By:

Muhammad Kashif Pasha

Civil Judge-cum-Magistrate, Vehari
 SECTION 397 OF CODE OF CRIMINAL
PROCEDURE, 1898.
 SECTION 28,29,30,31,32,33, 34 AND SECTION 398 OF
CODE OF CRIMINAL PROCEDURE, 1898.
 SECTION 71 OF PAKISTAN PENAL CODE, 1860.

 CROSS REFERENCE:
 SECTION 35 OF CODE OF CRIMINAL PROCEDURE,
1898.
 SECTION 57,64 N 75 OF PAKISTAN PENAL CODE,
1860
 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 codified law and consensus of the judicial
opinion, as may emerge from different judgments
passed by honorable High Courts and the august
Supreme Court, is that normal rule, as per section
397 Cr.P.C., is that a person who is undergoing a
sentence of imprisonment or imprisonment for life, is
sentenced on a subsequent conviction to an
imprisonment or an imprisonment for life, then such
imprisonment or imprisonment of life shall commence
after the expiration of the running imprisonment or
imprisonment for life.
 The object of section 397 of the Code is to increase the
period of punishment that the Courts are competent
to inflict. If after recording conviction, Court does not
specify under any of these two sections that the sentences
will run concurrently, it must be held that they shall run
consecutively. Each case has to be decided keeping in view
the facts and circumstances of that case.

 Section 397 of Cr.P.C. has made enabling provisions

empowering the Courts to direct the manner of
execution of the sentences but principles, method and
manner of exercise of this judicial discretion cannot be
discerned from the section as such.
 Trial Court
 Court of Revision
 Court of Appeal

 And if for any reason, or due to some inadvertent

omission same is not passed, then same can be passed
by High Court afterwards by exercising the power u/s
561-A CrPC
 1. Proviso (a) to subsection (2) of section 35, Cr.P.C. is also applicable
in subsequent cases.
 2. Proviso (a) to subsection (2) of section 35, Cr.P.C., indicates that it
prohibits the giving of consecutive sentence in one trial beyond the
period of fourteen years, the maximum sentence, short of the death
sentence. Therefore, the imposition of the sentence of life
imprisonment (which means 25 years' R.I.), plus another
sentence of life imprisonment or imprisonment
would be inconsistent with the intendment of the provisions of
proviso (a) to subsection (2) of section 35, Cr.P.C. inasmuch as the
maximum punishment prescribed for heinous offences shall be
exceeded.

 A glimpse of section 35 of CrPC on next slide.

 35. (1) Sentence in case of conviction of several offences at one trial.
 When a person is convicted at one trial of two or more offences, the Court may, subject to
the provisions of section 71 of the Pakistan Penal Code sentence him, for such offences, to
the several punishments prescribed therefore which such Court is competent to inflict;
such punishments when consisting of imprisonment or transportation to commence the
one after the expiration of the other in such order as the Court may direct, unless the
Court directs-that such punishments shall run concurrently.

 (2) In the case of consecutive sentences, it shall not be necessary for the Court, by reason
only of the aggregate punishment for the several offences being in excess of the
punishment which it is competent to inflict on conviction of a single offence, to send the
offender for trial before a higher Court;
 Provided as follows:-----
 Maximum term of punishment.
 (a) in no case shall such person be sentenced to imprisonment for a
longer period than fourteen years;
 (b) if the case is tried by a Magistrate (other than a Magistrate acting under section 34),
the aggregate punishment shall not exceed twice the amount of punishment which he is,
in the exercise of his ordinary jurisdiction, competent to inflict.
 (3) For the purpose of appeal, the aggregate of consecutive sentences passed under this
section in case of convictions for several offences at 'one trial shall be deemed to be a
single sentence.

 Rule of interpretation provided in Bashir Ahmad and 3 others etc
case cited as PLD 1991 SC 1145:

 (i)Wilberfore on Statute Law, page 303:--


 "A proviso is of great importance when the Court has to consider what cases come within
the enacting part of a section and it is always to be construed with reference to
the preceding parts of the clause to which it is appended."

 (ii)In the case i.e., East & West Steamship Co. case, at page 72, the following
observations were made by the august Supreme Court:-

 "One of the plainest rules of statutory interpretation is that a proviso is to be regarded as
something which excepts a particular case from a general principle. The effect of a
proviso is to except something out of the preceding portion of the
enactment or to qualify something enacted therein which but for the proviso would be
within it.“
 (PLD 1958 SC 41)
 Decision of larger bench of august Supreme Court in Bashir and
3 others case etc regarding applicability of proviso (a) of
subsection 2 of S.35 of CrPC:
 12. It is clear, therefore, that section 35 (2) deals only with the sentencing power
of the Magistrates at a trial and the proviso' has necessarily to be restricted to the
Courts of the Magistrates with limited sentencing power. On no principle of
interpretation can the proviso be extended so as to outstrip the substantive scope
of subsection (2) of section 35, Cr.P.C. and to refer to the Courts whose, power of
sentencing is not so limited.
 The Court is unanimously of the view that the judgments of this Court in Javed
Shaikh v. The State (1985 SCMR 153), Juma Khan and another v. The State (1986
SCMR 1573), Muhammad Ittefaq v. The State (1986 SCMR 1627) Id.a& Khan
Zaman and others v. The State (1987 SCMR 1382) require review and are hereby
reviewed to hold that proviso (a) to subsection (2) of section 35, Criminal
Procedure Code does not apply to cases of sentence awarded by the Sessions Court
in original trial. it does not, therefore, apply to cases of imprisonment for life
imposed in murder trial.
 The Court by majority of opinion holds that-
 (i) the sentence of life imprisonment, unless ordered to run, concurrently under
subsection (1) of section 35, Cr.P.C. will run consecutively in view of its
quantification in terms of years under section 57 of the Pakistan Penal Code;
 and
 (ii) the executive order of commutation of sentence of death into
life imprisonment takes effect forthwith making such sentence to run
concurrently with any other sentence ordered by the Court. (PLD 1991 SC1145)
 Word magistrate is not being used in proviso “a” because of sub s.(3) of
S.31 of CrPC:
 Because in other provinces, Assistant Sessions Judge can pass sentence
of imprisonment up to 7 years, hence specific word “magistrate” is not
used in proviso (a) of Sub. S. 2 of S. 35 of CrPC
 31. Sentences which High Courts and Session Judges may pass.
 (1) A High Court may pass any sentence authorized by law.
 (2) A Sessions Judge or Additional Sessions Judge may pass any
sentence authorized by law; but any sentence of death passed by any
such Judge shall be subject to confirmation by the High Court.
 (3) An Assistant Sessions Judges may pass any sentence authorized by
law, except a sentence of death or of [imprisonment for a term
exceeding seven years].
 A study of section 35, Cr. P. C. would show that it is applicable when a person is
convicted at one trial of two or more offences. Its subsection (1) is of general
application and not, in any way, restricted in nature. It applies to all kinds of
trials by all "classes of criminal Courts". Subsection (2) of section 35 is
applicable to a Court who after trial of accused on two or more offences form:
an opinion that the case be sent for bearing before a higher Court because of
the serious nature of the charges against the accused and in his opinion he
cannot award adequate punishment. Subsection (2) provided that in the case of
consecutive sentences, it will be unnecessary for the Court, "by reason only of
the- aggregate punishment for the several offences being in excess of the
punishment which it is competent to inflict on conviction of a single offence; to
send the offender for trial before a higher Court." The limit of consecutive
sentences which such Court can award is provided in provisos (a) and (b) of
this subsection. Proviso (a) relates to the Magistrate who can inflict sentence of
imprisonment not exceeding seven years whereas proviso (b) is applicable to
all other Magistrates who are empowered to pass various terms of
imprisonment under section 32, Cr. P. C. 'there is no such limit in subsection, (1)
of section' 35 of the Code. The only limit is relatable to section 71 of the
Pakistan Penal Code. As stated above, this section is of general applicability
and not restricted to the Courts of Magistrates who exercise power to pass
sentence under sections 32 and 34 of the Code. A Sessions Judge is
empowered to inflict any punishment/sentence provided in law.
 It is by now well embedded and deeply entrenched universal principle of law that while
interpreting the provision of punitive law, Courts are required to strive in search
of an interpretation, which prefer the liberty of a person instead of curtailing the
same and that too unreasonably and unfairly unless, the statutory law clearly directs otherwise.

 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
minimize 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.

 (Mst. SHAHISTA BIBI and another case reported as P L D 2015 SC15)

 What principle and consideration will govern the exercise of this
discretion cannot be exhaustively enumerated. Certain relevant
factors, as can be culled out from different judgments of
honorable superior courts, may give an indication where such
discretion may be exercised. These factors generally would be:

 Nature or character of the offences committed,

 Prior criminal record of the offender,
 Character of accused
 Age of accused.
 Gender of accused.
 Ghastly nature of the crime.
 Offender being habitual.
 But these are not the only reasons for which the Court
can exercise this discretion. Discretion always is open
to be exercised by any Court dependent upon the facts
and circumstances of each case on any relevant or valid
consideration as may be considered so by the Court
while holding the trial or deciding the case at the stage
of appeal or revision.
 It may require a notice that section 397 of Cr.P.C. is
aimed at amelioration and this aspect may also require
to be kept in view while exercising such discretion.
 AUTHORED BY HON’ABLE MR. JUSTICE M.R. KIYANI:
 Where the accused was sentenced on three separate charges under
section 409 Pakistan Penal Code each charge being the subject matter
of a separate trial, the sentences having been pronounced on the same
day and there being no order as to their being concurrent or otherwise,
Held, that a person is " undergoing " imprisonment within the
meaning of section 397 from the moment the sentence is passed and
that the accused was undergoing his first sentence when the second
and third were pronounced on him, and consequently, where there is
no order making them concurrent, they will be undergone
consecutively.
 MIAN GULZAR MUHAMMAD CASE (PLD 1950 LAH. 497)
 MUHAMMAD KHAN CASE (PLD1986 Lahore 294)
Question and Answer
THANK YOU.