SARDAR TARIQ MASOOD, J.---Through this consolidated judgment, we shall dispose of Criminal Appeals No, 165-L of 2009, filed by Sajjad Ikram, complainant, 166-L of 2009, filed by Sikandar Hayat and Muhammad Khan, appellants and Criminal Appeal 167-L of 2009 filed by Shahid Iqbal, appellant.
2. These appeals, with leave of the Court, are directed against a consolidated judgment dated 28.10.2008, passed by the Lahore High Court, Lahore, whereby Criminal Appeals No, 744, 749 of 2002 filed by the appellants (Sikandar Hayat, Muhammad Khan and Shahid Iqbal) and Criminal Appeal No, 798 of 2002 filed by Muhammad Faisal Shahzad, were dismissed. However, their death sentences on three counts were converted into imprisonment for life. Criminal Revisions No, 605 a 606 of 2002 and Criminal Appeal No, 1048 of 2002 (against acquittal) filed by the complainant were also dismissed vide the same judgment.
3. Sikandar Hayat, Muhammad Khan and Shahid Iqbal, appellants along with others were tried by the learned Additional Sessions Judge, Sheikhupura who vide judgment dated 29.4.2002 convicted them under Section 302(b), P.P.C. And sentenced them to death on three counts for committing the murder of Jawad Ikram, Fawad Ikram and Muhammad Zahid Iqbal. They were further directed to pay compensation of Rs, 50,000/- each under Section 544-A, Cr.P.C. To the legal heirs of the deceased or in default thereof to further undergo six months' S.I. They were further convicted under Section 148, P.P.C. To one year's R.I. Each; vide the same judgment, co-accused Muhammad Aslam and Muhammad Jameel were also convicted under Section 302(b), P.P.C. Read with Section 149, P.P.C. And were sentenced to death and imprisonment for life on three counts, respectively and they were also convicted under Section 148, P.P.C. And sentenced to one year's R.I. They were further directed to pay compensation of Rs, 50,000/- each to the legal heirs of all the three deceased and in default thereof to further undergo six months' S.I
4. Brief facts mentioned in FIR (Exh. PAA) are that on 13.12.1999 at about evening time complainant alongwith his brothers Fawad Ikram, Jawad Ikram, Zahid Iqbal and Muhammad Aslam were proceeding towards their Dera/cattleshed. Fawad Ikram, Jawad Ikram and Zahid Iqbal were proceeding ahead of them while the complainant and Muhammad Aslam were following them. At about 5.20 p.m. When they reached near guava garden of Muhammad Aslam I@ Pouli [co-convict (since dead)], Muhammad Aslam, his sons Sikandar Hayat, Muhammad Jameel, Muhammad Khan, Muhammad Faisal Shahzad S/o Shafi Ullah (Juvenile), Aamar Ashraf armed with 12 bore guns, Shahid Iqbal and Faisal Shahzad s/o Muhammad Ashraf armed with carbines suddenly confronted the deceased persons. It is alleged in the FIR that Muhammad Aslam raised lalkara to teach lesson to three deceased persons for plucking the guava fruit and insulting them. Upon this lalkara, Sikandar Hayat, Muhammad Jameel and Muhammad Aslam fired shots upon Jawad Ikram hitting on his face, left eye, left hand and inguinal region. Muhammad Khan, appellant fired a shot which hit on left ear and left cheek of Fawad &ram (deceased). The fire shot of Shahid Iqbal, appellant landed on the left side of waist of Jawad Ikram whereas Zahid Iqbal tried to run whereupon Muhammad Faisal Shahzad s/o Muhammad Shafi Ullah, Faisal Shahzad s/o Muhammad Ashraf and Aamar chased him. Muhammad Faisal Shahzad s/o Shafi Ullah fired a shot with his gun which landed on the left thigh of Zahid Iqbal whereas, fire shot of Aamar landed on his left flank who fell down. Paisal Shahzad fired a shot with carbine hitting Zahid Iqbal on his bladder. Muhammad Farooq and Naseer Ahmed, PW-11 also attracted to place of occurrence and the appellants alongwith their co-accused proceeded tOwards the garden. All the three, i.e, Jawad Ikram, Fawad &ram and Zahid Iqbal succumbed to injuries at the spot
5. Leave to appeal was granted by this Court on 22.10.2013 with the following observations:- "Learned counsel for the petitioners submits that he would not challenge the conviction provided the sentences awarded are directed to run concurrently and petitioners are extended the benefit of section 382-B, Cr.P.C. In view of stand taken by the petitioners' learned counsel, leave is granted in all cases, inter alia, to consider whether in the facts and circumstances of this case, petitioner's sentences could be directed to run concurrently? "
6. The leave granting order clearly indicates that the appellants had not challenged the conviction and prayed only to the extent that the sentences awarded to the appellants be directed to run concurrently with benefit of Section 382-B, Cr.P.C. Leave was granted to consider whether in the facts and circumstances of this case, petitioners' sentences can run concurrently or not? Even today, learned counsel for the appellants in Criminal Appeals No, 166-L & 167-L of 2002, did not challenge the conviction and prayed for concurrent sentences with benefit of Section 382-B, Cr.P.C.
7. The learned counsel for the appellants contends that the complainant, during the trial made improvement in order to exaggerate the motive occurrence, to which he was duly confronted and ultimately the Lahore High Court, Lahore came to the conclusion that in this case motive remained unproved. Further contends that the presence of mud on the dead-bodies has not been explained by the prosecution and the Appellate Court rightly observed that the existence of mud upon the bodies of the deceased persons is indicative of the fact that the deceased had entered into the guava garden of the appellants where garden might have been watered, so the presence of the deceased persons in the garden is a question which had not been explained by the prosecution; that the High Court had also observed that prosecution witnesses, although were present at the spot but they did not narrate the true story. That the Appellate Court had also come to the conclusion that complainant party attacked upon the appellants in their guava garden during which the appellants while guarding their lives gone beyond the limits laid down by the law and took away the lives of three persons; that the High Court categorically observed that due to the mysterious circumstances of the case, the sentence of death was unwarranted and the same was reduced to imprisonment for life on three counts but the High Court in the above-mentioned circumstances has not given the benefit of Section 382-B, Cr.P.C, nor passed any order regarding the sentences as to whether the same will run concurrently or consecutively; that the above- mentioned facts and circumstances are sufficient for extending the benefit of Section 382-B, Cr.P.C.
Which is mandatory and for a direction that the sentences of the appellants be run concurrently.
8. The learned Assistant Prosecutor General, Punjab had opposed the arguments of the learned counsel for the appellants . And contends that the appellants are nominated in the FIR and they had taken the lives of three innocent persons and in that eventuality this discretionary relief may not be extended to the appellants.
9. We have heard both the learned counsel for the parties and have gone through the record, with their able assistance.
10. Before dilating upon the legal proposition regarding the concurrent sentences on three counts or benefit of Section 382-B, Cr.P.C., we would like to discuss the facts and circumstances mentioned by the learned counsel for the appellants to consider as to whether the said sentences can be directed to run concurrently or not,
11. Although three persons had lost their ,lives in this occurrence but record reveals that earlier the case of prosecution was that Zahid Iqbal, deceased plucked the guava fruit from the garden of the appellants but during the tried the complainant made improvements in order to aggravate the motive occurrence and claim that all the three deceased persons earlier plucked the guava fruit from the garden of the appellants and the quarrel took place. He was duly confronted with his previous statement, where this improved version was not mentioned. Lahore High Court, Lahore had rightly observed that motive in this case remained unproved. In absence of the motive, regarding the remaining two deceased persons, it can easily be presumed that something else triggered the situation and this occurrence took place which has been concealed by the prosecution. The immediate cause for commission of this offence is shrouded into the mystery.
' The case of prosecution was that the deceased persons were passing through the path and they were done to death then and there. Although Zahid Iqbal died near the watercourse but it had come on the record that the water-course on both sides of the path was dry on the day of occurrence. Doctor who conducted post-mortem examination found mud upon the dead-bodies of the deceased persons. Prosecution never claimed that deceased persons ever entered in any watercourse. The existence of mud upon the bodies of deceased persons is indicative of the fact that deceased persons received the fire shots inside the guava garden of the appellant, where garden might have been watered. It was a month of Ramadan and according to the prosecution the occurrence took place at 5,20 p.m. But Doctor found undigested food in the stomach of the deceased persons due to which the High Court came to the conclusion that the occurrence has taken place after sunset. The High Court had also observed that although the prosecution witnesses were present at the spot but they did not narrate the true story. The Appellate Court came to the conclusion that the complainant party attacked the appellants in their guava garden during which the appellants while guarding their lives go beyond the limits lay down by the law and took the lives of three persons. The High Court due to mysterious circumstances of the case reduced the sentence of the appellants from death to imprisonment for life on three counts. The High Court, however, did not extended the benefit of Section 382-B, Cr.P.C. Nor passed any order as to whether the same sentences on three counts will run concurrently or consecutively. The High Court must have decided the above issue in view of the facts and circumstances mentioned above.
12. The aggregate of punishment of imprisonment for several offences at one trial were deemed to be a single sentence. However, the position of an accused person is different who while already undergoing a sentence of imprisonment for life, is subsequently convicted and sentenced in another trial. Such subsequent sentence in view of Section 397, Cr.P.C. Would commence at the expiration of imprisonment for life for which he had been previously sentenced but even then in such cases, the said provision expressly enables the Court to direct that the subsequent sentence would run concurrently with the previous sentence. It is clear from Section 397, Cr.P.C, that the Court, while analyzing the facts and circumstances of every case, is competent to direct that sentences in two different trials would run concurrently. In that eventuality, the Court has wide power to direct that sentences in one trial would run concurrently. The provision of Section 397, Cr.P.C. Confers wide discretion on the Court to extend such benefit to the accused in a case of peculiar nature, like the present one. Thus extending the beneficial provision in favour of the appellant, would clearly meet the end of justice. We, therefore, observe that there is nothing wrong in treating the sentences of imprisonment for life of the convict/appellants on three counts to run concurrently, in view of facts and circumstances discussed above.
' This Court in the case of Ghulam Haider v. The State (1984 SCMR 887) while extending the benefit of Section 382-B, Cr.P.C. Directed that the life imprisonment on three counts of the convict be run concurrently in view of the circumstances of the said case as there was no previous enmity between the parties. In the case of Faiz Ahmed and another v. Shafiq-ur-Rehman and another (2013 SCM R 583) this Court while reducing the sentence of death of the convict to imprisonment for life directed that the sentences awarded in the said case to the convict be run concurrently as the High Court had inadvertently omitted ordering running of sentences of imprisonment concurrently.
In the case of Mst. Zubaida v. Falak Sher (2007 SCM R 548), the complainant filed petition for obtaining a direction that the life imprisonment awarded to the convict on four counts be run consecutively but this Court dismissed the said petition on the ground that from the facts and circumstances of the case, the imprisonment of life on four counts be run concurrently. Likewise in the case of Muhammad Shanf v. The State (2014 SCM R 668) in ma mow review petition observed as under:- "It appears that in the judgment under review this aspect of the matter had escaped the notice of this Court. The Suo Moto Review is, therefore, allowed and it is ordered that all the sentences of imprisonment passed against the petitioner shall run concurrently to each other, 13.
13. So far, Section 382B, Cr.P.C. Is concerned, the same is reproduced below:- "382-Be Period of detention to be considered while awarding sentence of imprisonment.--- Where a Court decides to pass a sentence of imprisonment on an accused for an offence, it shall take into consideration the period. If any, during which such accused was detained in custody for such offence."
' In Section 382-B, Cr.P.C., earlier word "may" was used which was subsequently substituted to word "shall" through the Cr.P.C. (Second Amendment) Ordinance (71 of 1979). The word "shall" in the said section bound the Court to take into consideration the pre-sentence period spent by the convict in the jail. This enactment requires the Court to take into consideration the period for which accused remained confined as an under trial prisoner. It is the duly of the Trial Court to take into consideration the said provision. However, the benefit of Section 382-B, Cr.P.C. Is also available to a person whose sentences of death under Section 302(b), P.P.C. Have been subsequently converted to imprisonment for life (as in this case). While passing the sentence, it is the duty of the Court to take into consideration the pre-sentence period which he had spent in connection with the offence for which he was convicted. The said pre-sentence period should not go uncounted for. This Court in the case of Shah Hussain v. The State (PLD 2009 SC 460) had extended the said benefit to the convict whose sentence of death was subsequently converted to life imprisonment.
14. As in this case, the conviction of the appellants has not been challenged by the learned counsel for the appellants and leave was granted only to consider as to whether from the facts and circumstances of the case, the sentences of imprisonment for life on three counts and sentence under Section 148, P.P.C. Can ordered to be run concurrently. The circumstances mentioned above clearly indicate that previously there was no enmity between the parties and there were some mysterious circumstances, as discussed above, which ultimately resulted into the murder of three persons. While converting the death sentences into imprisonment for life on three counts, the High Court inadvertently omitted to pass an order regarding concurrent running of all the sentences of imprisonments under Sections 302 (b) and 148, P.P.C. Passed against the appellants. Consequently, the appeals filed by the appellants/convicts are hereby dismissed. However, all the sentences of life imprisonment on three counts and sentence under Section 148, P.P.C. Of the appellant shall run concurrently. Benefit of Section 382-B, Cr.P.C. Is also extended to the appellants. Due to above- mentioned circumstances, Criminal Appeal No, 165-L of 2009, filed by the complainant is also dismissed. /Concurrent Running of Sentences Ordered.