MST. DALIAN BIBI Versus SUPERINTENDENT, DISTRICT JAIL

This application has been made under section 491, Cr.P.C. praying for the release of the son of the petitioner namely Muhammad Saeed from the Jail as his detention in jail has become illegal and wrongful.

2. The petitioner's son was convicted alongwith others under sections 148 and 307/149. He was sentenced to three years' R.I. under section 148, P.P.C. and five years' R.I. under section 307/149, P.P.C. alongwith a fine of Rs.5,000. The sentences were to run consecutively. The conviction and sentences were challenged in appeal. The conviction under section 148, P.P.C. was set aside whereas it was maintained under section 307, P.P.C. since the convicts had been acquitted by this Court. The convict did not further challenge his conviction or sentence. Then subsequently he was convicted in another case under section 11 of Prohibition (Enforcement of Hadd) Order, 1979 and was awarded one year's R.I.

3. The grievance of the petitioner is two‑fold; firstly that in her son's case the jail authorities are not treating the sentence passed in the subsequent conviction concurrently with the first one and secondly upto this time no warrant as to the reduction of the sentence in the former case has been sent to the jail authorities. Regarding the first grievance of the petitioner the learned counsel appearing for her has submitted that it is a general law that a sentence commences from the date of the conviction as such the sentence passed in the second case is not to be taken as consecutively so as to commence after the expiration of the first one.

4. The learned A . A .‑G . has replied that in view of the provision of section 397, Cr.P.C. the sentence awarded in the subsequent case is to run consecutively to the sentence the petitioner's son is already undergoing. He has emphasised that this is the main rule though exception is also there that it is to run so unless the Court directs that the subsequent sentence is to run concurrently with the previous sentence. In respect of the reply made by the learned A.A.‑G. the learned counsel for the petitioner has submitted that the Court which convicted Muhammad Saeed alias Mamma, the son of the petitioner, in the subsequent case was not conscious as to the fact that he was convicted previously and was undergoing sentence in respect with that otherwise the Court might have expressed the subsequent sentence to run concurrently alongwith the sentence the convict was already undergoing.

5. A perusal of the record shows that the convict who was on bail in the subsequent case did not appear on 4‑5‑1981. His bail was cancelled. An application was made to the Court on the same day praying that convict be summoned from the jail where he had been sent to undergo the sentences awarded to him under the first conviction. The learned Magistrate being not aware of the application having been made to him was brought to his notice later on, so the convict was ordered to be summoned from the jail and then subsequent to that order the presence of the convict was marked as present in the custody of the police.

In view of the above said facts it has been urged by the learned A . A . ‑G . that it cannot be successfully maintained that the learned Magistrate dealing with the case was not conscious of the fact that the convict was already undergoing a sentence, therefore, if at the time of conviction the Magistrate did not express that the sentence awarded by him was to run concurrently alongwith the first sentence then under section 397, Cr.P.C. as a rule the latter sentence is to commence at the expiration of the first one. The convict had not made any request to the learned Magistrate to treat the sentence then awarded as to run concurrently with the previous one.

6. I agree with the position taken up by the learned A.A.‑G. that in the absence of any expression from the subsequent Court to the effect that the subsequent sentence was to run concurrently with the previous one, the latter is to commence at the expiration of the first one which is quite obvious from the rule as enunciated in section 397, Cr.P.C. interpretation of which offers no complication.

7. Regarding the second submission of the learned counsel for the petitioner the Superintendent Jail, Faisalabad has in his report mentioned that though it is correct that the sentence of the convict under section 148, P.P.C. was not maintained by the High Court yet he could not give effect to that due to the absence of warrant from the Court concerned in that behalf.

8. It is quite unfortunate that the convict was acquitted of the offence under section 148 in the former case by this Court‑‑and upto this time the authorities concerned have not given effect to that. The learned District Magistrate, Faisalabad is directed to look into the matter and furnish the Superintendent, Central Jail, Faisalabad with a warrant in respect with position of the sentence of the convict as ordered by this Court in Criminal Appeal No. 250 of 1981 entitled Muhammad Saeed alias Mamma v. The State and Criminal Appeal No. 239 of 1981, within three days from the receipt of this order with an intimation to this Court and also to submit a report as to the fact that why a reduction warrant was not addressed to the Jail authorities in accordance with law. The report is to be submitted to this Court within a fortnight. This petition stands disposed of accordingly.

S.A./T‑42/L ???????????????????????????????????????????????????????????????????????????? Order accordingly.