JAVED SHAIKH vs The STATE

1. NASIM HASAN SHAH, J.-- Javed Sheikh aged about 37 years was convicted under sections 302 and 307, P.P.C. By the Additional Sessions Judge, Lahore, by his judgment, dated 13-12-1978 for the murder of Sabir Hussain and attempted murder of Manzoor Hussain P.W.5 and sentenced under section 302, P.P.C. To imprisonment for life and to pay a fine of Rs.5,000 in default whereof to undergo further rigorous imprisonment for three years and under section 307, P.P.C. To seven years' rigorous imprisonment and to pay a fine of Rs.3,000 in default whereof to undergo further rigorous imprisonment for 21 years. Out of the fine, if realised, Rs.5,000 was ordered to be paid as compensation to the heirs of the deceased and Rs.3,000 to Manzoor Hussain, P.W.5. Both the sentences to run consecutively.

2. Javed Sheikh appealed against his conviction and sentence whereas the nephew of the deceased Javed Iqbal filed a revision praying for the enhancement of sentence awarded to the appellant Javed Sheikh. Both the appeal and the revision were disposed of by a learned Single Judge of the Lahore High Court on 5-5-1980. The learned Judge, after elaborate examination of all the relevant facts and circumstances of the case, came to the conclusion that the conviction and the sentence awarded to the convict on both counts were well-merited and that his appeal, therefore, was liable to be dismissed. He also did not consider the case to be a fit one for enhancement of the sentence.

3. Consequently, the appeal as well as the revision for enhancement were dismissed. In the result, the sentence imposed by the Additional Sessions Judge remained unaltered.

4. The appellant Javed Sheikh filed a petition for leave to appeal to this Court through Jail, in which he, inter alia, questioned the legality of the consecutive sentences of imprisonment for life under section 302, P.P.C. And seven years' rigorous imprisonment under section 307, P.P.C. Awarded to him by the trial Court which were maintained by the High Court.

5. Leave was granted by this Court to consider whether, in vie of the provision of section 35, Cr.P.C.

6. Which prohibits making of consecutive sentences aggregating more than fourteen years, the sentences, as awarded to the convict were proper in law.

7. We have heard Hafiz S.A. Rehman on behalf of the appellant and Mr. Karam Elahi Bhatti on behalf of the Advocate-General for the State.

8. Section 35 of the Cr.P.C. To the extent relevant lays down:- "35. Sentence in cases of conviction of several offences at one trial.---(1) When a person is convicted at one trial of to 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.

9. Provided as follows:-

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

(b) . . . . . . . . ."

10. Life imprisonment is, according to section 57 of the P.P.C., to be reckoned as equivalent to 25 years'

11. R.I. This is one of the punish--ments which can be imposed on an offender, on account of the substitution of the punishment for transportation for life - which was one of the punishments that could be imposed on an offender under section 53 of the P.P.C. And was reckoned as equivalent to fourteen years before its amendment by the Law Reforms Ordinance, 1972. No objection can, therefore, be taken to the imposition of the sentence of life imprisonment, after the promulgation of the Law Reforms Ordinance, 1972. However, the question is whether the appellant can also be sentenced to undergo a further sentence of seven years under section 307, P.P.C. For his having attempted to murder Manzoor Hussain, P.W.5?

12. A perusal of proviso (a) to subsection (2) of section 35, Cr.P.C. Indicates that it prohibits the giving of consecutive sentence in on 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 o proviso (a) to subsection (2) of section 35, Cr.P.C. Inasmuch as the maximum punishment prescribed for heinous offences shall be exceeded.

13. The difficulty in this case can be overcome if the sentences awarded the appellant in respect of the to convictions under section 302, P.P.C. And under section 307, P.P.C. In one and the same trial are directed to run concurrently instead of running consecutively.

14. This appeal succeeds to the extent that the sentence of life imprisonment imposed upon the appellant under section 302, P. P. C . And the sentence of seven years' rigorous imprisonment awarded to him under section 307, P.P.C. Are ordered to run concurrently and not consecutively. We order accordingly.