2006 PLP 915 (YLR)

AKHTAR ZAMAN MALGHANI, J.

This petition is directed by the convict Abdul Majid son of Muhammad Musa who was tried and convicted by Special Judge (Offences in Respect of Banks) Balochistan, Quetta and sentenced in the following manners:-- "(1) Under section 409, P.P.C. for seven years' R.I. and fine of Rs.20,00,000 in default thereof, to further undergo two years' R.I. (2) Under section 468, P.P.C. for five years' R.I. and fine of Rs.20,00,000 or in default to further suffer two years' R.I. (3) Under section 5(2) of the Act of 1947 for seven years' R.I. and fine of Rs.20,00,000 or the default of payment of fine to further undergo two years' R.I. The learned Judge further directed that the imprisonment awarded should run concurrently. Benefit of section 382-B, Cr.P.C. was also extended to the petitioner. The petitioner feeling dissatisfied by the judgment dated 15-10-1999 passed by Special Judge, preferred an appeal being Special Criminal Appeal No.5 of 1999 before this Court which was dismissed by us vide judgment dated 2nd April, 2003. Now the petitioner has filed the present petition under section 561-A, Cr.P.C. with the prayer that the sentences of imprisonments in lieu of fine be directed to run concurrently in addition to the substantive sentences.

2. We have heard the learned counsel for the petitioner as well as learned State counsel. it is mainly contended by the learned counsel that at the time of pronouncement of judgment the learned Judge Banking Court directed imprisonments awarded in various sections to run concurrently which also, in view of section 71, P.P.C., include the imprisonments in default of payment of fine and he has to undergo only two years' R.I. in default of payment of fine and not six years, but the jail authorities by misconstruing the judgment are treating the sentences in default of payment of fine to be consecutively.

3. On the other hand, the learned State counsel contended that in view of section 398, Cr.P.C. and section 64, P.P.C. the imprisonment awarded in default of payment of fine cannot be directed to run concurrently as these imprisonments are in addition to the substantive imprisonments awarded under various sections of law. He further contended that the word "imprisonment" mentioned in section 35, Cr.P.C. and 397, Cr.P.C. is meant for substantive sentence and not for imprisonment which a convict may undergo in default of payment of fine. In support of his arguments the learned State counsel placed reliance on the judgments reported in PLD 1959 Karachi page-56 and 1991 PCr.LJ page 255.

4. We have carefully considered the contentions put forth by the parties learned counsel in the light of relevant provisions of law and have also gone through the judgment dated 15-10-1999 delivered by Special Judge (Offences in Respect of Banks) Balochistan, Quetta. It may also be observed that section 64, P.P.C., which has also been made applicable to the offences under local and special law by virtue of section 25 of General Clauses Act, 1897, provides that in default of payment of fine the offender shall suffer imprisonment for a certain term which imprisonment shall be in excess of any other imprisonment to which an accused may have been sentenced, as such; a sentence of imprisonment in default is not a sentence of imprisonment within the meaning of section 235, Cr.P.C. or 397, Cr.P.C., and a Court has no power to direct sentences of imprisonment in default of payment of fine to run concurrently. In this regard we are fortified by the judgment reported in AIR 1940 Lahore page

388. The relevant observations are reproduced hereinbelow:-- "The learned assistant to the Advocate-General appearing before us has contested this position, and has argued that there is nothing in the language of section 397, Cr.P.C., or of section 35 of the same Code to contradict the view that a sentence of imprisonment in default of fine is a sentence of imprisonment within the meaning of these sections. This argument might have some force were it not for the existence of section 64, P.P.C., in which it is clearly laid down that any sentence of imprisonment in default of fine has to be in excess of any other sentence of imprisonment to which the prisoner may have been sentenced. Learned counsel attempted to argue that this should be read as referring to one particular offence only. But the language of para.2 of the section puts this view out of Court. Even in a case where there has only been a fine, the section directs that the imprisonment in default of that fine shall be in excess of any other imprisonment to which the offender may have been sentenced. These words necessarily imply that different convictions are contemplated. I, therefore, find myself constrained to follow the view held in the three rulings to which reference has been made above and to hold that the learned Sessions Judge had no power in law to make the various sentences of imprisonment in default of payment of fine concurrent with each other." Likewise; in the judgment reported in AIR 1941 Lahore page 209, it was held as under.- "In my opinion the view of the learned Sessions Judge is correct. According to the provisions of section 397, Cr.P.C., the Magistrate could direct substantive sentence of imprisonment passed in two different cases to run concurrently but it does not appear that there is any provision of law enabling a Court to direct a sentence of imprisonment in default of payment of fine to run concurrently with a substantive sentence of imprisonment passed for a different offence whether at the same trial or at different trials" Similarly in the judgment reported in AIR 1944 Madras page 448, same principle was reiterated in the following words:-- "Section 35, Cr.P.C., deals only with cases of substantial punishments by imprisonments for distinct offences in the same case. It is only in such cases that provision is made in that section for directing the sentences of imprisonments to run concurrently. Section 398 of the Code deals with cases of sentences of imprisonment in default of payment of fine. It directs the sentence to run consecutively and not concurrently. Section 395 deals with cases of imprisonment awarded in different cases which may be directed to run concurrently. No provision is made in- the Code for directing such imprisonments in default of payment of fine to run concurrently with the substantive sentence of imprisonment awarded for any other offence tried in the same case." The Honourable Sindh High Court alter considering the application and object of section 64, P.P.C. observed` in the judgment reported in 1991 PCr.LJ page 255 as under:-- "The learned Sessions Judge should have also known that in view of section 64, P.P.C. the sentence of imprisonment in default of payment of fine cannot be made to run concurrently. The manner in which the case was dealt with by him has left a bad taste in the mouth." From the above quoted judgments it is crystal clear that section 35 deals only with substantive sentences and it has no application to the sentence of imprisonment ordered in default of payment of fine. The learned Banking Judge at the time of convicting the petitioner directed the imprisonments awarded in different sections to run concurrently and we have no doubt in our mind that the word "imprisonment" was used for substantive imprisonments and not for imprisonments which, the petitioner may undergo in default of payment of fine, as any such order, if have been made, would have been illegal in view of language used in section 35, Cr.P.C. and section 64, P.P.C. and interpreted in the above quoted judgments. For the foregoing reasons, we, are of the considered view that the relief claimed in the instant petition cannot be legally granted to the petitioner, as such; the petition being devoid of any merits is dismissed accordingly. H.B.T./2/Q?????????????????????????????????????????????????????????????????????????????????????????? Petition dismissed.