1. CIVIL PETITION NO. 1393 OF 2010 Learned counsel for the respondent submits that this petition has inadvertently been clubbed along with HRC No. 3087 of 2006 though the issues involved in both these cases are distinct. The submission made has substance. Office is directed to fix this petition on its own turn.
2. C.M.A. NO. 28-Q OF 2006 AND H.R.C. NO.3087 OF 2006 TASSADUQ HUSSAIN JILLANI, J.---On an application filed by Mr. Khushdil Khan, Director, Regional Directorate of Human Rights, Balochistan, Quetta, to the effect that on a visit to Central Jail Mach, he found that six convict prisoners were undergoing imprisonment for life beyond their life span and that it is a case of public importance relatable to enforcement of fundamental rights warranting interference by this Court, on 21-9-2011 a notice was issued to the Advocate-General Punjab and Advocate-General Balochistan to file concise statements and assist this Court as to whether this Court .can interfere at this stage when their appeals stand dismissed by this Court to either reduce the sentences awarded or direct the sentences to run concurrently.
2. Following persons- were tried, convicted and sentenced in difference cases in terms of the table given below:-- S. No.Name with father's nameNature of crimeSentenceDate of start of sentenceApproximate date of Release (if alive)Remarks 1.All Khan Fateh Bomb blast300 years9-4-19889-4-1988 + 300 years. 9-4- 2288.
3. 2.
4. Manna son of Haji MuradBomb blast57 years12-3-198712-3-1987 + 57 years. 12-3- 044 3.Abdul Samad son of BanarasBomb blast189 years12-3-198712-3-1987 + 89 years. 12- 3-2176 4.Abdul Fateh sonof Raz MuhammadBomb blast189 years12-3-198712-3-1987 + 189 years. 12- 3-2176 5..Mulla Abdul Qayyum son of AlladadBomb blast214 years12-3-198712-3-1987 + 214 years. 12- 3-2201 6.Qadir Bux son of SadullahMurder67 years18-5-198318-5-1983 + 67 years. 18-5- 2050
3. Facts necessary for disposal of this case briefly stated are that the afore-referred convicts were tried in different F.I.Rs. and were convicted and sentenced, their appeals up to this Court stand dismissed. Convict Ali Khan Fateh was tried for the murder of 10 persons and he was convicted under section 302 and sentenced to death on 10 counts. He was also convicted under section 3 of the Explosive Substances Act, 1908 and sentenced to death and convicted under section 307/34,P.P.C. and sentenced to imprisonment for life. In terms of the written statement filed by the Additional Advocate-General Balochistan, other convicts were convicted and sentenced in different cases, their appeals stand dismissed up to this Court (except that of Abdul Manan, who it is stated, never filed any appeal). A detailed breakup as given in the concise statement is as follows: CONCISE STATEMENT SHOWING THE FACTUAL POSITION OF THE CONVICTED PRISONERS IN H.R.C. CASE NO. H.R.C. NO.3087 OF 2006. APPLICATION BY ALI KHAN KAKAR. 28-0 OF 2006 COMPLAINT-FROM DIRECTOR OF HUMAN RIGHTS BALOCHISTAN OUETTA. 1333 OF 2010, ALI KHAN KAKAR.
5. 1 2 3 4 5 6 7 Sr. Name and Percentage of ConvictCase F.I.R.
6. No.Crime/Under section and Sentence awarded by the trial CourtJudgment of Hon'ble High CourtJudgment of Hon'ble Supreme CourtPresent Status
1. Moula Abdul Qayum son of Allah Dad(i)
7. 16/1987 PS City Quetta(a) 36 Explosive Act (Death Sentence)
(b) 307, 109, F.F.C. (Life Imprisonment or 03 years).Appeal dismissed by the Hon'ble High Court of Balochistan on 8-3-1998.
8. While disposting ofAppeal dismissed by the Hon'ble Supreme Court of Pakistan. On 27-8-1990, while YearsMonthsDays (i)
9. Substantive Sentence Served up to 9-9-2011.23 11 09
(c) 436. P.P.C.
10. (07 years R.I. with fine of Rs.
11. 300.000 or 01 Years Compensation of Rs. 25.00,000 or 06 Months)
12. All sentence were ordered to run consecutively.
13. Copy of judgment of trial Court dated 30-9- 1987, i.e. Special Court of Balochistan Quetta, is attached as Annexure-E.Criminal Appeals Nos.
14. 30, 33 and 35 of 1987. Copy of the Judgment of Hon'ble High Court is attached as Annexure-C.
15. The Death Sentence awarded to the convict in F.I.R. No. 16 of 1987 and 17 of 1987 were altered into Life Imprisonment after announcement of amnesty of the President of Pakistan. Dated 6-12-1988 received through Letter No. I.G. Prs/J- 3-66/38/4066- 76 Dated 7-12- 1988disposing of Criminal Appeals Nos. 4-Q to 7-Q. 8-Q to 11-Q, 12-Q, 13-Q, 14-Q T to 15-Q and 16-Q to 17-Q of 1989 Copy of Judgment of the Hon'ble Supreme Court of Pakistan is attached as Annexure-D.(ii) Total Under Trial Period in all cases:02 02 12 (iii)
16. Remissions learned16 06 00
(iv) Total Sentence served including remissions and under trial period.42 07 21 Un-expired portion of sentence.171 04 09 Probable date of Release on 21-6-2082 if fine paid. (ii)
17. 17/1987 PS City Quetta(a) 3 Explosive Act. (Death Sentence)
(b) 4 Explosive Act (Life imprisonment)
(c) 5 Explosive Act (14 Years)
18. Sentence under sections 4 and 5 Exclusive Act run Concurrently
(d) 302. P.P.C. (Death Sentence).
(e) 307 PPC (25 Years RI with fine of Rs. 1000000 or 05 Years)
(f) 544-A Cr.P.C. (Fine of Rs.
19. 250000 or 06 Months RI.
(g) 436 PPC (07 Years RI with fine of Rs. 1000000 or 18 Months)-Do- -Do- -Do- All Four Sentence will run consecutively.
20. Copy of Judgment of trial Court dated 30-9-1987 is attached as Annexure-E. (iii)
21. 26/1987 PS City Quetta(a) 4 Explosive Act (25 Years RI).
(b) 5 Explosive Act (14 Years RI).
22. Both sentence will run concurrently.
23. Copy of warrant of trial Court does 30-9-1987 is attached as Annexure-F.-Do- -Do- -Do- (iv)
24. 27/1987 PS City Quetta(a) 4 Explosive Act (25 Years RI)
(b) 5 Explosive Act (14 Years RI)
25. Both sentence will run concurrently.
26. Copy of Warrant of trial Court dated, 30-9-1987, is attached at Annexure-G-Do- -Do- -Do- Total Sentences 214 year RI with fine of Rs. 1720000 Or 11 Years and 96 Months RI.
2. Abdul Samad son of Bosaras(i)
27. 16/1987 PS City Quetta(a) 36 Explosive Act (Death Sentence)
(b) 307, 109, F.F.C.
28. (Life Imprisonment or RI with fine of Rs.
29. 10000000 Or 3 Years).
(c) 436. P.P.C. (07 years R.I. with fine of Rs. 300.000 or 01 Years.
30. All Four Sentence will run consecutively.
31. Copy of Judgment of trial Court dated 30- 9-1987 is attached as Annexure-E. Appeal dismissed by the Hon'ble High Court of Balochistan on 8-3-1998.
32. While disposting of Criminal Appeals Nos.
33. 30, 33 and 35 of 1987. Copy of the Judgment of Hon'ble High Court is attached as Annexure-C.
34. The Death Sentence awarded to the convict in F.I.R. No. 16 of 1987 and 17Appeal dismissed by the Hon'ble Supreme Court of Pakistan.
35. On 27-8- 1990, while disposing of Criminal Appeals Nos. 4-Q to 7-Q. 8-Q to 11-Q, 12-Q, 13-Q, 14-Q T to 15-Q and 16-Q to 17-Q of 1989 Copy of Judgment of the Hon'ble Supreme YearsMonthsDays (i)
36. Substantive Sentence Served up to 9-9-2011.23 11 09
(ii) Total Under Trial Period in all cases:01 07 24 (iii)
37. Remissions learned15 00 00
(iv) Total Sentence served including40 07 03 of 1987 were altered into Life Imprisonment after announcement of amnesty of the President of Pakistan.
38. Dated 6-12- 1988 received through Letter No. I.G. Prs/J- 3-66/38/4066- 76 Dated 7-12- 1988Court of Pakistan is attached as Annexure- D.remissions and under trial period.
39. Un-expired portion of sentence.148 04 27 Probable date of Release on 21-6-2082 if fine paid. (ii)
40. 17/1987 PS City Quetta(a) 36 Explosive Act (Death Sentence)
(b) 302, F.F.C.
41. (Death Sentence RI with fine of Rs.
42. 1000000 Or 03 Years)
(c) 307, F.F.C. (25 Years RI with fine Rs. 1000000 or 05 Years)
(d) 436 PPC (07 Years RI with fine of Rs. 1000000 or 18 Months)
43. All Four Sentence will run consecutively.
44. Copy of Judgment of trial Court dated 30- 9-1987 is attached as Annexure-E.-do- -do- (iii)
45. 26/1987 PS City Quetta(a) 4 Explosive Act (25 Years RI).
(b) 5 Explosive Act (14 Years RI).
46. Both sentence will run concurrently.
47. Copy of warrant of trial Court does 30-9- 1987 is attached as Annexure-F.-do- -do- (iv)
48. 27/1987 PS City Quetta(a) 4 Explosive Act (25 Years RI)
(b) 5 Explosive Act (14 Years RI)
49. Both sentence will run concurrently.
50. Copy of Warrant of trial Court dated, 30- 9-1987, is attached at Annexure-G-do- -do- Total Sentences 189 year RI with fine of Rs. 1320000 Or 13 Years and 6 Months RI.
51. 3.Fateh Khan son of Raz Muhammad(i)
52. 16/1987 PS City Quetta(a) 36 Explosive Act (Death Sentence)
(b) 307, 109, F.F.C. (Life Imprisonment or RI with fine of Rs. 10000000 Or 3 Years).
(c) 436. P.P.C. (07 years R.I. with fine of Rs. 20000 or 01 Years.
53. Compensation of Rs. 250000 or 6 Months)
54. Compensation of Rs. 100000 Or 06 Months)
55. All Sentence were ordered to run consecutively.
56. Copy of Judgment of trial Court dated 30-9- 1987 is attached as Annexure-E.Appeal dismissed by the Hon'ble High Court of Balochistan on 8-3-1998.
57. While disposting of Criminal Appeals Nos.
58. 30, 33 and 35 of 1987. Copy of the Judgment of Hon'ble High Court is attached as Annexure-C.
59. The Death Sentence awarded to the convict in F.I.R. No. 16 of 1987 and 17 of 1987 were altered into Life Imprisonment after announcement of amnesty of the President of Pakistan.
60. Dated 6-12- 1988 received through Letter No. I.G. Prs/J-Appeal dismissed by the Hon'ble Supreme Court of Pakistan.
61. On 27-8- 1990, while disposing of Criminal Appeals Nos. 4-Q to 7-Q. 8- Q to 11-Q, 12-Q, 13- Q, 14-Q T to 15-Q and 16-Q to 17-Q of 1989 Copy of
62. Judgment of the Hon'ble Supreme Court of Pakistan is attached as Annexure- D. YearsMonthsDays (i)
63. Substantive Sentence Served up to 9-9- 2011.23 11 09
(ii) Total Under Trial Period in all cases:01 01 05 (iii)
64. Remissions learned14 00 00
(iv) Total Sentence served including remissions and under trial period.39 00 14 Un-expired portion of sentence.99 11 16 3-66/38/4066- 76 Dated 7- 12-1988Probable date of Release on 21-6-2082 if fine paid. (ii)
65. 17/1987 PS City Quetta(a) 36 Explosive Act (Death Sentence)
(b) 302, F.F.C.
66. (Death Sentence RI with fine of Rs. 1000000 Or 03 Years)
(c) 307, F.F.C.
67. (25 Years RI with fine Rs. 1000000 or 05 Years)
(d) 436 PPC (07 Years RI with fine of Rs.
68. 1000000 or 18 Months)
69. All Four Sentence will run consecutively.
70. Copy of Judgment of trial Court dated 30-9- 1987 is attached as Annexure-E.-do- -do- Total Sentences 139 year RI with fine of Rs. 1695000 Or 15 Years.
71. 4 Ali Khan Footballer son of Fateh Khan(i)
72. 140/1987 PS Gani Mandi Rawalpindi(a) 302/34 P.P.C.
73. (Death Sentence for 10 Counts with fine of Rs.
74. 500000, 02 Years).
(b) 3 Explosive Act (Death Sentence)
(c) 367/34 P.P.C.
75. (25 Years RI)
76. Copy of Warrant of Trial Court dated. 9-4-1988, Section Judge Rawalpindi is attached as Annexure-II.That Criminal Appeal No. 54/1988, was dismissed on 09/06/1997, by the Hon'ble Lahore High Court Bench at Rawalpindi, and the death sentence commuted and sub sutured of ten counts into Life Imprisonment for each count,The Jail Petition No. 101 of 1997.
77. And Suo Motu Review Petition No. 13 of 2002, in said case were dismissed by the Hon'ble Supreme Court of Pakistan on 26-10-1998 and 7-9- 2002, YearsMonthsDays (i)
78. Substantive Sentence Served up to 9-9-2011.23 05 01
(ii) Total Under Trial Period in all cases:01 00 00 and also up held the fine sentence imposed by Trial Court.
79. The sentence under section 307/34, P.P.C. and section 3 of Explosive Act 1908, were maintained with the order that all sentence shall run consecutively.
80. However sentence of Death under section 3 of Explosive Act, 1908, was altered into life imprisonment in the light of order of the Government of Pakistan, received through the Inspector General of Prisons Punjab.
81. Lahore vide No. IB/G- 1/3829-56 dated 1-10- 1993. Copy of Judgment of Hon'ble High Court Rawalpindi Benchrespectively, and the sentences were up held.
82. Copy of the Order of Hon'ble Supreme Court of Pakistan.
83. Dated 7-9- 2002 in Suo Motu Review Petition. No. 13 of 2002, is Annexure- M.(iii)
84. Remissions learned16 00 10
(iv) Total Sentence served including remissions and under trial period.40 05 11 Un-expired portion of sentence.259 06 19 Probable date of Release on 21-6-2082 if fine paid. attached as Annexure-K. Total Sentences 300 year RI with fine of Rs. 500000 Or 2 Years.
5. Abdul Manan son of Haji Murad47 of 1988 Police Station Sadder Quetta(a) 402(B) P.P.C.
85. Death Sentence with the order of Entire Property shall be confiscated in favour of State.
(b) 307, P.P.C. (25 Years RI with fine Rs.
86. 1000000 or 05 Years).
(c) 13E Arms Ordinance (7 Years with fine of Rs, 5000 Or 06 Months That the above mentioned sentence were ordered to run consecutively.
87. Copy of Judgment along with Committal Warrant of Trial Court dated 29-10-1989, i.e. Special Court of Balochistan Quetta, are attached as Annexure-N. That Criminal Appeal No. 48 of 1989, in this case the Hon'ble High Court of Balochistan.
88. Vide Judgment dated 9-6- 1991. Altered the Death sentence under section 403(b)
89. P.P.C. into Life imprisonment while maintained the Sentences under sections 307, P.P.C. and 13-E Arms Ordinance with the direction that the sentence shall run consecutively Copy of Judgment of Hon'ble High Court Balochistan as attached as Annexure-(P)
90. It is further pointed out that Criminal Misc Jail Application No. 1 of 2001 and C.P. No. 590 of 2003, regarding to run the sentenceThat as per statement of the convict and jail record No. Appeal preferred by the convict before the Hon'ble Supreme Court of Pakistan. YearsMonthsDays (i)
91. Substantive Sentence Served up to 9-9-2011.21 10 11
(ii) Total Under Trial Period in all cases:01 07 17 (iii)
92. Remissions learned12 04 15
(iv) Total Sentence served including remissions and under trial period.35 10 03 concurrently and illegal confinement were also dismissed by the Hon'ble High Court of Balochistan, on 15-5-2001, and 8-1-2004, respectively copies of the orders are attached as Annexure-(Q) and (R)Un-expired portion of sentence.21 01 17 Probable date of Release on 21-6-2082 if fine paid. Total Sentences 57 year RI with fine of Rs. 1005000 Or 3 Years.
93. 3(sic.) Raja Aleem Khan Abbasi, Deputy Attorney-General submitted that the two provisions relevant whereby the Court can direct the sentences either to run consecutively or concurrently are sections 35 and 397, Cr.P.C; that having gone through the concise statement filed by the Advocate-General Punjab and Advocate-General Balochistan, he is of the view that the Courts have concurrently directed the sentences to run consecutively and this Court at this stage may not interfere with the same as their appeals stand dismissed even by this Court. He referred to a judgment of this Court reported at Shah Hussain v. State (PLD 2009 SC 460) to contend that it is entirely the discretion of the Court to direct how the sentences should run when an accused is tried in one trial and convicted on different counts and it all depends on the nature and gravity of each case. The cases in hand, he further contended, indicates that the afore-referred persons were tried under sections 3/4/5 and 6 of the Explosive Substances Act, 1908 read with sections 120- B/436/307/34 of the Pakistan Penal Code; that in one case the convict was guilty of committing 10 murders and even in the remaining cases, the murders, are more than one and in any case, they were not part of the same transaction as each one of them was tried in more than one F.I.Rs. relatable to different criminal transactions.
4. Mr. Azam Khan Khattak, learned Additional Advocate-General Balochistan submitted that 5 out of 6 afore-referred convicts hail from Balochistan; that all these convicts were tried, convicted and sentenced in different F.I.Rs.; that the cases are serious as they used bombs and hand grenades to cause the murder and mayhem.
5. Mr. Khushdil Khan, ex-Director, Human Rights, Balochistan submitted that there is no doubt that the afore- referred prisoners were tried under different offences but as human beings the question whether in the afore-referred circumstances, the sentences should run concurrently or consecutively requires that the matter be decided with an element of mercy and compassion.
6. We have given ahxious consideration to the submissions made, have gone through the relevant provisions of law and the precedent case law to which reference was made at the bar.
7. The two relevant provisions concerning the manner in which the sentences should run are sections 35 and 397, Cr.P.C, which read as follows:-- "35. (1) 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 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; Provided as follows:-- Maximum term of punishment.
(a) in no case shall such person be sentenced to imprisonment for a longer period than fourteen years;
(b) if 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 jurisdiction, competent to inflict.
(3) For the purpose of appeal, the aggregate of consecutive sentences passed under this section in case of convictions for several offences at one trial shall be deemed to be a single sentence.
397. Sentence on offender already sentenced for another offence. When a person already undergoing a sentence of imprisonment or imprisonment for life is 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: Provided that where a person who has been sentenced to imprisonment by an order under section 123 in default of furnishing security is, whilst undergoing such sentence, sentenced to imprisonment for an offence committed prior to the making of such order, the latter sentence shall commence immediately."
8. Section 35 of the Cr.P.C. relates to one trial on different counts whereas section 397, Cr.P.C. pertains to a situation when an offender A who is already convicted and sentenced, is tried, convicted and sentenced under different offences and in other criminal transactions. In the latter category of cases the law mandates that when a person "already undergoing a sentence of imprisonment or imprisonment for life is 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". However, the law vests a discretion in Court that notwithstanding the afore-referred mandate, the Court can direct "that the subsequent sentence shall run concurrently with such previous sentence". The discretionary power vested in the Court to direct the sentence to run concurrently is to be exercised in the light of the facts and circumstances of each case i.e. depending on the nature and gravity of the offence. All the afore-referred cases pertain to bomb blasts and the consequent murders which must have caused a sense of suicidal insecurity. In all these cases, the appeals were dismissed by the High Court and even by this Court. The Courts have already exercised their discretion and no case for Suo Motu Review at this belated stage is made out. In the afore-referred circumstances. CMA No. 28-Q/2006 and HRC No.3087 of 2006 are dismissed.