HIGH COURT OF SINDH AT KARACHI
Criminal Appeals No.463 & 464 of 2018
Appellant : Aqib Javed son of Hazrat Gul,
(in both appeals) through Mr. Intikhab Ahmed,
Advocate.
Respondent : The State, through Ms. Amna
Ansari, Additional Prosecutor
General, Sindh.
Complainant : None present for complainant.
Date of hearing : 10.05.2019
Date of Judgment : 10.05.2019
O R D E R
Abdul Maalik Gaddi, J.– Through these appeals, though the appellant namely, Aqib Javed has challenged the legality and propriety of the judgments dated 13.08.2018 passed by the learned Additional District and Sessions Judge-IX, Karachi (West) in Crime No.31 of 2016, registered at police station Jackson, Karachi, under Section 392/397/34, PPC and in Crime No.33 of 2016, registered at police station Jackson, Karachi, under Section 23(i)(a) of Sindh Arms Act, 2013, but during the course of arguments, learned Counsel for the appellant submits that he would be satisfied and shall not press these appeals on merits, if the convictions and sentences awarded to the appellant in both cases, which were delivered by the trial Court on same day and out of almost on same facts having same mashirnama of arrest and recovery dated 02.02.2016, may be ordered to run concurrently and such directions may be issued to the jail authorities in view of case laws reported as 1994 SCMR 582 (re: Shah Muhammad alias Manna v. The State; 1986 SCMR 1627 (re: Muhammad Ittefaq v. The State); 2002 MLD 1435 (re: Falak Sher v. I.G. and others); and PLD 2009 SC 460 (re: Shah Hussain v. The State).
2. In order to ascertain and reach at correct conclusion, it would be proper to reproduce the convictions and sentences awarded to the appellant by the trial Court in both cases, which reads as under:-
In case FIR No.31 of 2016, registered at police station Jackson, Karachi, under Section 392/397/34, PPC, the appellant was convicted under Section 265-H(ii) for committing offence under Section 397, PPC. and sentenced to suffer R.I. for seven years with fine of Rs.1,00,000/- and in default of payment of fine, it was ordered that appellant shall undergo S.I. for period of six months in addition to the substance sentence. Benefit of Section 382-B, Cr.P.C. was extended to the appellant. It was further ordered that since the complainant and Shahzad Maseeh sustained injuries as a result of which he lost his leg, the appellant was further directed to pay compensation to the complainant to the extent of Rs.2,00,000/- and Rs.50,000/- to Shahzad Maseeh in terms of section 545, Cr.P.C.
In case FIR No.33 of 2016, registered at police station Jackson, Karachi, under Section 23(i)(a) of Sindh Arms Act, 2013, the appellant was convicted for offence punishable under section 23(1) of Sindh Arms Act and sentenced to suffer R.I. for five years with fine of Rs.50,000/- and in case of default, the appellant shall undergo S.I. for further period of six months in addition to the substance sentence already awarded. However, the appellant was also extended benefit of Section 382-B, Cr.P.C.
3. As per record, the allegations against the appellant is that on 01.02.2016, he snatched cash amount of Rs.22000/- and mobile phone Nokia C-3 on pistol point from complainant Hukum Jan and caused fire arm injury to him on his right leg thigh and also caused fire arm injury to his companion Shahzad Masih on his finger, as such, he was arrested and two FIRs were registered under above referred sections.
4. On perusal of record, it appears that both the cases against the appellant were decided on same day i.e. on 13.08.2018, almost on same facts having same mashirnama of arrest and recovery dated 02.02.2016 as well as almost on same evidence by the learned trial Court.
5. Learned Counsel for the appellant submits that both the cases were decided by the learned trial Court against the appellant on same day and offence was committed on same transactions and memo of arrest and recovery was also joined. It is further contended that trial Court in both cases though extended the benefit of Section 382-B, Cr.P.C. to the appellant, but trial Court failed to order both the sentences as stated above to run concurrently in both crimes.
6. The difficulty arisen to the appellant because the learned trial Court had not stated anything about the two sentences in both cases running consecutively or concurrently. Whereas, this Court can always take curative measures in view of the powers bestowed to it under Section 57 read with Sections 234, 397 and 561-A of Criminal Procedure Code, 1898 in such an eventuality.
7. Learned Additional Prosecutor General, Sindh has recorded her no objection to the above propositions.
8. In order to appreciate the contentions of learned Counsel for appellant, relevant portion of law is reproduced as under:-
“[397. Sentence on offender already sentenced for another offence. When a person, already undergoing a sentence of imprisonment or imprisonment for life, is sentenced to imprisonment, or imprisonment for life, such imprisonment, or imprisonment for life shall commence at the expiration of the imprisonment, or imprisonment for life to which he has been previously sentenced, unless the Court directs that the subsequent sentence shall run concurrently with such previous sentence.
Provided that where a person who has been sentenced to imprisonment by an order under section 123 in default of furnishing security is, whilst undergoing such sentence, sentenced to imprisonment for an offence committed prior to the making of such order, the latter sentence shall commence immediately.]”
Reliance has been placed upon the case of Shah Hussain v. The State reported as PLD 2009 SC 460. Relevant portion is reproduced as under:-
“40. The petitioner in the instant case was sentenced to 10 years' R.I. and imprisonment for life on two counts. His sentences were ordered to run consecutively. The aggregate sentence of the petitioner would thus come to sixty years, which is contrary to the provisions of section 35, Cr.P.C. Proviso (a) to section 35, Cr P.C. prohibits the giving of consecutive sentence in one trial beyond the period of 14 years. This issue came up for examination by this Court in the case of Javed Shaikh v. State (PLD 1985 SC 153) wherein it was held as under:--
"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 Ordnance 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.'1
A 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 (it 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 he 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."
Herein this case, the appellant was convicted in Sessions Case No.517 of 2016, emanating from Crime No.31 of 2016, registered at police station Jackson, Karachi, under Section 392/397/34, PPC and on the same date, he was also convicted in Sessions Case No.514 of 2016, emanating from Crime No.33 of 2016, registered at police station Jackson, Karachi, under Section 23(i)(a) of Sindh Arms Act, 2013 by the same trial Court. The learned trial Court was required to pass order that both sentences to run concurrently, but learned trial Court has failed to pass such orders. Since there was inadvertent omission on the part of trial Court, therefore, it is order that the sentences in both crimes shall run concurrently. Appellant shall also be entitled to the benefit of Section 382-B, Cr.P.C.
9. Office is directed to send copies of this order to learned trial Court for information and Superintendent, Central Prison, Karachi for necessary compliance.
The instant criminal appeals stand disposed of in above terms.
Faizan A. Rathore/PA* JUDGE