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.

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.

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.

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.]

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.

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.

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.

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”).

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

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