QAZI JAWAD EHSANULLAH, J.- While invoking the constitutional jurisdiction of this court through the instant petition, the petitioner has prayed for the following reliefs: "In view of the above, it is respectfully prayed that this Honible Court may kindly:
1. Issue a writ to declare the order of the Assistant Political Agent, Khar District Bajaur, regarding the consecutive running of sentences as illegal; unjust, and in violation of the fundamental rights guaranteed under the Constitution of Pakistan, 1973.ii. Declare that the sentences awarded to, the petitioner under Sections 365-A and 302 PPC/11 FCR shall run concurrently instead of consecutively. iii. Take cognizance of the undue financial strain imposed on the petitioner's family. iv. Grant the petitioner the benefit of remissions and sentence reductions as announced by the Government and other competent authorities. v. Declare the Assistant Political. Agent's order void to the extent that it violates the petitioner's rights under the law and Constitution. vi. Grant any other relief deemed just and proper by this Hon'ble Court in the interest of justice".
2. Succinctly, during the erstwhile FATA dispensation, the present petitioner was indicted for abducting Qari Muhammad for ransom. After his arrest, trial was conducted against him under the Frontier Crimes Regulation, 1901 ("FCR") and he was found guilty of the offences. Consequently, the learned Assistant Political Agent vide its verdict dated 26.05.2015 based on the Jirga decision, sentenced the petitioner to rigorous imprisonment for a total period of 28 years i.e 14 years R.I under Section 302 PPC read with Section 11 of FSCR and 14 years R.I. under Section 365-A PPC read with section 11 of the FCR for demand of ransom with further order that family of the deceased shall pay the death compensation as per Rewaj to the family of deceased. The appellant challenged his conviction and sentences before this Court in appeal which was dismissed as not pressed vide order dated 12.12.2024, however, he was left at his option to file a writ petition for conversion of the sentences awarded to him from consecutive to concurrent, hence this petition.
3. Arguments heard and record perused.
4. The case record reveals that although the learned court below has not explicitly used the term "consecutive" in the impugned order, the wording of the order directing the petitioner to undergo a total sentence of 28 years (i.e., 14 years each under Sections 302 and 365A PPC) strongly indicates that the sentences were intended to run consecutively rather than concurrently. The Code of Criminal Procedure, 1898 has broad application to FCR, therefore, in order to determine whether multiple sentences awarded in a single trial should run consecutively or concurrently, a thorough examination of Section 35 of the Code of Criminal Procedure is highly significant. which reads as follows: "35. Sentence in cases 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(XLV of 1860)] 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 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) if the case is 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 aforementioned legal provision clearly stipulates that when multiple sentences are awarded in a single trial, they shall run consecutively, i.e one after the other unless the court expressly directs them to run concurrently. Furthermore, Section 35 of the Code of Criminal Procedure imposes a statutory limitation, stating that in no case shall consecutive sentences for multiple offenses would exceed 14 years. If a sentence exceeds this threshold, it is deemed legally invalid and the superior courts have consistently directed that such sentences be modified to run concurrently instead.
Similarly, Section 397 of the Cr.P.C empowers a trial Court or an appellate Court to make an order that sentences in two different trials shall run concurrently or consecutively. Joint reading of section 397 and section 35 Cr.P.C reveals that it is discretionary with a Court to order running of sentences in two different trials concurrently or consecutively, but if no such order is passed, then the sentences shall run consecutively. However, this discretion must be exercised judiciously, taking into account the overall circumstances of each case[1]. In the case of Shah Hussain v. the State reported in PLD 2009 SC 460 the apex Court found that the sentences awarded to the appellant in more than one offences were falling beyond the maximum limit of 14 years as fixed by section 35 ibid and so it was ordered that all such sentences were to run concurrently instead. Similar view was followed by the apex court while deciding the cases of Ishfaq Ahmad v. the State reported in 2017 SCMR 307, `Mst. Zubaid v. Falak Slier and others' reported in 2007 SCMR 548, Muhammad Sharif vs. the State reported in 2014 SCMR 668 and in the case of Faiz Ahmad and another v. Sha fiq ur Rehman reported in 2013 SCMR 583. So much so that in another case[2], while interpreting the similar provisions of section 397 of the Code of Criminal Procedure for sentences of various offences at different trials, the apex court has ruled as follows; "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 SCMR 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 Court had inadvertently omitted ordering running of sentences of imprisonment concurrently.
In the case of Mst. Zubaida v. Falak Sher (2007 SCMR 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 Sharif v. The State (2014 SCMR 668) in suo motu 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 Motu Review is, therefore, allowed and it is ordered that all the sentences of imprisonment passed against the petitioner shall run concurrently to each other."
5. The apex Court in another pronouncement rendered in the case of Ms/. Shahista Bibi and another v. Superintendent, Central Jail Mach and 2 others reported in PLD 2015 Supreme Court 15 ruled as under; "8. 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 successively, shall run concurrently. Once the Legislation 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 treatment to him/her and he/she would certainly die while undergoing such long imprisonment in prison. Thus, the benefit conferred upon the appellant/appellants through amnesty given by the Government, if the benefit of directing the sentences to run concurrently is denied to him/them, would brought at naught and ultimately the object of the same would be squarely defeated and that too, under the circumstances when the provision of 5.397, Cr.P.C. confers wide discretion on the Court and unfettered one to extend such benefit to the accused in a case of peculiar nature like the present one. Thus, construing the beneficial provision in favour of the accused would clearly meet the ends of justice and interpreting the same to the contrary would certainly defeat the same.
9. It is also hard and fast principle relating to interpretation of criminal law, which curtails the liberty of a person that it should be construed very strictly and even if two equal interpretations are possible then the favourable to the accused and his liberty must be adopted and preferred upon the contrary one.
10. In the cases of Khan Zaman v. The State (1987 SCMR 1382), Juma Khan v. The State (1986 SCMR 1573) and Muhammad Ittafaq v. The State (1986 SCMR 1627) similar benefit was given to the accused while construing the provision of section 35(2) Cr.P.C.
11. The Peshawar High Court widened this scope on sound reasons in the case of Altaf Hussain v.
The State [1987 PCr.LJ 2169] extending the same benefit to an accused, who was already undergoing life imprisonment, awarded by the Special Military Court and directed that subsequent sentence of 5 years' R.I. awarded by the Judge Special Court Anti-Corruption shall run concurrently with the life imprisonment".
6. Another most relevant pronouncement of the apex Court on the subject can be found in the case of Rahib Ali v. The State reported in 2018 SCMR 418, making an elaborate discussion on running of concurrent sentences to convicts. In this case law, it was held as follows: "13.1n view of the discussion made above, position that emerges is 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".
7. Lastly, the most crucial question to be determined is whether in the exercise of its jurisdiction under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973, a High Court can order the conversion of consecutive sentences into concurrent ones, despite not being a trial or appellate/revisional court? It is imperative to recognize that this Court possesses inherent jurisdiction as well under Section 561-A of the Code of Criminal Procedure, 1898 in addition to its constitutional jurisdiction. Section .561-A Cr.P.C. is broad in scope empowering the Court to pass any order necessary to prevent the abuse of the process of court and to secure the ends of justice.
The inherent jurisdiction conferred by this provision enables the High Court to rectify legal anomalies and ensure that judicial processes are not misused to the detriment of justice. While Section 561-A of the Cr.P.C. provides a strong foundation for judicial intervention, the constitutional jurisdiction under Article 199 is of even greater amplitude. Article 199 authorizes the High Court to issue writs, directions or orders to ensure the enforcement of fundamental rights for effective dispensation of justice. This jurisdiction extends to correcting injustices, even where no express statutory provision exists to provide relief. Thus, though this Court is neither a trial nor appellate/revisional court,it has the powers under Section 561-A, Cr.P.C. and Article 199 of the constitution to intervene where legal, equitable or constitutional principles demand such intervention[3] and so it can order to convert consecutive sentences into concurrent ones where circumstances warrant such an order in the interest of justice. Reliance is placed on "Bashir and 03 others v. The State" reported in PLD 1991 S.0 1145. The apex court has ruled in the mentioned case that: "11. [.....] Last but not least, the duty of the trial Court to finally address itself to the question whether the sentences awarded should run concurrently or consecutively, irrespective of the rule contained in section 35(1) of the Code, and whether the detention undergone by an -accused during his trial should be treated as period spent by him as a convict, for the purposes of the benefit available under section 382-B of the Code, are as much mandatory for determination as the question of punishment itself. Basically, they are matters ancillary to the question of punishment, but otherwise highly important. Where there is a failure on the part of the trial Court to determine these questions, difficulty would arise, because of section 369 of the Code. However, during appeal or revision before the High Court, the High Court could itself, examine these questions, subject to limitations, if any, provided by law and principles laid down by this Court, and determine these matters. Again, where by inadvertence there is failure on the part of the High Court to determine these questions, I cannot see any reason why resort cannot be had to section 561-A of the Code to cure the failure, in order to secure the ends of justice.
The subject issue regarding conversion of sentences from consecutive into concurrent running was dealt with by the Hon'ble Lahore High Court in exercise of its constitutional jurisdiction in the case of Hafeez Bibi v. The State and another reported in PLD 2021 Lahore 392. In the mentioned case, reliance was placed on various pronouncements including the cases of Rahib Ali and Bahir supra and the sentences of life imprisonment were ordered to run concurrently by observing that: "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 petition 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."
(Emphasis supplied)
8. Regarding the prayer of petitioner for extending to him the benefit of section 382-B, Cr.P.C, the forum below has recorded sentences of the petitioner under Section 12 of the FCR while Section 13 regulates the manner of enforcing of the sentences awarded to a convict under the FCR, which is reproduced as under:
13. Manner of enforcing sentences.-- Any sentence passed under section 12 shall be executed in the manner provided for the execution of sentences in Chapter XXVIII of the Code of Criminal Procedure, 1898 (Act V of 1898); and
(a) an offence punishable with imprisonment for life shall be punishable with rigorous imprisonment for a term which may extend to fourteen years;
(b) the imprisonment in default of payment of fine shall be simple and the provisions of sections 63 to 70 of the Pakistan Penal Code, 1860 (Act XLV of 1860) shall, subject to aforesaid provisions, apply to sentences passed under this Regulation; and
(c) the sentence of imprisonment and fine provided by the Pakistan Penal Code or any other law specified in the Second Schedule to this Regulation for the offence shall (1860 XLV of 1860) be applicable to such offence committed in Federally Administered Tribal Areas.".
Section 382-B, Cr.P.C, as referred to in the aforesaid provision, is part of Chapter XXVIII of the Code of Criminal Procedure 1898, which reads as under: 382-B. 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.
The word 'shall' which was substituted for the word 'may' through an amendment, clearly shows that the provision is mandatory in nature and while awarding multiple sentences to a convict for different offences, the benefit of this provision shall be extended to the convict.
9. In light of the above discussion, this writ petition is allowed and it is directed that the sentences awarded to petitioner, i.e 14 years R.I under Section 302 PPC and 14 years R.I under Section 365-A PPC read with section 11 of the FCR, shall run concurrently with benefit of Section 3 82-B, Cr.P.C. It is further directed that the petitioner shall be granted remissions in the same manner as awarded to other prisoners in accordance with the relevant rules and law.
1. Zaid Shah ails Jogi vs. The State (2020 SCMR 497)
2. Sajjad Ikram and others vs. Sikandar Hayat and others (2016 SCMR 467)
3. Ali Fauzan Vs. The State and others ,(2013 P Cr. L J 652)