' MUHAMMAD IBRAHIM KHAN, J---This is a Jail Cr. Misc. Petition No,86-P/2016 submitted by Dilbar son of Sahib Gul through the office of Superintendent Central Prison, Haripur. He was convicted and sentenced in two different cases on 29.04.2006 in i. FIR No,525 dated 09.09.2003 of Police Station Lahore under section 302/34, P.P.C. To death with compensation of Rs,50,000/- or in default to undergo 6 months' S.I. ii. FIR No,776 dated 23.12.2001 of Police Station Lahore: a) Under section 302, P.P.C. To Death with compensation of Rs,50,000/- or in default to undergo 06 months' S.I. b) Under section 324/34, P.P.C. To 03 years' R.I with fine of Rs,5000/- or in default to undergo 02 months' S.I. And compensation of Rs,10,000/- or in default to undergo 03 months' S.I. c) Under section 324/34, P.P.C. To 3 years' R.I. With fine of Rs,5000/- or in default to undergo 02 months' S.I. And compensation of Rs,10,000/- or in default to undergo 03 months. d) Under section 324/34, P.P.C. To 03 years' R.I. With fine of Rs,5000/- or in default to undergo 02 months' S.I. And compensation of Rs,10,000/- or in default to undergo 03 months.
2. These sentences were challenged in criminal appeals No,246/2006 and 247/2006 which were heard and disposed of through separate judgments dated 16.12.2008 but by one and the same Hon'ble Bench of this Court. The death sentences in both the cases were altered to life imprisonment while all other sentences were staid. Benefit of section 382-B, Cr.P.C. Was drawn-out, thereby sentences were given effect from 31.10.2003. Detail study of the judgments in both criminal appeals reflect that sentences in case FIR No,776 dated 23.12.2001 under section 302/324, P.P.C. (on 03 Courts) were lined up concurrently while findings to the extent of running the sentences in twain cases are wordless.
3. In order to verify the sentences rendered by the convict petitioner the Superintendent Central Prison, Haripur was put on notice who affirmed that the sentences are taken 25+25=50 years' R.I to the exclusion of fine imposed. The petitioner has earned 90 months 16 days remissions and his probable date of release is 17.10.2043 if he pays fine, where the sentences if run concurrently then release likely to happen on 17.10.2018 subject to payment of fine.
4. In the wake of well-lit information and on thorough going of the wisdom contained in simultaneous like two peas in a pod adjudication of Cr.A. No,246 of 2006 and Cr. A. No,247 of 2006. It is now profusely luminous that although the sentences awarded to the convict petitioner in case FIR No,776 dated 23.12.2001 are to run concurrently but each of the two judgments in above referred criminal appeals, there is no specified referral to that either of the sentences to run consecutively or concurrently side by side.
5. Relating to the issue of sentence of a convicted person to run either consecutively or concurrently has been dealt with under sections 35 and 397, Cr.P.C. The theme of section 35 of the Criminal Procedure Code which reads as under:
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 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 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.
' The text of section 397 of the Criminal Procedure Code which reads as under: [Section 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 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. It is now easily seen from the judgments contained in Cr.A. Nos.246/2006 and 247/2006 that the convictions and sentences were awarded on 16.12.2008 by the correspondent honourable Bench of this Court where there is no finding that the convictions and sentences will run either consecutively or concurrently. Now the question of determination before this Court is as to whether the sentences awarded to the convict petitioner in two different cases should have been given consecutively or concurrently. It is manifestly clear that section 35, Cr.P.C. Applies to an accused who is tried for two or more offences in A one and the same FIR and in single trial the said accused is convicted and awarded different sentences for each offence. This is not a case of the present petitioner. His case is squarely falling under the above given motif of section 397, Cr.P.C. The legislation under this provision is quite compassionate having tender feelings and has provided to order the said subsequent sentences to run concurrently to that of the previous sentences. This is the entire discretion and appanage of the Court to exercise its powers moderately and judiciously. When the universal principle of law is to be given effect in case of punishment, it is for the Courts to struggle and favour in order to interpret the law where liberty of an accused is to be given preference instead to curtail it without animated reasons and justness, however, if the statutory law otherwise is harsh on the subject.
7. The findings of this Court are strengthened in award of the sentences to be run concurrently on derivation of the wisdom contained in 2013 PCr.LJ 652 (Ali Fouzan v. The State), 2013 YLR 1340 W.P.
No,2374-P/2015 (Nasir Mehmood v. The State) and PLD 2015 Supreme Court 15.
8. The convict petitioner is round about 80 years of age. He has so for undergone 13 years rigorous imprisonment. There is only aspiration of day dream of his life to take pleasure of his liberty if the sentences are to run concurrently to be hopefully released on 17.10.2018 even if he pays the fine otherwise will have to undergo further imprisonment in both the cases. On allowing this Criminal Misc. Petition from now on, the sentences in both the cases referred shall run concurrently.
9. The Superintendent Central Prison, Haripur, where the convict petitioner is undergoing the sentences shall be informed by sending a copy of this judgment through the office of the Additional Registrar (Judicial) of this Court.