2000 PLP 1861 (YLR)

(ii) F.I.R. No. 556/98, dated 19‑11‑1998 under Article 3/4 of Prohibition (Enforcement of Hadood) Order 4 of 1979 read with section 9‑B of C.N.S.A. 1979 and sections 324, 353, 224, P.P.C. and section 13 of Arms Ordinance, 1965. The petitioner was sent up for trial before the learned Additional Sessions Judge, Khanewal who charged him under section 9‑B of Control of Norcotic Substances Act, 1997 in both the cases.

2. The said cases came up for hearing before the learned Additional Sessions Judge, Khanewal on 19‑2‑2000, when the petitioner pleaded guilty as charged in both the cases. He made prayer that in lenient view of the matter be taken. Pursuant to the confession made by the petitioner the learned Additional Sessions Judge convicted him under section 9‑B of C.N.S.A., 1997 and proceeded to convict him as follows: ‑‑‑ (a) In case F.I.R. No. 507 of 1998, dated 25‑10‑1998 to 30 months' R.I. and Rs.5,000 fine, in default to undergo six months' S.I. (b) In cases F.I.R. No. 556 of 1998, dated 19‑11‑1998 to four years' R.I. and a fine of Rs.10,000 in default to undergo six months' S.I. Benefit of section 382‑B, Cr.P.C. was also awarded. However, the judgments of the learned Additional Sessions Judge are silent as to how the sentences are to run i.e. consecutively or concurrently.

3. Learned counsel for the petitioner contends that as the benefit of section 382‑B, Cr.P.C. was granted separately in both the cases and as such notwithstanding the said omission in the judgment of the learned Additional Sessions Judge the sentences in both the cases are to run concurrently. The respondent, however, has refused to accept the said interpretation sought to be placed in the matter by the learned counsel and has opined that he sentences are to run consecutively. Learned Law Officer has also expressed opinion in line with that of the respondent.

4. Although the conviction and sentences were recorded in both the cases on the same date i.e. 19‑2‑2000 yet I find that the case F.I.R. No. 507, dated 25‑10‑1998 was sent up to the Court earlier in time and was registered as Hudood Case No. 29‑H of 1999 while the case registered vide F.i.R. No. 556 of 1999 was registered as Hudood Case No. 75‑H of 1999 at a later stage. A perusal of both the judgments also reveal that the proceedings in the said first‑mentioned case also commenced earlier and the charge was framed on 29‑1‑2000 while the charge in the second‑mentioned case was framed on 19‑2‑2000. It can, therefore, be safely assumed that the petitioner stood convicted in the said first‑mentioned case when the conviction and sentence so recorded in the second‑mentioned case. Be that as it may, the fact remains that the petitioner was arrested on 19‑1‑1998 as per the contents of the later F.I.R. No. 556, dated 19‑11‑1998' and remained undertrial prisoner when both the convictions and sentences were recorded. It is also a matter of record that the benefit of section 382‑B, Cr.P.C. was awarded separately in both the cases.

5. The point that needs to be decided in the instant writ petition is can this Court order the sentences to run concurrently when the judgment of conviction is silent. If one were to go by the words of section 397, Cr.P.C. the legal position emerges that unless otherwise provided in the judgment both the sentences of imprisonment, which are to run consecutively. This would mean that the petitioner would first complete undergoing the sentence awarded in the first‑mentioned case and thereafter the sentence awarded in the second‑mentioned case would commence and had to be undergone by the petitioner.

6. After hearing the learned counsel present I am of the view that this Court is vested with primary powers under section 561‑A, Cr.P.C. in exercise of its inherent jurisdiction to direct that the consequent sentence to run concurrently when the previous imprisonment already being undergone 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 matters. I draw support for the said opinion from a judgment of the High Court of Baluchistan at Quetta in the case of Zareen Shah v. Superintendent, Central Jail, Macch and another 1997 PCr.LJ 1185. To somewhat similar effect is a judgment of this Court in the case of Muhammad Suleman v. Superintendent of Central Jail, Mianwali and another PLD 1995 Lahore 591.

7. Examining the present case on the said touchstone I find that the petitioner was charged with possession of 400 grams of heroin in one case and 1 K.G. of heroin in the other under section 9‑B of Control of Narcotic Substances Act, 1997. He was arrested on 19‑11‑1998. He pleaded guilty and prayed for leniency. The learned trial Court duly considered the said plea and for reasons recorded in the judgment found him entitled to leniency in the matter of conviction. Consequently the conviction and sentence referred to above were recorded. The benefit of section 382‑B, Cr.P.C. was granted separately in both the cases and as such the petitioner is entitled to avail the said benefit in both the cases separately. To my mind the very intent of the judgment of the learned Additional Sessions Judge would fail if the said sentences recorded by the learned Additional Sessions Judge are to run consecutively, therefore, find this to be a fit case for exercise of said powers under section 561‑A, Cr.P.C. Accordingly this writ petition is allowed and it is declared that the petitioner having been granted the benefit of section 382‑B, Cr.P.C. in both the cases separately is entitled to avail the benefit of the same and in the circumstances of the case it will be in the interest of justice that both the sentences shall run concurrently. The result would be that the respondent shall calculate the period of imprisonment required to be undergone by the petitioner in both the cases in terms of the sentences recorded by the learned Additional Sessions Judge therein in the light of the above decision and in case the petitioner has already undergone the sentences so awarded and is not required in any other case to be kept in prison shall be released immediately or whatever the said sentence stands undergone in the light of the above observations. H.B.T./D‑9/L Petition accepted.