Gul Muhammad Vs State through supt: Jail Timergara

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JADGMENT SHEET

PESHAWAR HIGH COURT, MINGORA

BENCH (DAR-UL-Q AZA), SWAT

(ludicial Departmen) W.P. No. 4ll-][V2020

JADGMENT

Date of hearing: 16.03.2020

Petitioner:- (Gul Muhsmmuil bv Mr. Jomal- ud-Din, Advocate.

Resoondent: - (Snte thro ush Superintendent District Jail Timersura ) bv Mr. Has Nswaz, Astt:A.G.

WIOAR AHMAD , J.- This order is directed to dispose of the petition filed by petitioner under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 (hereinafter referred as "the Constitution').

2 Petitioner is shown to be aged

about 89/90 years and incarcerated in District Jail Timergara. He is convicted in two separate cases, one registered vide FIR No. l9 dated 15.01.20004 under section 302 PPC at police station Kabal District Swat while other registered vide FIR No. 30 dated 19.01.2004 under section 13 of the Arms Ordinance (hereinafter referred to as "A.O.') at police station Kabal. Petitioner namely Gul Muhammad had undergone two separate trials under the above- mentioned two FIRs and have been convicted and Nrwrb(D.a.) Hon'ble $lr. Jrstice Syed Anh.d Ali Ho!'ble Mr. J tice Wiqrr Ahmrd

sentenced for both the offences separately. He is presently undergoing his sentence under section 302 PPC without having the benefit of section 382-8 Cr.P.C and his probable date of release would be 23.09.2021, as stated by the jail authorities in their comments. After completing his sentence under section 302 (b) PPC, petitioner shall then start his sentence of three years imprisonment under section 13 A.O and his probable date of release is 22.03.2023. Petitioner has further contended in his petition that he had been bedridden, lying in jail premises without having proper attendance of family members and was lying in a miserable condition.

3 Arguments heard and record perused.

4 The following reliefs may be considered on the face of grievances of the petitioner in instant petition;

(a)ordering of concurrent running of sentences;

(b)grant ofbenefit under section 382-B Cr.P.C;

(c)grant of remission to the convict/petitioner for his remaining sentence of imprisonment.

The accused/appellant was convicted

vide judgment dated 16.03.2005 of the Court of learned Additional Sessions Judge-II Swat for N.vrb (D.8.) Hon'bl. Mr. Ju!.ice Syed Arh.d Ali Hotr'ble Mr. Ju'tice Wiqir AhDrd

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commission of an offence under section 302 (b) PPC and sentenced to the punishment of death. In his criminal appeal No. 19312005, filed before this Court his sentence of death was converted to life imprisonment vide judgment dated22.12.2005 of this Court. There were no mention in the said judgment whether this Court had been giving him the benefit of section 382-B Cr.P.C or were declining the same. He had undergone a separate trial under section 13 A.O, and had been sentenced to three years rigorous imprisonment with a fine of Rs. 10,000/- and to undergo one year simple imprisonment in case of non-payment of fine. Benefit of section 382-8 Cr.P.C had however been extended to him in the said case.

The judgment of conviction and sentence under section 13 A.O was passed by the Court of leamed Additional Sessions Judge Swat vide his judgment dated22.06.2005, appeal where-against has also been dismissed by this Court.

5.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;

Nswrb (D.8.)Hor'ble Mr. Justice Sv.d Hotr'ble Mi Justice Wiq!. Ahmrd

"Section 397 Cr,P.C

Senlence on offender olreody sentenced for another offence.

ll/hen a person olready undergoing a sentence of imprisonment or imprisonment for life is sentenced lo imprisonment, ot imprisonment for lW, such imprisonment, ot imprisonment for hfe shall commence at lhe expiration of the imprisonment, or imprisonment for life lo which he has been previously senlenced, unless the Court directs thal the subsequenl sentence shall run concurrently with such previous senlence."

Section 35 Cr.P.C is also relevant for the present discourse, which is reproduced as well;

35.(l) Sentence in cose of conviction of several offences at one trial. ll/hen a person is convicted al one lrial of two or more offences, the Court may, subject lo the provisions of section 7I of the Pakistan Penal Code sentence him, for such offences, to lhe several punishments prescribed lherefore which such Court is competenl to inflict; such punishments when consisting of imprisonment 34..,,.. lo commence the one afier the expiration of the olher in such order os the Court may direct, unless the Court directs lhat such punishmenls shall run concurrently.

(2)In lhe case of consecutive sentences, it shall not be necessar! for the Court, by reoson only of the aggregale punishment for the several offences being in excess of the punishmenl which il is competenl lo inflict on conviction of o single offence, to send lhe offender for trial before a higher Court; Provided as follows:

Mtximum term of punishment.

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

(b)tf the case is tried by o Magislrate, as....... lhe 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 aggrcgole of conseculive senlences passed under this section in case of convictions for several offences al one trial sholl be deemed to be a single senlence.

Nrwrb (D.BJ Hon'bl€ Mr. Justice Syed Anhtd Ali Hon'bl. Mr. Jutice Wiq.rAhm.d

Reading of section 397 and section 35

Cr.P.C reveal that it is discretionary with a Court to order running of sentences in two different trials concwrently or consecutively, but if no such order is passed, then the sentences shall run consecutively.

On the basis of said provision of law, Superintendent District Jail Timergara has contended in his comments that sentences of the petitioner shall run consecutively.

6.The matter has come before this Court at a very belated stage, one of a question before this Court would naturally be whether this Court, neither being a trial Court nor an appellate Court in the case, may make an order in respect thereot in exercise of its constitutional jurisdiction. This Court is having its inherent jurisdiction vested in it under section 561-,4.

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. But the jurisdiction this Court has been having under section 199 of the Constitution is even of much more wider amplitude authorizing this Court to pass any order for doing complete justice in a case. Reliance in this respect is placed on the judgments reported as Nrwrb (D.8,) Hon'bl. M.. Justice Sycd ABhtd Ali Ho.'ble Mr. Ju!tict wiqrrAhmrd

2000 vLR 861, PLD 2008 Lah 497 and 2010 P Cr.LJ 1681.

1 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 the Hon'ble Apex Court in the case of "Rahib Ali v/s The State" reported as "2018 SC,MW. Relevant part of the judgment IS reproduced hereunder for ready reference;

13.In view oflhe discussion made above, position that emerges is that lhe Courls in Pakislan generally take charitable view in lhe mattq of sentences affecting deprivation of life or liberty of a person and unless some aggravaling circumstances do not permit so, liberally exercise enabling power under section 35 and section 397, Cr.P.C. respectively to order concurrent running of senlence in one tial and so also consolidation of earlier senlence while handing dob,n senlence of imprisonmenl in a subsequenl trial,

The Hon'ble Apex Court while faced

with a similar situation in the case of Mst. Shahista Bibi and another v/s Suoerinte nt. Central Jail Mach and 2 others reported as PLD 2015 Supreme Co 15 had held as follows;

Nrwib(D.8.) Hon'ble Mr. Jrti.. Syed Hon'ble Nir. JNnce wiqrAhmad

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

We have altended to lhis plea but it is hardly entertainabk being berelt of legal grounds and is based on efioneous reasons of the law and the rules on the subject because the previous review petition was wilh regard to the commutution of sentence from death to life. Even otherwise, for doing substantial justice in a true sense in hardship cases like the present one, technicalily of law and rule shall not operate as an absolute bar in the way of the Court because giving preference to the technicalily of law would defeat substantial justice and denial of justice to a person entitled to il, would be worst kind of treatment to be meled out to him and that loo by the apex Court of the countty.

14.If the sentences are allowed to run consecutively, the appellant/appellants, as earlier dtscussed, r'ould meet natwal death during the imprkonment. This undeniable fact was even not disputed by the learned counsel for the State. The very object, for which the Govemment of Pakistan commuted the sentences of death to life imprisonment and the benelit so accrued to the accused would be d.enied to hin /them in this way and that concession, lhus given, would stand nowhere and may evapotate within no timc like air bubbles vanish in the air N.wrb (D.B,) Hotr'ble Mr. Justice Syed AEhrd Ali t{on'bl. Mr. Ju3lic. Wiqir Ahnrd

within a twinkle of an eye-,,

This Court while deciding appeal of

petitioner had held that mitigating circumstances did exist in his case and the case was not having any aggravating circumstances.

8 The Hon'ble Apex Court in the case of

Hamid and another v/s Shafio-ur- ehman and another reported as 201 3 SCMR 58J had ordered concurrent running of sentences in the following manner;

4.All the offences for which the appellant had been convicted by lhe learned coutts below had been committed in one and lhe same transaction and, thus, it shall serve the interests of justice if all lhe sentences of imprisonment passed againsl the appellant are ordered to run concurrently with each other. We understand that while reducing lhe appellanl's senlence from death lo imprhonment for life the learned Division Bench of lhe Lahore High Court, Lahore had inadvertently omilted ordering running of the sentences of imprisonmenl concunenlly and we may, lhus, supply lhe omksion in that regard. This appeal is, lherefore, dismissed as far as the convictions and sentences of the appellant are concerned but it is ordered that all the senlences of imprisonmenl passed against lhe appellant shall run concurrenlly with each other. This appeal is disposed of in these terms," Nrwrb (D.8,) Hon'ble Mr. Jultic. Syed Arshrd Ali Hon'bl. Mr. Ju!ticc Wiq.rAhmrd

In the case of avo id SHO and

othe$. rcp orted as 2013 P LJ 1394 Hon'ble Lahore High Court has inter alia extended benefit of section 382-B Cr.P.C to convict of a military trial.

Similar benefit has also been extended by Hon'ble Sindh High Court in the case of '(Oasim u/s Federation of Pakistan reported as PLD 2016 Sindh /. The Hon'ble Islamabad High Court in the case of "Muhammad AZam y/s Federation of Pakistan & others" as 2018 MLD 1176had also ordered concurrent running of sentences despite the fact that one of the sentence had been passed in a criminal case while another sentence was for undergoing civil prison, arising out of an order in execution of a decree, of civil Court.

9 The Hon'ble Apex Court in the case of "Muhammad An war v/s Muhammad Akram and ohters" reoorted as "PLD 2016 S.C. 65" had no doubt held that when a sentence is ordered to run consecutively by a trial Court or appellate Court, such a sentence could not be ordered to run concurrently by the High Court, in a case which was having the element of brutality. Ratio of the judgment of the Hon'ble Apex Court is not applicable to the case in hand for the reason that existence of Nre.b (D.8.) Hon'ble Nlr' Justice Hon'ble Mr. Justi(e WiqtrAhmtd

mitigating circumstances, had been found, by this Court, while deciding appeal in the case in hand.

10.Both the issues i.e. concurrent running of the sentences, as well as giving benefit under section 382-8 Cr.P.C do not seem to be a deliberate decision of this Court, recorded expressly or alluded to impliedly, but appears to be the result of lack of proper assistance. ln such a situation, both the sentence i.e. sentence of life imprisonment under section 302 (b) PPC vide judgment dated 22.12.2005 of this Court in criminal appeal No. 193 of 2005, as well as sentence dated 22.06.2005 of the Court of leamed Additional Sessions Judge Swat in criminal case No. 1llA.O of the year 2004 are ordered to run concurrently. Benefit of section 382-8 Cr.P.C is also ordered to be given to the petitioner namely Gul Muhammad in his sentence of life imprisonment under section 302 (b)

PPC.

11.Now coming to the question of remitting remaining sentence of his term of imprisonment, it is important that the jail authorities do not deny the state of health of N.w.b (D.B) HoD'bl. ML Jwtice Sy.d Arsh,d Ali Hotr'ble Mr. Julic. Wiqar Ahn.d

petitioner, as described in the writ petition. The jail authorities have also annexed report of medical officer of District Jail Timergara with their comments, which is also reproduced hereunder for ready reference;

MEDICAL REPORT REGARDING HEALTH AND

AGE OF THE FATHER OF PETITIONER

Respectfully Sheweth;

L As per available record in this Jail i.e. Conviction Ilarrant/CNIC and History Ticket, age of the conyict is eight five/eight six (85/86).However from his physical appearance he seems to be more than 86 years old.

2.Petitioner is not presently suffering from any acute or chronic illness nor any other disability. However, he is extremely weak due to age factor and unable to walk properly due to which he is bedridden. Moreover, he has been admitted in Jail Hospital and is properly being taken care of by the paramedical staff and " Numberdars ".

Petitioner is an old and infirm person who is bedridden and lying in jail hospital. Law and Constitution vests the powers of granting of remission in various authorities on the executive side. Prison Rules contained in the Jail Manual also clothed the jail authorities with the powers to release a lifer who has undergone a minimum of l5 years substantive imprisonment under Rule 140 of Jail Manual. Said rule being relevant is reproduced hereunder for ready reference;

"Rule 140. (i) Imprisonment for life will mean lwenty- five years rigorous imprisonmenl and every lifer N.wrb (D.8,) Hon'bl. Mr. Jusiic. Sy.d Anhrd Ari HoD'ble Mi Justicewiq.r Ahn.d

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prisoner shall undergo u minimum of Jifieen years substanlive imprisonment,

(i, The case of all prisoners sentenced to imprisonment for ltfe shall be referred to Government, through the Inspector General, after they have served fifteen years substantive imprisonment for consideration with reference to section 401 of lhe Code of Criminal Procedure.

(iii)The cases of oll prisoners sentenced to cumulative periods of imprisonment aggregating twenty-Jive years u more shall also be submitted to Government, through lhe Inspector General, when they have served Jifteen years substantive sentence for orders of the Government.

When law vests powers in some

authority, it is always with a purpose and object. If such a discretion or power is not exercised in appropriate and deserving cases, the very purpose of law may be defeated. There will hardly be a case more appropriate for exercise of such discretion or power than the case in hand. We, therefore, direct Superintendent District Jail Timergara to place the case of petitioner for grant of remission to the appropriate authority. Worthy Secretary Home, Govemment of Khyber Pakhtunkwa, shall also consider release of petitioner on probation under the "Good Conduct Prisoners' Probational Release Act, 7926", pending decision of the appropriate authority regarding grant of the remission. The needful be done as soon as possible but not later N.w.b (D.8,) Hon'ble Mi Junc. Syed Anh.d Ali Hon'bl. Mr. Juti..wiqrr AhD.d

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than l0 days, after receipt ofcopy ofthisjudgment.

The petition in hand is disposed of accordingly.

ANNOANCED

Dt:16.03.2020

JUDGE

GE

.eY N.*.b (D.B.) Hor'bl. Mr. Justic. Sy.d AFbrd Ali Hotr'bl. Mr. Jusaic. Wiqtr Ahnrd