Through this petition, Talib, the petitioner , has made the following prayer:- It is therefore, most respectfully prayed that this writ petition may kindly be accepted and the petitioner may kindly be awarded benefit of Section 382-B Cr.P.C. and the life sentence on two counts each may also be ordered to be run concurrently and not consecutively and the respondents may kindly be directed to release the petitioner from jail, forthwith, on the basis of remissions given to him time to time, in the interest of justice."
2. Facts in brief are that the petitioner Talib and co accused Khadim, Khalid and Mst. Sharifan were tried vide judgment dated 22.04.2003 by the learned Additional Sessions Judge, Sargodha, wherein, co-accused Khadim and Mst. Sharifan Bibi were acquitted, while the petitioner Talib and his brother Khalid were awarded death sentence under section 302(b) PPC for committing murder of Falak Sher and Mst. Tahira Bibi with fine of Rs.50,000/- on two counts each and in default of payment of fine, to undergo six months R.I each on two counts, in case FIR No.244/2001 dated 23.11.2001, offence under section 302, 34 PPC registered at Police Station Saddar , District Sargodha.
3. The petitioner and his co-accused Khalid filed Crl. Appeal No.747/2003 against the above-mentioned judgment while the learned trial Court sent a reference under section 374 Cr.P.C. (M.R. No.217/2003) to this Court for confirmation of their death sentence or otherwise. This Court dismissed the petitioner 's appeal and answered the Murder Reference in the negative vide judgment dated 15.04.2009, however , this Court converted the death sentence of the petitioner and co-accused Khalid into life imprisonment. This Court further directed the petitioner and co-accused Khalid to pay Rs.50,000/ - each to the legal heirs of the two decea sed (Falak Sher and Mst. Tahira Bibi) under section 544-A Cr.P.C. which shall be recoverable as arrears of land revenue, in default of which, they shall suffer S.I for six months on two counts each. The sentence of fine, therefore, is converted into compensation by this Court.
4. The petitioner preferred Criminal Appeal No.518 of 2009 before the Hon'ble Supreme Court of Pakistan which was dismissed on 12.06.2013. Now, through this petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, he prays that his sentences of life imprisonment on two counts be made concurrent and benefit of Section 382-B Cr .P.C. be extended to him.
5. Learned counsel for the petitioner has argued that the benefit of Section 382-B Cr.P.C., is mandatory upon the Court to consider the question of grant or otherwise of the benefit of the above section to the petitioner , but the judgments of learned trial Court, learned Division Bench of this Court as well as the Hon'ble Supreme Court of Pakistan are silent regarding grant of said relief. It has been argued that this type of relief has been granted by this Court time and again in the light of judgments of Superior Courts. 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 . Learned counsel for the petitioner also places his reliance on "Sajjad Ikram and others v. Sikandar Hayat and others" ( 2016 SCMR 467 ) and "Ishfaq Ahmad v . The State" ( 2017 SCMR 307 ).
6. Conversely , learned Law Officer has not seriously opposed the relief which has sought by the petitioner through this petition.
7. I have minutely considered the arguments made by the learned counsel for petitioner and have gone through the record available with the file.
8. The only question requiring examination is whether the sentences of imprisonment for life awarded to the petitioner , on two counts, were to run consecutively or concurrently . Section 57 of the Pakistan Penal Code, 1860 (PPC), lays down that in calculating fractions of terms of punishment, imprisonment for life shall be reckoned as equivalent to imprisonment for 25-years. However , the provincial government is empowered by Section 401 Cr.P.C. to remit or commute the sentence. Rule 140 of the Prison Rules also provides that the term of imprisonment for life would mean 25-years. If remissions were to be calculated, the minimum period of substantive sentence of a lifer to undergo would be 15-years. Section 35 of the Code of Criminal Procedure, 1898 lays down the law regarding awarding of sentence in cases of conviction of several of fences 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 offence, to send the offender 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) ...
9. A four-member Bench of the Hon'ble Supreme Court had held in Javed Shaikh v. The State (1985 SCMR 153) which is as under:- "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 ."
10. 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).
11. In Shah Hussain v. The State (PLD 2009 SC 460) a six-member Bench of the Hon'ble Supreme Court 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 section 35 Cr.P.C. prohibits the giving of consecutive sentence in one trial beyond the period of 14 years."
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. Similar view was adopted by the august Supreme Court of Pakistan in case titled Ishfaq Ahmed Vs. The State ( 2017 SCMR 307 ).
12. It is admitted fact that the petitioner has not been granted benefit of Section 382-B Cr.P.C. Perusal of judgment of the learned trial Court, learned Division Bench of this Court as well as the learned apex Court transpired that such aspect of the matter was not attended to or considered at the ends. It is now settled law that grants of benefit of Section 382-B Cr.P.C, is a mandatory and in normal circumstances cannot be refused to the accused for the period he remained or detained in custody as an under-trial prisoner at the time of awarding him sentence of imprisonment by the learned trial court. Dictum of law is laid down in authoritative and celebrated judgment in the cases reported as "Bashir alias Bashir Ahmad and anothe r v. The State" (1998 SCMR 1794 ) and "Ehsan Elahi and others v. Muhammad Arif and others" (2001 SCMR 416). It has also been held by the Hon'ble Supreme Court of Pakistan in case titled Rahib Ali Vs. The State (2018 SCMR 418) that the provisions of Section 397 Cr.P.C. confers wide discretion on the Court to extend such benefit to the accuse d in case of peculiar nature and court further observed that there is nothing wrong in treating the sentence of imprisonment for life of convict on three counts to run concurrently .
13. Sentencing is one of the most important facets of the administration of crimina l justice system. Apart from the statutory restrictions, an appropriate sentence is a matter for the discretion of the sentencing judge. The decisions of the Courts on points of substantive law are binding on the Court itself and the Courts subordinate thereto.
However , the decisions on sentencing are no more than examples of how the Court has dealt with a particular offender in relation to a particular offence. In the modern times, criminal jurisprudence has developed to some extent except the principles of uniformity of sentence for a particular catego ry of crime. But they are not authoritative in a strict sense. Limitation or curtailment of sentencing may be regulated by legislative provisions and other modes of fettering discretion in awarding of the punishment may also result from the principles stated by judicial pronouncement. In English and American Law, the component of justice model is the constriction of judicial discretion by the promulgation of standards with which the judge must substantially comply . The main three strategies are : (a) the enactment directly by legislature of a detailed set of principles of sentencing, indicating a normal or presumptive sentence for given classes of case, with specified aggravat ions and mitigations, leaving the sentencing judge very limited discretion; (b) the promulgation of standards, by a Commission composed of judges and other interested persons, which would be more detailed than a direct legislative enactment, less exposed to change but at the same time more flexible and capable of amendment in the light of experience; and (c) the evolution of guidelines based on an empirical study of the current sentencing practice within the jurisdiction concerned. In most of the systems, discretion is vested with the Courts in matters of sentencing and passing other related orders. Continuous efforts are made to avoid disparity of sentencing as individualization of sentencing will naturally undermine the uniformity of sentencing practice and would create disharmony detrimental to public confidence. Under the penal system, discretion is exercised by the Courts awarding sentence. (Ref: Sentencing and the Penal System Text and Materials by Christopher Harding and Laurence Koffman published by Sweet and Maxwell, (London) 1988).
14. The English Sentencing System point s out that the aim of the penal system is to reduce the crime by making as many people as possible to realize who want to obey criminal law. The two state d objects for general practice of punishment would justify such a policy if there is reduction of crime and promotion of respect for criminal law.
Historically the instinctive reaction to criminal act is retaliation by the injured person expressing his resentment or hostility towards the criminal and his conduct. Punishment for such an offence thus became the essence of any organized state to maintain the rule of law. The notion of `Just deserts' or the sentence proportionate to the offender's culpability was the principle which, by passage of time, became applicable to the criminal jurisprudence.
For an offender to receive a sentence which adequately reflects the gravity of his offence, the punishment ought not to be so lenient and should not be heavier than that justified by the offence. The sentence must not be too long or excessive. Lord Denning , while giving evidence to the Royal Commission on capital punishment, stated: "The ultimate justification of any punishment is not that it is deterrent but that its emphatic denunciation by the community of a crime."
15. Thus, if the accused/petitioner undergoes consecutive sentence, then he will be released on 28.04.2046, as per report of Superintendent, Central Jail, Mianwali. Besides, he would have to undergo further sentence in default of payment of fine. I do not undermine the seriousness of the offence, but in my view, having regard to the peculiar facts and circumstances of the case, both the sentences should run concurrently .
16. In the result, this writ petition is allowed with a direction that the sentences of life imprisonment on two counts shall run concurrently and it is ordered to the jail authority to look into the matter and pass an appropriate order for release of the writ applicant from jail, if not required in any other case. He shall also be given benefit of section 382 B Cr .P.C.