2000 PLP 951 (YLR)

‑‑‑‑S.561‑A‑‑‑Inherent powers of Court‑‑ Exercise of‑‑‑Inherent power of the Court can be exercised only for doing complete and substitution justice keeping in view merits of each case. Hasan Shah v. Ghulam Murtaza and another PLD 1970 SC 335; Khawaja Fazal Karim v. The State PLD 1976 SC 461 and Ghulam Muhammad v. Muzammal Khan and another PLD 1967 SC 317 ref. Qari Abdur Rashid for the State. This application has been registered on reference made by the Registrar of High Court of Balochistan. It appears that initially it was filed in the High Court of Balochistan, but having been found that appellant was convicted in a Hudood Case i.e. No. 39 of 1979, it was ordered to be sent to this Court. In the application it has been prayed that sentences recorded against the appellant in case F.I.R. No. 173 of 1996 under section 13(e) of Arms Ordinance, 1965 as well as in Hudood case No. 39 of 1997 under section 17(3) Harrabah read with section 397, P.P.C. be made concurrent.

2. Record reveals that in Special Case No. 173 of 1996 appellant has been convicted and sentenced to suffer imprisonment for one year alongwith a fine of Rs. 1,000 or in default thereof to further undergo S.I. for one month whereas, in Hudood Case No. 39 of 1979 he has been convicted and sentenced to three years R.I. alongwith a fine of Rs. 10,000 or in default of fine to undergo S.I. for three months, further. Benefit of section 382‑B, Cr.P.C. in both the afore mentioned cases has been extended to the appellant.

3. Notice of the application was isused to the State, in response whereof Qari Abdur Rashid, Advocate has appeared and stated that the appellant having been convicted and sentenced separately in two different cases registered under different enactments at different times, his request for making the sentences concurrent cannot be acceded to. Reliance has been placed on the case of Zareen Shah v. Superintendent Central Jail Mach 1997 PCr.LJ 1185.

4. I have carefully gone through record of the case. It reveals that in Special Case No. 173 of 1996 the applicant has been convicted under section 13(e) of the Arms Ordinance vide judgment, dated 18‑5‑1998 passed by Special Judge, S.T.A. Quetta in respect of an incident which took place on 29‑8‑1996 whereas, in Hudood case No. 39 of 1997 he was found involved in case of Harrabah robbery which occurred on 4‑4‑1997 when allegedly a Datson Pick Up was robbed away. It may be pointed out here that though under section 397, Cr.P.C. the Court is competent to direct that in case a person is already undergoing a sentence of imprisonment any sentence passed subsequent thereto shall run concurrently with such previous sentence and normally direction in this regard is made under section 561‑A, Cr.P.C. yet, the power so vested has to be exercised sparingly in certain cases only where imposition of subsequent sentence either offends any Constitutional or legal provision or the direction to make the sentences concurrent is necessary to secure the ends of justice. For instance, for an act or omission constituting an offence under two or more enactments the offender shall be liable to be prosecuted and punished under either or any of those enactments as provided by section 26 of the General Clauses Act yet, he cannot be punished twice for the same offence keeping in view the provisions of Article 13 of the Constitution of the Islamic Republic of Pakistan read with section 403, Cr.P.C. In such a case it would be appropriate to record convictions separately and award concurrent sentences if they are of imprisonment, as was held in the case of Niaz Ali v. The State PLD 1961 (W.P.) Lahore 269 wherein appellant was convicted under section 161 of the P.P.C. and section 5(2) of the Prevention of Corruption Act, 1947 and was awarded concurrent sentences of six months rigorous imprisonment on each count and in addition sentences of fine of Rs.50 on each count were also inflicted. It was held that punishment of fine of Rs.50 under each ‑ of the two enactments making a total of Rs.100 tantamounts to duplication of punishment, for the same offence.

5. The case of Khan Zaman and others v. The State 1987 SCMR 1382 is another example wherein petitioners at first instance were sentenced to death, but on appeal to the High Court their sentences were altered to life imprisonments on each count relating to each of the two murders committed by them, but sentences were ordered to run consecutively. On petition for leave to appeal the Hon'ble Supreme Court of Pakistan while referring the cases of Juma Khan and another v. The State 1986 SCMR 1573 and Muhammad Ittifaq v. The State 1986 SCMR 1627 was pleased to hold that in view of proviso (a) to section 35(2), Cr.P.C. the petitioners could not have been sentenced for more than 25 years' and therefore, the sentences recorded against the petitioners shall run concurrently.

6. In the above context reference may also be usefully made to the judgment delivered by the Hon'ble High Court of Sindh Karachi in Constitution Petition No. D‑1305 of 1992 (an unreported judgment referred to in the case of Zareen Shah v. Superintendent, Central Jail Mach and another 1997 PCr.LJ 1185) wherein the convict was sentenced to 61 years of imprisonment in the aggregate in seven different cases by three different Courts and was in custody for almost 30 years since the date of his arrest and was left with no other relative in this world except his only and ailing sister. Needless to point out that inherent powers of the Court can be exercised only for doing complete and substantial justice keeping in view the merits of each 8 case. Reference in this regard may also be made to the cases reported as Hasan Shah v. Ghulam Murtaza and another PLD 1970 SC 335, Khawaja Fazal Karim v. The State PLD 1976 SC 461 and Ghulam Muhammad v. Muzammal Khan and another PLD 1967 SC 317.

7. Since in the instant case appellant has been convicted at two different trials for distinct and separate offences, committed at different places and times which have no nexus with each other and the trial Courts have already, taken a lenient view in the matter of sentences, therefore, there appears to be no impropriety or illegality on the basis whereof a direction to make the sentences to run concurrent be made. Accordingly, the application being misconceived and unwarranted by facts and law is hereby dismissed. H.B.T./5/FSC Application dismissed.