QAISER ABBAS Versus State

MUHAMMAD HASHIM KHAN KAKAR, J.--- The petitioner, Qaiser Abass, is purportedly responsible for the shooting and deaths of Mst. Faiza Bibi and Abiha (deceased) in an incident that occurred at 7:45 a.m. on 23.06.2011 within the context of a motive that one month prior to the occurrence a quarrel took place between deceased Mst. Faiza Bibi (complainant's wife) and Mst. Shameem Bibi (sister of the petitioner) due to such grudge the deceased were done to death. With these allegations, the petitioner was arrested in case FIR No . 828 dated 23.06.2011, registered at Police Station Allama Iqbal Town, Lahore. The petitioner was convicted by the Trial Court on two counts of the offense under section 302(b) of the Pakistan Penal Code, 1860 ("P.P.C.") after a regular trial. The Trial Court also stipulated that the two life imprisonment sentences should be served consecutively, rather than concurrently. The petitioner was also ordered to provide compensation to the lawful heirs of the deceased in accordance with section 544-A of the Code of Criminal Procedure, 1898 ("Cr.P.C.") . The convictions and sentences in question were subsequently upheld by the High Court in appeal.

2. Mr. Zulfiqar Khalid Maluka, the learned counsel for the petitioner, at the outset made a categorical statement before this Court that he does not contest the convictions recorded by the Trial Court on merits . It is submitted that the petitioner would be content if this Court were to modify the sentence to the extent that the two life imprisonment sentences are ordered to run concurrently rather than consecutively. The learned counsel attempted to substantiate his argument by arguing that the petitioner could not have been sentenced to more than a life sentence in light of the bar contained in proviso (a) to section 35 Cr.P.C. He cited the case of Shah Hussain v. State (PLD 2009 SC 460) to support his assertion. The petitioner's disposition was requested by learned counsel in accordance with the aforementioned restricted supplication..

3. Conversely, Mr. Muhammad Jaffer, learned Additional Prosecutor General, vehemently opposed the supplication. He argued that the murders in question were perpetrated in the most brutal, savage, and heinous manner possible. He argued that the circumstances of the case do not justify any leniency in the matter of sentence and the Trial Court's discretion in directing the sentences to run consecutively is entirely justified and warrants no interference. He also stated that the controversy concerning the consecutive or concurrent running of sentences has already been resolved by a larger bench of this Court in the case of Bashir v. State (PLD 1991 SC 1145) .

4. This Court is not obligated to re-evaluate the entire evidence as the convictions have not been challenged on its merits. The convictions that were recorded by the Trial Court and upheld by the High Court is, therefore, maintained and upheld.

5. The learned counsel tried to canvass that in view of the bar contained in proviso (a) to section 35 Cr.P.C. the petitioner could not have been sentenced to more than a life span, but such argument cannot prevail for the simple reason that such controversy has already been set at rest by a larger bench of this Court in the case of the Bashir (supra), where by it was laid down that proviso in question does not apply to sentences awarded by the Sessions Judge in the original trial, as its application was limited to the trial of cases by Magistrates as well as Assistant Sessions Judges, wherever in existence, therefore; except the case in which the sentence of death is commutated/ commuted under an executive order, the sentences of life imprisonment unless ordered to run concurrently under subsection (1) of section 35 Cr.P.C. will run consecutively in view of its qualification in terms of order under section 57, P.P.C.

6. The sole question that remains to be resolved is whether paragraph-40 of Shah Hussain's case can be considered a binding precedent for the interpretation of section 35 Cr.P.C. This would displace the rule that was previously established by a five-member larger Bench in the case of Bashir (supra), which pertains to the consecutive or concurrent running of sentences awarded in a single trial.

7. It is important to note that the doctrine of precedent is not solely a matter of formalism. It is a constitutional and institutional discipline that ensures equality before the law, coherence, and certainty. Article 189 of the Constitution of the Islamic Republic of Pakistan ("Constitution") requires all Pakistani courts to adhere to the law established by the Supreme Court; however, not all observations contained in each report are legally obligatory. The law that is consciously declared on a question that has been genuinely decided on the basis of legal reasoning is what is binding. Similarly, each judicial decision is composed of three fundamental components: first, a statement of the principle or principles of law that are applicable to the facts; second, the findings of fact, whether they are directory or inferential; and third, the ultimate judgment, which is based on the combined effect of the factual findings and the governing legal provisions. The apex Court's decision is binding only if it resolves a legal issue, establishes a legal principle, and proceeds on the basis of the law. This constitutional standard is not met by the mere citation of earlier authorities without engagement with their ratio or a fleeting conclusion without articulated reasoning on the point.

8. The same jurisprudence also acknowledges that instances in which a court was unaware of a specific point of law or recorded a conclusion without considering the controlling statutory text or an earlier binding authority do not develop into a precedent of general binding force. The later view is per incuriam to the extent that a binding authority has been overlooked. Stability in law is undoubtedly maintained through judicial restraint and fidelity to precedent; however, that stability cannot be preserved by permitting an incidental or unexplained observation to supersede a consciously reasoned determination previously rendered by a larger Bench on the same statutory question.

9. The status of Bashir's case is not subject to much doubt when the matter is analyzed within that doctrinal framework. The case was referred to a five-member larger Bench due to the emergence of a common question of law of public importance regarding the interpretation of section 35, Cr.P.C and the necessity of considering the opinions of previous authorities, such as Javed Shaikh, Juma Khan, Muhammad Ittefaq and Khan Zaman . The statutory point currently under consideration was, therefore, explicitly raised, consciously observed, and expressly determined in Bashir's case. In the aforementioned instance, the larger Bench did not resolve the issue through a concise conclusion. It investigated the structure of section 35 Cr.P.C., the relationship between subsection (1) and subsection (2), the function of proviso (a), and the sentencing scheme established by sections 30, 31, 32 and 34 Cr.P.C. Based on that analysis, it was determined that subsection (2), in conjunction with proviso (a), governs courts of limited sentencing power, various Sessions courts, and the High Courts, which exercise original criminal jurisdiction under section 35( 1). As a result, the rule was established that imprisonment sentences issued in a single trial by a Sessions court were to be served consecutively, unless the court explicitly directed that they should be served concurrently. Bashir's case, therefore, embodies every attribute of a binding precedent under Article 189 of the Constitution.

10. Bashir's case further reviewed the earlier line of cases which had supported the contrary understanding and held that those decisions did not correctly interpret section 35(2) Cr.P.C. In other words, the very source from which the later contrary observation in Shah Hussain's case draws support had already been examined and displaced by a larger Bench. Bashir's case, therefore, answers, in a direct and reasoned manner, the precise question now before this Court, and possesses every attribute of a valid precedent under Article 189 of the Constitution. Significantly, Bashir's case itself was neither noticed, distinguished, nor overruled in Shah Hussain's case. The later observation was thus made without examination of the governing five-member authority that already occupied the field.

11. It is true that in paragraph-40 of Shah Hussain's case, the court observed that the aggregate of the sentences involved there would be contrary to section 35 Cr.P.C and stated, following the case of Javed Shaikh , that proviso (a) to section 35 Cr.P.C. prohibited the giving of consecutive sentences in one trial beyond the stated limit. Yet that observation was made without noticing, distinguishing, or overruling Bashir's case, although Bashir's case had already been rendered by an earlier bench of five learned judges and had expressly reviewed Javed Shaikh and the allied cases. The two decisions, therefore, were of larger Benches. There is, with respect, no independent reasoning in Shah Hussain's case on the architecture of section 35 Cr.P.C., no discussion of the distinction between subsection (1) and subsection (2), and no engagement with section 31 Cr.P.C., all of which formed the basis of the rule declared in Bashir's case.

12. In these circumstances, paragraph 40 of Shah Hussain's case, insofar as it concerns the interpretation of section 35 Cr.P.C., cannot be treated as a binding declaration of law under Article 189 of the Constitution. Accordingly, it is held that paragraph-40 of Shah Hussain's case does not constitute a valid precedent on the interpretation of section 35 Cr.P.C. Although the cases of Bashir and Shah Hussain were each rendered by larger Benches, the later observation in Shah Hussain's case, having been made without noticing and dealing with the earlier governing rule declared in Bashir's case, cannot displace it. The field accordingly continued to be governed by Bashir's case, which holds the field and continues to apply. The question is, therefore, decided in terms of Bashir's case, namely, that proviso (a) to section 35(2) Cr.P.C. is confined to courts of limited sentencing jurisdiction and does not control sentences passed in one trial by a Sessions Court; in such cases section 35(1) Cr.P.C. applies, and the sentences run consecutively unless the court expressly directs that they shall run concurrently, subject only to the exception specifically recognized in Bashir's case to the cases of executive commutation from death or imprisonment for life.

13. Besides this, the petitioner has committed two distinct acts of murder, which have resulted in the loss of two precious human lives. Each act is an independent and grievous offense that warrants its own punishment. The brutality and gravity of the offense cannot be diminished by permitting the sentences to merge. The principle of concurrent sentencing is typically implemented when multiple offenses are the result of a single act of diminished gravity or when the ends of justice necessitate it. The criminal justice system is designed to not only sanction the offender but also to convey a clear message to society that such behavior will not be tolerated. Public confidence in the administration of justice may be undermined by leniency in cases of severe violence, particularly those that involve multiple victims . The concurrent execution of sentences in a routine setting effectively indicates that the repercussions of murdering multiple individuals are equivalent to those of killing a single individual.

14. It 1s now firmly accepted that punishment must remain proportionate to the seriousness of the offence. Proportionality requires that where multiple lives are unlawfully taken, each offence must receive independent penal recognition. To direct all sentences to merge into one concurrent term in cases of multiple murders would substantially dilute the gravity of the additional offences and create an artificial equivalence between the taking of one life and the taking of several. In effect, such an approach risks conveying the impermissible impression that an offender may "kill two or three, pay for one." The criminal justice system cannot permit a sentencing structure that diminishes the distinct value of each human life or undermines public confidence in the administration of justice.

15. In view of what has been discussed above, we cannot differ from the concurrent findings recorded by the courts below. No case for interference in the impugned judgment has been made out and, therefore, both the petitions are dismissed and leave is refused.

16. Before parting with this judgment, we extend our profound appreciation to the learned Additional Prosecutors General, Mr. Tariq Siddique and Rai Akhtar Hussain for their invaluable contribution in furnishing the research materials that greatly assisted this Court.

JK/Q-1/SC Petitions dismissed.

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