' TASSADUQ HUSSAIN JILLANI, J.---This Criminal Suo Motu Review Petition arises out of Jail Petitions Nos,466 of 2003 and 227 of 2009, which were dismissed by this Court vide the two separate judgments dated 25-6-2007 and 22-7-2009.
2. Facts giving rise to the instant review petition briefly stated are that petitioner Ghulam Farid was tried in two different cases in F.I.R. No,154 dated 27-12-2001 under section 302/449, P.P.C. At Police Station Basal, District Attock and F.I.R. No,155 dated 27-12-2001 under sections 302, 338-A, P.P.C.
Read with 12-Offence of Zina (Enforcement of Hudood) Ordinance, 1979 at Police Station Basal, District Attock. He was tried in F.I.R. No,154 for the murder of Muhammad Rafique which culminated in his conviction by the trial Court vide the judgment dated 21-5-2002 and he was sentenced to death as also with a fine of Rs,100,000 in default whereof he was directed to undergo RI for two yeaRs, In appeal, the conviction was maintained but the sentence of death was converted into life imprisonment. The Jail Petition No,227 of 2009 filed against the judgment of the High Court was dismissed by this Court on 22-7-2009. The facts as given in Jail Petition No,227 of 2009 briefly stated are as under:- "According to the prosecution the petitioner went to the house of Muhammad Rafique deceased on 27-11-2001 at about 5-30 a.m. On a knock given by the petitioner, Muhammad Rafique deceased opened the door. The petitioner entered the room and fire with his gun causing injury to Muhammad Rafique deceased on his chest. The occurrence was witnessed by P. W.10 Mst.
Khanum Jan the widow of the deceased and P. W.11 Mst. Khashmiran Jan. The motive for the offence, as per was that about 7/8 days before the occurrence there was a rumour in the village that the petitioner had been committing Zina with his daughter Mst. Parveen Bibi. As a result of which she had become pregnant and was got miscarried. The petitioner suspected that the rumour had been floated by Muhammad Rafique deceased."
3. The second case was registered the same day after one hour at 6-30 a.m. (vide F.I.R. No,155 dated 27-12-2001) for the murder of Mst. Parveen his daughter wherein he was tried and convicted under section 302(b), P.P.C. Read with section 306(b), P.P.C. And was sentenced to pay diyat to the legal heirs of the deceased as also was sentenced to 14 years' RI as Tazir. The conviction and sentence awarded has been maintained up to this Court in terms of the judgment dated 25-6- 2007 passed in Jail Petition No,466 of 2003. Facts as given in the second case registered against the petitioner on the complaint of his wife (Mst. Shahzadan Bibi) briefly stated are that petitioner developed illicit liaison with her daughter from petitioner's wedlock namely Parveen Bibi and he used to commit zina off and on with her as a consequence of which she became pregnant. He threatened her not to divulge and otherwise, he will kill her and the said daughter. In the month of Ramzan she and the petitioner at the asking of the latter went to a female nurse named Kousar to carry out abortion of pregnancy which was accordingly done. However, the news leaked out. On 27-12-2001 at 6-30 a.m., when she and her daughter and former's father were asleep in a room, petitioner came with .12 bore gun and made a straight fire at her daughter, which proved fatal and she died at the spot.
4. The defence plea of the petitioner in both the cases was as follows : -- "I came to know a day or two prior to present occurrence that Rafique deceased got miscarriage of my daughter Mst. Parveen Bibi from a mid-wife of the village. It was also a rumour in the village about this. I inquired from my wife who denied the same fact, however, I suspected that the pregnancy of my daughter was due to Rafique, the deceased of this case. On the night of the occurrence at about 3.00 a.m. I woke up and had not found my daughter Mst. Parveen Bibi at her cot so my suspicion convert into faith that my daughter Mst. Parveen Bibi had gone to the house of Rafique deceased in that moment I took my rifle with me and went to the house of Rafique deceased, There in a room my daughter along with the deceased was sleeping on one and the same cot. 1 raised lalkara to Rafique deceased. On hearing my voice, my daughter ran away from the room and under grave and sudden provocation and due to "Ghairat", I fired a shot upon the deceased Rafique and in the same condition rushed towards my house where I under Ghairat and grave and sudden rovocation, I fired upon Mst. Parveen Bibi my daughter. The story concocted by the prosecution is fabricated one."
5. Learned counsel for the petitioner contends that in view of the mandatory provisions of section 397, Cr.P.C., the sentences awarded in two cases under which he was tried, convicted and sentenced should directed to be run concurrently as the motive is the same; the occurrences took place the same day and both the incidents are part of the same transaction. In support of the submissions made, learned counsel for the petitioner relied on Abdul Ghafoor v. The State (2007 YLR 700), Shamshad Hussain v. The State (2002 MLD 1079 (Lahore) and Niaz Ali v. The State (PLD 1961 (W.P) 269).
6. Learned Additional Prosecutor-General however, opposed the petition by submitting that in both the criminal cases the place of occurrence is different and the motives were distinct and both the incidents being not part of the same transaction, the sentence awarded in the second case has to run after the expiry of the sentence awarded in the earlier case. In support of the submissions made, learned counsel relied on Nek Muhammad v. The State (PLD 2007 Karachi 62), Ahmad and others v. The State (1991 PCr.LJ 1445 at 1453). He read out section 397 and section 35, Cr.P.C. To contend that both the sections would not be relevant. Because the former section (35, Cr.P.C.) is attracted "when a person is convicted at one trial of two or more offences" whereas the' latter provision (397, Cr.P.C.) is relevant "when a person already undergoing a sentence of imprisonment, or imprisonment for life, is sentenced to imprisonment, or imprisonment for life." The condition precedent for invoking these provisions being non-existent, petitioner cannot claim the benefit of having the sentences run concurrently.
7. We have heard learned counsel for the petitioner and learned Law Officer at some length and have given anxious consideration to the submissions made.
8. In Niaz Ali v. The State (PLD 1961 (W.P) Lahore 269), the appeal arose out of one trial under two different,, enactments but the Court found that if the nature of offence was same, a person could not be awarded double punishment. The Court held as follows:-- "7. The learned counsel has lastly urged that separate sentences for the two convictions recorded by the Special Judge are illegal, as allegedly the accused had committed only one act constituting one offence, although falling under two enactments, and he cannot be punished twice over for the same. I am of the view that this contention is well-founded. Section 26 of the General Clauses Act provides a bar to double punishment for the same offence, although a person is .Liable to be prosecuted and punished for an act or omission constituting an offence and falling under two or more enactments. In other words there is no bar to a trial or a conviction for the same act which is an offence under different enactments, but there is a bar to a punishment being awarded twice for the same offence. In such a case it would be quite in order to record the convictions separately and award concurrent sentences if they are of imprisonment, but in no case can an accused person be made to suffer any extra punishment by way of duplication for the same offence. In the present case, the punishment is illegal inasmuch as it imposes a fine of Rs, 50 under each of the two enactments making a total of Rs,
100. The extra fine of Rs, 50 for the offence under one or other of the counts is therefore not legal involving, as it does, a duplication of punishment for the same offence."
9. In Abdul Hamid v. The State (1990 PCr.LJ 568), a learned Bench of the Lahore High Court did not grant the relief of sentences to run concurrently because it found as follows:-- "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 sentences is, therefore, the general rule while concurrent sentences 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, but not where there is no connection between the two. In the present case the two offences are not connected. They took place at different times and two different persons were killed at two different places and there was no connection of any sort between the two. Under these circumstances' the sentence in these cannot be justifiably ordered to run concurrently with the sentence in the other case."
10. In Abdul Ghafoor v. The State (2007 YLR 700) facts were that a person was tried in two different cases by the same learned Judge the same day in the cases registered vide F.I.R. Registered the same day one after the other. The Court directed the sentences to run concurrently inter alia on the ground that the prosecution had "malafidely separated it into two crimes" and found as follows:-- "From the judgment it appears that both the crimes are one and the; same and the prosecution has malafidely 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 not exercising jurisdiction in favour of the applicant. In the case of Shamshad Hussain alias Shamla v. State 2002 MLD 1079 a learned D.B. Of Lahore High Court has held as. Under:-- "Appellant was arrested oti the same day in both the cases registered against him one after the other. He was tried by the same learned Judge, convicted and sentenced on the same day in rase F.I.R. No,274 for five years' R.I. And fine of Rs,25,000 and in case F.I. R. No,273 of 1997 for ten years' R.I.
With fine of Rs, Lac. Under section 397 of Criminal Procedure Code, this . Court is competent to order running of sentences concurrently although the trial in both the cases were separate as laid down in the case of Altai Hussain referred above."
' The facts of reported case of Sikandar Ali are distinguishable as in that case the Court has held that accused had been convicted for three independent offences.
' 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 just, we feel it will be in the interest of justice to order that both the sentences be run concurrently. The revision is allowed in the above terms.
11. In Ahmed Sultan v. State (2007 SCMR 1424), this Court did not exercise discretion in terms of section 397, Cr.P.C. As it inter alia found that the appellant has committed gruesome murder of three persons for a petty object and held as follows:- "Section 397 of the Cr.P.C. Provides that the sentences of imprisonment of a person convicted for offences in different cases are to run consecutively unless the Court passing the subsequent sentence orders that it shall run concurrently with the previous sentence. It is, therefore, left to the discretion of the trial Court to order the concurrent running of the sentences of imprisonment in separate cases. Unless such discretion is exercised in favour of the convict the sentences shall run consecutively. In the present case, neither the trial Court nor the High Court or this Court in the petitions for leave to appeal had exercised the discretion in favour of the appellants. Even otherwise, on merits too, keeping in view the gruesome murders of three persons for a petty object committed by the appellants,. We do not feel inclined to exercise this discretion in their favour."
12. The ratio decidendi in the precedent case-law referred to in the preceding paragraphs is that in terms of section 397, Cr.P.C. Consecutive sentences is a general rule while the concurrent sentence is an exception and is to be awarded in the exercise of discretion by the Court depending on the facts and circumstances of each case. In the exercise of discretion, the Court may inter alia look.Into (i) the conduct of the convict, (ii) heinousness of crime and (iii) injury to the individual and the society. In the instant case, the two murders were committed at two different places. One was committed at the house of Muhammad Rafique deceased (F.I.R. No,154 dated 27-12-2001) and the other namely that of Mst. Parveen Bibi was committed at petitioner's own house when she was asleep (F.I.R. No,155 dated 27-12-2001). These were two different transactions though in the defence plea, petitioner attempted to make it a single transaction which he miserably failed to prove. His own wife Mst. Shahzadan Bibi appeared during trial (F.I.R. No,155 dated 27-12-2001) to allege that the petitioner had developed illicit liaison with her own daughter Mst. Parveen Bibi deceased; that at his asking she accompanied him to the nurse to cause miscarriage of pregnancy of the said Parveen deceased and when the said act became public, he not only murdered Muhammad Rafique regarding whom he suspected that he had spread the rumour but also Parveen Bibi who to the petitioner by then had become symbol of his sin. Petitioner's son Ghulam Qadir also appeared during trial in the said case as P.W.12 and corroborated Mst. Shahzadan Bibi. The petitioner not only committed gruesome murder of two persons but his conduct reflects a morbid, perverse and depraved character.
13. In the afore-referred circumstances, we are not inclined to exercise our discretion in favour of the petitioner. Consequently, this Criminal Suo Motu Review Petition is dismissed.