This is an application under section 561-A, Cr. P. C., 1898 filed by the father of convict Sajid Masood seeking an order from this Court that the sentence awarded by the learned Sessions Judges, Gujranwala in a case of murder, on 22-12-1973, as reduced by this Court in appeal to 7 years R. I.
And the sentence awarded by a learned Magistrate on 29-12-1973 in a case under section 224, P. P.
C. Be treated as concurrent and that the convict be called for and set at libertly as he has already undergone the sentences if taken to run concurrently.
2. The facts necessary for purposes of this petition, briefly stated, are as under:
3. The petitioner's son, namely Sajid Masood, was an undertrial in a case of murder and during the pendency of the case he escaped on 31-1-1972 from the District Courts, Gujranwala where he was brought in Police custody.
4. In the case of murder, the learned Sessions Judge, Gujranwala sentenced the said Sajid Masood to undergo rigorous imprisonment for 14 years by his judgment dated 22-12-1973. On appeal to the High Court against the sentence awarded by the learned Sessions Judge, the same was altered from under section 302, P. P. C. To one under section 304, Part I, P. P. C. The sentence was also reduced to 7 years' R. I. By order of this Court dated 24-5-1976.
5. Whilst the said Sajid Masood was undergoing the sentence aforementioned he was also sentenced to, one and a half year of rigorous imprisonment by a Magistrate, by order dated 29-12- 1973. It appears that no appeal was preferred against this order of the learned Magistrate.
6. The admitted position is that the order of the learned Magistrate whereby the said Sajid Masood has been sentenced to 1i years' R. I. Under section 224, P. P. C. Does not mention that the sentence is to run concurrently with the sentence which he was undergoing already in the earlier case. In the result that two sentences were to run consecutively under 'section 397, Cr. P. C.
7. It is taken as a ground in the petition and was also contended by the learned counsel for the petitioner that under section 397, Cr. P. C. The two sentences aforementioned shall be deemed to run concurrently as the learned Magistrate did not mention whether the sentence had to run concurrently or consecutively.
8. The learned counsel next contended that under section 561-A, Cr. P. C. This Court can at this stage also order that the sentences in the two cases should run concurrently. In support of this contention the learned counsel has placed reliance on a case decided by a Court of Foreign jurisdiction Baijnath Kurmi and another v. The State' (AIR 1961 Pat. 138). The learned counsel also placed reliance on Zakir All v. The State (PLD 1977 Kar. 833), in support of his first contention.
9. On the contrary, the learned counsel for the State submitted that section 561-A, Cr. P. C. Cannot be invoked inasmuch as it is only invokable if there was no provision available in the Code dealing with the subject. Elaborating his contention the learned counsel for the State submitted that since the petitioner's son did not avail of the provisions of section 397, Cr. P. C. When the sentence was awarded to him by the learned Magistrate and also did not file any appeal against the said order the petitioner would be precluded from invoking the jurisdiction of this Court under section 561-A, Cr. P. C.
10. He further submitted that when there is no mention in the subsequent order sentencing a person to imprisonment that it shall run concurrently with the sentence being already undergone by the convict, the provisions of section 397, Cr. P. C. Apply and it follows that the second sentence shall commence on the expiration of the first sentence. He relied in this regard on Mian Gulzar Muhammad v. Crown (PLD 1950 Lah. 497), and Zakir Ali v. The State.
11. The learned counsel for the State also argued that there is no equity . In favour of the petitioner's son so as to warrant invocation of the inherent jurisdiction of this Court, the convict having been sentenced already to a lesser punishment in a murder case and the crime of absconsion while he was an undertrial being such as would have bad repercussions on the public mind if allowed to go unpunished.
12. The first contention of the learned counsel for the petitioner is wholly fallacious and goes contrary to the express terms of the section itself. For facility of reference section 397, Cr. P. C. Is reproduced hereunder : "Section 397. When a p-rson 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."
A bare reading of the Section would show that when a person is already undergoing a sentence of imprisonment and is sentenced to another term of imprisonment, the latter sentence shall commence at the expiration of the former unless the Court directs that the subsequent sentence shall run concurrently with such previous sentence. It being the admitted position' in the case in hand that the learned Magistrate while awarding the sentence in the subsequent case, i.e. One under section 224, P. P. C. Did not direct the running thereof concurrent with the previous sentence, the second sentence has to run at the expiration of the earlier sentence.
13. In so far 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.
14. 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 appeal or revision and much less can it bypass the provisions regarding the same.
15. As regards the second and the only other contention raised by the learned counsel for the petitioner it is noteworthy that the case of absconsion in which the conviction was subsequently recorded and in which under section 397, Cr. P. C. a direction could be given as to the concurrent or consecutive commencement of sentences never came to this Court and it has had no occasion to deal with the same. That being so, it is obvious that the jurisdiction of this Court under section 561- A, Cr. P. C. Could not be invoked. The fact that this Court has had the occasion to deal with the case in which sentence and conviction was previously recorded is of no material consequence, for the reason already noted that the direction under section 397, Cr. P. C. Could be given only in the case decided subsequently, i.e. The case of absconsion.
In the nature of things also such a direction could not be given when recording prior conviction.
How could it be anticipated then than there was to be a subsequent conviction and sentence calling for such a direction?
16. In the above view of the matter the present petition under section 561-A, Cr. P. C. Is clearly misconceived, and so is the argument advanced by the learned counsel in support thereof.
17. The two judgments from the Pakistan superior Courts cited on behalf of the parties namely Mian Gulzar Muhammad v. Crown and Zakir AU v. The State do not deal with the proposition as to whether the provisions of section 561-A, Cr. P. C. Can be invoked for directing the running of sentences in two cases concurrently when there is no order by the Court awarding the subsequent sentence to that effect. The former authority deals with the subject as to whether when a person is convicted in three different cases on the same day he would be deemed to be undergoing the sentence in the case announced first within the meaning of section 397, Cr. P. C. Or not. It was held that in such a case when the orders in the three separate trials are pronounced on the same day and no direction is given of the sentences to run concurrently, the sentences shall be undergone consecutively. In the latter case, i.e. Zakir Ali v. The State the point decided was that the High Court while hearing an appeal or a revision is empowered to order separate sentences awarded in separate trials to run concurrently.
18. The case from the Indian jurisdiction cited by the learned counsel for the petitioner and reported as Baijnath Kurmi and another v. The State in no manner supports the contention raised by him. It on the contrary supports the view I have taken above that section 397, Cr. P. C. Cannot be invoked for ordering the running of a sentence in the first case concurrent with the sentence that has been awarded in the subsequently decided case. The following para. From the cited judgment in all materials supports the view I have taken : "(7) Before S. N. P. Singh, J., an oral application was made praying that the two sentences may be made to run concurrently under section 397 (1) of the Code, but his Lordship observed that he would have allowed the prayer, but there was one legal difficulty, inas--much as, the appeal before him was against the previous conviction, and, therefore, he could not direct the previous sentence to run concurrently with the subsequent sentence, passed in the Arms Act case, which was subsequently and separately tried."
19. As regards the contention of the learned counsel for the State to the effect that section 561-A, Cr.
P. C. Cannot be invoked because the Court became functus officio with the disposal of appeal against conviction under section 304, Part-I, P. P. C., it may be observed that having regard to the view taken by me as noted above, the question does not arise. The appeal dealt with the prior conviction and as such there could be no occasion when disposing of the same to give a direction under section 397, Cr. P. C. I would leave it at that.
20. The locus stands of the petitioner who is the father of the convict to move the present application under section 561-A, Cr. P. C. Is also not beyond question. Nevertheless I do not feel called upon to express a conclusive opinion on this question since I am dismissing the petition otherwise for reasons recorded above.
21. As a result of the above discussion, I do not find any merit in this petition and dismiss the same.