' QURBAN SADIQ IKRAM, J.- -This judgment will dispose of Criminal Miscellaneous No, 5-M of 1984, I.C.A. No, 252 of 1983 and Writ Petition No, 373 of 1984 together as common question of law is involved in these petitions.
2. The facts in each case, necessary for this judgment are briefly stated as follows:-
(i) Criminal Miscellaneous. No, 5-M of 1984. Muhammad Tariq v. The State.
' The petitioner Muhammad Tariq was convicted under section 302, P.P.C. By learned Sessions Judge, Rahimyar Khan on two counts vide judgment, dated 3- 5- 1978 for having murdered Muhammad Hussain aged 16 years and Khadim Hussain aged 12 years. He was sentenced to death plus a fine of Rs,5,000 or in default 3 years' RI. On each count. A Division Bench of this Court by judgment, dated 23- 4- 1979, maintained the conviction of Muhammad Tariq on each count. The sentence of death for the murder of Khadim Hussain was confirmed but regarding the murder of Muhammad Hussain the sentence of death was altered to imprisonment for life. The sentence of fine on each count was maintained. Muhammad Tariq did not succeed in his petition for Special Leave to Appeal before the Supreme Court against the judgment of the High Court. A review petition filed by him also failed. However, on a mercy petition the Governor of the Punjab commuted the sentence of death awarded to him for the murder of Khadim Hussain to imprisonment for life. The petitioner was, therefore, required to undergo imprisonment for life on each count. There being no order under section 35, Cr.P.C. As to whether the two sentences of imprisonment were to run concurrently or consecutively, Muhammad Tariq accused filed this petition seeking a direction to that effect. The precise relief claimed by Muhammad Tariq petitioner in the words of his learned counsel was as follows:- ' "The petitioner was tried and convicted in one trial on two counts, his sentences should, therefore, be ordered to run concurrently."
(ii) I.C.A. 252 of 1983.
' Berkha v. The Secretary,,Government of the Punjab etc, ' Lal, Sharara and Allah Yar were convicted under sections 302/34 and 324/34, P.P.C. By learned Additional Sessions Judge, Lyallpur (Faisalabad) for the murder of two brothers Sadiq and Toga and for causing injuries to Anwar P.W. They all were sentenced to death plus fine of Rs,10,000 or in default one year's R.I. Under section 302/34, P.P.C. On two counts. They were also sentenced to suffer one year's R.I. Each under section 324/34, P.P.C. It was ordered that in case both the sentences of death were altered to sentence of imprisonment, then the sentences awarded in default of payment of fine and the sentences under section 324/34, P.P.C. Shall run concurrently.
Their co-accused were however, acquitted by the same judgment. The three convicts filed appeal to challenge their conviction and sentences but the same was dismissed by this Court vide judgment, dated 22- 5- 1974. The filed a petition for Special Leave to Appeal but the same was dismissed by the Supreme Court on 2-4-1975. However, on a mercy petition the President of Pakistan commuted their sentences of death to imprisonment for life. This decision was conveyed to the Superintendent Jail, Faisalabad by Sessions Judge, Faisalabad vide letter, dated 11-6-1980 stating therein that since the original order of conviction does not speak of the sentences to run concurrently, it will be presumed under section 35(1), Cr.P.C. To run consecutively.
' Lal and Sharara convicts after two years of the said letter filed Writ Petition 4907 of 1982 praying that their sentences be directed to run concurrently. This petition was dismissed in limine on 21-12- 1982 by a learned Judge in Chamber holding that no direction can be given to Jail Authorities that the two sentences under section 302/34, P.P.C. On two counts shall run concurrently. It appears that no further proceedings were undertaken in the said constitution petition. However, one Berka, a real brother of Sharara and Allah Yar and cousin of Lal accused without disclosing the institution of and result of Writ Petition 4907 of 1982 filed another Constitution Petition 1641 of 1983 which was dismissed by the same learned Judge on 16-11-1983. Hence this appeal. The precise argument of learned counsel for petitioner was that firstly the judgment of trial Court clearly stated that in case death sentences were converted to sentences imprisonment for life, then the sentence in default of payment of fine and sentence under section 324/34, P.P.C. Shall run concurrently and secondly that two sentences of imprisonment for life cannot be ordered to run one after the other.
(iii) Writ Petition No, 373 of 1984. Abdul Rashid v. Superintendent Jail.'
' The petitioner Abdul Rashid alias Malangi was convicted under sections 302 and 307, P.P.C. By learned Additional Sessions Judge, Lahore vide judgment, dated 23-4-1975. He was sentenced to death and fine of Rs,5,000 or in default one year's R.I. For the murder of Siraj Din and to suffer 7 years' R.I. Plus fine of Rs,3,000 or in default one year's R.I. For murderous assault on Yasin P.W. The appeal by Abdur Rashid was dismissed by a Division Bench of this Court. His petition for Special Leave to appeal before Supreme Court was also dismissed on 24- 3-1982. However, on a mercy petition the Governor, of the Punjab on 5-1-1983 commuted his sentence of death to imprisonment for life. Abdur Rashid petitioner through this Constitution petition seeks a direction to Jail Authorities that his sentences under sections 302 and 307, P.P.C. Be treated as concurrent sentences.
3. We have examined the record and have also heard the learned counsel for the parties at some length.
' The learned counsel for the petitioners contended before us that consecutive sentences of life imprisonment imposed on a convict under section 302, P.P.C. Alongwith any other sentence of imprisonment awarded to him in one trial was incorporated with intention of provisions of section 35(2) proviso (a), Cr.P.C. Because it prohibits the giving of substantive sentences in one trial beyond 25 years. He placed reliance on Javed Shaikh v. The State 1985 SCMR 153. The learned counsel, therefore, relying on Zulfiqar Ali v. The State PLD 1984 Lah. 461 argued that a statutory mistake having occurred, this Court can in exercise of its inherent jurisdiction overcome the difficulty by ordering that the sentences should run concurrently.
' The learned Additional Advocate-General vehemently controverted the contentions on behalf of the petitioner.
' It was contended by him that 'the Supreme Court judgment in Javed Shaikh's case will not have retrospective effect because the case of the petitioner was a past and closed transaction'. We are unable to agree with him on this point because firstly, the judgment in Javed Shaikh's case was delivered during pendency of this petition in Court and secondly, the petitioner was still in prison serving the sentence.
' The learned Additional Advocate-General with much emphasis contended that the judgment of Supreme Court in Javed Shaikh's case was not applicable to the facts and circumstance of the cases in hand because `the provision of proviso (a) to subsection (2) of section 35, Cr.P.C. Governs and is attracted only in cases and to Courts which find mention in this subsection. It will have to be determined which are the Courts mentioned in the aforementioned subsection (2). I submit that the word 'Court' in this subsection means the 'Court' power of which to award sentence of imprisonment is limited/restricted .By law and to award imprisonment beyond that limit is expected to send the case to higher Court for award of appropriate sentence. Thus, looking at sections 31 and 32, Cr.P.C. It will be noted that there are no limits prescribed for the powers of Court of Sessions or High Court to award any sentence. The only Court where power has been restricted in respect of award of sentence of imprisonment is the Court of Magistrate and proviso (a) to sub- para (2) of section 35, Cr.P.C. Has reference only to the Court of Magistrate and not the High Court or Court of Sessions'. It was further contended that if the relief claimed is allowed, it will amount to review or alteration of the judgment of the trial Court, not permissible by section 369, Cr.P.C. He further argued that the scope of inherent jurisdiction of this Court is limited and as such, no relief can be granted to the petitioner. It was pointed out by him that the Supreme Court's judgment was delivered in an appeal pending before the said Court and not in such like miscellaneous application. He finally contended that the petitioner should seek relief, if any from the executive authority who commuted his sentence.
4. We have heard the learned Additional Advocate-General at length but, in view of the judgment by Supreme Court in Javed Shaikh's case, it is unnecessary to go in detailed examination of his contentions. It was held in Javed Shaikh's case that:- ' "Life imprisonment is, according to section 57 of the P.P.C. To be reckoned as equivalent 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 of the punishments that could be imposed on an offender under section 53 of the P.P.C. 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, P.P.C. For his having attempted to murder Manzoor Hussain, P.W.5? Perusal of proviso (a) to subsection (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, P.P.C. Would be inconsistent with the intendment of the provisions of proviso (a) to subsection (2) of section 35, Cr.P.C. Inasmuch as the maximum punishment prescribed for heinous offences 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, P.P.C. And under section 307, P.P.C. In one and the same trial are directed to run concurrently, instead of running consecutively."
' The judgment in Javed Shaikh's case is applicable to the three cases in hand on all fours. There being a statutory mistake, we are of the view that the difficulty can be overcome if the sentences awarded to the petitioners in these three cases are directed to run concurrently instead of running consecutively.
5. As a result of above discussion Criminal Miscellaneous No, 5-M of 1984, I.C.A. No, 252 of 1983 and Writ Petition No, 373 of 1984 are allowed. All the sentences of imprisonment to the petitioners are directed to run concurrently. There will be no order as to costs.