ORDER SHEET
IN THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANA
Cr. Misc. Appln. No.S-216 of 2023
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Date of Hearing |
ORDER WITH SIGNATURE OF JUDGE |
10.07.2023.
1. For orders on office objection.
2. For hearing of main case.
M/s Safdar Ali G. Bhutto and Mushtaque Ali Langah, advocates for the applicants.
Mr. Anwar Kandhro, Addl. P.G.
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Through this application u/s 397 read with Section 561-A, Cr.P.C., the applicants have prayed to pass order by directing that both the sentences awarded to the applicants vide two separate judgments dated 18.03.2016 passed by the learned Special Judge, Anti-Corruption (Provincial), Larkana in Special Case No.23/2013 re-State v. Abdul Qayoom & others, emanating from Crime No.82/2012, registered at P.S Civil Line, Jacobabad as well as Special Case No.24/2013 re-State v. Abdul Qayoom & others, arisen out of Crime No.80/2012 registered at P.S Civil Line, Jacobabad, Jacobabad, whereby the applicants were convicted in each of the two cases and awarded multiple sentences, including the sentence of R.I. for five years, with fine(s).
Per learned Counsel that on the very same date two judgments were announced by the learned Special Judge, Anti-Corruption (Provincial), Larkana, whereby in Special Case No.23/2013 State v. Abdul Qayoom & others the learned Court convicted the applicants and sentenced them to suffer R.I. for five years with fine and in another case on very same date the learned trial Court convicted the applicants in Special Case No.24/2013 State v. Abdul Qayoom & others the applicants were convicted and sentenced to suffer R.I. for five years with fine, but learned trial Court inadvertently has not passed the order that the sentences awarded in both the above cases shall run concurrently or consecutively; however, benefit of Section 382-B, Cr.P.C was given to the applicants. Learned Counsel further submits that in both the judgments order may be passed to the effect that the sentences awarded in each of the above two cases shall run concurrently. In support of his contentions, he has relied upon the cases reported as Mst. Shaista Bibi & another v. Superintendent, Central Jail, Mach and 2 others (PLD 2015 Supreme Court 15), Rahib Ali v. The State (2018 SCMR 418) and Rehan Rasheed v. Superintendent New Central Jail Bahawalpur (PLD 2020 Lahore 523).
On the other hand, learned Addl. P.G., while going through the case law, submits that in view of the judgments passed by the Hon’ble Supreme Court in the case of Rahib Ali (supra), he has no objection.
Heard learned Counsel for the parties and perused the record.
Admittedly, applicants Abdul Qayoom Golo and Nazir Ahmed Bhangar were tried by the learned Special Judge, Anti-Corruption (Provincial), Larkana in Special Case No.23/2013 State v. Abdul Qayoom & others, Crime No.82/2012 registered at PS Civil Line, Jacobabad, for offence u/s 120-B, 474, 468, 471, 225-B, 161, 34, PPC r/w Section 5(2) Act-II of 1947, wherein the applicants were convicted and sentenced as under:-
“I, therefore, convicted accused Abdul Qayoom Golo u/s 465 PPC r/w sec: 5(2) Act-II of 1947 and sentence him to suffer R.I for two (2) years with fine Rs.25,000/-, in case of non-payment of fine, he shall suffer R.I for three (3) months more. I also convict the above named accused u/s 468 PPC r/w Sec: 5(2) of Act-II of 1947 and sentence him to suffer R.I. for five (5) years and fine Rs.50,000/-, in case of non-payment he shall suffer R.I. six months more. I further convict the above named accused u/s 474 PPC r/w Sec: 5(2) Act-II of 1947 and sentence him to suffer R.I. for five (5) years and fine Rs.50,000/-, in case of non-payment of fine, he shall suffer R.I for six months more. I also convict the above named accused u/s 161 PPC r/w Sec: 5(2) Act-II of 1947 and sentence him to suffer R.I. for five (5) years and fine of Rs.50,000/-, in case of non-payment of fine he shall suffer R.I. for six months more. I further convict the above named accused u/s 225-B, PPC and sentence him to suffer R.I. for six (6) months and fine of Rs.1000/-, in case of non-payment of fine he shall suffer R.I. for one (1) month more.
I convict the accused Nazeer Ahmed Bhangar u/s 225 PPC and sentence him to suffer R.I. for five (5) years and fine of Rs.50,000/-.”
In another case bearing Special Case No.24/2013, State v. Abdul Qayoom & others, arisen out of Crime No.80/2012, registered at P.S Civil Line, Jacobabad, for offence u/s 420, 466, 468,, 471, 477, 220, 225-A, 161, 34, PPC r/w Section 5(2) Act-II of 1947, both the applicants were also convicted as under:-
“I, therefore, convict accused Abdul Qayoom Golo u/s 465 PPC r/w sec: 5(2) Act-II of 1947 and sentence him to suffer R.I for two (2) years with fine Rs.25,000/-, in case of non-payment of fine, he shall suffer R.I for three (3) months more. I further convict the above named accused u/s 466 PPC r/w Sec: 5(2) of Act-II of 1947 and sentence him to suffer R.I. for five (5) years and fine Rs.50,000/-, in case of non-payment of fine he shall suffer R.I. for six months more. I also convict the above named accused u/s 468 PPC r/w Sec: 5(2) Act-II of 1947 and sentence him to suffer R.I. for five (5) years and fine Rs.50,000/-, in case of non-payment of fine, he shall suffer R.I for six months more. I also convict the above named accused u/s 161 PPC r/w Sec: 5(2) Act-II of 1947 and sentence him to suffer R.I. for five (5) years and fine of Rs.50,000/-, in case of non-payment of fine he shall suffer R.I. for six months more. I further convict the above named accused u/s 225-B, PPC and sentence him to suffer R.I. for six (6) months and fine of Rs.1000/-, in case of non-payment of fine he shall suffer R.I. for one (1) month more.
I convict the accused Nazeer Ahmed Bhangar u/s 225 PPC and sentence him to suffer R.I. for five (5) years and fine of Rs.50,000/-, in case of non-payment of fine, he shall suffer R.I. for six months more.”
However, while passing the judgments the learned trial Court has not passed order whether the sentences awarded to the applicants in both the cases shall run concurrently or consecutively. Learned Counsel submits that order may be passed to the effect that both the sentences shall run concurrently. In case of Rahib Ali (supra), the Hon’ble Supreme Court of Pakistan has held as under:-
“16. Before parting with this judgment, we may well observe that section 35, Cr.P.C. subject to section 71 of Pakistan Penal Code empowers not only the trial Court to hand down several Punishment/sentences to a person charged for multiple offence in same trial and in its discretion direct that such conviction/sentence may run concurrently (per proviso thereto, in no case be more than 14 years in aggregate) even the Appellate Court while hearing the appeal against the conviction may direct several sentences/punishment handed down in same trial; to run concurrently. Whereas section 397, Cr.P.C.; enables and empowers the trial, and or Appellate/Revisional court, as the case may be, in a subsequent trial or in appeal or revision arising out of subsequent trial to order for the consolidation of sentence in subsequent trial with the sentence(s) handed down in earlier trial(s) as may be maintained or modified in appeal/revision arising there from. In case earlier, conviction was not brought to the notice of the at the time of handing down the subsequent conviction sentence the Trial or Appellate/Revisional Court could exercise such jurisdiction even after the sentence of imprisonment in subsequent trial is announced in exercise of its inherent jurisdiction under section 561-A, Cr.P.C. read with section 397, Cr.P.C., provided of course, where the trial, or superior courts of appeal have specifically and consciously ordered the sentences either in same trial or in subsequent trial to run consecutively.
17. In the light of discussion made above, there remains no doubt that the High Court and so also this Court have jurisdiction under section 561-A read with section 35 and or section 397, Cr.P.C. as the case may be to order such multiple sentences in same transaction/trial or in a separate and subsequent trial to run concurrently.”
In the case of Mst. Shaista Bibi (supra), the Hon’ble Supreme Court has observed as under:-
“8. Besides the provisions of section 35, Cr.P.C. the provisions of section 397, Cr.P.C. altogether provide entirely a different proposition widening the scope of discretion of the Court to direct that sentences of imprisonment or that of life imprisonment awarded at the same trial or at two different trials but successively, shall run concurrently. Once the Legislation has conferred the above discretion in the Court then in hardship cases, Courts are required to seriously take into consideration the same to the benefit of the accused so that to minize and liquidate the hardship treatment, the accused person is to get and to liquidate the same as far as possible. In a situation like the present one, the Court of law cannot fold up its hands to deny the benefit of the said beneficial provision to an accused person because denial in such a case would amount to a ruthless treatment to him/her and he/she would certainly die while undergoing such long imprisonment in prison. Thus, the benefit conferred upon the appellant/appellants through amnesty given by the Government, if the benefit of directing the sentences to run concurrently is denied to him/them, would brought at naught and ultimately the object of the same would be squarely defeated and that too, under the circumstances when the provision of S. 397, Cr.P.C. confers wide discretion on the Court and unfettered one to extend such benefit to the accused in a case of peculiar nature like the present one. Thus, construing the beneficial provision in favour of the accused would clearly meet the ends of justice and interpreting the same to the contrary would certainly defeat the same.”
In view of above case-law and guidelines provided by the Hon’ble Supreme Court and in view of no objection raised by learned Additional P.G., the instant application is allowed and sentence awarded to the applicant in both the above-mentioned two judgments are ordered to run concurrently.
JUDGE