2010 PLP 1913 (MLD)

TUFAIL H. EBRAHIM, J.

Briefly the facts of the case are that the present applicant along with other accused persons committed robbery/dacoity on 18-5-2009 and thereafter F.I.R. No. 186 of 2007 under section 394/34 P.P.C. was registered at Police Station Baloch Colony and in respect of the same crime another F.I.R. No. 189 of 2007 under section 13(b) of the Arms Ordinance was registered at Police Station Baloch Colony against the present applicant and other accused. In Crime No. 189 of 2007 under section 13-D, Arms Ordinance, 1965 Police Station Baloch Colony Karachi, the Court of Xth Civil Judge and Judicial Magistrate Karachi South convicted the accused/applicant and has sentenced to two years' R.I. and fine of Rs.200 only with benefit of section 382-B. Similarly in Crime No. 186 of 2007 under section 394/ 34, P.P.C., Police Station Baloch Colony Karachi, the Court of First Additional District Judge Karachi South convicted the applicant/accused under section 265-H(2), Cr.P.C. and sentenced the applicant to four years' R.I. and fine of Rs.5000 only, with benefit of section 382-B. The applicant moved an application before the Court of First Additional District Judge Karachi South, through Central Prison Karachi, praying that his two convictions passed in the above two separate cases arising of the same crime be ordered to run concurrently as such request for inadvertent reasons was not made at the relevant time. That vide Order dated 10-4-2010 the learned 1st Additional Sessions Judge Karachi South came to conclusion that the order within the meaning of section 397, Cr.P.C. is required to be passed at the time of deciding the case and for any reason or due to some inadvertent omission same if not passed, then the same could not be passed at this stage by the said Court as it would amount to modification of the Judgment which is not permissible under section 369, Cr.P.C. The learned Judge further observed that such order as to concurrent running of sentence could only be passed by the High Court in exercise of its power under section 561-A, Cr.P.C. The applicant as per observation/conclusion of the order of the 1st Additional Sessions Judge Karachi South dated 10-4-2010 has moved this application through Superintendent Central Prison Karachi, praying for orders for concurrent running of the sentences in the above cases under section 397, Cr.P.C. The learned Additional Advocate-General has conceded to the above proposition and has given his no objection to the grant of this application. That section 397, Cr.P.C. provides that when a person is sentenced at a time when he is already undergoing imprisonment, then his subsequent sentence is to commence upon the expiration of the earlier sentence unless the Court has specifically given directions that subsequent sentence to run concurrently with the previous sentence. In my view the learned 1st Additional Sessions Judge Karachi South has correctly dismissed the application filed by the applicant holding that under section 369 Cr.P.C. no separate order could be passed at the subsequent stage as it would amount to modification of judgment which is not permissible under section 369, Cr.P.C. The judgments had obtained finality as the applicant could not seek relief through collateral proceedings which was either denied to him or the party itself failed to seek such relief by impugning the order of the Court before the higher legal forum in the same hierarchy and the relief for seeking concurrent running of the subsequent sentences could not be sought in any collateral proceeding. In the present case the applicant being sentenced by the Court of Xth Civil Judge and Judicial Magistrate Karachi, South, was also sentenced by the 1st Additional Sessions Judge Karachi South in respect of the same crime but of a different offence, but due to some omission was not able to order the concurrent running of sentence at the relevant time. In the case of Shah Hussain v. The State, as reported in PLD 2009 SC 460, the Hon'ble Chief Justice of Supreme Court of Pakistan was pleased to hold that: "Sections 382-B and 35

Accused, in the present case, was sentenced to- 10 years' R.I. and imprisonment to life on two counts, his sentences were ordered to run consecutively

Aggregate sentences of the accused would thus come to sixty years, which was contrary to the provisions of section 35, Cr.P.C.

Provision (a) to section 35, Cr.P.C. prohibited the giving up of two consecutive sentence in one trial beyond the period of 14 years-Supreme Court converted jail petition into appeal and partly allowed the same and directed that the sentences of the convict shall run concurrently; he shall be entitled to the benefit of section 382-B, Cr.P.C.. remission granted by any authority in his post-conviction period or during his pre-sentence detention period in connection with such offence shall be available to him and his sentences shall be reduced accordingly

Impugned judgment of the High Court was modified by Supreme Court accordingly." In the case of Nek Muhammad and another v. The State, as reported in PLD 2007 Kar. 62, the Hon'ble" Judge of this Court was pleased to observe that: "The discretion of the court to direct running of subsequent sentence concurrently, with earlier sentence is exercised not in a mechanically manner and is not applied as a rule but only as an exception and only when the court finds that all offences were committed in the course of realization of a common objective which a person wants to achieve at a particular point in time. Where a person commits a series of different offences to achieve his common objective then all offences committed in achieving such common objective are regarded as akin to each other or are intimately connected with each other." For the facts and reasons as stated hereinabove and in view of the powers vested in the High Courts within the meaning of section 561-A, Cr.P.C, it is my view that that there was an inadvertent omission in the order of the 1st Additional Sessions Judge Karachi South to grant the relief of concurrent sentence to the applicant as the applicant under trial before him was in respect of the same crime but of a different offence and therefore the applicant was entitled to the benefit of section 397, Cr.P.C. Accordingly the application is allowed, the sentences awarded in the Criminal Case No.253 of 2007 but Court of Xth Civil Judge and Judicial Magistrate Karachi South and Sessions Case No.569 of 2007 by the Court of 1st Additional Sessions Judge Karachi South against the applicant shall run concurrently. The office is directed to send a copy of this order to the Superintendent Central Jail Karachi for his record and necessary action. The criminal application stands disposed of in the above terms. H.B.T./A-93/K??????????????????????????????????????????????????????????????????????????????????? Application allowed.