' SHOUKAT HUSSAIN ZUBEDI, J.--- The petitioner Mst. Nazan, mother of convict Mashooque Ali son of Ahmed Bux sent an application to the Chief Justice, stating that the Sessions Court, Larkana, in the course of same trial, convicted and sentenced her son Mashooque Ali on two counts, that is under section 302, P.P.C. He was sentenced to imprisonment for life and under section 307, P.P.C. The sentence is 7 years, but both the sentences were ordered to run consecutively. The grievance of the petitioner is that in one trial, by the same Court separate sentences should not have been awarded to her son and, therefore, it was prayed that as her son has already served 18 years in custody, he may be ordered to be released.
2. On the order of the Chief Justice, this application was registered as a Constitution Petition with notice to the Advocate-General.
3. The petitioner's son was convicted and sentenced by the learned Second Additional Sessions Judge, Larkana, for offences under section 302 and under section 307, P.P.C. The convict has already undergone 18 years in custody. The report was called from the jail authorities and so also the copy of the judgment dated 29-8-1979 in Sessions Case No,377/1976. As per the information given by the jail authorities, the said convict had to undergo life imprisonment which is 25 years and on the second count to 7 years, the total comes to 32 years. The imprisonment in lieu of fine being 6 months, the total sentence come to 32 years and 6 months. It was also stated that the said convict has already served out 17 years, 11 months and 23 days while the total remission granted to him is 10 years and 5 days. In this way, the convict will be deemed to have already served out 27 years, 11 months and 28 days as on 11-7-1993 while the unexpired portion of the sentence comes to 4 years, 6 months and two days. It may be observed that the learned trial Judge specifically ordered that both the sentences awarded to accused Mashooque All should run consecutively.
4. We have heard Mr. Syed Sarfraz Ahmed learned Additional Advocate-General, Sindh and during the course of arguments, the question arose whether in the same trial, the learned trial Judge was legally competent to award the sentences on the two counts to convict Mashooque Ali to run consecutively keeping in view the provision of section 35 of the Criminal Procedure Code this regard, the learned Additional Advocate-General referred to the case of Javed Shaikh v. The State reported in 1985 SCM R 153, in which a similar question arose and the Honourable Supreme Court ordered the sentences to run concurrently and not consecutively.
5. The plain reading of section 35 of the Cr.P.C. Indicates that it prohibits the giving of consecutive sentence in one trial beyond the period of 14 years. At this stage, it may be observed that under section 53 of the Pakistan Penal Code, before its amendment it provided a punishment for transportation for life as the maximum sentence, short of the death sentence. But after the Law Reforms Ordinance, 1972, section 57, P.P.C. Which provided that transportation for life to be equivalent to imprisonment for 14 years, the word transportation has been replaced by the word imprisonment and the figure 14 years have been replaced by 25 years. In this way, the sentence of imprisonment for life is now 'equivalent to 25 years. It, therefore, follows that the sentence of transportation for life is to be reckoned as equivalent to imprisonment for 25 years. Keeping in view this analogy, the sentence of 14 years as mentioned in proviso "a" to section 35, Cr.P.C. Is to be read as 25 years. The relevant portion of section 35, Cr.p.C. Is reproduced as under:-- "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, 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---
(a) In no case shall such persons be sentenced to imprisonment for a longer period than fourteen years;
(b) ................................................................................................
6. The perusal of proviso "a" to section 35, Cr.P.C. Will mean that an accused in the same trial cannot be sentenced to imprisonment for a longer period than imprisonment for life. In the present case, the accused Mashooque All was sentenced on two counts as already mentioned above, but by virtue of proviso "a" to section 35, Cr.P.C. The aggregate sentence of the convict could not be ordered beyond imprisonment for life. In other words it means the sentence which the accused had to undergo should not have been beyond 25 years. This being the position we are inclined to exercise our inherent power under section 561-A, Cr.P.C., as the sentences awarded by the trial Court on the two counts are in violation of section 35, Cr.P.C.
7. Now the question is how to overcome this difficulty. In this regard, we may again refer to the case of Javed Shaikh v. The State as relied upon by the learned Additional Advocate-General. In this reported case the accused Javed Shaikh was sentenced to imprisonment for life under section 302, P.P.C. And fine of Rs,5,000 in default whereof to undergo R.I. For three years more. In addition he was also convicted under section 307, P.P.C. And sentenced to suffer R.I. For 7 years and fine of Rs,3,000 or in default to undergo R.I. For 2-1/2 year more. While considering the provisions of sections 53 and 57, P.P.C. So also proviso "a" to subsection (2) of section 35, Cr.P.C. Their Lordships were of the view that the difficulty which had arisen in the case could be overcome if the sentencesawarded to the appellant in respect of the conviction under sections 302, P.P.C. And 307, P.P.C. In one and the same trial are directed to run concurrently instead of to run consecutively. Accordingly, the sentences were ordered to run concurrently.
8. In view of the dictum laid down by the Honourable Supreme Court we respectfully follow the same and direct that the sentences of convict Mashooque Ali, imprisonment for life imposed under section 302, P.P.C. And the sentence of seven years' R.I. Imposed under section 307, P.P.C. Are to run concurrently and not consecutively. As the convict has already undergone more than 27 years in custody which includes the actual period already undergone by him coupled with the remission earned by him, he is to be released forthwith if not required in any other case.
9. This petition is disposed of in the above terms with no orders as to costs.