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Criminal Miscellaneous Petition No. 27‑R of 1986 in Jail Petition No. 86‑R of 1980, decided on 2nd July, 1986.

(On appeal from the order of the Supreme Court, dated 17‑3‑1981 in Jail Petition No. 86/R of 1980).

‑‑‑O. XXXIII, R. 6‑‑Penal Code (XLV of 1860), S. 302‑‑Criminal Procedure Code (V of 1898), S. 35‑‑Sentence‑‑Sentence of imprisonment for life imposed by Trial Court upon petitioner under section 302, Penal Code, on each count, without clarifying whether same would run concurrently or consecutively‑‑High Court dismissing prayer of accused made in his application under section 561‑A, Cr.P.C., to order sentences to run concurrently‑‑Supreme Court ordered that sentences so ordered would run concurrently‑‑Total period of imprisonment at one trial could not exceed 25 years.‑‑[Sentence].

Javed Sheikh v. The State 1984 S C M R 153 rel.

Kh. Ahmad Iqbal Advocate Supreme Court and Ch. Akhtar Ali Advocate‑on‑Record for Petitioner.

M. Nawaz Abbasi, A.A.‑G. and Rao M. Yousaf, Advocate‑on Record for the State.

Date of hearing: 1st July, 1986.

‑‑Juma Khan and Jumaid Khan were tried for the double murder of Mian Nur and Baz Gul and were sentenced to death, on each count, by the learned trial Judge. On appeal the High Court maintained their conviction but reduced the sentence of death to imprisonment for life on each count. However it was not specified whether the sentences of life imprisonment would run consecutively or concurrently.

'The petitioners preferred a jail petition for leave to appeal to this Court (J.P. No. 86‑R of 1980) but the same was dismissed by this Court and the order of the High Court was maintained. Nothing was said in this judgment either about whether the sentences were to run consecutively or concurrently. Thereafter, the petitioners were informed by the jail authorities that they would have to undergo the life imprisonment twice i.e. for two terms of 25 years each.

The petitioners moved a petition before the Lahore High Court under section 561‑A, Cr.P.C. for a clarification to the effect that the sentence imposed upon them were to run concurrently. This application was dismissed by the High Court vide order, dated 17‑3‑1986 with the observation: ‑

"We are of the view that if we were to proceed under section 561‑A, Cr.P.C. to provide the clarification which is being sought by learned counsel, it would amount to reviewing the High Court judgment which has already been upheld by the Supreme Court. The proper course for the petitioners, therefore, is to move the Supreme Court for this object. With these observations, this petition is disposed of."

The petitioners have now filed an application before this Court under Order XXXIII, Rule 6 of the Supreme Court Rules, 1980 for passing an appropriate order in regard to the nature of the sentence passed in the case.

We have heard Khawaja Ahmad Iqbal, learned counsel for the petitioners and Mr. Muhammad Nawaz Abbasi, A . A.‑G. , to whom notice was issued in this behalf by the Court.

After hearing both the learned counsel, we are inclined to accept file prayer of the petitioners and to clarify that the sentences of imprisonment for life on each count imposed upon them are to run concurrently and not consecutively.

We may add that under section 35 of the Cr.P.C. the total period of imprisonment at one trial cannot exceed 25 years. If the sentences imposed on the petitioners in this case are allowed to take affect consecutively the sentence would exceed 25 years. This, of course, is not permitted by section 35 of the Cr.P.C. See also Javed Sheikh v. The State 1984 S C M R 153.

We would accordingly, clarify that the sentence of imprisonment for life imposed upon the petitioner under section 302, P.P.C, on each count shall run concurrently and not consecutively. Order accordingly.

M.Y.H. Petition accepted.

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