2010 P Cr (PLP)

WAQAR HASSAN MIR, J.

The petitioner Nadeem, who is condemned prisoner of Idyala Jail, Rawalpindi has submitted a written application to the Hon'ble Chief Justice of Pakistan, Islamabad stating therein that he is a poor man and is confined in Central Jail Rawalpindi for the last eight years and the period, which has been undergone by him during the period of trial, has not been included in his sentences despite the orders of the Superior court regarding the inclusion of the same. It is further submitted that he has been convicted in eight different cases the particulars of which are as under:-- F.I.R. No. Offence under section Police Station Sentence Fine 245/2002 324, P.P.C. Kahutta One year Rs.20,000 194/2002 337-F(ii), P.P.C. -do- Three years Rs.5000 337, P.P.C. -do- Four years 1/3rd of Arsh 179/2001 3/4 P.O. -do- One year Nil 199/2002 380/411, P.P.C. -do- Two years Nil 201/2002 380/411, P.P.C. -do- One year Nil 89/2002 382/411/341/427, P.P.C. -do- Two years Nil Though he was given benefit of section 382-B, Cr.P.C. but the sentences have not been ordered to run concurrently, therefore, it has been prayed by him that his sentences in all the following, cases, be ordered to run concurrently.

2. On receipt of the above application, the Director Human Cell, Supreme Court of Pakistan vide order dated 1-2-2010, sought report from the Superintendent of Central Jail, Rawalpindi, which was accordingly filed and it is mentioned therein that the convicted prisoner Nadeem Nawaz son of Muhammad Nawaz caste Rajput resident of Mohra Police Station Kahuta District Rawalpindi was convicted and sentenced in the following cases: Sr. No . No.u/s & Police Sentence with date Name of Sentencing Court

1. FIR No.199 dated 15-6-2002 under section 380/411, P.P.C. P.S. Kahuta, Rawalpindi. 2 Year's R.I. + benefit of Sec-382-B, Cr.P.C. dated 12-12-2002 Mian Muhammad Nadeem Ansari, Judicial Magistrate Ist Class, Kahuta.

2. FIR No.201 dated 16-6-2002 under section 13/20/65 A.O., P.S. Kahuta, Rawalpindi. 01 Year's RI + benefit of Sec. 382-B, Cr.P.C. dated 12-12-2002 Mian Muhammad Nadeem Ansari. Judicial Magistrate Ist Class, Kahuta

3. FIR No.189 dated 12-6-2002 under section 382/411/341/427, P.P.C., P.s. Kahutta, Rawalpindi. 02 Year's R.I. + benefit of Sec-382-B, Cr.P.C. dated 12-12-2002 Mian Muhammad Nadeem Ansari. Judicial Magistrate Ist Class, Kahuta

4. FIR No.245 dated 5-7-2002 under section 324, P.P.C., P.S. Kahuta, Rawalpindi. 01 Year's R.I. + Fine Rs.2000 or 01 month S.I + benefit of Section 332-B, Cr.P.C. dated 24-1-2003. Mian Muhammad Nadeem Ansari. Judicial Magistrate Ist Class, Kahuta

5. FIR No.191 dated 12-6-2002 under section 7/21/91 SIAA. P.S. Kahuta, Rawalpindi. 06 months R.I. + benefit of Section 382-B, Cr.P.C. dated 24-1-2003 Mian Muhammad Nadeem Ansari. Judicial Magistrate Ist Class, Kahuta

6. FIR No.194 dated 12-6-2002 under section 337-F(iii), P.P.C. P.S. Kahuta, Rawalpindi. 03 Years R.I. + Daman Rs.5000 under section 337F(iii), P.P.C. and sentenced to 4 years R.I. + Arsh 1/3 part of Diyat + benefit of Section 382-B, Cr.P.C. dated 29-5-2003. Mian Muhammad Nadeem Ansari. Judicial Magistrate Ist Class, Kahuta

7. FIR No.179 dated 8-6-2002 under section 3/4 Hadd. P.s. Kahuta, Rawalpindi. 01 Year R.I. + benefit of Sec-382-B, Cr.P.C. dated 29-5-2003 Mian Muhammad Nadeem Ansari. Judicial Magistrate Ist Class, Kahuta

8. FIR No.192 dated 12-6-2002 under section 13/20/65 A.O. P.S. Kahuta, Rawalpindi 06 months' R.I. + benefit of Section 382-B, Cr.P.C. dated 29-5-2003 Mian Muhammad Nadeem Ansari: Judicial Magistrate Ist Class, Kahuta The sentence of case/F.I.R. No. 191 of 2002 and F.I.R. No. 92 of 2002 was completed in under trial period. Under trial period Y M D (w.e.f. 17-6-2002 to 11-12-2002 in case/F.I.R. No: 199 of 2002 00 05 25 (w.e.f. 17-6-2002 to 11-12-2002 in case/F.I.R. No.201 of 2002 00 05 25 (w.e.f. 7-6-2002 to 11-12-2002 in case/F.I.R. No.189 of 2002 00 05 25 (w.e.f. 2-10-2002 to 23-1-2003 in case/F.I.R. No.245 of 2002 00 03 24 (W.e.f. 13-6-2002 to 28-5-2003 in case/F.I.R. No.194 of 2002 00 11 16 Under trial period in case/F.I.R. No.1 79 of 2001 is Nil Substantive sentence served (w.e.f. 12-12-2002 to 6-2-2010) 07 01 25 Remission earned 02 06 02 Total sentence served including remission and 12 04 22 under trial period Un-expired portion of sentence 01 07 08 If fine, daman and arsh paid. His probable date of release is fixed as 14-9-2011 subject to revision and payment of fine, daman and arsh."

3. The said petition along with the report of Superintendent Jail, was placed before Hon'ble Chief Justice of Pakistan and his lordship pleased to pass the following order: "Forward to High Court Lahore for examination of his case if permissible under the law." After receipt of above, the matter was placed before the Hon'ble Chief Justice of this Court and his lordship has directed to place the instant petition along with the report of the Superintendent of Central Jail Rawalpindi of the said convict before this Court at Rawalpindi Bench to examine the justification of the plea of the said convict to redress his grievance in exercise of jurisdiction under section 561-A, Cr.P.C. in the light of dictum laid down in the case of Ali Akbar Shah v. State (PLD 2004 Karachi 589).

4. I have gone through the contents of the petition as also the report of Superintendent, Central Jail Rawalpindi and heard the learned A.A.-G.

5. The question as to whether the sentences awarded to the petitioner in eight different cases should run concurrently or not. In this behalf, in the case reported as Ali Akbar Shah v. The State (PLD 2004 Karachi 589), the Sindh High Court while relying upon the case of the apex court, reported as Bashir v. State (PLD 1991 SC 1145) has decided such questions and it has been held as under:-- "the order within the meaning of section 397, Cr.P.C. is required to be passed at the time of deciding the case or deciding the appeal and if for any reason, or due to some inadvertent omission the same is not passed then the same can be passed by the High Court afterwards by exercising the powers under section 561-A, Cr.P.C. We are also of the view that it will not be reviewing or modifying the judgment but the judgment will be intact concerning the conviction and sentence as the matter of sentence to run concurrently is ancillary to the question of punishment."

6. Earlier in the following cases, the relief of directing the sentences to run concurrent has been declined by this Court:-- In the case reported as Mian Gulzar Muhammad v. Crown (PLD 1950 Lahore 497) wherein it has been held as under:-- "I hold that the accused was undergoing his first sentence when the second and third sentences were pronounced on him, and that consequently, where there is no order making them concurrent, they will be undergone consecutively, the petition is dismissed." In the case reported as Zakir Ali v. The State (PLD 1977 Karachi 833), it has been observed as below:-- "According to section 397, Cr.P.C. where person is already undergoing a sentence of imprisonment is sentenced to imprisonment for another offence, the latter sentence is to commence after the expiration of the former sentence, Unless the Court otherwise directs. Since in the instant case the learned Sessions Judge has not directed that the sentence is to run concurrent with the sentence awarded in the injury case, by virtue of the provisions of section 397, Cr.P.C. the sentence in this case is to commence after the expiry of the sentence in the injury case." In the case of Muhammad Khan reported in (PLD 1986 Lahore 294) it was held as under: "We, therefore, hold that the petitioner was undergoing his first sentence when the second, third and fourth were pronounced on him and that secondly, where there is no order making them concurrent, they will be undergoing consecutively if it is held that the words "undergoing a sentence" mean that the sentence is being actually and physically undergone, the Courts would be driven to the adoption of farcical devices," In the case reported as Muhammad Yaqoob Tahir v. Superintendent, District Jail, Rawalpindi PLD 1979 (Lah.) 46, it was observed as under:-- "Insofar as the application of section 397, Cr.P.C. to the present case is concerned, it is obvious that the said section is not available. The provisions of section 397, Cr.P.C. can be invoked by a Court awarding second sentence or a Court hearing an appeal and/or a revision arising out of a second conviction. As already indicated there was no appeal or revision against the order passed in the case of absconsion A proceeding under section 561-A Cr. P.C. cannot be the substitute for an appear or revision and much less can it bypass the provisions regarding the same."

7. However, before dilating upon any further, I would like to reproduce section 397, Cr.P.C. as under:-- "397: Sentence of 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." Section 35 Cr.P.C. deals with the question of maximum. sentence of imprisonment in case of conviction for more than one offence at one trial. For facility of reference, the said provision is reproduced below: 35: Sentence in case of conviction of several offences at one trial: (1) When a person is convicted at one trial of two or more offences, the Court may, subject to provisions of section 71 of the Pakistan Penal Code, sentence him, for such offences, to the several punishment prescribed therefor which such Court is competent to inflict; such punishment when consisting of imprisonment to commence the one after the expiration of the other in such order as the Court may direct, unless the Court directs that such punishment shall run concurrently. (2) In the case of consecutive sentences, it shall not be necessary for the Court, by reason only of the aggregate punishment for the several offences being in excess of the punishment which it is competent to inflict on conviction of a single offence, to send the offender for trial before a higher Court; (a) In no case shall such person he sentenced to imprisonment for a longer period than fourteen years; (b) if the case is tried by a Magistrate, the aggregate of consecutive punishment shall not exceed twice the amount of punishment which he is, in the exercise of this ordinary jurisdiction, competent to inflict. (3) For the purpose of appeal. The aggregate of consecutive sentences passed under this section in case of conviction for several offences at one trial shall be deemed to be a single sentence." 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. Section deals with various sentences passed in a single trial of two or more offences. The sentences are to run consecutively unless the Court directs to run such sentences concurrently. Thus section 397, Cr.P.C. covers the present case.

8. I have gone through the report of Superintendent Jail, Rawalpindi wherefrom it reveals that the petitioner was convicted total in eight cases; in. three different cases i.e. F.I.R. No.199 dated 15-6-2002. F.I.R. No.201 dated 16-6-2002 and F.I.R. No.189 dated 12-6-2002 vide judgments of even date i.e. 12-12-2002 whereas in two cases i.e. F.I.R. No.245 dated 5-7-2002 and F.I.R. No.194 dated 12-6-2002, the sentences were awarded on 24-1-2003. In three cases i.e. F.I.R. No.194 dated 12-6-2002, F.I.R No.179 dated 8-6-2001 and F.I.R. No.192 dated 12-6-2002, the petitioner was convicted vide judgments of even dated i.e. 29-5-2003. In all these cases, no order within the meaning of section 397, Cr.P.C. has been passed.

9. Now the question whether this court under section 561-A, Cr.P.C. can pass an order within the contemplation of section 397, Cr.P.C. This point has been examined by the apex Court in the judgment reported as PLD 1991 SC 1145 (cited above), on the basis of which, the Sindh High Court has delivered the judgment reported as PLD 2004 Karachi 589 and the apex court has observed that "Again where by inadvertence there is failure on the part of the High Court to determine these questions, I cannot see any reason why resort cannot be had to section 561-A of the Code to cure the failure, in order to secure the ends of justice. Surely an attempt to cure inadvertent omission in the nature of errors ancillary to punishment cannot be allowed to be frustrated by section 369 of the Code." It would be relevant to mention here that this judgment has been delivered by the Full Bench of apex Court comprising of five Hon'ble Judges.

9. However in a recent decision of the apex court rendered in the case reported as Ahmed Sultan and another v. The State (2007 SCMR 1424), the Hon'ble apex court has observed as under: "Sentences of, imprisonment of a person convicted for offences in different cases, as provided by section 397, Cr.P.C. were to run consecutively, but discretion was left with the trial Court to order the concurrent running of the sentences of imprisonment in separate case-Unless such discretion was exercised in favour of accused, the sentences would run consecutively

Neither the petitions for leave to appeal had exercised the said discretion in favour of the accused persons; even otherwise, on merits too, keeping in view the gruesome murders of three persons for a petty object committed by the accused, such discretion of directing the sentences to run concurrently was not exercised in their favour. Appeal was dismissed by the Supreme Court accordingly." (the underlying is mine for ready reference) The above cited judgment (2007 SCMR 1424), has also been rendered by the Full Bench of apex court but with utmost regard, it has been passed by three Hon'ble Judges, whereas the judgment reported as PLD 1991 SC 1145 is by majority members, which is the basic one, should prevail and should apply in the present case.

10. In view of what has been discussed above and also keeping in view the law laid down by the apex court, in the case reported as PLD 1991 SC 1145, this court has come to the 'conclusion that if for any reason, or due to some inadvertent omission the order within the meaning of section 397, Cr.P.C. has been omitted to have been passed by the trial court, the same task can be undertaken by this court while exercising its powers under section 561-A, Cr.P.C. While doing this exercise, it shall not amount to review or modify the judgment but the same will be intact concerning the conviction and sentence as the matter of sentence to run concurrently is ancillary to the question of punishment. Resultantly, it is ordered that all the sentences awarded to the petitioner should run concurrently and the Superintendent Jail Rawalpindi, where the convict is presently confined, is directed to do the needful. This petition is accordingly allowed. A.R.K./N-65/L Petition accepted.