both the sentences of imprisonment for life of the petitioner to run concurrently.
 |
both the sentences of imprisonment for life of the petitioner to run concurrently. |
JUDGMENT SHEET
LAHORE HIGH COURT,
RAWALPINDI BENCH, RAWALPINDI
JUDICIAL DEPARTMENT
Crl.Misc.No.729-M of 2024
Sher Afzal
Vs.
The State etc
Date of hearing:
29.05.2024
Petitioner/convict
by:
Malik
Waheed Anjum,
Advocate.
State by:-
Complainant by:-
Mr. Sajjad Ahmad Bhatti,
DPG.
Muhammad Bashir Paracha,
Advocate.
SADAQAT ALI KHAN, J. Sher Afzal
(petitioner) being convict seeks an order to run
concurrently his sentences of imprisonment awarded
to him in two different following trials/cases.
2.
The petitioner was convicted and awarded death
sentence in case FIR No.72 Dated 26.06.2005 u/s
302 P.S. Jand, Attock by the trial Court vide
judgment dated 23.12.2009, on the same date i.e.
23.12.2009, he was also convicted and sentenced to
death in case FIR No.145 Dated 30.09.2006 u/ss 302
& 34 PPC P.S. Jand, Attock.
3.
Death sentence of the petitioner in case FIR
No.72 of 2005 mentioned above has not been
confirmed and converted into imprisonment for life by
the Division Bench of this Court vide judgment dated
10.02.2016 (Crl.A.No.539 of 2009) but death sentence of
the petitioner in case FIR No.145 of 2006 stated
above has been confirmed by the Division Bench of
this Court vide judgment dated
10.02.2016
(Crl.A.No.540 & M.R.No.88 of 2009) which was challenged
before the Supreme Court of Pakistan and has been
converted into imprisonment for life vide judgment
dated 03.01.2022 (Crl.A.No.450 of 2019) but record shows
Crl.Misc.No.729 of 2024
that it was not brought into the notice of the
Supreme Court of Pakistan that other Crl.A.No.451 of
2019 filed by the petitioner against his conviction and
sentence of life imprisonment was also pending and
benefit of section 397 Cr.P.C has also not been
requested. Thereafter, Crl.A.No.451 of 2019 was
disposed of being not pressed by the Supreme Court
of Pakistan vide judgment dated 06.11.2023 in order
to avail remedy before the High Court by filing of writ
petition in view of provisions of Section.397 Cr.P.C.
seeking order to run concurrently both the sentences
of imprisonment of the petitioner discussed above.
4.
Relevant section 397 Cr.P.C. in this respect is
hereby reproduced:-
[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.]
5.
The said provision of law expressly enables the
Court to direct that subsequent sentence of the
convict would run concurrently with the previous
sentence. It has been clarified in section 397 Cr.P.C
that the Court while analyzing the facts and
circumstances of every case is competent to direct
that the sentences of a convict in two different trials
would run concurrently. The provisions of section
397 Cr.P.C. confer wide discretion on the Court to
extend such benefit to the convict in a case of
peculiar nature. In a situation like the present one,
Crl.Misc.No.729 of 2024
the Court of law cannot fold up its hands to deny the
benefit of the said beneficial provision to convict
because such denial would amount to ruthless
treatment to him and would certainly jeopardize his
life undergoing such a long imprisonment and benefit
conferred upon the petitioner by the Court from
death to imprisonment for life certainly evaporates if
discretion of directing the sentences to run
concurrently is denied to him rather would bring at
naught and ultimately the object of the same would
squarely be defeated and that too, under the
circumstances when the provisions of S.397 Cr.P.C.
bestows wide discretion on the Court and unfettered
one to extend such benefit to the convict in a case of
a peculiar nature like the present one. Thus,
construing the beneficial provisions in favour of the
convict would clearly meets the ends of justice and
interpreting the same to the contrary would certainly
defeat the same. The legislation under the provision
of section 397 Cr.P.C. is quite compassionate having
tender feelings and has empowered the courts to
order the subsequent sentence to run concurrently to
the previous sentence of a convict. This is the entire
discretion and appanage of the Court to exercise its
powers moderately and judiciously. When the
universal principle of law is to be given effect in case
of punishment, it is for the Courts to struggle and
favour in order to interpret the law where liberty of
convict is to be given preference instead of curtail it
without animated reasons and justness.
6.
Once the legislation has conferred the above
discretion upon the Court then in hardship cases,
Courts are required to take into consideration the
Crl.Misc.No.729 of 2024
same with immense seriousness to the benefit of a
convict to minimize and liquidate the hardship
treatment.
7.
Extending the benefit of beneficial provision in
favour of the petitioner would clearly meet the ends of
justice, therefore, in view of the facts and
circumstances of this case, this Court observes that
there is no wrong and harm in treating both the
sentences of imprisonment for life of the petitioner to
run concurrently.
8.
In cases where sentences of convict in different
trial have not been ordered to run concurrently
rather trials, appellate and revisional courts are silent
on this point, then in appropriate cases as in present
case inherit jurisdiction of this Court in terms of
section 561-A Cr.P.C. read with section 397 Cr.P.C.
can be invoked, provided, of course, where the
superior Court of Appeal specifically and consciously
has not denied the benefit of provisions of section
397 Cr.P.C. (2018 SCMR 418 “RAHIB ALI V. The
STATE”).
9.
In view of above, this petition is allowed, it is
directed that sentences of the petitioner in case FIR
No.72 dated 26.06.2005 u/s 302 PPC P.S. Jand,
Attock and FIR No.145 dated 30.09.2006 u/ss 302 &
34 PPC P.S. Jand, Attock shall run concurrently with
benefit of section 382-B Cr.P.C.
(CH.ABDUL AZIZ)
JUDGE
(SADAQAT ALI KHAN)
JUDGE
Approved for Reporting
Judge
Judg
Comments
Post a Comment