' MUHAMMAD HASHIM KHAN KAKAR, J.---Through these criminal jail appeals, sent via Superintendent Central Jail, Mach, appellant Ghous Bakhsh son of Khuda Bakhsh has assailed the judgments dated 28fh May, 2009, passed by the Sessions Judge, Kalat Division at Mastung.
2. The appellant was tried by the Sessions Judge, Kalat Division at Mastung in three separate cases, arising out of F.I.Rs, No,60 of 2003. 55 of 2004 and 73 of 2004, registered at Police Station, Soorab and respectively vide judgments dated 28th May, 2009, he was convicted and sentenced in the following manner:--
(i) under section 387 read with section 511 of the P.P.C. To suffer three (3) years' RI and to pay a fine of Rs,2,000 (rupees two thousand only), in default whereof to further undergo six (6) months' S.I., with the benefit of section 382-B of the Cr.P.C.;
(ii) under section 394 of the P.P. C. To suffer RI for seven years, with a fine of Rs,50, 000 (rupees fifty thousand only), in default whereof to further suffer two (2) years' S.I., with the benefit of section 382-B of the Cr.P.C., and
(iii) under section 337-F(iv) to suffer three (3) years' R.I., with a fine (daman) of Rs,50,000 (rupees fifty thousand only) payable to the injured, with the benefit of section 382-B of the Cr.P. C.
3. It would be appropriate to give a small compass of aforesaid F.I.Rs, in order to reach at a just and proper conclusion of the case, which is as under:--
(i) The stated facts of F.I.R. No,60 of 2003, under section 17(2) of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979 registered at Police Station Soorab by complainant Ahmed Khan, show that the appellant along with his two companions attempted to snatch his motorcycle and during this period, the appellant also made two fires, which hit the tank of the motorcycle;
(ii) The contents of F.I.R. No,55 of 2004 reflect that the complainant registered the said case under sections 392, 393, 398 read with section 34 of the P.P.C. At Police Station Soorab, wherein he alleged that the appellant along with his companions tied the hands and feet of his shepherd and, after assault, snatched away 250 sheep and that his shepherd identified the appellant, and
(iii) Complainant Sikandar son of Shah Muhammad in his F.I.R. No,73 of 2004, under section 324 read with section 34 of the P.P.C., registered at Police Station Soorab, alleged that on 6th October, 2004 at about 12-00 noon, appellant Ghous Bakhsh and co-accused Mehmood son of Fateh Muhammad, in furtherance of their common intention, made firing upon his relative Hazoor Bakhsh with Kalashnikov, due to which he sustained injuries.
4. Mr. Jamil Ramzan, learned counsel for the appellant, at the very outset, submitted that besides convictions and sentences of the appellant in the aforesaid crimes, he was also convicted and sentenced in Crime No,94 of 2004 of Police Station Soorab under section 302(b) of the P.P.C. To suffer life imprisonment for committing the murder of one Shafi Muhammad, with a fine of Rs,200,000 (rupees two hundred thousand only) as compensation to be paid to the heirs of the deceased. He was further convicted and sentenced under section 324 of the P.P.C. To suffer five (5) years for causing firearm injuries to Ghulam Mustafa, Kamal Khan, Shah Jehan and Muhammad Gul and to pay a fine of Rs,10,000 (rupees ten thousand only). He was also convicted and sentenced under section 337-F (vi) of the P.P.C. For three (3) years with , a daman of Rs,10,000 (rupees ten thousand only) payable to injured Ghulam Mustafa. Learned counsel further contended that the sentences in Crime No,94 of 2004 were ordered to run concurrently, with the benefit of section 382-B of the Cr.P.C., however, the trial Court did not make any order regarding concurrence of the sentences in the murder case i,e, arising out of F.I.R. No,94 of 2004 with the convictions and sentences of the appellant, subject-matter of the instant appeals. He further contended that, after awarding life imprisonment in Crime No,94 of 2004, it, was obligatory upon the trial Court to have passed an order regarding running of the convictions and sentences concurrently in view of section 35-A of the Cr.P.C., but the trial Court has failed to exercise its jurisdiction. He prayed that the aforesaid convictions and sentences may be ordered to run concurrently.
5. Before dilating upon the contentions, so raised by learned counsel for the appellant, it would be appropriate and advantageous to reproduce sections 35 and 397 of the Cr.P.C., which deal with the proposition in question, as under:-- "35. Sentence 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 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 punishment 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 High Court; ' Provided as follows:
(a) in no case shall such person be sentenced to imprisonment for a longer period than 14 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.
(c) 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."
' Similarly section 397 of the Cr.P.C. Speaks as under:-- "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."
6. During the course of arguments, learned counsel for the appellant did not assail the impugned judgments to the extent of quantum of sentences awarded in the above noted cases, however, the difficulty has arisen to the appellant that the trial Court did not pass any order as to whether the aforesaid convictions and sentences were to run concurrently or consecutively. We are not impressed by the contention of learned counsel, particularly when sections 35 and 397 of the Cr.P.C. Furnish a complete answer to the assertion. Perusal of section 35 of the Cr.P.C. Shows that when a person is convicted at one trial of two or more offences, the trial Court is obliged to sentence him for approved offences, to separate punishments prescribed therefor, such punishments when consisting of imprisonment will commence one after the expiry of the other, unless the Courts direct that such punishments shall run ' concurrently. It means that the rule is that the sentences of imprisonment in two or more offences tried at one trial shall run consecutively and the direction that such punishment shall run concurrently is an exception. The provision of section 35 of the Cr.P.C. Is only applicable, when a person is convicted at one trial of two or more offences. Its subsection (1) is of general application and is not, in any way, restricted in nature. Under section 35 of the Cr.P.C., the Court can direct a concurrent running of sentences only when the accused is convicted at one trial of two or more distinct offences, whereas in the instant case, all four offences, though some of them identical in nature, were committed B with distinct and separate criminal objectives sought to be achieved at four different points of time, as such, justification to seek concurrent running of all the offences, in peculiar circumstances, does not arise at C all. Sentence of fourteen (14) years, as mentioned in proviso (a) to section 35 of the Cr.P.C. Is to be read as twenty five (25) years, meaning thereby that an accused in the same trial cannot be sentenced to imprisonment for a longer period than imprisonment for life. Under section 35 of the Cr.P.C., the total period of imprisonment at one trial cannot exceed twenty five (25) years.
7. A careful and minute perusal of the aforesaid provisions of law clearly demonstrates that the basic difference between the two provisions is that section 397 of the Cr.P.C. Prescribed for running of different sentences inflicted on an offender, at different trials, for different offences, without any clog of time, place and nature of offence, whereas section 35 of the Cr.P.C. Enjoined that it would come into play, when a person was convicted at one trial of two or more offences. Since direction under section 35 of the Cr.P.C. Is contingent on the conviction of a person for several offences at one trial, as such, said section does not attract in the circumstances of the present case, because the appellant, in present cases, had been convicted at different trials, for the offences committed at different times and places.
8. We are conscious of the fact that the trial Court as well as the appellate Court has ample discretion under section 397 of the Cr.P.C. To direct the subsequent and previous sentences of imprisonment to run concurrently, but in the absence of exercise of such discretion, the sentences shall run consecutively. In a case, where two or more offences not connected, taking place at different times and with different persons, this Court can neither in exercise of inherent power under section 561 of the Cr.P.C., nor in exercise of supervisory jurisdiction under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 direct or substitute an order for running subsequent sentence concurrently with previous sentence. Sentences in such cases cannot be justifiably ordered to run concurrently. The appellant having been convicted at three separate trials and not at same trial for two or more offences, as such, section 35 of the Cr.P.C. Is not relevant.
9. We are not in agreement with learned counsel for the appellant that the sentences awarded to the appellant are severe in nature. In this context we are of the opinion that the purpose behind infliction of sentence is twofold; firstly, it would create such atmosphere, which could become a deterrence for the people who have inclination towards crime and; secondly, to work as a medium in reforming the offenders. Sentence should be neither so severe that the offenders, could, out of frustration, become desperate and hardened criminals, nor should it be so mild that it encouraged the offenders to commit the offence again. The H Courts, while judging adequacy of the sentence, are required to consider different factors, such as, previous conviction, circumstances, mode and mariners, in which offence was committed, age and character of an offender, heinousness of crime, injury to individuals and the society etc. While considering the cases of the appellant on the said criterion, we are of the view that the record reflects that the appellant has committed robbery during daylight while depriving the complainant of 250 sheep, attempt to snatch the motorcycle as well as causing injuries to the relative of one of the complainants. After finding him guilty, the Sessions Judge, Kalat at Mastung convicted and sentenced him, as mentioned hereinbefore. It may be observed that in all the cases, the appellant has been awarded minimum sentence provided for the offences J committed by him. The powers, conferred upon the Courts under section 397 of the Cr.P.C. For ordering the various sentences awarded in different cases to run concurrently. Are discretionary and are to be exercised after taking into consideration the allegation and circumstances of each individual case. As already observed, the appellant has been awarded minimum sentences provided for the offences under sections 337-F(iv), 387, 394 and 511 of the P.P.C. And the trial Court has already taken lenient view while awarding sentences.
Besides, the appellant has also been extended benefit of section 382-B of the Cr.P.C. In all the cases. The involvement of the appellant in a number of cases shows his desperate character.
For the aforesaid reasons, while turning down the request of the appellant made by his counsel, the appeals, being meritless, are hereby M dismissed accordingly.