IJAZ AHMED, J.---The petitioner was tried, convicted and sentenced in case F.I.R. No,14, dated 6-6- 2008 registered under sections 409, 420, 468, 471 and 109, P.P.C. read with section 5 of The Prevention of Corruption Act, No,II, 1947 at Police Station ACE, Rawalpindi vide judgment dated 21-7- 2010 passed by the learned Special Judge Anti-Corruption, Rawalpindi as follows:- "In view of the voluntary confession made by accused Khalid Mahmood, he is convicted under sections 409, 420, 468, 471, P.P.C. read with section 5(2) 47 PCA and is sentenced to undergo five years' R.I. under section 409, P.P.C. and fine of Rs, two lac, the accused is also sentenced under sections 420, 468, 471, P.P.C. r/w sections 5(2) 47 PCA to undergo three years' R.I on each count and he is also sentenced to a fine of Rs,one lac on each count. In default of payment of the fine, he shall also undergo further R.I of six months. Lesser sentences have been awarded to the accused on account of the fact that there is no previous record available on the file showing that he is a previous convict or that he has been challaned in any other case of such like nature. The vehicle misappropriated in this case has already been recovered. He is granted the benefit of section 382- B, Cr.P.C. All the sentences awarded to the accused shall run CONCURRENTLY".
2. The learned counsel for the petitioner contends that the petitioner has undergone the substantial sentence that is the maximum imprisonment of five years awarded to him as calculated on the basis of remissions earned by him. He has not paid the fine. He contends that the imprisonment in default of payment of fine under all the offences shall run concurrently. If so calculated, the petitioner is entitled to be released. If not allowed to run concurrently, it will come to 30 months which is more than 1/4th of the maximum term of imprisonment that is five years awarded by the court under section 409, P.P.C. He refers to sections 64 and 65 of P.P.C. and places reliance on 2008 SCM R 111 titled Ahmad Daud-ul-Hassaini v. The State and 2005 PCr.LJ 627 titled Mian Khan v.
Government of the. Punjab through Secretary Home Department, Civil Secretariat, Lahore and others.
3. On the other hand, the learned Assistant Advocate-General contends that the language, of sections 64 and 65 of P.P.C. postulates that a court can award the sentence by way of imposition of fine in excess to any other, sentence by way of imprisonment and the period of imprisonment in default of payment of fine shall not exceed 1/4th of the term of imprisonment which is maximum, fixed by law for the offence. He makes reference to 1991 PCr.LJ 255 titled Syed Hidayat Shah v.
Shabbir Shah alias Shabbir Hussain Shah and another. He argues that the imprisonment on account of default in payment of fine shall not exceed 1/4th of the term of maximum imprisonment fixed by law for the offence which in case of section 409, P.P.C. is life imprisonment or imprisonment for 10 years and thus an imprisonment of 2-1/2 years could be awarded in case of default in payment of fine.
4. I have heard the learned counsel for the parties, and have also gone through the record.
5. The judgment 1991 PCr.LJ 255 cited by the learned Assistant Advocate-General very clearly and unequivocally lays down that sentence of imprisonment in default of payment of fine cannot be made to run concurrently, On the other hand, the judgment cited as 2008 SCM R 111 prohibits the running of such an imprisonment concurrently so as not to allow the maximum period of such imprisonment to exceed 1/4th of the term of imprisonment which is the maximum fixed for the offence. Since the calculation made in that case resulted in taking the total period of imprisonment in default 'of payment of fine beyond the limit of 1/4th of maximum punishment fixed by law, therefore, the court was of the opinion that the sentence awarded in default of payment of fine shall, according to the facts and circumstances of that particular case, run concurrently. In the instant case, the total imprisonment in default of payment of fine in all the offences is 30 months which does not exceed 1/4th of the term of maximum imprisonment fixed by law which in the instant case is imprisonment for life or imprisonment for 10 years. There is yet another aspect that requires a careful treatment. The sentence of fine is passed for each offence separately. Payment of fine as sentence' in one offence does not absolve a convict from payment of fine in other offences. The imprisonment on account of failure to pay the fine is an alternative sentence. As the original sentence of fine has to be paid separately and consecutively, the substitutive sentence of imprisonment cannot be allowed to run concurrently. I, therefore, in view of the provisions of sections 64 and 65 of P.P.C. and the judgments referred by both the parties, am of the opinion that the total added term of imprisonment in case of default in payment of fine does not exceed the limit provided under the above mentioned sections. It, therefore, cannot be allowed to run concurrently. This petition is hereby dismissed.