TARIQ SALEEM SHEIKH, J. Petitioner Hafeez Bibi was convicted and sentenced as under vide judgment dated 9- 12-1999 handed down by the Special Judge, Anti-T errorism Court, Sargodha Division, Sargodha, in case FIR No.297/1999 dated 27-7-1999 registered at Police Station Sargodha Cantt.
(a) Convicted under sections 302/34 PPC and sentenced to death on two counts and fine of Rs.100,000/- and in default thereof to undergo rigorous imprisonment for 10 years;
(b) Convicted under sections 394/34 PPC and sentenced to life imprisonment and fine of Rs.50,000/- and in default thereof to undergo rigorous imprisonment for a further period of five years;
(c) Convicted under section 7 of the Anti-Terrorism Act, 1997, and sentenced to life imprisonment and fine of Rs.50,000/- and in default thereof to undergo rigorous imprisonment for a further period of five years.
2. The Petitioner filed Crl. Appeal No.1326/1999 against the above-mentioned judgment while the learned Special Judge sent a reference under section 374 Cr.P.C. (M.R. No.532-T/1999) to this Court for confirmation of her death sentence. This Court dismissed the Petiti oner's appeal and answered the Murder Reference in the affirmative vide judgment dated 24-10-2001. The Petitioner preferred Criminal Appeal No.117 of 2002 before the Hon'ble Supreme Court of Pakistan which was dismissed on 25-9-2003 but her death sentence was altered to life imprisonment with benefit of section 382-B Cr.P.C. She filed Criminal Review Petition No. 43 of 2003 which was dismissed on 2-5- 2005. Now, through this petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, she prays that her sentences of imprisonment be made concurrent.
3. Learned counsel for the Petitioner contends that the Petitioner is behind the bars since 12-8-1999. She has grown old and is suffering from various ailments. Her sentence of imprisonment in its present form calculates to 100 years which is beyond expectancy of life. In Mst. Shahista Bibi and another v. Superintendent, Central Jail, Mach and 2 others (PLD 2015 SC 15) in somewhat similar circumstances the Hon'ble Supreme Court granted relief to the convicts and ordered that their sentences of imprisonment shall run concurrently .
4. The learned Assistant Advocate Gene ral contends that Shahista Bibi's case is distinguishable. This petition is misconceived and may be dismissed.
Opinion of the Court
5. Section 53 of the Pakistan Penal Code, 1860 (PPC), stipulates the punishments that may be awarded to a convict for the of fences under the Code. It reads as follows:
53. Punishments.- The punishments to which of fenders are liable under the provisions of this Code are- Firstly: Qisas; Secondly: Diyat; Thirdly: Arsh; Fourthly: Daman; Fifthly: Ta'zir; Sixthly: Death; Seventhly: Imprisonment for life; Eighthly: Imprisonment which is of two descriptions, namely:
(i) Rigorous, i.e., with hard labour;
(ii) Simple; Ninthly: Forfeiture of property; Tenthly: Fine.
Section 57 PPC states that imprisonment for life shall be reckoned as imprisonment for twenty-five years.
6. Section 35 Cr.P.C. lays down the law regarding awarding of sentence in cases of conviction of several offences at one trial. It stipulates:
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 therefore 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 of fence, to send the of fender for trial before a higher Court; Provided as follows: Maximum terms of punishment
(a) in no case shall such person be sentenced to imprisonment for a longer period than fourteen years; (b)...
7. A four-member Bench of the Hon'ble Supreme Court had the occasion to consider the above sections in Javed Shaikh v. The State (1985 SCMR 153). In that case the appellant questioned the legality of the consecutive sentences of imprisonment for life under section 302 PPC and seven years rigorous imprisonment under section 307 PPC awarded to him by the trial court which were maintained by the High Court. He contended that section 35 Cr.P.C. prohibited making of consecutive sentences aggregating more than 14 years. The august Supreme Court held: "Life imprisonment is, according to section 57 of the PPC, to be reckoned as equiva lent to 25 years' R.I. This is one of the punishments which can be imposed on an offender , on account of the substitution of the punishment for transportation for life - which was one the punishment that could be imposed on an offender under section 53 of the PPC and was reckoned as equivalent to fourteen years before its amendment by the Law Reforms Ordinance, 1972. No objection can, therefore, be taken to the imposition of the sentence of life imprisonment after the promulgation of the Law Reforms Ordinance, 1972. However , the question is whether the appellant can also be sentenced to undergo a further sentence of seven years under section 307 PPC for his having attempted to murder Manzoor Hussain PW -5."
The Supreme Court further held: "A perusal of proviso (a) to sub-section (2) of section 35 Cr.P.C. indicates that it prohibits the giving of consecutive sentence in one trial beyond the period of fourteen years, the maximum sentence, short of the death sentence, which could be imposed on an offender before the promulgation of the Law Reforms Ordinance, 1972. The said provision (section 35 Cr.P.C.) appears to be in consonance with the scheme and intendment of the Pakistan Penal Code that an offender should only suffer the maximum sentence of imprisonment for any heinous crime (as it stood until 1972) which should not exceed fourteen years. Therefore, the imposition of the sentence of life imprisonment (which means 25 years' R.I.), plus seven years' R.I. under section 307 PPC would be inconsistent with the intendment of the provisions of proviso (a) to sub-section (2) of section 35 Cr.P.C. inasmuch as the maximum punishment prescribed for heinous offence shall be exceeded. The difficulty in this case can be overcome if the sentences awarded to the appellant in respect of the two convictions under section 302 PPC and under section 307 PPC in one and the same trial are directed to run concurrently instead of running consecutively ."
8. The above-mentioned judgment was followed in Juma Khan and another v. The State (1986 SCMR 1573 ), Muhammad Ittefaq v. The State (1986 SCMR 1627 ), Khan Zaman and another v. The State (1987 SCMR 1382 ) and Faridullah Shah and another v. The State (1990 PCr.LJ 1945). However , in the year 1991, a five-member Bench of the Hon'ble Supreme Court took a different view in Bashir and 3 others v. The State (PLD 1991 SC 1145) and held as under: "...proviso (a) to sub-section (2) of section 35, Criminal Procedure Code, does not apply to cases of sentence awarded by the Sessions Court in original trial ... the sentence of life impris onment, unless ordered to run concurrently under sub-section (1) of section 35 Cr.P.C. will run consecutively in view of its quantification in terms of years under section 57 of the Pakistan Penal Code."
9. Later , in Shah Hussain v. The State (PLD 2009 SC 460) a six-member Bench of the Hon'ble Supreme Court reverted to the principle laid down in Javed Shaikh' s case. It reaffirmed that proviso (a) to section 35 Cr.P.C. prohibits handing down consecutive sentences in one trial beyond 14 years. Relevant excerpt is reproduced hereunder: "The petitioner in the instant case was sentenced to 10 years' R.I. and imprisonment for life on two counts. His sentences were ordered to run consecutively . The aggregate sentence of the petitioner would thus come to sixty years, which is contrary to the provisions of section 35 Cr.P.C. Proviso (a) to sectio n 35 Cr.P.C. prohibits the giving of consecutive sentence in one trial beyond the period of 14 years."
10. In Faiz Ahmad and another v. Shafiq-ur-Rehman and another (2013 SCMR 583) and in Muhammad Sharif v. The State (2014 SCMR 668) also the accused were convicted and sentenced on more than one counts.
Considering the fact that they had committed multiple offences in the same transaction, the apex Court ordered their sentences to run concurrently . In Sajjad Ikram and others v. Sikandar Hayat and others (2016 SCMR 467) their Lordships held that the benefit of section 382-B Cr .P.C. should also be extended to them. The Court ruled: "However , the benefit of section 382-B Cr.P.C. is also available to a person whose sentences of death under section 302(b) PPC 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."
11. In Mst. Shahista Bibi and another v. Superintendent, Central Jail, Mach and 2 others (PLD 2015 SC 15) the Hon'ble Supreme Court again held: "It is by now well embedded and deeply entrenched universal principle of law that while interpreting the provision of punitive law, Courts are required to strive in search of an interpretation, which prefer the liberty of a person instead of curtailing the same and that too unreasonably and unfairly unless, the statutory law clearly directs otherwise ...
Besides the provisions of section 35 Cr.P.C. the provisions of section 397 Cr.P.C. altogether provide entirely a different proposition widening the scope of discretion of the Court to direct that sentences of imprisonment or that of life imprisonment awarded at the same trial or at two different trials but successiv ely, shall run concurrently . Once the Legislature has conferred the above discretion in the Court then in hardship cases, Courts are required to seriously take into consideration the same to the benefit of the accused so that to minimize and liquidate the hardship treatment, the accused person is to get and to liquidate the same as far as possible. In a situation like the present one, the Court of law cannot fold up its hands to deny the benefit of the said beneficial provision to an accused person because denial in such a case would amount to a ruthless treatm ent to him/her and he/she would certainly die while undergoing such long imprisonment in prison."
12. In Rahib Ali v. The State (2018 SCMR 418) the Hon'ble Supreme Court ruled that "the courts in Pakistan generally take charitable view in the matter of sentences affecting deprivation of life or liberty of a person and unless some aggravating circumstances do not permit so, liberally exercise enabling power under section 35 and section 397 Cr.P.C. respectively to order concurrent running of sentence in one trial and so also consolidation of earlier sentence while handing down sentence of imprisonment in a subsequent trial". The apex Court reaffirmed the dictum laid down in the cases of Javaid Shaikh and Shahista Bibi. However , it added that where the convic t is undergoing sentence of imprisonment in default of payment of fine, neither the trial court nor the appellate nor the revisional court is competent to order consolidation of multiple sentences in lieu of fine. They would run concurrently in view of sections 64 to 70 PPC.
13. The position that emerges from the above discussion is that under section 35 Cr.P.C. the total period of imprisonment at one trial cannot exceed 25 years. In the instant case the Petitioner 's sentence of imprisonment adds up to 100 years which is impermissible under the law . Therefore, the anomaly must be rectified.
14. Admittedly , the Hon'ble Supreme Court has dismissed the Petitioner 's Criminal Appeal No. 117 of 2002 and Criminal Revision No. 43 of 2003. Therefore, the question as to whether this petitio n is maintainable at this stage is also important. In our opinion, it must be answered in the affirmative in view of the following observation of the apex Court in Rahib Ali v. The State ( 2018 SCMR 418 ): "In the light of discussion made above, there remains no doubt that the High Court and so also this Court have jurisdiction under section 561-A read with section 35 and or section 397 Cr.P.C., as the case may, to order such multiple sentences in same transaction/ trial or in a separate and subsequent trial to run concurrently ."
15. Accordingly , this petition is accepted . The sentences of life imprisonment awarded to the Petitioner are ordered to run concurrently . She shall also be given benefit of section 382-B Cr .P.C.