3-2000 , the learned Additional Sessions Judge, Sialkot , convicted the appellant under section 302/34 and 392, P.P.C. and sentenced him as follows:--

(1) Under section 302/34, P.P.C. to death with a compensation of Rs.50,000 to be paid to the legal heirs of the deceased, in default thereof to undergo 6 months S.I.

(2) Under section 392, P.P.C. to 14 years R.I. with a fine of Rs.25,000, in default thereof to undergo 1 year s R.I. The appellant/applicant was extended the benefit of section 382, Cr.P.C.

4. This sentence of death was later reduced to life imprisonment by a Division Bench of this Court presided over by our learned brothers Bashir A. Mujahid and Abdul Shakoor Paracha, JJ., who vide their judgment dated 20-4-2004 came to the following conclusion:--

. Apart from recovery of gun his case is at par with his co-accused who have been awarded life imprisonment and the prosecution has not filed any revision petition for enhancement of sentence of the co-accused, therefore, while maintaining the conviction we reduce the sentence of Muhammad Ishfaque from death to imprisonment for life which will meet the ends of justice. The sentence of other appellants is maintained. The punishment of fine and sentence in lieu thereof is maintained. However, we withhold benefit of section 382-B, Cr.P.C. as the accused/appellants committed a heinous offence of highway robbery and murdered of an innocent person. The offence is rising in the society.

The appeal is dismissed with the above modification in the sentence of Muhammad Ishfaque.

5. In the following cases, we find almost a similar situation emerging where on account of one occurrence, different offences were made out calling for different sentences and trials and where the superior Courts felt that the provision of section 397 of the Cr.P.C. were applicable and ordered the running of the sentences concurrently rather than consecutively. These cases are:--

(i) AIR 1929 All. 585; (ii) AIR 1931 Bom. 529(1); (iii) AIR 1961 Pat. 138; (iv) AIR 1964 Andhra Pradesh 449; (v) Zakir Ali v. The State PLD 1977 Kar. 833; (vi) Altaf Hussain v. The State 1987 PCr.LJ 719; (vii) Khan Zaman and others v. The State 1987 SCMR 1382; (viii) Gul Muhammad and others v. State 1999 SCMR 2756 and (ix) Javed Sheikh v. The State 1984 SCMR 153 .

6. In the case of Juma Khan and another v. The State 1986 SCMR 1573, it was held:--

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 Sheikh v. The State 1984 SCMR 153).

7. 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 Court in view of the powers vesting under section 426 of the Cr.P.C.

8. Under the circumstances, this Court, directs that the sentences in both the counts and tried together shall run concurrently.

9. C.M. stands disposed of.

H.B.T./M-865/L Application allowed.