2007 PLP 1623 (YLR)

Niaz Ahmad petitioner along with two others namely Allah Bakhsh and Yamin, was tried by learned Punjab Special Court No.VI (constituted under Suppression of Terrorist Activities Act, 1975), Multan D.G. Khan in case F.I.R. No.53/91 under sections 392, 397, 302, 34, P.R.C., lodged at Police Station Sinawan, Muzaffargarh and vide judgment dated 17-10-1991 was convicted under section 302, P.P.C. and sentenced to twenty five years' R.I. with further orders to pay Rs.50,000 as compensation to the legal heirs of the deceased. He was also tried and found guilty under sections 392/397/34, P.P.C. and sentenced on second count to fourteen years with a fine of Rs.20,000, in default whereof to suffer additional two years' R.I. All the sentences were ordered to run concurrently. The appeal filed by the petitioner before this Court (Crl. A. No.398 of 1991) was dismissed by a learned Division Bench of this Court on 25-1-2000. Jail Petition No.170 of 2000 of the petitioner was also dismissed by the Honourable Supreme Court of Pakistan on 6-9-2001.

2. The grievance voiced by the petitioner through this C.M. is that despite serving out his entire period of sentence, the petitioner is not being released on the ground that as he was sentenced on two counts; one for twenty five years and other for fourteen years, therefore, his total sentence would be considered as thirty nine years, whereas, in terms of judgment of the learned trial Court the same were to run concurrently and as the sentence recorded by the learned trial Court was upheld by this Court without any alteration, therefore, the jail authorities could not treat the sentences of the petitioner to run consecutively.

3. Report was sought from Superintendent, Central Jail, Bahawalpur which has been received. A perusal of the report confirms the contention of learned counsel for the petitioner that his sentences on two counts are being considered as consecutive as such has been calculated to be thirty nine years. The report further reveals that although the petitioner had earned remissions as an under trial prisoner but the same have also been withheld in the light of judgment of the Honourable Supreme Court of Pakistan in "Haji Abdul Ali v. Haji Bismillah and 3 others" (PLD 2005 SC 163).

4. We have considered the arguments of learned counsel for the petitioner as well as learned Law Officer and have also gone through the material available before us.

5. A perusal of judgment of the learned trial Court dated 27-10-1991 in so many words shows that all the sentences of the petitioner shall run concurrently, therefore, we are satisfied that the jail authorities were wrong in considering the total sentence of the petitioner as thirty nine years by considering it as consecutive, whereas, in fact the maximum sentence of twenty five years should have been considered as one sentence and the sentence of fourteen years on second count would merge in the sentence of twenty five years. As such, the jail authorities shall treat the sentences of the petitioner on both the counts to run concurrently. Similarly, in the light of full bench judgment of this Court in "Muhammad Arif v. Superintendent Central Jail, Lahore and 2 others" (PLD 2006 Lahore 561), the effect of above referred judgment of the Honourable Supreme Court of Pakistan is not retrospective, therefore, till the said judgment of the Honourable Supreme Court dated 21-9-2004, all the legal remissions earned by the petitioner and added to his credit, if withdrawn, shall be restored in his favour being a past, and closed transaction. We, therefore, direct the jail authorities to recalculate the period of imprisonment the petitioner has actually undergone after considering his both the sentences as concurrent and adding the remission he had earned till 21-9-2004 and if in case of such recalculation the petitioner is found to have served out his entire sentence, he would be released, in accordance with law. On Court query, learned counsel for the petitioner contends that the petitioner has even served out the imprisonment imposed on him in case of default in payment of fine and compensation. The jail authorities while recalculating the sentence of the petitioner, shall also consider this aspect of the matter. Disposed of. N.H.Q./N-18/L Order accordingly.