Qadar Khan Versus State

Salah-ud-Din, J .--- This order is directed to dispose of writ petition filed by petitioner/convict namely Qadar Khan, under Article 199 of Constitution of Islamic Republic of Pakistan, 1973, with the following enumerated prayer: -

"In view of the above, it is humbly prayed that on acceptance of this petition, necessary correction/altercation in the judgment/order mentioned above may be made to the extent that both the sentences shall run concurrently and directions may also graciously be issued to the jail authorities for concurrent running of sentences awarded to the convict in Cr.A No. 250-M/2018 decided on 04.02.2021.

OR

Any other relief for the interest of justice, if deems fit by this Honorable Court may also be awarded."

2. Arguments of learned counsel for petitioner/convict as well as learned Addl: A.G appearing on behalf of State were heard and available record perused with their able assistance.

3. Record reveals that the matter-in-issue came into being when petitioner/convict namely Qadar Khan was charged in a criminal case bearing FIR No. 149 dated 09.11.2014, registered under section 302 P.P.C. at Police Station Jaggam, District Dir Upper by complainant namely Shahab for committing dual murder of his own wife namely Mst. Balqees Bibi and one Mian Muhammad (father of complainant). Upon conclusion of a full-fledged trial before the Court of learned Additional Sessions Judge/Izafi Zila Qazi, Dir Upper at Warai, petitioner was awarded a maximum dose in the form of death sentence, on two counts, on the strength of judgment of conviction dated 04.10.2018. Feeling aggrieved from the aforesaid judgment of his conviction, the then appellant now petitioner has approached to this Court by filing Criminal Appeal No. 250-M of 2018, which was partially allowed by this Court through its judgment dated 04.02.2021 in the following terms: -

"Resultantly, this appeal is maintained however his sentence is commuted from death to life imprisonment as Ta'zir on two counts with benefit of section 382-B, Cr.P.C. The sentence of compensation of Rs. 500,000/- imposed upon the appellant by learned trial Court for each deceased shall remain intact and the said amount, if realized as arrears of land revenue, shall be paid to legal heirs of both the deceased in accordance with law, in case non-payment of the compensation, the appellant shall further suffer 6/6 months consecutively in case of each default. Murder Reference No. 10-M/2018 is answered in negative."

It is pertinent to mention here that in the aforementioned judgment of this Court no clarification or findings have been rendered about life imprisonment of petitioner on two counts as Ta'zir in terms that as to whether his dual sentence of life imprisonment shall run concurrently or consecutively. Being confronted with the aforesaid ambiguity existed in the judgment of this Court, petitioner/convict has made resort to this Court with the sole prayer that his sentence of life imprisonment as Ta'zir on two counts may be ordered to run concurrently.

4. Learned counsel representing the petitioner/convict argued that this Court has got ample powers under section 35, read with sections 369 and 397 Cr.P.C to make an order about altering or modification of a sentence awarded to an accused person. They further argued that this issue has since been laid to rest by apex Court in a good number of judgments that when multiple sentences were awarded to an accused person in same trial or in a separate trial or in subsequent trial, the same shall run concurrently instead of consecutively. They also added that this Court while deciding appeal of convict/petitioner did not attend this material aspect of the case, which could at the most be termed as typographical mistake/error, therefore, this Court has got power and jurisdiction to rectify the same mistake, even while sitting in its extraordinary writ jurisdiction. In order to boost their arguments, learned counsel placed reliance on the case law titled "Muhammad Sharif v. The State" (2014 SCMR 668), Shah Hussain v. The State" (PLD 2009 SC 460) and "Rahib Ali v. The State" (2018 SCMR 418).

5. As against that, learned Addl: A.G for the State argued that in eventuality when specific order has not been made qua sentences of an accused person as to whether it would be concurrent or consecutive then it would be presumed that a Court of law in its own wisdom and estimate impliedly uphold that due to severity of an offence multiple punishments of an accused person would run consecutively, as in context of the case in hand, petitioner/convict has been charged for dual murder of two innocent individuals including his own wife, therefore, his sentence requires no interference. Learned Addl: A-G also questioned the delayed filing of petition before this Court on behalf of convict, as the impugned judgment of this Court was handed down on 04.02.2021 whereas the writ petition in hand was filed before this Court on 04.02.2023 i.e. after long delay of almost two years.

6. It is evident from bare perusal of the available record that since the present petitioner/convict has faced trial in a single criminal bearing FIR No. 149, therefore, the only question for determination before this Court would be as to whether his sentence of life imprisonment as Ta'zir, on two counts, shall run concurrently or consecutively?

7. First of all, it is an admitted fact surfacing on face of record that in the aforementioned judgment of this Court, concluding part of which is reproduced above, no clarification whatsoever has been furnished in terms that as to whether life imprisonment of petitioner, on two counts, in a single trial, shall run concurrently or consecutively. In order to answer the aforesaid query cropped up for consideration of this Court, it would be relevant to reproduce sections 35 and 369 Cr.P.C of Code of Criminal Procedure, 1898, which read as under: -

35. (1) 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 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) 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:

Maximum term of punishment.

(a) in no case shall such person be sentenced to imprisonment for a longer period than fourteen years;

(b) if the case is tried by a Magistrate, as....... 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 convictions for several offences at one trial shall be deemed to be a single sentence.

Section 369 Cr.P.C

Section 369 of the Criminal Procedure Code (Cr.P.C.) of Pakistan states that a court cannot alter or review a judgment, except to correct a clerical error.

So far as concurrent or consecutive running of sentences are concerned, section 397 Cr.P.C empowers a trial Court or an appellate Court to make an order that sentences in two different trials shall run concurrently or consecutively. Said section is reproduced hereunder for ready reference: -

"Section 397 Cr.P.C

Sentence on offender already sentenced for another offence.

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

One could get an impression from bare reading of the aforesaid provisions of law that no doubt discretion lies with a Court to make an order in respect of sentences in a single trial to be run concurrently or consecutively, however, such a discretion is subject to the condition that a Court of law must furnish reasons in writing in respect of running of sentences to be run consecutively qua severity of the offence etc. and in eventuality when such reasons have not been furnished or judgment is silent in this particular aspect of a case, then in that scenario, punishment of an accused person even comprising of multiple sentences would be considered concurrent in nature instead of consecutive.

8. Charitable view is normally taken by Courts of law, in the matter of sentences affecting deprivation of life or liberty of a person while exercising enabling powers under section 35 and section 397 Cr.P.C, as held by Hon'ble apex Court in case titled "Rahib All v. The State" reported as "2018 SCMR 418". Relevant part of judgment is reproduced hereunder for ready reference: -

"13. In view of the discussion made above, position that emerges is that the Courts in Pakistan generally take charitable view in the matter of sentences affecting deprivation of life or liberty of a person and unless some aggravating circumstances do not permit so, liberally exercise enabling power under section 35 and section 397, Cr.P.C. respectively to order concurrent running of sentence in one trial and so also consolidation of earlier sentence while handing down sentence of imprisonment in a subsequent trial."

In the aforesaid judgment of apex Court, it was also held that: -

"Power of High Court/Supreme Court to order sentences awarded in two separate trials to run concurrently. High Court and the supreme Court had jurisdiction under section 561-A Cr.P.C read with section 35 or 397 Cr.P.C, as the may be, to order multiple sentences awarded in same trial or in separate or subsequent trials to run concurrently."

Hon'ble apex Court while faced with a similar situation in case of Mst. Shahista Bibi and another v. Superintendent, Central Jail Mach and 2 others reported as PLD 2015 Supreme Court 15 has held as follows: -

"The plea of the learned counsel for the State that previously the review petition of the appellant was dismissed, therefore, it should be construed as a bar to entertain a second review petition being barred by law, is misconceived one.

We have attended to this plea but it is hardly entertainable being bereft of legal grounds and is based on erroneous reasons of the law and the rules on the subject because the previous review petition was with regard to the commutation of sentence from death to life. Even otherwise, for doing substantial justice in a true sense in hardship cases like the present one, technicality of law and rule shall not operate as an absolute bar in the way of the Court because giving preference to the technicality of law would defeat substantial justice and denial of justice to a person entitled to it, would be worst kind of treatment to be meted out to him and that too by the apex Court of the country.

14. If the sentences are allowed to run consecutively, the appellant/appellants, as earlier discussed, would meet natural death during the imprisonment. This undeniable fact was even not disputed by the learned counsel for the State. The very object, for which the Government of Pakistan commuted the sentences of death to life imprisonment and the benefit so accrued to the accused would be denied to him/them in this way and that concession, thus given, would stand nowhere and may evaporate within no time like air bubbles vanish in the air within a twinkle of an eye."

Hon'ble Apex Court in the case of Ahmad and another v. Shafiq-ur-Rehman and another reported as 2013 SCMR 583 had ordered concurrent running of sentences, in the following manner:

"4. All the offences for which the appellant had been convicted by the learned courts below had been committed in one and the same transaction and, thus, it shall serve the interests of justice if all the sentences of imprisonment passed against the appellant are ordered to run concurrently with each other. We understand that while reducing the appellant's sentence from death to imprisonment for life the learned Division Bench of the Lahore High Court, Lahore had inadvertently omitted ordering running of the sentences of imprisonment concurrently and we may, thus, supply the omission in that regard. This appeal is, therefore, dismissed as far as the convictions and sentences of the appellant are concerned but it is ordered that all the sentences of imprisonment passed against the appellant shall run concurrently with each other. This appeal is disposed of in these terms."

Further reliance may also be placed on "Muhammad Sharif v. The State" reported as 2014 SCMR 668 and case titled "Shah Hussain v. The State" reported as PLD 2009 S.C. 460.

Needless to highlight that in the case in hand the petitioner/convict had faced trial in a single criminal case, whereas as per ratio-decidendi expounded in the referred to above judgments of apex Court an accused person involved in separate or subsequent trials could also be awarded a benefit in terms that his/her multiple sentences shall be run concurrently instead of consecutively.

9. No doubt, the matter was brought before this Court at a very belated stage, however, this Court is having its inherent jurisdiction vested in it under section 561-A Cr.P.C as well as its constitutional jurisdiction vested in it by Article 199 of the Constitution. Section 561-A Cr.P.C is itself of wider amplitude wherein any order may be passed in the interest of justice and for preventing the abuse of process of law. Same was the case with Article 199 of Constitution which empower this Court even in a larger and much broader sense to do substantial justice qua redressal of an aggrieved person, especially, when he has no one to pursue his/her cause, being confined behind the doors of jail, therefore, the subject delay in view of the peculiar facts and circumstances of the case is immaterial.

10. In view of the above discussion and exposition of law, the instant writ petition is allowed and the impugned judgment/order of this Court dated 04.02.2021, rendered in Cr.A. No. 250-M of 2018 is modified/rectified to the extent that the sentence of life imprisonment awarded to petitioner/convict under section 302 (b) P.P.C., on two counts as Ta'zir shall run concurrently. Rest of the impugned judgment of this Court shall remain intact. Office shall send copy of this order/judgment to the Superintendent Central Prison Mardan for intimation/necessary action.

MH/104/P Petition allowed.