P L D 2020 Lahore 670 (PLP)

MUJAHID MUSTAQEEM AHMED, J.

Through this petition filed in terms of Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, the petitioner seeks a direction to the respondent for concurrent reckoning of sentences of the petitioner awarded to him on conviction in different criminal cases, detailed as under:- FIR No. 396 of 2018 of Police Station City Khanewal District Khanewal: Under section 9(c) of the Control of Narcotic Substances Act, 1997 (C.N.S.A. of 1997): To undergo 4-1/2 years' R.I. with a fine of Rs.20,000/- in default whereof to further undergo five months S.I. and Benefit of Section 382-B, Cr.P.C. was also granted to the petitioner. FIR No. 96 of 2019 of Police Station City Khanewal District Khanewal: Under section 9(a) of the C.N.S.A. 1997 and vide judgment dated 12.3.2019 he was sentenced to suffer one year simple imprisonment. Benefit of Section 382-B, Cr.P.C. was however extended to him. Complaint case under Section 27 of the Drugs Act, 1976: Under section 27(1) to suffer one year R.I. Under section 27(4) Till rising of the court and also to pay fine of Rs.1,36,000/-. In case of default in payment of fine the petitioner was ordered to further undergo three months' S.I.

2. Learned counsel for the petitioner contends that although the petitioner was convicted and sentenced in three different cases but mandate of law required that the Court while awarding subsequent sentences of imprisonment ought to have passed appropriate orders for concurrent running of the sentences but the same has not been done as a result of which the petitioner is bound to undergo a sentence of about 6 years and 6 months R.I. which is not intent of the legislature and consequently prays that sentences of imprisonment in all the three cases be directed to run concurrently.

3. Conversely, learned Law Officer has vehemently opposed the petition on the ground that under Section 397, Cr.P.C. relief sought by the petitioner could be granted only by the trial/appellate court at the time of passing judgments of conviction and this constitutional petition cannot be substituted for the said forums and further that the petitioner was convicted and sentenced in two different trials/appeals for the commission of two different offences and as such the sentences awarded to the petitioner should run consecutively.

4. As admitted by learned counsel for the petitioner, the petitioner has assailed his conviction and sentence recorded in case F.I.R. No.396 of 2018 by way of an appeal which is pending before this Court. During pendency of said appeal it cannot be predict that conviction and sentence of the petitioner would remain intact necessitating an order in this petition making concurrent running of the said sentence with other sentences of the petitioner. Therefore, to said extent prayer of the petitioner is pre-mature. Moreover learned counsel has also not pressed this petition to this extent, reserving his right to make suitable prayer before the learned Division Bench when the appeal against that conviction and sentence is adjudicated upon.

5. So far as sentences of the petitioner recorded in case FIR No.96 of 2019 and that of complaint case, noted above, are concerned, suffice it to say that where an accused is convicted and sentenced to different terms in different trials, for the purposes of reckoning his sentences, section 397 Cr.P.C. comes into operation. Said provision of law contemplates that sentences awarded to a person in a subsequent trial would commence at the expiration of imprisonment for which he had been previously sentenced. However, discretion has been left with the court to direct concurrent running of sentence awarded in a subsequent trial. It would be advantageous to reproduce relevant portion of said provision which runs as under: "

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." It is manifest from above quoted provision of law that command of law for consecutive sentences is general rule while direction for concurrent sentences is discretionary power of the court. Although appropriate order within the meaning of Section 397, Cr.P.C. ought to be made at the time of deciding the case or appeal but if, for any reason or due to some inadvertent omission, direction could not be issued at that time there is no embargo that the same cannot be passed afterward. In the safe administration of criminal justice, the court can exercise discretionary power at any time to direct that sentences in two different trials would run concurrently. While expounding this provision of law in the case titled Sajjad Ikram and others v. Sikandar Hayat and others (2016 SCMR 467) the Hon'ble Supreme Court held as under: "

12. The aggregate of punishment of imprisonment for several offences at one trial were deemed to be a single sentence. However, the position of an accused person is different who while already undergoing a sentence of imprisonment for life, is subsequently convicted and sentenced in another trial. Such subsequent sentence in view of section 397, Cr.P.C. would commence at the expiration of imprisonment for life for which he had been previously sentenced but even then in such cases, the said provision expressly enables the Court to direct that the subsequent sentence would run concurrently with the previous sentence. It is clear from section 397, Cr.P.C. that the Court, while analyzing the facts and circumstances of every case, is competent to direct that sentences in two different trials would run concurrently. In that eventuality, the Court has wide power to direct that sentences in one trial would run concurrently. The provision of section 397, Cr.P.C. confers wide discretion on the Court to extend such benefit to the accused in a case of peculiar nature, like the present one. Thus extending the beneficial provision in favour of the appellant, would clearly meet the ends of justice." (emphasis supplied by me)" In the present case it appears that at the time of subsequent conviction passing appropriate orders for concurrent running of sentences escaped notice of learned trial Court or it was not brought to its notice that the petitioner was also convicted in case FIR No. 396/2018 or 96 of 2019 supra. Thus, to my mind, it would be in the fitness of things that, benefit of this provision should be extended in favour of the petitioner in order to meet the ends of justice. Steering thought in this regard have been gathered from case Mst. Zubaida v. Falak Sher and others (2007 SCMR 548). So far as contention of learned Law Officer that the relief sought by the petitioner could be granted only by the trial/appellate Court at the time of passing judgments of conviction and this constitutional petition cannot be substituted for the said forums and that the petitioner was convicted and sentenced in two different trials for the commission of two different offences and as such the sentences awarded to the petitioner should run consecutively, is concerned, observations of the Hon'ble Supreme Court in case Mst. Shahista Bibi and another v. Superintendent, Central Jail. Mach and 2 others (PLD 2015 SC 15), may be referred which are to the following effect: "

8. 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. Thus, the benefit conferred upon the appellant/appellants through amnesty given by the Government, if the benefit of directing the sentences to run concurrently is denied to him/them, would brought at naught and ultimately the object of the same would be squarely defeated and that too, under the circumstances when the provision of S.397, Cr.P.C. confers wide discretion on the Court and unfettered one to extend such benefit to the accused in a case of peculiar nature like the present one. Thus construing the beneficial provision in favour of the accused would clearly meet the ends of justice and interpreting the same to the contrary would certainly defeat the same.

9. It is also hard and fast principle relating to interpretation of criminal law, which curtails the liberty of a person that it should be construed very strictly and even if two equal interpretations are possible then the favourable to the accused and his liberty must be adopted and preferred upon the contrary one." Reference may also be made to case Faiz Ahmed and another v. Shafiq-ur-Rehman and another 2013 SCMR 583.

6. Resultantly, this petition is partially accepted and it is directed that sentence of imprisonment awarded to the petitioner by learned Magistrate 1st Class Khanewal vide judgment dated 12.3.2019 in case No. 96 of 2019 of Police Station City Khanewal shall run concurrently with imprisonment awarded to the petitioner vide judgment dated 17.09.2019 passed by the learned Drug Court in Complaint No. 364 of 2017 under sections 23/27 of the Drugs Act, 1976. The remaining prayer made in this petition may be pressed before learned Division Bench of this Court in view of observation of this Court recorded in Para No.4 (supra) of the order. SA/M-17/L Order accordingly.