' The facts giving rise to this petition are as under:-- ' Crime Case No,262, dated 15-7-1986 was registered at Police Station Bhai Pheru (at present named as Police Station Phoolnagar), District Kasur under section 302/307, P.P.C. Against Nasir petitioner son of Rana Muhammad Yaseen Pehlwan, caste Rajput, resident of Bahipheru (at present Phoolnagar), District Kasur for committing the murder of one Sohail Baig and for making the murderous assault on Muhammad Sharif P.W. After the investigation the challan was submitted in the Court of Ilaqa Magistrate who sent up the same to the Court of Session in terms of section 190(3), Criminal Procedure Code. Nasir petitioner was tried by Ch. Abdus Sattar, Additional Sessions Judge, Kasur who delivered the judgment on 17-11-1987 whereby he convicted and sentenced the petitioner to death and to pay a fine of Rs,5,000 or in default of its payment to undergo for a period of 2 years under section 302, P,P.C. For committing the murder of Sohail Baig who also convicted and sentenced the petitioner to R.I. For a period of 7 years under section 307, P.P.C. For making murderous assault on Muhammad Sharif P.W. The sentence of death was confirmed by the Lahore High Court, Lahore on 15-10-1990. Criminal Petition for Leave to Appeal No,385/L of 1990 was filed before the Honourable Supreme Court of Pakistan against the judgment, dated 15-10-1990 passed by this Court which was dismissed vide judgment, dated 17-12-1990.
2. During the pendency of the appeal before this Court General Amnesty order was passed by the President of Pakistan in December, 1988 whereby the sentence of death was commuted to imprisonment for life i,e, 25 years' rigorous imprisonment.
3. Expressing that the aforesaid sentences awarded to him have to run concurrently and he is entitled to the legal benefit provided under section 382-B, Criminal Procedure Code the petitioner has filed this writ petition seeking the direction to the Superintendent District Jail, Kasur for his release.
4. The comments have been filed by the Superintendent District Jail, Kasur/respondent No,1 who has taken up the stand that the petitioner has to undergo the R.I. For a period of 32 years i,e, the conviction period of 25 years under section 302, P.P.C. Plus the conviction period of 7 years under section 307, P.P.C. And averred that the petitioner has to undergo the remaining period after deduction of the period already undergone by him.
5. I have heard the learned counsel for the petitioner as well as the learned Assistant Advocate- General and gone through the record before me. With respect to the proposition that both the sentences awarded under section 302, P.P.C. And section 307, P.P.C. Have to run concurrently learned counsel for the petitioner referred to section 71, Pakistan Penal Code and section 35 of the Code of Criminal Procedure and argued that in no case the petitioner-convict could be sentenced to imprisonment for a longer period than 25 years. He relied on Bhai Khan and others v. The State PLD 1992 SC 14 wherein while disposing of a controversy of the instant nature about awarding the sentence under two sections of Pakistan Penal Code it was held that the concerned appellant shall undergo R.I. For a period of 25 years and the sentence awarded to him under. Section 436, Pakistan Penal Code in addition to the sentence awarded under section 302, Pakistan Penal Code shall run concurrently and that the sentences to be served by the convict shall not 'exceed R.I. For a period of 25 years, in aggregate. He also referred to Mst. Nazan v. The State 1996 PCr.LJ Karachi 95 wherein relying on Javed Sheikh v. The State 1985 SCIvIR 153, it was held that in a case of the instant nature the maximum sentence awarded, under section 302. P.P.C. And the sentence of 7 years' R.I.
Imposed under section 307, P.P.C. In the same transaction are to run concurrently and not consecutively. On the contrary learned Assistant Advocate-General laid the emphasis that the proposition placed by the learned counsel for the petitioner has the weight but took the exception to the proposed relief about the release of the petitioner as the maximum period of 25 years has not expired.
6. For the proper disposal of the dispute in hand it would be convenient to reproduce as under the relevant sections mentioned by the learned counsel for the petitioner:-- "Section 71 of Pakistan Penal Code.-- Where anything which is an offence is made up of parts, any of which parts is itself an offence, the offender shall not be punished with the punishment of more than one of such his offences, unless it be so expressly provided.
' Where anything is an offence falling within two or more separate definitions of any law in force for the time being by which offences are defined or punished, or ' where several acts, of which one or more than one would by itself or themselves constitute an offence, constitute, when combined, a different offence, ' the offender shall not be punished with a more severe punishment than the Court which tries him could award for any one of such offences."
"Section 35 of the Code of Criminal Procedure.--- (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 person be sentenced to imprisonment for a longer period than 14 years;
(b) if the case is tried by a Magistrate (other than a Magistrate acting under section 34), the aggregate punishment shall not exceed twice the amount of punishment which he is, in the exercise on his ordinary jurisdiction, competent to inflict.
(3) For the purpose of appeal, the aggregate of consecutive sentences passed under this section in case of conviction for several offences at one trial shall be deemed to be a single sentence."
7. I would also like to reproduce as under two policy letters issued by the Lahore High Court, Lahore which have been incorporated in the Manual of Instructions and Forms published by the Lahore High Court. Lahore during the year 1969:-- " Copy of Letter No .3601-GenI/XII . F. B. , dated 18-4-1973 from the Registrar, Lahore High Court, Lahore addressed to the All District and Sessions Judges/Additional District and Sessions Judges and District Magistrates in the Punjab.
' Subject: COMPLIANCE OF THE PROVISIONS OF SECTION 57(11) OF THE PAKISTAN PENAL CODE ' Sir, ' I am directed to say that in several cases it has been noticed that Sessions/Additional Sessions Judges have been awarding sentences of transportation for life notwithstanding the fact that relevant sections in the Pakistan Penal Code have been amended. The sentences of 'transportation for life' has been substituted with 'imprisonment for life' which means imprisonment for 25 years.
Imposition of a sentence which is not provided under the law as amended is open to exception.
' You are requested to keep the relevant provisions in view while writing judgments, which must conform to the provisions of law. Your obedient servant Deputy Registrar."
LAHORE HIGH COURT, LAHORE No .2141-Genl/XII-F.8 ' From ' Mr. Khizar Hayat Khan, Member Inspection Team, Lahore High Court, ' Lahore.
' To ' All District and Sessions Judges, and Additional District and Sessions Judges, in the Punjab.
' Dated Lahore the 20th February, 1975.
' Subject: COMPLIANCE OF THE PROVISIONS OF SECTION 57(11) OF THE PAKISTAN PENAL CODE.
' Sir, ' I am directed to refer to this Court's Circular Letter No,3601- Genl/XII.F.8, dated 18th April, 1973 (copy enclosed) on the subject noted above, and to inform you that the aforementioned circular shall be applicable to cases in which the offences are committed after the promulgation of the Law Reforms Ordinance, 1972.
Your obedient servant, Member, Inspection Team."
8. After going through the proviso (a) to section 35 of the Code of Criniinal Procedure it can safely be held that an accused in the same trial cannot be sentenced for a longer period than imprisonment for life: Nasir petitioner was sentenced on two counts as expressed above and thus by virtue of proviso (a) to section 35 of the Code of Criminal Procedure the aggregate sentence of the convict could not be ordered beyond imprisonment for life. It means that the sentence which the accused has to undergo should not be beyond 25 years. In the light of the ruling Javed Shaikh v. The State 1985 SCM R 153, the aforesaid legal requirement can be met if the sentences awarded to the petitioner-convict 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. In the circumstances of the matter it is proper to reproduce as under the operative order of the Court passed in Bhai Khan and others v. The State PLD 1992 SC 14:-- Order of the Court "In accordance with the opinion of the majority it is held that pursuant to the order of commutation of sentences passed by the President of Pakistan the sentence that the appellant shall undergo under section 302, P.P.C. Shall now be 25 years' R.I. It is also held that the sentences awarded to the appellants under section 436, P.P.C. In addition to the sentences awarded to them under section 302, P.P.C. Shall run concurrently and the sentence to be served by the appellants shall not exceed 25 years' R.I. In the aggregate. However, this will be without prejudice to the sentence awarded to them in lieu of non-payment of fine which sentence will be in addition to the abovementioned sentences of 25 years' R.I."
9. Now I take up the plea of the writ petitioner to get the legal benefit under section 382-B of the Code of Criminal Procedure. Learned counsel for the petitioner relied on Abdul Malik v. The State 1991 SCM R 270 whereby benefit of section 382-B of the Code of Criminal Procedure was allowed to the convict by the Supreme Court of Pakistan in a case wherein the sentence of death was commuted to imprisonment for life on the basis of General Amnesty order of the President, 19$8.
The same ruling was followed by this Court in Muhammad Hussain and others v. The State 1995 PCr.LJ 37 as well as in Bashir Ahmad and others v. The State 1996 PCr.LJ 1 (Lahore) (D.B.). Learned Assistant Advocate-General appearing for the State concurred with the learned counsel for the petitioner as according to him he had not to take contrary stand in the matter.
10. Section 382-B of the Code of Criminal Procedure is reproduced as follows:-- "382-B. 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."
11. In view of the aforesaid statutory law supported by the case-law, it can safely be held that the benefit of section 382-B of the Code of Criminal Procedure, being the legal valuable right of the accused in case of his conviction, in every circumstance and case has to be allowed to the convicts. As such I grant the benefit of section 382-B of the Code of Criminal Procedure as well to the writ petitioner.
12. In view of the aforesaid state of affairs, discussion and findings I hold that Nasir petitioner- convict shall undergo the following sentences:- "Rigorous imprisonment for a period of 25 years with fine of Rs,5,000 or in default of its payment to further R.I. For a period of 2 years. However, he shall be entitled to avail the legal benefit contained in section 382-B of the Code of Criminal Procedure. Obviously the other benefit provided by law/rules shall also be available to the petitioner."
13. This writ petition stands disposed of.