' GHULAM RABBANI, J.--- The petitioner was convicted and sentenced in Crime No,22 of 1987 registered at Police Station New Karachi and is confined in Central Jail, Karachi. His case is that he and one Muhammad Nawaz both were sentenced to death with fine of Rs,1,00,000 each under section 302/34, imprisonment for life and fine of Rs,50,000 and 30 stripes each under section 10(3) of Offence of Zina (Enforcement of Hudood) Ordinance read with section 34, P.P.C. And imprisonment for life and fine of Rs,50,000 each under section 11 (ibid) read with section 34, P.P.C.
They were also ordered to pay Rs,1,00,000 each as compensation under section 544-A, Cr.P.C. To the heirs of the three deceased. Subsequently, on appeal and reference for confirmation of sentence, this Court vide its judgment, dated 24-8-1989 modified the sentence awarded by the trial Court inasmuch as that convict Muhammad Nawaz was acquitted so also the sentence awarded to the petitioner under section 10(3), Offence of Zina (Enforcement of Hudood) Ordinance read with section 34, P.P.C. Was set aside acquitting him on this count and rest of the abovementioned sentences were maintained. No orders were, however, passed by the trial Court as well as the Appellate Court to indicate that the sentences awarded to the petitioner under different counts would run concurrently or consecutively so also no order has been passed under section 382-B, Cr.P.C.
2. It is stated that the petitioner preferred an appeal before the Honourable Supreme Court assailing the abovementioned judgment of this Court; however, during the pendency of the said appeal on a Criminal Petition bearing No,59/K of 1992, Honourable Supreme Court granted him benefit of Amnesty Order 1988 vide judgment, dated 25-10-1992 holding that since the death sentence was awarded to the petitioner on 17-10-1988, it should fall within cutoff date i,e, 6-12-1988, and commuted the death sentence to life imprisonment.
3. The petitioner has stated that after conversion of death sentence to life imprisonment by the Honourable Supreme Court vide judgment, dated 25-10-1992 the respondent No,1 has treated the sentence as consecutive, and despite a notice on 13-1-1996 served on him to treat the commuted sentence of life imprisonment to run concurrent with other sentence awarded to him under section 11 of Offence of Zina (Enforcement of Hudood) Ordinance, he has refused to do so vide his reply, dated 25-2-1998. He has, therefore, filed this Constitutional petition with following prayers:- "(A) Issue writ directing the respondents to treat the sentence of life imprisonment ordered by Honourable Supreme Court vide judgment, dated 25-10-1992 in view of Amnesty Order, 1988, dated 8-12-1988 to run concurrently alongwith the other sentence under section 11 of Zina. (E.H.O.), 1979 awarded by the trial Court, dated 17-10-1988 in case F.I.R. No,22 of 1987, Police Station New Karachi in view of case-laws PLD 1993 SC page 14 and 1994 SCM R p.582.
(B) To declare that the Letter No,JB-964/98, dated 25-2-1998 is of no legal effect in the case of the petitioner as the same is void, illegal and bad in law.
(C) To grant benefit under the mandatory provisions of section 382-B, Cr.P.C. To the petitioner under the circumstances.
(D) That any other relief of this Honourable Court may deem suitable in the interest of justice may also be granted."
4. We have heard learned counsel for the parties and have also examined the material available on record.
5. The petitioner has produced true copy of order, dated 25-10-1992 passed by Honourable Supreme Court in Criminal Petition for Leave to Appeal No,59/K of 1992 filed from the judgment and order of this Court, dated 3-11-1999 in Criminal Miscellaneous No,34 of 1999. The aforementioned petition has been allowed and the operative part of the said order of Honourable Supreme Court reads as follow:-- "Since in this case death sentence was awarded on 17-10-1988, it falls within the cut-off date as mentioned in the para. 22 of the judgment and hence the petitioner is entitled to the benefit of commutation of death sentence to life imprisonment. We would convert this petition into an appeal and allow the same as above."
5-A. Learned counsel for the petitioner contended that the order of commutation of death sentence to life imprisonment is an executive order and is to take effect forthwith, therefore, he viewed that, the term of life imprisonment of commuted sentence should take affect forthwith and run concurrently with sentence of life imprisonment awarded to the petitioner under section 11 of Offence of Zina (Enforcement of Hudood) Ordinance. He placed reliance on case-law reported as Bashir and 3 others v. The State PLD 1991 SC 1145 and Shah Muhammad alias Manna v. The State 1994 SCM R 582. Learned counsel further submitted that the petitioner is entitled to benefit of section 382-B, Cr.P.C. Which is a mandatory provision of law and desirability of extending such benefits to the petitioner be considered.
6. Section 35 of Criminal Procedure Code is the relevant provision of law, which empowers the Court to direct, while convicting and sentencing a person at one trial of two or more offences, that such punishment shall run concurrently since, in case otherwise, punishments of imprisonment are to run one after the expiration of other in such order as the Court my direct. Said section is reproduced 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, 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) Maximum term of punishment. --- 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 follow:---
(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 (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 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 conviction for several offences at one trial shall be deemed to be a single sentence."
7. In cited case of Bashir and 3 others v. The State, the question of interpretation of above section 35 of Criminal Procedure Code for determining the limitation on the power of Courts to award concurrently or consecutively maximum sentences of imprisonment came under consideration of Honourable Supreme Court. Among host of cases considered by Honourable Supreme Court in the cited case, in a petition numbered as Cr.P.L.A. No,169-K of 1989, a direction was sought to jail authorities to treat the sentences awarded to the petitioners therein as concurrent so also it Was requested that they be allowed benefit of section 382-B of the Cr.P.C. The petitioners were tried for the offences under sections 302, 307, 449, 149 and 148, P.P.C. They were sentenced to death under section 302/149, P.P.C. 10 years' R.I. Under section 307/149, 10 years' R.I. Under section 449/149 and one year's R.I. Under section 148, P.P.C. The conviction and sentences so awarded were maintained up to the High Court. However, by a General Amnesty announced in the year 1988, their death sentences were converted into life imprisonment. They approached the High Court under section 561-A, Cr.P.C. With a request to have all the aforementioned sentences of imprisonment run concurrently. They further prayed for benefits under section 382-B, Cr.P.C. Their requests were, however, turned down since the question of their conviction and sentence had finally been disposed of by the Honourable Supreme Court But, on petition filed by the petitioner, Honourable Supreme Court converted the same into appeal, and by majority view, observed that the executive order of commutation of sentences of death into life imprisonment takes effect forthwith making such sentences to run concurrently with any other sentences ordered by the Court. The said petition of appeal was allowed to the extent that only sentence commuted to life imprisonment should run concurrently with other sentences awarded in the case. As regards the prayer of benefit under section 382-B, Cr.P.C., it was held that it could not be claimed outside the judgment and independently of it from the Honourable Supreme Court. It will be significant to note that the facts and circumstances in the present Constitutional petition are similar to that dealt with in the aforementioned case-law and the dictum laid down by the Honourable Supreme Court in that case shall be applicable to the case of the petitioner herein. It may be stated that in other cited case of Shah Muhammad alias Manna v. The State 1994 SCM R 582 the principle applied in case of Bashir and 3 others has been followed.
7. In view of aforementioned, we hold that the two sentences awarded to the petitioner i,e, one commuted from the death to life imprisonment under section 302, P.P.C. And the other under section 11 of Offence of Zina (Enforcement of Hudood) Ordinance shall run concurrently. As regards petitioner's prayer for grant of benefit under section 382-B, Cr.P.C. It may be stated that the petitioner has' preferred an appeal before the Honourable Supreme Court against the judgment, dated 25-8-1989 passed by this Court confirming/maintaining sentences awarded to the petitioner. Nothing, has, however, been disclosed by the petitioner if the appeal preferred by him is pending or it stands decided and if so, with what consequences. Therefore, the prayer of the petitioner as to his claim of benefit under section 382-B, Cr.P.C. Shall be subject to the decision of the Honourable Supreme Court on the appeal so preferred by the petitioner. This petition is accordingly allowed to the extent aforementioned.