IN THE HIGH COURT OF SINDH AT KARACHI
CRIMINAL MISC. APPLICATION NO.163/2013
MR. JUSTICE SALAHUDDIN PANHWAR
Applicant: Muhammad Hussain,
Through M/s. Rashid Mehmood and
Mr.Muhammad Arif Shaikh,
Respondent: The State,
through Mr. Waleed Ansari, DAG.
Date of hearing: 23.1.2014.
Date of announcement: ___________.
SALAHUDDIN PANHWAR, J.Through instant miscellaneous application, applicant has prayed as under:-
A) It is therefore, prayed that this Hon’ble Court may be pleased to pass appropriate orders in this petition thereby directing that the respective sentences of all four different same nature cases bearing (1) Special Case No.99/2011, (2) Special Case No.22/2012, (3) Special Case No.15/2011 and (4) Special Case No.90/2011 may run concurrently against the applicant instead of consecutive sentences so that the applicant may have a chance to reform himself and become a gentleman after serving out his sentences.
B) It is further prayed that the sentence of payment of fine in all such cases may also be waived or reduced due to the poor financial position of the applicant and his family.
2. Precisely, relevant facts, as set out in the instant application are that the applicant was convicted in four cases, such detail is as under:-
i) Special Case No.99/2011, sentence of four years R.I. in section 468, two years R.I. in section 420 PPC and one year R.I. in offence u/s 471 PPC and payment of fine of Rs.20 Lacs and in default of such payment of fine, to further undergo imprisonment of 21 months S.I. and all such sentences shall run concurrently however, benefit of 382-B Cr.P.C. was granted;
ii) Special Case No.22/2012, sentence of Seven years R.I. in section 420/468/471 PPC and payment of fine of Rs.53,90,129/- and in default of such payment of fine, to further undergo imprisonment of 21 months S.I. however, benefit of 382-B Cr.P.C. was granted;
iii) Special Case No.15/2011, sentence of four years R.I. in section 468, one year R.I. in section 420 PPC and one year R.I. in offence u/s 471 PPC and payment of fine of Rs.19,90,000/- and in default of such payment of fine, to further undergo imprisonment of 16 months S.I. and all such sentences shall run concurrently however, benefit of 382-B Cr.P.C. was granted;
iv) Special Case No.90/2011, sentence of four years R.I. in section 468, one year R.I. in section 420 PPC and one year R.I. in offence u/s 471 PPC and payment of fine of Rs.3,60,000/- and in default of such payment of fine, to further undergo imprisonment of 16 months S.I. and all such sentences shall run concurrently however, benefit of 382-B Cr.P.C. was granted;
2. Learned counsel for the applicant, inter-alia, contended that according to Section 397 Cr.P.C. it is a settled law that all the sentences will run concurrently and not consecutively but specific order was not passed by the trial court, therefore, applicant is suffering hardship as various convictions have been awarded by the trial Court in two full-fledged trials, while remaining in two separate cases, when accused/applicant pleaded guilty therein; that maximum sentence in the aforementioned convictions is seven years, therefore, beyond this period detention of applicant will amount to illegal detention, as laid down by the superior Courts. . It is further contended that the applicant is behind the bar since 15.02.2012 and undergoing the above sentences in four different convictions as awarded in different trials. In support of his contention he has relied upon [SBLR 2011 FSC 50].
3. On the other hand, learned DAG has contended that since separate trials were conducted, therefore sentence will run consecutively and not concurrently. He has relied upon cases of TAIYAB A. KHAMBATY v. STATE [1987 PCRLJ 755], ALLAH BAKHSH v. MUHAMMAD AFZAL KHAN [PLD 1982 L 45], SHAHBAZ HUSSAIN v. State [2007 PCRLJ 1495], SALIM RAZA v. THE STATE [1998 PCRLJ 284] & GULZAR AHMAD v. SUPERINTENDENT DISTRICT JAIL, FAISALABAD [2009 MLD 1068].
4. We have heard the learned counsel (s) for respective sides and have also gone through the available record.
5. To properly appreciate all the aspects of the provision of the Section 397 of the Criminal Procedure Code, we feel it proper to have a glance upon the said provision first coupled with Section 398 Cr.P.C, which, for better understanding, is reproduced hereunder:-
S. 397—Sentence of offender already sentenced for another offence. When a person 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.
(Underlining is endow with for emphasis)
S.398—Saving as to section 396 and 397. (1) Nothing in section 396 or section 397 shall be held to excuse any person from any part of the punishment to which he is liable upon his former or subsequent conviction.
(2) When an award of imprisonment in default of payment of a fine is annexed to a substantive sentence of imprisonment or to a sentence of [imprisonment of life], and the person undergoing the sentences is after its execution to undergo a further substantive sentence, or further substantive sentences, of imprisonment, or [imprisonment for life] effect shall not be given to the award of imprisonment in default of payment of the fine until the person has undergone the further sentence or sentences.
6. The reading of the above provision will show that the legislature has made things clear about application, object and purpose of this provision. To make the application of this provision clear, the phrase i.e ‘when a person undergoing a sentence’ has been used. The use of this phrase has left nothing ambiguous that this provision is speaking only about such matter where an accused, though undergoing a sentence, yet appearing before a Court of law in other case / trial.
7. Further, the bare perusal of the above provision makes it clear that the provision is directory in its nature because it, without giving any discretion, first insists that subsequent sentence shall commence at the expiration of the imprisonment. Such insists is patent from the deliberate use of the word ‘shall’ in this provision. The objective is so for the simple reason that punishment is awarded to the person for the offence / crime after due trial. One will endorse that every sin / offence, if proved, shall make criminal / sinner to undergo the punishment, so fixed/determined, for such offence / sin. The Criminal Law though believes in innocence of accused but cannot be believed to be discriminatory or prejudice to society or State. Therefore, legislature insisted, through this provision, that a criminal shall undergo punishment (s) for every offence, awarded through separate trial (s) which could only be possible if subsequent punishment runs after expiration of earlier one, as stated in this provision.
8. However, since the one of basic concept of punishment is reformation, therefore, the Court, trying ‘a person undergoing a sentence’, has been vested with a discretion that such court can competently and legally change such order of the running of the sentence (s). Thus even a subsequently awarded sentence for imprisonment can be ordered to run concurrently with that sentence of imprisonment which ‘a person is already undergoing’.
9. Since legislature (s) have always been conscious of the legal position that every offence has its own impacts and punishments, therefore, such exception has been confined to only punishment of imprisonment, or imprisonment for life. Although the Section 53 of the Pakistan Penal Code defines and categorized punishment (s) as:
Seventhly……….imprisonment for life;
Eighthly …………imprisonment which is of two descriptions,
i) Rigorous i.e with hard labour
Ninthly ……………Forfeiture of property,
Therefore, the provision can, well, be concluded as the Section 397 prescribed for running of different sentences inflicted on an offender, at different trials, for different offences without any clog of time, place and nature of offence but only in respect of punishments classified by Section-53 of the PPC as Seventhly and Eighthly.
10. Here, it is worth to make clear that Section 397 of the Code is part of the Chapter XXVIII of the Code is titled as ‘OF EXECUTION’, which starts from Section 381 and lasts at Section 400 of the Code. The numbering of the provisions and their order is also material. Every single provision of the Chapter has its own value and even is explaining and conforming to subsequent provision. At this juncture, we would like to explain another legal position before proceeding any further onto merits of the case. The legal position is that normally a conviction commences from the time it is passed but the provision of Section 382-B Cr.PC is a deviation to such provision. The Honourable apex Court has made things clear in the case of Shah Hussain Vs State’ reported as PLD 2009 (Supreme Court) 460 whereby it has been made mandatory to give benefit of Section 382-(b) Cr.PC with reference to a logical and legal reasoning that:-
(1) While passing sentence, the court, in the absence of special circumstances disentitling the accused to have his sentence of imprisonment reduced by the period spent in jail during the trial, exercise its discretion in favour of the accused by ordering that such period shall be counted towards his sentence of imprisonment or that the sentence of imprisonment shall be treated as reduced by that period;
(2) the discretion has to be exercised with the intention to promote the policy and objects of the law;
(3) indeed, the court will use its good sense in determining the circumstances in which the discretion will not be exercised in favour of the accused. But as the discretion is a judicial discretion, the order of the court must show that the pre-sentence period has been taken into consideration and if the court thinks that the sentence should not be reduced by the period spent in prison during the trial, the court must give reasons for so thinking;
and it is further held that in para No. 38 that:
38. The practical effect of reducing the sentence to the extent of pre-sentence custody period, particularly, the way it is done in Pakistan, is that the sentence takes effect from the date of arrest of the convict in connection with the offence. This is not prohibited by any specific provision of the Code of Criminal Procedure, rather this course, prima facie, appears to be permissible considering the provisions of section 382-B, Cr.P.C., read with sections 233 to 240, 383, 397 and 35, Cr.P.C. This position is also in line with the Botswana law as noticed in Thakes's case (supra), which empowers the Court to make the sentence effective by a specific order from an earlier date.
Meaning thereby that it has been made mandatory for the trial Court (s) to award the benefit of Section 382-B Cr.PC, except those excluded, but since already explained that every single provision of the Chapter has its own value and even is explaining and conforming to subsequent provision. Therefore, the Court (s) should not fall in error in awarding the benefit of Section 382-B Cr.P.C in a mechanical manner while awarding a sentence to a person already undergoing a sentence, for the simple reason that by awarding benefit of Section 382-B Cr.PC the convict becomes entitled for inclusion of period of his detention during his trial. Had the intention of the legislature been so, there would not have been any need to bring the provision of Section 397 after the provision of Section 382-B of the Code.
11. At this juncture, it would be germane to examine the provision with reference to term ‘Court’, used in this provision in phrase ‘unless the court directs that the subsequent sentence shall run concurrently with such previous sentence. The use of the word ‘Court’ itself confines that it would be the ‘Court’ trying convict of other crime as an accused for other trial / charge. However, since it is well settled principle of law that in appeal whole case becomes open therefore, the word ‘court’ would also include appellate Court and even Revisional Court where subsequent sentence is challenged, subject to limitation of law. However, there has been conflicting view of this Court regarding exercise of powers by High Court within meaning of the Section 561-A Cr.PC. However, we would go with favouring view for the reason that the object of provision of Section 561-A Cr.PC is to enable the High Court to make such orders as may be necessary to give effect to an order under Criminal Procedure Code or to prevent the abuse of process of any Court or otherwise to secure the ends of Justice. Thus, powers under Section 561-A Cr.PC may well be exercised even in matter of Section 397 but only where petitioner/convict establishes that exercise of such powers would be to cure a failure on part of Court and shall secure the ends of justice. The same point was examined by the Hon’ble Supreme Court of Pakistan in a case of Bashir v. State reported in PLD 1991 SC 1145 wherein it was held that:
‘…However, during appeal or revision before the High Court, the High Court could itself, examine these questions, subject to limitations, if any, provided by law and principles laid down by this Court, and determine these matters. Again whereby inadvertence there is failure on the part of the High Court to determine these questions, I cannot see any reason why resort cannot be had to section 561-A of the Code to cure the failure, in order to secure the ends of justice’.
12. Now, we would attempt to unfold the situation (s) where the Court may order the subsequent to run concurrently with already undergoing sentence, which is an exception to normal course.
“In case of Abdul Hamid versus The State (1990 PCr.LJ 568), a learned Bench of the Lahore High Court did not grant the relief of sentences to run concurrently because it found as follows:--
"……Depending on the particular circumstances of a case, concurrent sentences may be awarded where the two offences are akin and intimately connected with each other, but not where there is no connection between the two "
In case of Ali Akber Shah Vs State reported in PLD 2004 Karachi-589, it is laid down that:
“However, after considering the gravity of offence in the case particularly the fact that accused had committed two offences or serious nature within a period of five months, accused did not deserve any leniency as he, despite knowing that sentence of said offence which was death or imprisonment for life, did not care for his future’.
In another case of Abdul Razzak Vs State reported in 2005 P.Cr L J 237, it is observed as under:
“We could exercise the power within the meaning of section 397, Cr.P.C. even if a revision, or for that matter suo motu revision is initiated but this would be necessitated only in exceptional circumstances when it becomes necessary to do so in order to secure the ends of justice. We have examined the case from the point of view laid down on Bashir v. The State PLD 1991 SC 1145 and the view taken by us in the Ali Akbar Shah v. The State Criminal Appeal No.73 of 1993, decided on 3‑6‑2004. This Court has also taken the view in Sikandar Ali alias Sikoo Shaikh v. The State PLD 2003 Kar. 260 that such concession could be ‑extended if at least there could be close or intimate nexus between the previous and subsequent offences.
In case of Nek Mohammad Vs. State reported in PLD 2007 Karachi 62, it is held that:
From the facts of all the three cases it is evident that though the nature of offences is the same i.e. misappropriation of government stocks of grain, but all the three offences cannot be said to be, intimately connected with each other in order to describe them as part of a series of offences committed in the course of achieving a common objective. All the three offences were committed in order to achieve three separate objectives independent of each other i.e. misappropriation of stocks of food grain dispatched for three different places at three different points in time. As each of the three offences were committed to achieve three separate objectives though identical in nature and therefore, all three offences cannot be regarded as akin or intimately connected with each other. The discretion of the Court to direct running of subsequent sentence concurrently with earlier sentence is exercised not in a mechanical manner and is also not applied as a rule but only as an exception and only when the Court finds that all offences were committed in the course of realization of a common objective which a person wants to achieve at a particular point in time. Where a person commits a series of different offences to achieve his common objective then all offences committed in achieving such common objective are regarded as akin to each other or are intimately connected with each other. For example a person who plans to rob a bank, first disconnects electricity and telephone connections of the bank, kills its security guard, trespasses into the building, breaks the locker room and commits robbery and then abducts some of the bank officials in order to use them as human shields. From the commission of all such acts it can be seen that in order to achieve his main objective of robbing a bank, he has committed a series of offences. In such a case the Court awarding sentence for one of such offences can order that sentence awarded earlier for one of the series of such offences committed by the accused to run concurrently. In the present case all three offences though identical in nature were committed with distinct and separate criminal objectives sought to be achieved at three different points in time and therefore the justification to seek concurrent running of all the three sentences did not arise at all in the first place. In such circumstances, the Courts below did not had the discretion to order concurrent running of subsequent sentences had such relief been sought from them at the appropriate time.
In case of Ali Khan Kakar Vs Hammad Abbasi reported in 2012 SCMR, 334, it is held that:
“The discretionary power vested in the Court to direct the sentence to run concurrently is to be exercised in the light of the facts and circumstances of each case i.e. depending on the nature and gravity of the offence.
In the case of Ghulam Farid Vs State reported in 2013 SCMR 16, it is decided that:
“The ratio decidendi in the precedent case-law referred to in the preceding paragraphs is that in terms of section 397, Cr.P.C. consecutive sentences is a general rule while the concurrent sentence is an exception and is to be awarded in the exercise of discretion by the Court depending on the facts and circumstances of each case. In the exercise of discretion, the Court may inter alia look into (i) the conduct of the convict, (ii) heinousness of crime and (iii) injury to the individual and the society. In the instant case, the two murders were committed at two different places. One was committed at the house of Muhammad Rafique deceased (F.I.R. No.154 dated 27-12-2001) and the other namely that of Mst. Parveen Bibi was committed at petitioner's own house when she was asleep (F.I.R. No.155 dated 27-12-2001). These were two different transactions though in the defence plea, petitioner attempted to make it a single transaction which he miserably failed to prove. His own wife Mst. Shahzadan Bibi appeared during trial (F.I.R. No.155 dated 27-12-2001) to allege that the petitioner had developed illicit liaison with her own daughter Mst. Parveen Bibi deceased; that at his asking she accompanied him to the nurse to cause miscarriage of pregnancy of the said Parveen deceased and when the said act became public, he not only murdered Muhammad Rafique regarding whom he suspected that he had spread the rumour but also Parveen Bibi who to the petitioner by then had become symbol of his sin. Petitioner's son Ghulam Qadir also appeared during trial in the said case as P.W.12 and corroborated Mst. Shahzadan Bibi. The petitioner not only committed gruesome murder of two persons but his conduct reflects a morbid, perverse and depraved character.
(Underlining and bold are supplied for emphasis)
13. From the above case laws it appears that in the exercise of discretion, the Court may, inter- alia, look into (i) the conduct of the convict, (ii) heinousness of crime and (iii) injury to the individual and the society and that all offences are akin or intimately connected with each other. Such discretion can well be exercised by Court, trying convict of other crime as an accused for other trial / charge; an appellate Court or Revisional Court where subsequent sentence is challenged, subject to limitation of law. The High Court, within meaning of the Section 561-A Cr.PC, can also exercise inherent jurisdiction but only to prevent the failure of justice or otherwise to secure the ends of Justice. The discretion, however, shall be only in respect of punishments classified by Section-53 of the PPC as seventhly and eighthly.
14. Having discussed above and coming to an understanding about object, import and application of the Section 397 of the Criminal Procedure Code, we revert to the merits of the case in hand. In the instant case the petitioner has sought concurrent running of sentences, awarded to him through different trial (s) but the petitioner has not been able to show that all the four charges (offences) were akin to each other or were intimately connected with each other. On the other hand the involvement of the petitioner in similar nature of offence, committed at different times with different people, shows attitude of the petitioner towards right of the individuals. Further, the petitioner has been found guilty of offences, involving rights of individuals wherein they were deprived or attempted to be deprived of their properties, therefore, we are of the considered view that the petitioner has failed to bring his case within the criteria, sketched out, where a deviation to normal course is resorted to.
15. Accordingly, in view of what has been discussed above, we find no merits in the instant petition and same is dismissed accordingly.