1997 P Cr (PLP)

RAJA FAYYAZ AHMED, -J.

This Constitutional petition has been filed on behalf of the petitioner by his uncle Shah Muhammad mainly on the grounds that on account of benefit of section 382-B, Cr.P.C. given by both the Courts while convicting the petitioner, his sentences of imprisonment has come to an end on 21-8-1996 and w.e.f. 22-8-1996 the detention of the petitioners is illegal and unlawful, therefore, the petitioner is entitled to be set at liberty from the illegal custody of the respondent No.1 Superintendent, Central Jail, Machh.

2. The facts relevant in the matter are that the petitioner was arrested by the Customs Staff of the Central Excise, Quetta, on 3-6-1991 in connection with the Case No.2-Cust/Seized/DBN/91/142 for having recovered six kilograms of heroin from a Car No.QAC-6306 being driven by the petitioner whereas; three other persons (co-accused) were also present in the vehicle. Consequently all the four persons were arrested by the Customs Staff under section 156(i)(89)(8) of the Customs Act, 1969. On 8-6-1991, another case under F. I. R. No. 16 of 1991 with the P.N.C.B. Station, Quetta was registered under section 3/4/14/26 of the Prohibition (Enforcement of Hadd) Order, 1979 against the petitioner and the co-accused regarding the same incident on the report of Assistant Collector, Customs (Preventive-11), Quetta. The petitioner and the other co-accused were convicted by the learned Special Judge, Customs, Quetta (Customs Case No.29 of 1991) vide judgment, dated 30-11-1991 and sentenced to five years R.I. each and to pay a fine of Rs. one lac each or in default of payment of fine to further undergo R.I. for one year each. In the second case registered under Crime No. 16 of 1991 the petitioner has been convicted by the learned Additional Sessions Judge-111, Quetta (Hadd Case No.25 of 1991) on 24-12-1992 and sentenced to seven years' R.I. with whipping numbering five (stripes) and to pay a fine of Rupees ten thousand and in default of payment of fine to further suffer R.I. for one year and under Article 4 of the Hadd Order conviction to suffer R.I. for a period of seven years plus whipping in the same number and fine and in default of payment of fine to undergo R.I. for further period of one year, whereas; the co-accused were acquitted of the charge. Benefit of section 382-B, Cr.P.C. was extended to the petitioner by both the learned Courts while convicting him.

3. The petitioner preferred appeal through jail (Jail Criminal Appeal No.36/J of 1993) in the Honourable Federal Shariat Court against the judgment, dated 24-12-1992 passed by the learned Additional Sessions Judge-III, Quetta. Through judgment, dated 13-12-1993 passed by the Honourable Federal Shariat Court, the conviction of the petitioner under Article 4 of the Prohibition Order was set aside, whereas; his conviction under Article 3 of the Hadd Order has been maintained without any reduction in the sentence on account of huge quantity of heroin being transported by the petitioner, with the directions that the petitioner shall be entitled to the benefit of section 382-B, Cr.P.C.

4. The particulars of both the convictions recorded by the learned trial Courts are given below:-- Date of Conviction (a) Special Judge, Customs, Quetta. 156(i)(8)(89), Customs Act, 1969. Five years R.1.and a fine of Rs. one lac or in default thereof to undergo R.I. for further period of one year. 30-11-1991. (b) Additional Sessions Judge-III, Quetta. Under Arts. 3 and 4 of Prohibition Enforcement of Hadd, Order, 1979. R. I. for a period of seven years, whipping num- bering five stripes and a fine of Rs.10,000 and in default of payment of fine to undergo R.I. for a further period of one year. Under Article 3 of Hadd Order and seven years' R. I. Whipping of five stripes and a fine of Rs.10,000 and in default of payment of fine to undergo R.I. for a further period of one year. 20-12-1992 (c) Federal Shariat Court (appellant Jurisdiction) Conviction Art.4of Hadd Order recorded by the Additional Sessions Judge- III, set aside and under Article 3 maintained. Date of judgment, 13-12-1993.

5. Report with regard to the remissions granted to the petitioners was also called for by this Court from the Superintendent, Central Jail, Machh (respondent No.1) which has been submitted in the light of the first and second conviction/sentences made by the learned trial Courts on 30-11-1991 and 24-12-1992, respectively. The details of the remissions upto date granted to the petitioner as per report of the respondent No.1 is as under:-- Years. Months. Days. (i) Substantive sentence served including under-trial period. 05 05 22 (ii) Remission earned. 03 02 07 (iii) Un-expired portion 03 04 01

6. The learned counsel for the parties have been heard at length. Mr. Ayaz Swati. Advocate appearing on behalf of the petitioner submitted that both the sentences recorded by the learned trial Courts and in the light of the judgment of the Honourable Federal Shariat Court has since been already undergone by the petitioner inclusive of the benefit earned under section 382-B, Cr.P.C. accorded to him by both the trial Courts, as well by the Federal Shariat Court, therefore, the petitioner's custody in jail beyond 21-8-1996 is illegal; which is not sustainable and the petitioner entitled to be released from the unlawful custody. The learned counsel for the petitioner submitted categorically that in the circumstances of the case both the sentences awarded to the petitioner by the learned trial Courts and in view of the judgment of Honourable Federal Shariat Court are to run concurrently and not consecutively, hence was of the view that the petitioner as such deserves to be released from custody. The contentions of the learned counsel for the petitioner have been vehemently contested by the learned Advocate-General on the ground that the learned trial Court Le, Additional Sessions Judge-111, Quetta while recording a second conviction of the petitioner under the Prohibition (Enforcement of Hadd) Order, 1979 did not specify the sentence awarded by it to run concurrently with the sentence earlier awarded by the learned Special Judge, Customs, Quetta and, therefore, the subsequent sentence shall commence running only upon expiry of the earlier sentence period in terms of section 397, Cr.P.C. which deals with the execution of the sentences awarded in two or more cases by the same Court or different Courts. Further, the learned Advocate-General argued that the petitioner is entitled to earn benefit under section 382-B, Cr.P.C. only once and not separately in both the convictions pertaining to the single transaction of criminal act despite of the fact that he remained as under-trial prisoner in connection with both the cases since 3-6-1991 and 8-6-1991, respectively. While supporting his arguments the learned Advocate-General relied on a case reported in PLD 1994, Quetta 1, whereas; the learned Advocate for the petitioner supplemented his arguments by relying on the unreported judgment of the Honourable High Court of Sindh, Karachi in Constitution Petition No. D-1305 of 1992, decided on 15-4-1993.

7. Section 397, Cr.P.C. is the only section in the Code which deals with the execution of sentences awarded by the same or different Courts to a convict in two or more offences/cases which reads:-- "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. Provided that where a person who has been sentenced to imprisonment by an order under section 123 in default of furnishing security is, whilst undergoing such sentence, sentenced to imprisonment for an offence committed prior to the making of such order, the latter sentence shall commence immediately." The admitted position in view of section 397, Cr.P.C. remains that the petition was already undergoing the sentence of imprisonment of five years' R.I. in terms of conviction vide judgment, dated 30-11-1991 recorded in Customs Case No.29 of 1991 while the second conviction was made by the learned Sessions Judge-III, Quetta in Hadd Case No.25 of 1991 on 24-12-1992 whereby the petitioner has been sentenced to R.I. for a period of seven years, whipping five (stripes) and a fine of Rs.10,000 imposed and in default thereof to undergo R.I. for a further period of one year for each of the offence under Articles 3 and 4 of the Hadd, Order. On appeal by the convict, the Honourable Federal Shariat Court set aside the conviction recorded under Article 4 of the Hadd Order whereas; under Article 3 has been maintained. Neither the learned Additional Sessions Judge-III, Quetta while passing the subsequent sentence against the convict nor the Honourable Federal Shariat Court in appeal made the direction that the subsequent sentence shall run concurrently with the previous sentence recorded in the Customs Case No.29 of 1991 on 30-11-1991, therefore, we are of the firm view that under section 397, Cr.P.C. the trial Court, the appellate Court or the Revisional Court while seized of the jurisdiction as the case be, if does not direct that the subsequent sentence shall run concurrently with the previous sentence already undergoing by a convict, the nature of sentence would be deemed to be consecutive and shall commence after expiry of the earlier period of imprisonment. PLD 1991 SC 1145 and PLD 1994 Quetta 1 referred. The unreported judgment of the Honourable High Court of Sindh-Karachi, dated 15-4-1993 in Constitution Petition No.D-1305 of 1992 deals on the subject elaborately and does not help the petitioner on the point that the subsequent sentence to be termed as concurrent one, in view of the submissions made on this behalf. The High Court has, however, vested with plenary powers under section 561-A, Cr.P.C. in exercise of its inherent jurisdiction to direct that the subsequent sentence to run concurrently with the previous imprisonment already undergoing by a convict but each individual case is to be examined on its own merits in the interest of justice while being seized of such matter. The facts of the case dealt with in the unreported judgment of the Honourable High Court of Sindh, Karachi referred to by the learned counsel for the petitioner are quite distinguishable and have no bearing in the instant matter. In that case the convict was sentenced to sixty one years of imprisonment in the aggregate in seven different cases by three different Courts and had been in custody for almost thirty years since the date of his arrest, who has been left with no relative in this world except his only and ailing sister. The inherent powers of this Court are need be exercised only for doing complete and substantial justice keeping in view the merits of each individual case. There is abundant and consistent case law of the superior Courts on the subject. Hasan Shah v. Ghulam Murtaza and others PLD 1970 SC 335, Khawaja Fazal Karim v. The State PLD 1976 SC 461, Ghulam Muhammad v. Muzammil Khan and others PLD 1967 SC 3717.

8. The subsequent sentence has been passed against the convict/petitioner under Articles 3 and 4 of the Prohibition (Enforcement of Hadd) Order 1979 and on appeal the Honourable Federal Shariat Court set aside the conviction under Article 4 and maintained the sentence under Article 3 of the Hadd Order observing that the petitioner was found transporting/carrying large quantity of heroin who did not deserve any reduction in the sentence. It is not the case of the petitioner that the subsequent sentence to be directed to run concurrently in the interest of justice rather during the course of argument the plea has been raised in this behalf. In specifying the nature of the sentence the trial Court and the appellate Court under section 397, Cr.P.C. have ample discretion to determine if the sentences to run concurrently but if such a discretion vested in the Court has not been so exercised then in terms of section 397, Cr.P.C. the sentences shall run consecutively. It is quite evident from subsequent conviction and sentence passed by the learned trial Court as well as in the judgment of the Honourable Appellate Court that the discretion in this behalf has not been consciously exercised by the competent forums. The inherent powers vesting in this Court under section 561-A, Cr.P.C., needs only to be exercised sparingly keeping in view the peculiar circumstances of an individual case for extinguishing the manifest wrong or abuse of the process of law. In the instant case the petitioner has been convicted by the Courts for smuggling and transporting heroin and the circumstances of the case do not warrant for exercise of the discretionary jurisdiction vesting in this Court in favour of the petitioner by directing the sentences to run concurrently. The petitioner is liable to undergo the un-expired portion of his sentence and the plea that the petitioner since 22-8-1996 is in the wrongful and illegal custody in the jail is, therefore, not sustainable.

9. Reverting to the contention respectively raised by the learned counsel for the parties with regard to the earning of benefit under section 382-B, Cr.P.C. separately in both the convictions or the same could be extendable only once as the criminal act committed by the convict pertained to a single transaction, though sentenced separately by two different Courts. Concession under section 382-B, Cr.P.C. is obligatory while passing a sentence on an accused person for an offence by a Court and to take into account the period if any during which the accused was in custody for such an offence. The legal concession so extendable to a convict can well be taken notice of the legal aspect that even where a Court while passing a sentence did not specify the benefit of section 382-B, Cr.P.C. to be extended to the convict but the appellate Courts and the superior Courts granted such benefit on account of the mandatory nature of the provisions of section 382-B, Cr.P.C., therefore, it is the statutory obligation upon the discretion of the Court to consider the length of the period during which an accused remained in custody while passing sentence of imprisonment. The petitioner had been in custody initially in the case registered against him under the provisions of sections 156(i)(39)(89) and 157(2) of the Customs Act, 1959 on 3-6-1991 and was convicted by the Court on 30-11-1991, whereas; in the other case registered against him on 8-6-1991 under Articles 3 and 4 of Hadd Order was convicted by the learned trial Court on 24-12-1992 so when the petitioner was convicted in the first case on 30-11-1991 he was an under-trial prisoner in the subsequent case w.e.f. 8-6-1991 and by no plausible reasons the benefit accruable to a prisoner can be denied in view of the express provisions of section 382-B, Cr.P.C. which no doubt could be refused in gruesome and brutal offences but the Court has to record reasons there for. The petitioner has been given benefit of section 382-B, Cr.P.C. by the learned Courts specifically in both the cases. The petitioner is entitled to the benefit under section 382-B, Cr.P.C. separately in both sentences, though it is not clear from the report furnished by the Superintendent, Central Jail, Machh, if the benefit of section 382-B, Cr.P.C. has been given to the petitioner in both the sentences. PLD 1995 Lah. 591 referred.

10. The record of the case coupled with the report furnished to this Court by the respondent No. 1 satisfactorily indicates that the sentence period of the imprisonment of the petitioner has not lapsed as yet hence his detention in jail cannot be termed or treated to be unlawful.

11. No illegality, impropriety or violation of law could be pointed out in the subsequent sentence passed by the learned trial Court by not directing the, sentences to run concurrently nor the circumstances of the case warrant for the exercise of inherent powers by this Court under section 561-A, Cr.P.C. by directing the sentences to run concurrently, invoking its extraordinary Constitutional jurisdiction. With the observations contained in Para. No. 9 (supra) and for the foregoing reasons the petition stands dismissed with no order as to costs. N.H.Q./617/Q Petition dismissed.