Through this petition, a prayer has been made to the effect that all the sentences awarded to the petitioner, in different criminal cases, should run concurrently.
2. The facts giving rise to this petition are that the petitioner was booked in five different cases registered under Section 392 and 411, P.P.C. On the conclusion of the trial in case F.I.R No, 295/05, dated 27.4.2005 registered with Police Station Peoples Colony, Faisalabad, in respect of the offences under Sections 392/411, P.P.C, he was convicted and sentenced to 3 years R.I. along with a fine of Rs, 45,000/- with benefit of Section 382-B, Cr.P.C. vide judgment dated 31-5-2007 passed by Mr. Muhammad Usman, Magistrate, 1st Class, Faisalabad. At that time he was facing trial in four other cases bearing F.I.R Nos, 491, dated 11-12-2004, 212, dated 24-3-2005, 294, dated 21-4-2005 and 296, dated 21-4-2005, all registered at P.S. Sargodha Road, Faisalabad, before the aforesaid Magistrate. Instead of facing the trial of the said cases, the petitioner opted to make confession in all the said cases.
3. On the basis of his confession, made in each case, he was convicted under Section 392, P.P.0 and sentenced to 3 years R.I in each case, respectively. He was further convicted under Section 411, P.P.0 and sentenced to one year R.I. in each of the said cases respectively. In all the said cases, he was given benefit of Section 382-B, Cr.P.C, as well. In each case, sentences on both the counts were ordered to run concurrently.
4. After the conclusion of the trial in the case F.I.R No 279/05, dated 18-4-2005, registered at P.S. Peoples Colony Faisalabad, in respect of offences under Sections 392, 411 and 109, P.P.C, he was found guilty under Section 392, P.P.C. and was sentenced to three years RI. vide judgment dated 13- 3-2008. He was further convicted under Section 411, P.P.C. and sentenced to 3 years R.I along with fine. Both the said sentences, however, were ordered to run concurrently.
5. Since in absence of any specific direction passed under Section 397, Cr.P.C, all the sentences awarded to the petitioner, in the said different cases, were to run consecutively, he filed an application under Section 491, Cr.P.0 before the learned Sessions Judge, which was disposed of vide order dated 30-6-2008 with an observation that the petitioner could seek relief from the learned trial Court. Thereafter, the petitioner filed an application, before the learned Magistrate Section 30, Faisalabad but the said application was also dismissed vide order dated 3-7-2008 with an observation that the said Court did not possess any power of review. Hence this petition,
6. Learned counsel for the petitioner has contended that under Section 397, Cr.P.C, the sentences awarded to the petitioner are liable to be ordered to run concurrently; that in case this petition is not allowed the petitioner would suffer a long term of incarceration. In support of his arguments, learned counsel for the petitioner has relied upon the cases of Muhammad Asif v. State (PLJ 2003 Cr.C. (Lahore) 848), Abdul Ghafoor v. State (2007 YLR 700) and Sanaf Gul alias Sunny v. The State (2005 P Cr.L.J 370).
7. On the other hand, learned DPG has opposed this petition strenuously by contending that under Section 397, Cr.P.0 in absence of specific order passed by the learned trial Court, all the sentences passed in the subsequent case have to run consecutively; that though the petitioner is a hardened criminal, yet he got off lightly by making confessional statements; that, though, the petitioner made confessional statements respectively before the one and the same Magistrate but the said Court failed to appreciate that the petitioner was involved in so many cases of the same nature and dealt the petitioner with leniency; that, as a matter of fact, after finding the petitioner guilty in the subsequent cases, he should have been given the maximum sentence provided under the law but the learned trial Court maintained same standard of the sentence in all the cases; that in these circumstances; the petitioner has already been dealt with leniently, therefore, he does not deserve further lenience; that after having been found guilty on the basis of his confession, the petitioner was debarred from filing the appeals and the judgments of conviction have already attained finality, therefore, in collateral proceedings the petitioner cannot be granted the relief prayed for. In support of his contentions, learned DPG has placed reliance on the case of Abdul Razzaq v. State (2005 P.Cr.L.J 237).
8. Before dilating upon the question involved in this case, perusal of Section 397, Cr.P.C. which is reproduced as under, would be necessary: "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 fife) to which he has been previously sentenced, unless the Court directs that the subsequent sentence shall run concurrently with such previous sentence: Provided, further, 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."
Section 397, Cr.P.0 itself shows that the ordinary rule is that when a person is undergoing a sentence of imprisonment and is subsequently sentenced to another sentence of imprisonment, such sentences shall run concurrently. If they are to run concurrently it is for the Court dealing with the subsequent case to make such order. Considering the present case; in the backdrop of the said section, I have noticed that the petitioner was convicted and sentence under Section 392 to three years R.I vide a judgment dated 31-5-2007 and at that time, he was facing trial in four other cases specified in opening paragraph of the instant order. On the basis of his confession, in all the said four cases, the petitioner was convicted and sentenced under Section 392/411, P.P.C. vide separate judgments dated 3-7-2007, passed by the one and the same trial Court. In a subsequent trial, he was convicted under Sections 392 and 411, P.P.0 and sentenced to 3 years R.I on two counts.
Both the said sentences were ordered to run concurrently. However, while passing the subsequent judgments, the sentences awarded to the petitioner in earlier trials were not ordered to run concurrently. Admittedly, in none of the cases, the petitioner challenged his conviction.
9. Insofar as the judgments passed on the basis of petitioner's confession are concerned under Section 412, Cr.P.C, the petitioner, of course, was debarred from challenging the same through appeal. Though he could have challenged the same to the extent or legality of the sentence but the fact remains that he did not opt to challenge the said judgments.
10. The petitioner has prayed that while exercising power under Section 561-A, Cr.P.0 this Court should direct the jail authorities that all the sentences awarded to him in different trials shall run concurrently. However, the prayer made through this petition cannot be granted in view of the specific provisions of Section 397, Cr.P.C, according to which it is prerogative of the trial Court or the appellate Court to pass such a direction while passing the judgment in subsequent case but in the instant case the learned trial Court did not opt to order the running of the sentences in subsequent cases concurrently with the sentences passed in the earlier cases. It cannot be said that the omission in giving such a direction was inadvertent, rather, it appears that the learned trial Court while convicting the petitioner in subsequent trials omitted to do so intentionally. From the facts of the case, it appears that the petitioner is a hardened criminal. In the first case in which the petitioner was convicted vide judgment dated 31-5-2007, the allegation was that he along with his co-accused barged into the house of the complainant forcibly and looted valuables including gold ornaments, cash, etc. on gunpoint. In the said occurrence, the inmates of the house were tortured and locked in a room during the commission of the crime. In the subsequent cases in which he was convicted on the basis of his confession, the allegations against him were again of the serious nature. Had the petitioner not made the confessional statement, he could have been charged under Section 511, Cr.P.0 and in that eventuality he could have been awarded severe sentence but due to his confessional statement, he could not be awarded excessive sentence, rather, the learned trial Court maintained the same standard of sentence. The offence under Section 392, P.P.0 provides 10 years maximum sentence and 3 years minimum sentence. Though, the petitioner was a hardened criminal, having committed offences of robbery in a heinous and dreadful manner, yet in each of the subsequent cases he was awarded the minimum sentence provided under Section 392, P.P.C, meaning thereby that he got off easily. This might be a reason that the learned trial Court while convicting him in all the subsequent trials, did not order to run the sentences in subsequent cases concurrently.
11. Now, considering the case law on the subject in a judgment reported as In re: Muhammad Khan, rendered by a Full Bench of this Court, it was held as under:.
"A perusal of both, Sections 35 and 397 of the Code would show that general rule is that sentences of imprisonment or imprisonment for life in each offence are to run consecutively and concurrent running of sentences is an exception. If, therefore, while recording conviction in one trial for two or more than two offences or in separate trials the Court does not record any order that the sentences will run concurrently, the rule of law is that the said sentences will run one after the expiry of other. As such, it could not be said that omission of an order making sentences to run concurrently under two offences in one trial or sentences recorded in different, trial, was an inadvertent omission or a failing on the part of Court. It also cannot be held that making sentences to run concurrently in a particular case was normal practice. There is no such practice nor any practice can be a substitute for substantial law. Each case has to be decided keeping in view the facts and circumstances of that case. It is a general principle of law that whenever an offence is proved against any person, a conviction must necessarily follow and every conviction must be followed by a punishment except as expressly provided in Section 71, P.P.C. Whenever a sentence is passed on conviction, the general principle of law is that it takes effect immediately. Where there are several sentences for different convictions against the same person, the rule that the sentences should run consecutively has been enacted by the Code. This means that each sentence of imprisonment or imprisonment for life will run after the expiration of the other unless the Court directs that they shall run concurrently. The object of Section 35 and Section 397 of the Code is to increase the period of punishment that the Courts are competent to inflict. If after recording conviction, Court does not specify under any of these two sections that the sentences will run concurrently, it must be held that they shall run consecutively. As such, the observation in Fazal Haq's case that the omission to record such an order was inadvertent cannot be accepted.
This observation is clearly against the substantive provisions of law. The judgment in Fazal Haq's case is, therefore, overruled and cannot be made applicable to the facts of the present case."
While following the said judgment, a learned Division Bench of the Karachi High Court in the similar circumstances, in the case of Sikandar Ali alias Sikoo Shaikh v. The State (PLD 2003 Karachi 260), held as under: "9. The of Sections 35 and 397, Cr.P.C, is to increase the period of punishment that the Court can inflict. If on recording conviction, the Court does not specify tinder any of the two Sections that the sentences will run concurrently, those are surely to run consecutively. In applicant's case the trial Court did not consider it a fit case where the sentences should be ordered to run concurrently. It cannot be said that the trial Court were not mindful of that aspect. Not recording any order making the sentences concurrent would mean that the trial Court did not intend to order the sentences to run concurrently in view of the nature of the cases against the applicant. Even the High Court in the appeal filed against conviction and sentence in two cases of kidnapping for ransom (one registered as Crime No, 86 of 1990 P.S. Aziz Bhatti and the other registered as Crime No, 24 of 1992 P.S. Landhi) only reduced the sentence of death in one case to imprisonment for life which mean that even the Appellate Court did not consider it a fit case for directing the sentences to run concurrently."
In the case of Mst. Dalian Bibi v. Superintendent, District Jail and another (1988 P.Cr.LJ 1976), a habeas corpus petition was dismissed holding: "....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.
In yet another case reported as Muhammad Yaqub Tahir v. Superintendent, District Jail, Gujranwala and another (PLD 1979 Lahore 46), application under Section 561-A, Cr.P.0 was dismissed holding as under: "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."
12. The instant case is also on a par with that of Muhammad Yaqoob Tahir (supra), inasmuch as, in this case also, as observed above, the petitioner did not challenge his conviction and sentence through appeal or revision befofe this Court. So, under Section 561-A, Cr,P.C, this Court cannot grant the relief prayed for. In this case I am placing further reliance on Para No, 10 of the case of Sikandar Ali alias Sikoo Shaikh (supra), in which it was held as under: "10, Even otherwise after dismissal of the appeal in above mentioned two cases with modification of sentences in one judgment, the judgments have attended finality under Section 369, Cr.P.C, fresh direction for concurrent running of the sentences in exercise of powers under Section 561-A, Cr.P.C, would amount to alteration and review or modification of the appellate judgment of High Court which is not permissible. In the case of Muhammad Khan (supra), the Full Bench of Lahore High Court held that any fresh direction for concurrent running of sentences would amount to alteration and review of the judgment not permissible under Section 369, Cr.P.G."
In a similar set of circumstances of the case, an application under Section 561-A, Cr.P.0 was dismissed in a case of Mian Gulzar Muhammad v. Crown (PLD 1950 Lahore 497).
13. I have further seen that in all the cases the petitioner was tried on the basis of distinct and separate offences and the facts of all the cases were not inter-related. On the subject of exercise of powers under Section 561-A, Cr.P.0 in similar set of circumstances, it was held in a case of Mahabir beldar v. The State (AIR 1965 Patna 178): "As Section 397 (1) itself shows, the ordinary rule is that, when a person is undergoing a sentence of imprisonment and is subsequently sentenced to another term of imprisonment, such imprisonment would commence at the expiration of the sentence of imprisonment which was imposed upon him in the previous case. It is for the Court dealing with the subsequent case, if it feels called upon to do so, to pass an order that the sentences should run concurrently with the previous sentence. No such order was passed by Amant Singh, J. when he summarily dismissed any of the appeals, nor was any such order passed by Sessions trying the last of the four cases. No illegal order has at all been passed. All that has happened is that tried law is taking its course. The High Court does not use its power under S. 561- A as matter of routine. The inherent power is an extraordinary power which ought to be exercised very rarely and only when the Court feels that the ends of justice require it. With great respect, therefore, I feel that the decision of the Division Bench based as it is upon the second ground, also, does not require any reconsideration."
14. Insofar as the. case-law cited by the learned counsel for the petitioner is concerned, in view of the contrary view of the Full Bench of this Court, no reliance can be placed on the said judgments.
Even otherwise, the facts of this case are quite distinguishable from those of the cases cited by the learned counsel for the petitioner.
15. In view of what has been stated above, at the cost of repetition, I may observe that the petitioner is a hardened criminal, who committed offence of robbery and allied offences repeatedly. So, I do not see why should I order the sentences passed upon him in different cases to run concurrently.
16. For what has been stated above, this petition, has been found merit-less, therefore, dismissed.