1984 P Cr (PLP)

Sh. Abdul Jabbar for the State. Mahmood Ahmad Chaudhry for the Complainant. Date of hearing: 26th February, 1984. The facts giving rise to this petition are as under:- The petitioners were convicted under sections 148 and 427/149, P. P. C. with an award of combined sentence of one year rigorous imprison ment to petitioner No. 1 and R. I. for six months to each of the remaining petitioners, vide judgment dated 24th July, 1983 of the Magistrate First Class, Kasur. They challenged their conviction and sentence in the Sessions Court, Kasur. The learned Additional Sessions Judge observed that the trial Magistrate had not specified the offences under which the petitioners were convicted and sentenced. He, therefore, allowed the appeal and remanded the case directing the trial Court "to re-write the judgment and clear the lapse or ambiguity in respect of the sentence". The petitioners have come up in revision to this Court. In the petition it is stated that both the Courts below have failed to evaluate the evidence on the record, therefore, their judgments may be set aside and the petitioners be acquitted. However, at the preliminary hearing the learned counsel, submitted that the failure of the trial Court to specify the sentences under each count was a curable irregularity and the sentence awarded to each petitioner should have been treated as a concurrent sentence on both counts and appeal disposed of on merits. The petition was admitted to hearing to consider this question. The same argument was repeated at the final hearing. In support of the contention the learned counsel relied on Zamir Hussain's case (P L D 1949 Lah. 179). The learned counsel for the complainant and the State, on the other hand, submitted that failure to pass a separate sentence for each offence is an illegality, therefore, the case has been rightly remanded by the appel late Court.

2. I have given may careful consideration to the submissions made by the learned counsel for the parties. In Zamir Hussain's case referred to above, it was contended that failure to pass separate sentences for each offence was curable irregularity and one sentence on two charges should be interpreted as concurrent sentence on both the charges. In support of this view, reliance was placed on Sahan Ahir v. King Emperor (A I R 1924 All. 492) Refer ring to the High Court Rules and Orders, Volume III, Chap: 19-A Paragraph 5, a learned Single Judge of this Court observed that the trial Court should have passed separate sentences for convictions on separate charges. The learned Judge further observed that the "failure of the trial Court to specify the sentences under each count may, however, be treated as an irregularity and the sentence passed may be treated as a concurrent sentence under both the sections". With respect, I am unable to follow this judgment. No reason in support of the conclusion arrived at by the learned Judge has been given therein. Furthermore, there may be cases in which drawing of assumption of concurrent sentences is particularly impossible, e.g., if a person is convicted under sections 148 and 307/149, P. P. C. with combined sentence of seven years' rigorous imprisonment, it cannot be treated as concurrent sentence on both the charges because the maximum sentence of imprisonment provided for an offence under section 148, P. P. C. is three years. A similar question came up for consideration in Brij Nandan and others v. Emperor (A I R 1948 All. 136). In this case a number of accused were tried under various sections of the Penal Code and a combined sentence was passed. It was argued that the error on the part of the trial Court in not specifying the sections under which the accused were convicted and not passing separate sentences for each offence, had occasioned a failure of justice. The contention was accepted. The view taken in that case was considered with approval by a learned Single Judge of this Court in Kher Din v. The State (P L D 1957 (W P) Lah. 639). It was held that in Brij Nandan's case "the most serious irregularity, clearly amounting to an illegality, was the failure to pass a separate sentence for each offence, the result of such an omission being that if the conviction for one or more (but not all) of the offences was quashed, the appellate Court would not be in a position to state what portion of the combined sentence was to be set aside". This authority is fully attracted to the facts of the present case. The judgment of the trial Court suffers from an illegality. How ever, the learned Additional Sessions Judge should have remanded the case not only for re-writing the judgment to "clear the lapse or ambiguity in respect of the sentence" but for re-hearing arguments and passing a fresh decision in accordance with law after considering the evidence which is already on the record. Consequently, the order of the learned Additional Sessions Judge is modified to the extent that the learned Magistrate will re-hear the arguments and pass a fresh decision in accordance with law on the basis of evidence already on the record. The petition stands disposed of accordingly. Reader of the Court has brought to my notice that the date of announcement of the above order has not been recorded. I have checked the cause list and the relevant register. J The order was announced on 25th March, 1984. This date shall be deemed to have been incorporated in the above order. S. G. D. Order accordingly.