P L D 1994 Quetta 1 (PLP)

MUNAWAR AHMAD MIRZA, C.J:

Petitioner was apprehended for the possession of unlicensed ammunition and narcotics. Two challans one under Article 4, Prohibition (Enforcement of Hadd) Order, 1979 being Session Case No. 35 of 1989 and another under section 13-E, Arms Ordinance, 1965 Session Case No. 56 of 1989 were submitted before learned Sessions Judge, Quetta. Both the cases were independently tried and decided on the same day through separate judgments dated 30-4-1992. Petitioner was found guilty in both the matters and convicted as under:-- Case No Offence Date of Punishment decision (I) Session Case Under Article 30-4-1992 Sentenced to undergo No.35 of 1989 4, Prohibition R.I. for 2 years with 5 (Enforcement stripes and fine of of Hadd) Rs.20,000 or in Order, 1979 default further S.I. for 6 months. Benefit ,of S.382-B, Cr.P.C. also allowed. (II) Session Case Under section 30-4-1992 Sentenced to undergo No.56 of 1989 13-E, Arms R.I. for 3 years. Ordinance, , Benefit of section 1965 382-B, Cr.P.C. also allowed. It may be seen that Jail authorities are treating the sentences as consecutive. Whereas according to petitioner, since both the judgments have been passed by learned Sessions Judge on the same date without specifying which was announced earlier, said sentences should be deemed to run concurrently.

2. Syed Ayyaz Zahoor, learned counsel for petitioner strenuously urged that irrespective of trials having been separately conducted, when judgments were announced factually petitioner was not undergoing any sentence; therefore, neither section 35 nor election 397, Cr.P.C. would be attracted to the instant case. He stressed that Court by exercising inherent powers should direct jail authorities to treat sentences awarded in both cases as concurrent.

3. Ch. Ejaz Yousuf, learned Additional Advocate-General contended that only Court of competent jurisdiction by conscious application of mind could describe the punishment, to run concurrently. He maintained that, in the absence of positive expression the sentences must be deemed consecutive. For better understanding it would be appropriate to reproduce here sections 35 and 397, Cr.P.C.: Section

35. Sentence in case of conviction of several offences at one trial.

(1) 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 sever; punishments prescribed therefor which such Court is competent to inflict, such punishment when consisting of, imprisonment to commence the one after the expiration of the other in such order the Court may direct, unless the Court directs that such punishment shall run concurrently. (2) Maximum term of punishment: --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:-- (a) In no case shall such person be sentenced to imprisonment for 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 ordinance jurisdiction competent to inflict. (3) For the purpose of appeal, the aggregate of consecutive sentence: passed under this section in case of conviction for several offences an one trial shall be deemed to be a single sentence." Section,

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 on currently with such previous sentence." It has been greatly emphasised before us that commitment warrants does not indicate which of the sentence was earlier in time, therefore, failure of the Court to specify nature of sentence, petitioner should be afforded benefit of treating it concurrent by exercising inherent powers. Reliance has been placed on the observation of Division Bench Sindh High Court's judgment dated 15-4-1993 in Constitution Petition No D-1305 of 1992 Muhammad Paryal v. The State. Relevant observations are reproduced below:-- "

13. So far as the case of the petitioner is concerned, we are of the view that it is a fit case in which we should exercise our inherent powers under section 561-A, Cr.P.C. and order the sentences passed on the petitioner in different trials, to run concurrently. We have come to this conclusion as there are several factors. In the first instance, the petitioner's sentences in the seven cases in which he has been convicted, were not ordered to run consecutively or concurrently by the Court passing the sentences. This means the sentences have been treated to be consecutive on account of the provisions contained in section 397, Cr.P.C. One of the Courts namely District Magistrate, Khairpur, convicted the petitioner in three separate cases of section 302, P.P.C. on the same day and awarded him 14 years' R.I. in each of these cases. While awarding the sentences, the learned District Magistrate did not make it clear in which of the three cases the petitioner was convicted first in point of time. This means that while awarding the sentences, section 397, Cr.P.C. was not in the mind o1 the learned District Magistrate, Khairpur otherwise, he would have surely mentioned in the commitment warrant in which case he recorded the conviction first. The petitioner was tried under the Act VII of 1963 by a Tribunal which was not bound by any rules of appreciation of evidence and even the provisions of Evidence Act were not applicable in the trial of cases before the Tribunal as provided by section 3 of the said Act. The trial was somewhat summary trial and the right of appeal was also statutorily excluded. The only remedy was by way of revision to the Commissioner, but it must be noted that it is the same Commissioner who in fact had referred the case of the petitioner to the .Tribunal. The sentences which have been passed are harsh and cumbersome. Moreover, it is the general practice, when two or more separate convictions are recorded, the sentences are normally ordered to be concurrently unless there .are reasons for not doing so. Apart from all these circumstances, the additional factor is that the petitioner is in custody since 10-3-1963 which means that he has already" undergone 30 years confinement. Taking all these circumstances, into consideration we are of the considered view that this is a fit case for exercising our inherent jurisdiction. Accordingly by exercising our powers under section 561-A, Cr:P.C. we direct that the petitioner's sentences in six cases recorded by the District Magistrate, Khairpur and District Magistrate, Dadu shall run concurrently with the sentence awarded by District Magistrate, Nawab Shah." It may be seen that in the aforequoted case accused Muhammad Paryal was initially convicted by District Magistrate, Nawab Shah under section 302, P.P.C. to undergo imprisonment for 10 years on 10-1-1966. Thereafter, District Magistrate, Khairpur had convicted him in three different murder cases for 14 years each vide judgments dated 28-3-1967. He was also found guilty in another case of dacoity and convicted by District Magistrate, Khairpur during year 1967-68. When matter came up for hearing the petitioner had already undergone confinement for more than 30 years besides earning remission of considerable period. To supplement his viewpoint, learned counsel for petitioner has also relied on the observation in case Zakir Ali v. State PLD 1977 Karachi 833 and Khan Zaman and others v. State 1987 SCMR 1382. We have gone through these reported judgments. In the first-mentioned case appellate Court while considering quantum of punishment comparing with gravity of offences has expressly directed that sentences awarded to convict regarding different offences would run concurrently. It is well-settled that appeal is a continuations of original matter, therefore, appellate forum enjoys same authority and ample discretion to specify nature of sentences by declaring the same to run concurrently whereas in second case, while considering effect of section 35(2), Cr.P.C. its violation committed by trial Court has been rectified. Thereafter, with respect it is observed that these reports have no applicability to the facts of instant case.

4. Reverting to above-referred unreported Karachi case, it may be seen that cumulative effect of section 35(c), Cr.P.C. specifying aggregate consecutive sentences, and section 397, Cr.P.C. about suffering of sentence on the expiration of another conviction and exercise of inherent powers by allowing special benefit to run sentences concurrently has been discussed. With utmost respect we are inclined to observe that, conclusions drawn therein do not have general application. There is no cavil to the principle of law, that High Court exercising inherent powers under section 561-A, Cr.P.C. in an appropriate case enjoys plenary powers to promote ends of justice by remedying abuse of the process of law. But facts and circumstances of each case have to be dealt with on its own merits.

5. However, for proper appreciation of points raised in this petition we must examine the object and spirit of law regarding punishment awarded to same accused in different cases, without specifying mode of its sufferance or relating to single trial where accused is convicted for several offences. It is expressly mentioned in clause 35(a) that unless Court otherwise directs by special order sentences shall be suffered one after expiry of other and would be deemed consecutive. Similarly section 397, Cr.P.C. while regulating the sentences of imprisonment awarded by the Court and accused is already undergoing the sentence explicitly mentions that nature of the sentence would be deemed consecutive and shall commence after the expiry of earlier imprisonment except when Court expressly declared it to run concurrently. This obviously means that unless the Court by conscious application of mind holds the sentence awarded to petitioner as concurrent, the same must be deemed and treated, consecutive. It is a matter of common prudence, that Court while deciding two or more cases of one accused on the same date, cannot announce sentences, simultaneously. Mode of pronouncing judgments has been described in section 366, Cr.P.C. Evidently in the ordinary course only judgment in one case shall be announced first, and the other would be certainly hater. Whatever situation may be visualised, it is apparent that one sentence has to be earlier in time and other would follow in the next case. It can be safely inferred that trial Court while deciding two cases on the same day had expressly allowed benefit of section 382-B, CrY.C. in each case, therefore, omission or failure to exercise discretion about nature of sentence must have been kept in view. From the circumstances there is no difficulty in assuming that announcement of conviction and sentence in one case automatically constituted commencement of imprisonment in said matter and second sentence subsequently follows. The principle contained in section 397, Cr.P.C. would thus become applicable. In this view we are supported by the observation of late Mr. Justice M.R. Kayani in case Mian GuIzar Muhammad v. The Crown PLD 1950 Lahore 497 relevant portion is reproduced:-- "If, therefore, it is held that the words `undergoing a sentence' mean that the sentence is being actually and physically undergone Magistrates would be driven to the adoption of farcical devices. Thus in the present case, the accused would be arrested and sent out of Court to undergo half an hour of sentence and called back to hear the second sentence pronounced: then sent out again and called back afresh to hear the third pronouncement. That, surely, could not have been the intention. Likewise, it could not have been intended that when a person is tried in one trial for two or more offences of the same kind he should be less favourably situated as regards the concurrency or consecutiveness of the sentences than when he is tried separately on each charge. I am, therefore, of the view, in consonance with 1905 Weir's Reports 451 (Criminal Revision Case No.556 of 1891), that a person is "undergoing" imprisonment within the meaning of section 397 from the moment the sentence is passed. I respectfully disagree with the extreme view adopted in Makhan v. Emperor (43) Indian Cases 623 that until the accused has actually passed into the portals of the jail, he is not "undergoing" a sentence of imprisonment. There is no particular magic in the portals of the jail, and a man might not be admitted in jail on the first day if the sentence is pronounced on him late in the day. That view was taken in support of an order passed before the amendment of 1923, making two sentences passed on the same day concurrent. The learned Judge held that the sentences could be made concurrent notwithstanding that there was no provision in the section as it then stood, because section 397 was not applicable. He relied, however, on Emperor v. Muhammad Isa Habib where it was held that such an order was not illegal because for all practical purposes there was one trial, and if the accused had been tried for both the offences in one trial, his sentences could have been made concurrent under section

35. If this reasoning is adopted in the present case, then by the applicability of section 35 the sentences would run consecutively unless they were expressly made concurrent. In Emperor v. Naga Po Thaung the accused was in custody when the second sentence was pronounced, though both the sentences were pronounced the same day. The Magistrate, applying section 397 made the second sentence concurrent with the first. The High Court held that since the accused was in custody, he was "undergoing" the sentence within the meaning of section 397 which was, therefore, applicable. I hold that the accused was undergoing his first sentence when the second and third were pronounced on him, and that consequently, where there is no order making them concurrent they will be undergone consecutively". The Honourable Supreme Court in its majority view expressed in case Bashir v. State and others PLD 1991 SC I145 has ruled that normally sentence of imprisonment unless otherwise ordered shall run consecutively except when sentence of death is converted into imprisonment for life by an executive order. Therefore, analysing the objects of law and observation in abovequoted reports we are pursuaded to hold that: (a) High Court undoubtedly while considering individual cases on exercising inherent power within the purview of section 561-A, Cr.P.C. can allow benefit to convict regarding nature of sentence by treating it concurrent; to avoid abuse of the process of law as held in unreported judgment of Karachi High Court and AIR 1961 Patna 138 (Baijnath Kurmi and others v. The State. (b) Trial Court or appellate Court have unlimited discretion to determine whether sentences shall run concurrently, but where such discretion has not been exercised or specific order has not been passed; then in consonance with spirit and object of law sentence of imprisonment whether awarded for different offences in the same trial or separate cases even when announced on the same date without specifying priority in time shall run consecutively; one after the expiry of other. (c) Constitutional jurisdiction of this Court can be invoked for challenging actions without lawful authority or in excess of jurisdiction or refraining to exercise lawful authority or direction of release when confined in an unlawful manner and for dealing with discretionary matters. Applying above principle there does not appear any plausible reason for exercising inherent jurisdiction in the instant case. Besides, in the absence of any patent impropriety, glaring violation of law or breach of duty, interference through writ jurisdiction is not warranted. - For the above reasons we do not rind any substance in the petition, which is consequently dismissed. N.H.Q./459/Q Petition dismissed