' QAZI FAEZ ISA, CJ.---By this common judgment, I intend to dispose of Criminal Appeals Nos.
16,17/2008 and Criminal Jail Appeal No,33/2009 as the same arise out of the same facts and common questions of law are involved in all the appeals.
' Mr. Amanullah Kanrani, learned counsel for the appellants submits that F.I.R. No,71/2006 was lodged at Police Station Dasht District Mastung on 4-11-2006 against 10 persons under section 17 (3)
Harraba (Offences Against Property) Ordinance, 1979. After registration of the F.I.R, recovery of weapons was made from the appellants, thus separate F.I.Rs under section 13-E of the Arms Ordinance, 1965 were lodged bearing Nos. 72/2006, 73/2006 and 74/2006 on 10-11-2006 at Police Station Dasht, District Mastung. In respect of all the four F.I.Rs, the trial was conducted simultaneously by the Sessions Judge, Mastung.
' In respect of F.I.R. No,71/2006, all the ten accused persons were convicted under section 395, P.P.C.
And they preferred Appeal, bearing No,12(Q)/2008, before the Honourable Federal Shariat Court which was pleased to acquit seven of the accused persons, however the convictions of Aurangzaib Shah, Hairuddin and Nasaruddin (the appellants herein) were maintained, but their sentences were reduced to R.I. For 5 years, ' The present appeals arise out of the conviction awarded under section 13-E of the Arms Ordinance, 1965. Learned Assistant Advocate-General and State counsel oppose the appeals on merits, whereupon counsel for the appellants stated that he would not press the appeals on merit and will be satisfied if the sentences awarded in respect of both the offences, i.e, under section 395 P.P.C. And 13-E of the Arms Ordinance, 1965 are ordered to run concurrently instead of consecutively.
' Following is the position in respect of each appellant:--
(1) Aurangzaib Shah was convicted under section 395 P.P.C, to suffer R.I. For 5 years and fine of Rs,25,000 and upon failure to pay fine to undergo a further term of one year simple imprisonment.
Under section 13-E of the Arms Ordinance, 1965 he was awarded R.I. For three years and fine of Rs,2000 and in default further simple imprisonment of six months. A Kalashnikov and 15 live cartridges were recovered from him.
(2) Nasruddin was convicted under section 395, P.P.C, to suffer R.I. For 5 years and fine of Rs,25,0Q0 and upon failure to pay fine to undergo a further term of one year simple imprisonment. Under section 13-E of the Arms Ordinance, 1965 he was awarded R.I. For three years and fine of Rs,2000 and in default further simple imprisonment of six months. A Kalashnikov and two live cartridges were recovered from him.
(3) Hairuddin was convicted under section 395, P.P.C, to suffer R.I. For 5 years and fine of Rs,25,000 and upon failure to pay fine to undergo a further term of one year simple imprisonment. Under section 13-E of the Arms Ordinance, 1965 he was awarded R.I. For two years and fine of Rs,1500 and in default further simple imprisonment of six month. A .30 bore TT Pistol and six live cartridges were recovered from him.
' Mr. Amanullah Kanrani, learned counsel for the appellants submits that maximum punishment that could have been, awarded section 13-E of the Arms Ordinance, 1965 is seven years and as regards two of the appellants Aurangzaib Shah and Nasruddin they have been sentenced to 8 years R.I. Each, if the sentences under section 395, P.P.C. And under section 13-E of the Arms Ordinance, 1965 run consecutively, which is one year more than the maximum punishment permissible. In this regard he relies upon section 35 of the Cr.P.C. And section 71 of P.P.C. Which are reproduced herein below:-- 35, Cr.P.C. 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 therefor which such Court is competent to inflict; such punishments when consisting of imprisonment to commence to 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.
71, P.P.C. Limit of punishment of offence made up of several offences.--Where anything which is an offence is made up of parts, any of which parts is itself an offence, the offender shall not be punished with the punishment of more than one of such his offences, unless it be so expressly provided.
' Where anything is an offence falling within two or more separate definitions of any law in force for the time being by which offences are defined or punished, or where several acts, of which one or more than one would by itself or themselves constitute an offence, constitute, when combined, a different offence, the offender shall not be punished with a more severe punishment than the Court which tries him could award for any one of such offences.
' Learned counsel for the appellants also relies upon the following precedents:--
1. 2001 SCMR 84 (Muhammad Hanif and others versus the State and others)
"For the reasons given above, the appeal is partly accepted and it is ordered that the sentence actually stiffered by the appellant out of the sentence of 10 years' R.I. Under section 307, P.P.C.
Awarded by the trial Court shall be deducted from the sentence of imprisonment for life under section 302, P.P.C. Awarded by the Lahore High Court. The petition for leave to appeal is converted into appeal and partly allowed in the terms that the appellant shall pay a sum of Rs,25,000 as compensation, within the contemplation of section 544-A, Cr.P.C. To the legal heirs of the deceased or suffer 6 months' S.I. In default."
2. 1987 SCMR 1382 (Khan Zaman and others versus The State)
"In respect of these contentions he cites' Javaid Shaikh v. The State 1985 SCMR 153. Relevant portion; of the judgment reads as follows:-- "A perusal of proviso (a) to subsection (2) of the section 35, Cr.P.C. Indicates that it prohibits the giving of consecutive sentence in one 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 of proviso (a) to subsection (2) of the section 35, Cr.P.C. Inasmuch as the maximum punishment prescribed for heinous offences shall be exceeded.
The difficulty in this case can be overcome if the sentences awarded to the appellant in respect of two 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".
' He also cited the following two cases wherein the same view was taken:-- ' Juma Khan and another v. The State 1986 SCMR 1573; and Muhammad Ittafaq v. The State 1986 SCMR 1627.
3. We have also heard the learned Assistant Advocate-General who is present in Court.
4. Respectfully following the above-noted decisions of this Court we condone the delay of 2 days in filing the petition, convert the petition into appeal and allow the same. We order that the following portion of the impugned judgment: "The sentences shall run consecutively." shall stand omitted and shall now be read as:- "The sentences shall run concurrently."
3. 1986 SCMR 1573 (Juma Khan and another v. The State)
"After hearing both the learned counsel, we are inclined to accept the prayer of the petitioners and to clarify that the sentences of imprisonment for life on each count imposed upon them are to run concurrently and not consecutively.
' We may add. That under section 35 of the Cr.P.C. The total period of imprisonment on trial cannot exceed 25 years, If the sentences imposed on the petitioners in this case are allowed to take affect consecutively the sentence would exceed 25 years, This, of course, is not permitted by section 35 of the Cr.P.C.
' We would, accordingly, clarify that the sentences of imprisonment for life imposed upon the petitioners under section 302, P.P.C. On each count, shall run concurrently and not consecutively. ."
4. YLR 2007 page 700 (Karachi). (Abdul Ghafoor v. The State)
"From the perusal of the judgment in Special Case Nos. 110 of 1997 and 111 of 1997 it appears that both the cases were registered at the same police station on the same date one after another. The Investigating Officer is the same and in the second case the recovery was made on the potation of the applicant himself after recovery in first case. From the judgment it appears that both the crimes are one and the same and the prosecution has mala finely separated it into two crimes.
The power available under section 397, Cr.P.C. Can be exercised where the transaction/incident is one and the same. The trial Court while passing the conviction and sentence in second case ought to have exercised this discretion in favour of the applicant. Non-exercise of discretion in favour of applicant amounts to miscarriage of justice and can be interfered in revisional jurisdiction. The trial Court has also not done substantial justice by one exercising jurisdiction in favour of the applicant.
' From the circumstances of the case it can be said that the second crime is off-shoot of the first crime. To meet the ends of justice, we feel it will be in the interest to justice of order that both the sentences be run concurrently. The revision is allowed in the above terms."
4. PLD 1994 Quetta 1 (Ahmad Jan v. The District and Sessions Judge and another)
"Reverting to above-referred unreported Karachi case, it may be seen that cumulative effect of section 35 (c), Cr.P.C. Specifying aggregate consecutive sentences, and section 397, Cr.P.C. About suffering of sentence on the expiration of another conviction and exercise of inherent powers by allowing special benefit to run sentences concurrently has been discussed. With utmost respect we are inclined to observe that, conclusions drawn therein do not have general application. There is no cavil to the principle of law, that High Court enjoys plenary powers to promote ends of justice by remedying abuse of the process of law. But facts and circumstances of each case have to be dealt with on its own merits."
5. Jail Petition No,56 of 2005 (Shah Hussain v. The State) (Unreported Judgment passed by the Honourable Supreme Court of Pakistan).
"40. The petitioner in the instant case was sentenced to 10 years' R.I. And imprisonment for life on two counts. His sentences were ordered to run consecutively. The aggregate sentence of the petitioner would thus come to sixty years, which is contrary to the provisions of section 35, Cr.P.C.
Proviso (a) to section 35, Cr.P.C. Prohibits the giving of consecutive s "tence in one trial beyond the period of 14 years. This issue came up for examination by this Court in the case of Javed Shaikh v.
State (PLD 1985 SC 153) wherein it was held as under:-- "Life imprisonment is, according to section 57 of the P.P.C. To be reckoned as equivalent to 25 years'
R.I. This is one of the punishments 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?
' A perusal of proviso (a) to subsection (2) of section 35, Cr.P.C. Indicates that it prohibits the giving of consecutive sentence in one 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 of proviso (a) to subjection (2) of section 35, Cr.P.C. Inasmuch as the maximum punishment prescribed for heinous offences shall be exceeded.
The difficulty in this case can be overcome if the sentences awarded to the appellant in respect of the two 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."
' Syed Pervaiz Zahoor, learned counsel for the State places reliance upon the following case-laws which are on the same
1. 1990 P.Cr.LJ 568 (Abdul Hamid v. The State) ,"7. The rule laid down in section 397, Cr.P.C. Is that a sentence is to commence on the expiration of a sentence to which a person has been sentenced previously, unless the Court directs that the subsequent sentence shall run concurrently with such previous sentence. Consecutive sentence is, therefore, the general rule while concurrent sentence is only an exception. Depending on the particular circumstances of a case, concurrent sentences may be awarded where the two offences are akin and intimately connected with each other."
2. PLD 2003 Lah 512 (Muhammad Asif v. The State)
"9. It has further been argued that the appellate Court was fully empowered to exercise powers under section 397 of the Cr.P.C. Which is also exercisable by the trial Court in view of the powers vesting under section 426 of the Cr . P . C .
10. This Court agrees with these arguments and while invoking the provision of section 397, Cr.P.C.
Directs that the sentences in both the case F.I.Rs Nos.53/1996 and 63/1996 shall run concurrently."
If sentences are not allowed to run concurrently in respect of Aurangzaib Shah and Nasaruddin the same would exceed the maximum punishment as permissible under section 13-E of the Arms Ordinance, 1965. This would be contrary to the provision of sections 35, Cr,P.C. And 71, P.P.C. It is accordingly ordered that the sentences awarded to Aurangzaib Shah and Nasaruddin to run concurrently. As regards the case of appellant Hairuddin whose sentence though does not exceed the maximum prescribed punishment, an anomalous situation presents itself. He was awarded a lesser sentence, undoubtedly because a Pistol, which is a less dangerous weapon than. a Kalashnikov was recovered from him. However, he would serve a longer sentence than Aurangzaib Shah and Nasaruddin, if his sentences are permitted to run consecutively. Accordingly, the same benefit is also extended to him and Hairuddin's sentences are also ordered to run concurrently.
For the foregoing reasons, the sentences awarded to all the three appellants under section 395, P.P.C. And 13-E of the Arms Ordinance, 196 are ordered to run concurrently.
' With the above modification in the sentences, the appeals are disposed of.