Rehan Rasheed vs Superintendent New Central Jail, Bahawalpur

ORDER

TARIQ SALEEM SHEIKH, J.---Through this petition under section 561-A, Cr.P.C., the petitioner prays that the sentences handed down to him by. the Courts in case FIR Nos. 269/2014 dated 5.5.2014 and 291/2014 dated 19.5.2014 be ordered to run concurrently ..

2. The petitioner was tried by the learne d Judge, Anti-T errorist Court, Bahawalpur Division, Bahawalpur , in case FIR No. 269/2014 dated 5.5.2014 registered at Police Station City B-Division, District Bahawalnagar , and sentenced him as under:--- Convicted under section 392 read with section 34, P.P.C. and sentenced to undergo rigorous imprisonment for seven years and to pay fine in the sum of Rs.1,00,000/- and in default thereof to undergo simple imprisonment for a further period of six months.

Convicted under section 7(h) of the Anti-T errorism Act, 1997, and sentenced to rigorous imprisonment for seven years and to pay fine in the sum of Rs.1,00,000/- and in default thereof to undergo simple imprisonment for a further period of six months.

The sentences of imprisonment were ordered to run consecutively and benefit of section 382-B, Cr.P.C. was, however , extended to him. Being dissatisfied with the aforesaid judgment, the Petitioner filed Crl. Appeal No. 471- ATA/2015/BWP which was decided by a learned Division Bench of this Court vide judgment dated 19.12.2018 while maintaining his conviction under section 392, P.P.C. and under section 7(h) of the Anti-T errorism Act, 1997, reduced his sentence to rigorous imprisonment for five years and fine in the sum of Rs.50,000/- and in default thereof to undergo simple imprisonment for a further period of three months.

3. The Petitioner was also tried by the learned Magistrate Section 30, Chishtian, in case FIR No.291/2014 dated 19.5.2014 registered at Police Station City B-Division, District Bahawalnagar and was convicted under Section 13 of the Arms Ordinance XX of 1965, and sentenced to rigorous imprisonment for three years and to pay fine in the sum of Rs.5000/- and in default thereof to undergo simple imprisonment for a further period of one month. Benefit of section 382-B, Cr.P.C. was, however , extended to him. The Petitioner's appeal was dismissed by maintaining his conviction and sentence by the learned Additional Sessions Judge, Bahawalnagar .

4. This Court vide order dated 11.11.2019 requisitioned report from the Superintendent, Central Jail. Bahawalpur , which has been received and perused.

5. The learned counsel for the Petitioner contends that it is now a settled law that courts ordinarily order concurrent running of sentences recorded against a convict in different cases tried by different courts A irrespective of the fact whether such conviction has been mainta ined, enhanced or modified by the Appellate and/or the Revisional Court.

He has placed reliance on Mst. Shahista Bibi and another v. SuperintendentCentred Jail Mach and 2 others (PLD 2015 Supreme Court 15) and Rahib Ali v. The State (2018 SCMR 418 ).

6. The learned Deputy Prosecutor General concedes this legal position.

7. Arguments heard. Record perused.

8. Section 35, Cr.P.C. deals with maximum term of punishment which can be awarded in case of conviction for several offences it one trial. On the other hand, section 397, Cr.P.C. caters to the situation where sentences are awarded under various offences in more than one trial. Since this is relevant provision for the instant case, it is reproduced hereunder for ready reference:

397. Sentence on 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: Provided that where a person who has been sentenced to imprisonment by an order under section 123 in default of furnishing security is whilst undergoing such sentence. sentenced to imprisonment for an offence committed prior to the making of such order , the latter sentence shall commence immediately .

9. Perusal of the above provision evinces that generally speaking where a person undergoing a sentence of imprisonment is subsequently convicted and sentenced in another trial his subsequ ent sentence would commence at the expiration of his previous sentence. However , the trial court seized of the subsequent trial and the appellate/revisional in the appeal/revision arising therefrom is competent to direct that the subsequent sentence would run concurrently with the previous one. The Hon'ble Supreme Court of Pakistan reiterated the law in a number of cases, including, Mst. Zubaida v. Falak Sher and others (2007 SCMR 548) Mst. Shaista Bibi and another v. Superintendent, Central Jail, Mach and 2 others (PLD 2015 SC 15), and Sajjad lkram and others v. Sikandar Hayat and others (2016 SCMR 467 ). More recently in Rahib Ali v. State (2018 SCMR 418 ) it held: "Generally , where a convict is undergoing sentence in earlier conviction and later in a separate trial(s) stands convicted and sentenced for imprisonment for life or otherwise for a shorter term, sentence in subsequent trial commences after sentence in earlier trial is exhausted. However , the trial Court seized of subsequent trial and the Appellate Courts in appeal arising there from are empowered under section 397 Cr.P.C. to direct that the subsequent sentences(s) to run conjointly with previous sentence(s) of imprisonment of life or otherwise as the case may be. In the cases cited as Mst. Zubaida v. Falak Sher and othe rs (2007 SCM12 548), this Court attending to question of multiple convictions in more than one crime and trial took charitable view, of section 397, Cr.P.C.. while declining leave; observed that section 397, Cr.P.C. empowers the Court to direct the subsequent sentence would run concurrently with the previous sentence. In the case of Shaista Bibi and another v.

Superintendent, Central Jail, Mach and 2 others (PLD 2015 Supreme Court 15) this Court examined provision of section 35, Cr.P.C. together with section 397, Cr.P.C. also took charitable view and adopted interpretation beneficial to the accused by ordering concurrent running of sentence in two different trials. In a more recent pronouncement in the case of Sajjad lkram and others v. Sikandar Hayat and others (2016 SCMR 467) this Court at page 473 held that: 'The provisions of section 397, Cr.P.C. confers wide discretion on the Court to exten d such benefit to the accused in case of peculiar nature and Court further observed 'that there is nothing wrong in treating the sentence of imprisonment for life of convict/Appellants on three counts to run concurrently .'

10. The Petitioner was convicted in case FIR No.269/2014 by the learned Judge, Anti-T errorism Court, Bahawalpur Division, Bahawalpur vide judgment dated 14.10.2015. Crl. Appeal No .471-A TA-2015/BWP filed against the aforesaid judgment was decided on 19.12.2018 by a learned Division Bench of this Court. The other case FIR No.291/2014 which was offshoot of earlier FIR No.269/2014, was decided by the learned Magistrate Section-30, Chishtian on 2.3.2019, and the appeal filed by the Petitioner against the aforesaid judgment was dismissed on 15.7.2019 by the learned Additional Sessions Judge, Bahawalnagar . It seems that at the time of decision of appeal by the learned Additional Sessions Judge the Petitioner did not apprise him that he was already serving sentence in case FIR No.269/2014. Hence, a direction for consolidation of sentences handed down in two separate trials was not made.

11. It is further noticed that judgment dated 19:12.2018 passed in Crl. Appeal No.471-A TA-2015/BWP by the learned Division Bench of this Court, is silent while modifying the conviction and sentence of the Petitioner regarding grant of benefit under section 382-B, Cr.P.C. to him and running of his sentences concurrently in offences under section 392 read with section 34, P .P.C. and under section 7(h) of the Anti-T errorism Act, 1997.

12. In the instant case, there are no exceptional circumstances to reject prayer of the Petitioner . It appears that the Courts of the country generally take generous view in the matter of sentences affecting deprivation of life or liberty of a person and unless some aggravating circumstances do not permit so, liberally exercise enabling power under sections 35 and 397, Cr.P.C. respective ly to order concurrent running of sentence in one trial and so also consolidation of earlier sentence while handing down sentence of imprisonment in a subsequent trial.

13. For what has been discussed above, this petition is allowed and it is ordered that all the sentences awarded to the petitioner in case FIR No.269/2014 and case FIR No.291/2014 detailed above shall run and shall be deemed to have run concurrently . Besides, benefit of section 392-B, Cr .P.C. is also extended to him.