2017 P Cr (PLP)

CH. MUHAMMAD IBRAHIM ZIA, J.

The captioned application is filed under Order XLIII, Rule 5 of the Azad Jammu and Kashmir Supreme Court Rules, 1978, for release of the convict-applicant on completion of the punishment.

2. According to the relevant facts, the petitioner herein was convicted and sentenced by the Ehtesab Court No.1, Muzaffarabad to suffer three years' rigorous imprisonment for commission of each of the offences under sections 419/420, 409/467, 468/471, A.P.C, section 5(2), the AJK PCA, 1950, Section 11 of Ehtesab Act, 2001, Section 4 of the Official Misdemeanors Act, 1948 and Sections 6, 15 of the Public Office Misconduct Ordinance, 1965 along with the fine of Rs. 14,00,000/-. In case of non-payment of fine, the petitioner had to undergo further one year's rigorous imprisonment. Moreover, the embezzled amount was ordered to be recovered from the property of the petitioner. The trial Court also extended him benefit of section 382-B of Criminal Procedure Code. His appeal before the High Court as well as before this Court failed. The petitioner moved many applications before the authorities for his release but failed. He has now moved the instant application for his release on the ground that he has undergone the whole imprisonment of 4 years, therefore, he is entitled to be released.

3. Kh. Attaullah Chak, Advocate, the learned counsel for the petitioner, after stating brief facts submitted that the petitioner was awarded three years' rigorous imprisonment by the trial Court for each of the offences allegedly committed under different laws and one year's additional punishment for non-payment of fine of Rs.14,00,000/-. He has also been extended benefit of section 382-B, Cr.P.C. The judgment of the trial Court attained finality as the appeal before the High Court as well as this Court failed. In the conviction order of trial Court, neither direction has been issued that punishment shall run consecutively or it shall operate concurrently nor any clarification in this regard has been made by the appellate Courts. The applicant has served more than three years punishment. He is entitled to be released. He approached the trial Court but no speaking order has been passed by the trial Court under the pretext that final judgment holding the field is of the apex Court. Thus, petitioner was left with no option except to approach this Court to invoke inherent powers. He submitted that according to the statutory provision of law, especially section 35 of the Criminal Procedure Code, punishment of imprisonment awarded for different offences in one trial cannot be served in a manner which may exceed 14 years period. As in this case, neither the trial Court has directed for consecutive running of the imposed convictions nor for concurrent operation of the same. He submitted that the law has imposed prohibition that in no case, punishment can be awarded which exceeds 14 years limit. In this case the applicant has been convicted for commission of 11 offences and sentenced to suffer 3 years rigorous imprisonment for each offence. If the punishment runs consecutive comes to 33 years which surely is much more than the maximum punishment prescribed by law, i.e. 14 years. Thus, in this state of affairs, according to spirit of law, punishment has to run concurrently otherwise it will amount to violation of the statutory provision. Thus, while accepting the application, the petitioner kindly be ordered to be released.

4. Conversely, M/S Mir Khalid Mehmood, Chief Prosecutor and Zafar Iqbal Azad, Deputy Chief Prosecutor Ehtesab Bureau, representing the respondents submitted that judgment of the trial Court is silent in this regard. However, in view of the statutory provision of section 35 of the Criminal Procedure Code, if no specific direction is issued by the Court, the punishment awarded has to run consecutively one after the other. The petitioner according to law has to serve the punishments consecutively. The condition of maximum punishment awarded does not prohibit running of consecutive convictions. Therefore, this application having no substance is liable to be dismissed.

5. We have considered the arguments of the learned counsel for the parties and also examined the record made available. Admittedly, the trial Court has not issued any direction whether the awarded punishments will run consecutively, one after expiration of the other or the punishments awarded have to run concurrently. The statutory provision of proviso (a) of section 35 of the Cr.P.C., prohibits that in no case, a person shall be sentenced to imprisonment longer than the period of 14 years. In this case, aggregate punishment awarded to the petitioner comes to 33 years and if it is deemed as consecutive surely it is not allowed in view of proviso (a) of section 35 of the Cr.P.C. Absence of any direction of trial Court whether the punishment awarded has to run consecutively or concurrently, the obvious consequences have to be considered. If it is deemed that intention of the Court is consecutive running of the punishment, it will amount to violate the statutory provision of proviso (a) of section 35 of the Cr.P.C. Thus, the judgments cannot be implemented in a manner which violates the statutory provision. The only alternate is running of punishment concurrently in such case violation of statutory provision can be avoided. In this regard the view expressed by the apex Court of Pakistan in the case reported as Shah Hussain v. State [PLD 2009 SC 460] has to be referred whereby while attending the identical proposition, it has been observed as under:- "

40. The petitioner in the instant case was sentenced to 10 years' R.I. and imprisonment for life on two counts. His sentences were ordered to run consecutively. The aggregate sentence of the petitioner would thus come to sixty years, which is contrary to the provisions of section 35, Cr.P.C. Proviso (a) to section 35, Cr.P.C. prohibits the giving of consecutive sentence in one trial beyond the period of 14 years...." In this state of affairs, in our view, there is no ambiguity that according to peculiar facts of this case, awarded punishment shall have to run concurrently.

6. As there is no case pending before this Court and we have observed in number of cases that the applications like one in hand cannot be independently entertained. The powers vested with this Court have to be exercised according to the Constitution and law with relation to the cases pending before this Court. Therefore, for seeking relief, the petitioner has to approach the trial Court. If according to law, he has served the concurrent punishment, he should be released after calculation of the period of sentence etc. For release he should approach the trial Court and not this Court through such like application. Therefore the application is consigned to record. HBT/61/SC(AJ&K) Order accordingl