Junaid Ahmad Vs State

\ Judgment Sheef

IN THE PESHAWAR HIGH COURT, ABBOTTABAD

BENCH

JUDICIAL DEPARTMENT

Wit Petition No. 1027-N2024

JUDGMENT

Date of hearing ... ....03.1?,2024... ..

Petitioners (Junaid Ahmad) By Dr. [Vluhammad Saqib Lughmani, Advocate.

Respondents. (State) By Arbab lfrahim, Assistant Advocate General.

MUHAMMAD IJAZ KHAN, J.- Through the instant petition, petitioner who is confined in jail since 2013, has approached to this court through an application, which was later on converted into the instant writ petition, on the ground that he has been charged in various FlRs registered under Section 489-F PPC, which were registered way back in October and November, 2013 and thereafter, separate trials were held and ultimately he was convicted and sentenced in those FlRs, however, the jail authorities are treating his sentence as consecutive instead of concurrent, therefore, he has approached to 'a1 this court for the issuance of necessary directions.

2.The record would show that the petitioner was charged in case FIRs No. 1059 dated 13.10.2013, 1065 dated 16.10.2013, 1 066 dated 16.10.201 3, 058 dated 1

12.10.2013, 1032 dated 03.10.2013, 1026 dated 02.10.2013, 1039 dated 05.10.2013, 1051 dated 10.10.2013, 1087 dated 23.10.2013, 1099 dated 26.10.2013 and 1161 dated 17.11.2013 of Police Station City District Mansehra, and thereafter, in all these FlRs he has faced separate trials and then he has been convicted in all of them through different orders and judgments, as transpires from his jail petition as well as from the report of Superintendent Jail, he has been convicted and sentenced which he is undergoing since 2013-2014. lt is part of the record that petitioner is in jail since 2013 and by now he has completed eleven (11) years of imprisonment, therefore, in the given facts and circumstances, the only question before this court is that as to whether the sentences awarded to petitioner in different trials could be ordered to run concurrently or not? ln order to answer the above question, it would be relevant to reproduce Sections 35 and 397 Cr.P.C for ready reference

35.Senfence 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 Secfion 71 of

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the Pakistan Penal Code sentence him, for such offences, to the several punishmenfs prescribed therefor which such Court is competent to inflict; such punishments when consisting of imprisonment, to commence the once 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)ln 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;

Maximum term of punishment.

Provided as follows:

(a)ln no case shall such person be sentenced to imprisonment for a longer period than 14 years;

(b)lf the case is tried by a Magistrate, the aggregate punishment shall not exceed twice the amount of punishment which he is, in the exercise of his ordinary iurisdiction, competent to inflict.

(3)For the purpose of appeal, [the aggregate of consecutivel senfences passed under this section in case of convictions for several offences at one trial shall be deemed to be a single sentence.

h-\ 397. Sentence on offender already senfenced for another offence. When a person already undergoing a sentence of imprisonment or imprisonment for life ,s 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.

A plain reading of the above two provisions of law would show that when a person is convicted at one trial for two or more offences, the Court may order that the awarded punishment be run concurrently, whereas, the language of Section 397 Cr.P.C speaks that even if an accused person is sentenced in two or more cases and tried separately, in such eventuality too, such sentences could be ordered to run concurrently and thus, by applying the aforesaid yardstick to the case of petitioner, the case of the petitioner would be covered under Section 397 Cr.P.C, as he too has been convicted for the same kind of offence in different trials.

3.The aforesaid question that as to whether the sentences awarded in different trials could be ordered to run concurrently and that as to whether sentences ordered in a single trial for different offences, could be ordered to run concurrently, came-up before the Apex Court in the case1, wherein it was held that section 397, Cr.P.C.; enables and empowers the trial, and or

Appellate/Revisional court, as the case may be, in a subsequent trial or in appeal or revision arising out of subsequent trial to order for the consolidation of sentence in subsequent trial with the sentence(s) handed down in earlier trial(s) as may be maintained or modified in appeal/revision arising there from. In case earlier, conviction was not brought to the notice of the at the time of handing down the subsequent conviction sentence the Trial or Appellate/Revisional Court could exercise such jurisdiction even after the sentence of imprisonment in subsequent trial is announced in exercise of its inherent jurisdiction under section 561-A, Cr.P.C. read with section 397, Cr.P.C., provided of course, where the trial, or superior I Rahib AliVs fhe Sfate (2018 SCMR 418)

courts of appeal have specifically and consciously ordered the sentences either in same trial or in subsequent trial to run consecutively. ln the light of discussion made above, there remains no doubt that the High Court and so also this Court have jurisdiction under section 561-A read with section 35 and or section 397, Cr.P.C. as the case may to order such multiple sentences in same transaction/trial or in a separate and subsequent trial to run concurrently. Similarly, in an another case2 it was also held that aggregate of punishment of imprisonment for several offences at one trial were deemed to be a single sentence. However, the position of an accused person is different who while already undergoing a sentence of imprisonment for life, is subsequently convicted and sentenced in another trial. Such subsequent sentence in view of section 397, Cr.P.C would commence at the expiration of imprisonment for life for which he had been previously sentenced but even then in such cases, the said provision expressly enables the Court to direct that the subsequent sentence would run concurrently with the

(2016 SCMR 467)

'?Sajjad lkram & others Vs Sikandar Hayat & others

previous sentence. lt is clear from section 397, Cr.P.C. that the Court, while analyzing the facts and circumstances of every case, is competent to direct that sentences in two different trials would run concurrently. ln that eventuality, the Court has wide power to direct that sentences in one trial would run concurrently. The provision of section 397, Cr.P.C. confers wide discretion on the Court to extend such benefit to the accused in a case of peculiar nature, like the present one.

Thus extending the beneficial provision in favour of the appellant, would clearly meet the end of justice. We, therefore, observe that there is nothing wrong in treating the sentences of imprisonment for life of the convict/appellants on three counts to run concurrently, in view of facts and circumstances discussed above. Likewise, in a case3 it was also held that besides the a r provisions of section 35, Cr.P.C. the provisions of section 397, Cr.P.C. altogether provide entirely a different proposition widening the scope of discretion of the Court to direct that sentences of imprisonment or that of life imprisonment awarded at the same Mst. Shahrsta Bibi & anotherVs Superintendent, Central Jail, Mach & others (PLD 2015 SC 15)

trial or at two different trials but successively, shall run concurrently. Once the Legislation has conferred the above discretion in the Court then in hardship cases, Courts are required to seriously take into consideration the same to the benefit of the accused so that to minimize and liquidate the hardship treatment, the accused person is to get and to liquidate the same as far as possible. ln a situation like the present one, the Court of law cannot fold up its hands to deny the benefit of the said beneficial provision to an accused person because denial in such a case would amount to a ruthless treatment to him/her and he/she would certainly die while undergoing such long imprisonment in prison. Thus, the benefit conferred upon the

appellanUappellants through amnesty given by the Government, if the benefit of directing the sentences to run concurrently is denied to r$, him/them, would brought at naught and ultimately the object of the same would be squarely defeated and that too, under the circumstances when the provision of S.397, Cr.P.C. confers wide discretion on the Court and unfettered one to extend such benefit to the accused in a case of peculiar nature like

the present one. Thus, construing the beneficial provision in favour of the accused would clearly meet the ends of justice and interpreting the same to the contrary would certainly defeat the same.

4.ln view of the above, the dicta laid by the Apex Court, we allow this writ petition and direct that sentences of the petitioner shall run concurrently instead of consecutively and consequently, we direct the jail authorities that if the petitioner has completed his sentences, he be set free forthwith, if not required in any other case. The office is directed to immediately sent the copy of this order to the Superintendent Central Prison, Haripur, for information and comPliance.

Announced:

Arshad lobal

JUDG

J

Muhammad llaz Khan