1. ' YAHYA AFRIDI, J.---Ali Fouzan son of Abid Hussain, has filed the present petition through Superintendent, District Jail, Mansehra, seeking therein that the sentences awarded to him by criminal Courts at Abbottabad in four criminal cases, detail whereof is mentioned below, be ordered to run concurrently instead of consecutively. The particulars of the four cases are as follows; S. No. Particulars of caseDate of DecisionName of CourtSentence Enhanced in revision 1 F.I.R. No.406 dated 18-6- 2009 under section 489-F of Pakistan Penal Code, 1860 ("P.P.C.")
2. PS Mirpur, ("F.I.R." No.406") lodged by Muhammad Shafiq.30-9-2010 ASJ-III, AbbottabadTwo years' R.I. and a fine of Rs.20,000 or in default thereof to further suffer ten days' SI.
3. Benefit of section 382-B of Criminal Procedure Code, 1898 ("Cr.P.C") was extended.
4. 2 F.I.R. No.353 dated 12-5- 2009 under section 489-F, P.P.C. PS Mir Pur. ("F.I.R.
5. No.353") Sardar Muhammad Sadiq30-9-2010 ASJ-III, AbbottabadTwo years' R.I. and a fine of Rs.20,000 or in default thereof to further suffer ten days SI.
6. Benefit of section 382-B, Cr.P.C. was extended.
7. 3 F.I.R. No.407 dated 18-6- 2009 under section 489-F, P.P.C. PS Mir Pur ("F.I.R. No.407") lodged by Sardar Muhammad Sadiq30-9-2010 ASJ-III, AbbottabadTwo years' R.I. and a fine of Rs.20,000 or in default thereof to further suffer ten days' SI.
8. Benefit of section 382-B, Cr.P.C. was extended.
9. S. No. Particulars of caseDate of DecisionName of CourtSentence Awarded 4 F.I.R. No.978 dated 24-11- 2009 under sections 489- F/420/ 467/468/471, P.P.C., PS Mir Pur. ("F.I.R.
10. No.978") lodged by Raja Izzat Ali.2-11-2010 ASJ-IV, AbbottabadOne year's R.I. and a fine of Rs.100,000 or in default thereof to further suffer six months' SI under section 489-F, P.P.C. and Two years'
11. R.I. and a fine of Rs.50,000 oring default there of to further undergosix months' SI under section 420, P.P.C. Both the sentences shallrun concurrently.
12. Benefit of section 382-B, Cr.P.C. was extended.
2. The aforementioned information relating to the four cases reveals the following admitted facts; I. All four cases include the common offence of dishonestly issuing of cheque (section 489-F, P.P.C.); II. The first three cases though relate to two different transactions of dishonestly issuance of cheques yet have been reported by two complainants but finally decided by the same revisional Court on the same day, though through different judgments.
13. ' In view of the above-admitted facts, it would be safe to categorize the four cases into two categories; Category 'A' would include the three cases, which arise out of F.I.R. No,406, F.I.R. No,353 and F.I.R.
14. No,407, all decided on 30-9-2010 by Additional Sessions Judge-III, Abbottabad, and Category 'B' include the case emanating from F.I.R. No,978 decided on 2-11-2010 by Additional Sessions Judge- IV, Abbottabad.
3. The learned counsel for the petitioner vehemently argued that even if there are four different cases, which are tried and decided separately but if they relate to one common offence, the trial Judge in the subsequent cases ought to have given the accused-petitioner the benefit provided under section 397 of Cr.P.C.
15. ' The learned counsel for the private' respondent No,2, vehemently contended that this Court lacked the jurisdiction to entertain the present matter under section 561-A of Cr.P.C; that the law did not provide the said benefit to the convict-petitioner as the trial. Court did not deem it appropriate for the sentences to run concurrently with previous sentences.
16. ' The worthy State counsel contended that as far as cases in category 'A' were concerned, the conviction was maintained by the same revisional Court on the same day and hence he ought to have atleast rendered reasons why the benefit provided under section 397 of Cr.P.C. Was not given to the convict-petitioner; and that in view of the omission to render any reasons, sentences passed in convictions awarded in three cases in Category 'A' should. Run concurrently and not consecutively.
4. The valuable arguments of the learned counsel for the petitioner heard and the available record of the case thoroughly considered.
5. At the very outset, this Court has to first consider the preliminary objection raised by the learned counsel for the respondents, whether this Court has the jurisdiction under section 561-A of Cr.P.C.
17. To grant the relief so sought by the present petitioner in directing, that the sentences so awarded to the petitioner in the four cases are to run concurrently and not consecutively.
18. ' This issue has been a matter of discussion by our superior Courts, which was finally settled by the apex Court in case titled "Bashir v. State" (PLD 1991 SC 1145), where their lordships were of the considered view that:-- "Basically, they are matters ancillary to the question of punishment, but otherwise highly important. Where there is a failure on the part of the trial Court to determine these questions, difficulty would arise, because of section 369 of the Code. However, during appeal or revision before the High Court, the High Court could itself, examine these questions, subject to limitations, if any, provided by law and principles laid down by this Court, and determine these matters. Again, whereby inadvertence there is failure on the part of the High Court to determine these questions, I cannot see any reason why resort cannot be had to section 561-A of the Code to cure the failure, in order to secure the ends of justice." (Emphasis provided)
19. ' It would also be important to note that the Balochistan High Court and Sindh High Court have in Ghous Baksh's case (2012 PCr.LJ 1028) and Naik Muhammad's case (PLD 2007 Karachi 62), respectively, held otherwise. In fact, the said judgments have gone to the extent of stating that in case the trial Court has not exercised its said discretion, the same could not be corrected at the later stage.
20. ' However, in view of the clear enunciation of the apex Court in Bashir's Case (Supra) this Court is under the command of Constitution to follow the same. It was also brought to the attention of the Court that the Lahore High Court in Nadeem's Case (2010 PCr.LJ 1681) and Adil's Case (2011 PCr.LJ 1687) and even the Divisional Bench of Sindh High Court in Ali Akbar Shah's Case (PLD 2004 Karachi 589) have followed the rule laid down in Bashir's case by the Supreme Court of Pakistan.
21. In view of the above, it is abundantly clear that this Court, while exercising its inherent jurisdiction under section 561-A of Cr.P.C. May pass orders, in appropriate cases, for the sentences awarded to run concurrently and not consecutively.
6. Now, on reviewing the provisions of Cr.P.C., this Court finds that the issue relating to the sentence of a convicted person to run concurrently or consecutively has been dealt with under sections 35 and 397 of Cr.P.C., which reads as under:-- "35. Sentence in case of conviction of several offences at one trial.---(1) When a person is convicted at one trial of two or more offences, the Court may, subject to the provisions of section 71 of the Pakistan Penal Code sentence him, for such offences, to the several punishments prescribed therefore which such Court is competent to inflict; such punishments, when consisting of imprisonment to commence the one after the expiration of the other in such order as the Court may direct, unless the Court directs that such punishments shall run concurrently.
(2) Maximum term of Punishment. In the case of consecutive sentences, it shall not be necessary for the Court, by reasons only of the aggregate punishment for the several offences being in excess of the punishment which it is competent to inflict on Provided as follows:--
(a) in no case shall such person be sentenced to imprisonment for a longer period than 14 years;
(b) if the case is tried by a Magistrate the aggregate punishment shall not exceed twice the amount of punishment which he is, in the exercise of his ordinary jurisdiction, competent to inflict.
(3) For the purpose of appeal, the aggregate of consecutive sentences passed under this section in case of conviction of several offences at one trial shall be deemed to be a single sentence.
397. 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 life 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."
22. ' The bare reading of the aforementioned two sections reveals that the same envisage two different factual circumstances; Section 35 of Cr.P.C., relates and applies to an accused, who is tried for two or more offences in a single trial and is convicted ,and awarded different sentences for each offence. The general rule is that the sentences are to run consecutively. However, the law provides an exception to the above rule and vests the trial Court with the discretion to order the sentences to run concurrently.
23. ' On the other hand, section 397 of Cr.P.C envisages circumstances where a convict serving his sentence is convicted in another trial. Here again, the general rule is that on the subsequent conviction, the sentence so awarded to the convict is to run consecutively after the expiry of his earlier sentence. However the legislature has also provided an exception to the said rule by vesting the trial Court with discretion to order the sentence of the said subsequent conviction to run concurrently to that of the earlier sentence being served by the said convict.
24. ' The discretion so vested in the trial Court under sections 35 and 397 of Cr.P.C. To invoke the exception to the rule and for the sentence to run concurrently has to be exercised reasonably, fairly and judiciously on application of judicial mind and surely not mechanically.
7. Reviewing the judicial pronouncements of superior Courts of our jurisdiction, the determining factor or the criteria for deciding, whether the sentences are to run concurrently or consecutively, has been dilated upon in various judgments, which are as tinder: Ahmad Sultan's. Case (2007 SCMR 1424)
25. "Section 397 of the Cr. P. C. Provides that the sentences of imprisonment of a person convicted for offences in different cases are to run consecutively unless the Court passing the subsequent sentence orders that it shall run concurrently with the previous sentence. It is, therefore, left to the discretion of the trial Court to order the concurrent running of the sentence of imprisonment in separate cases. Unless such discretion is exercised in favour of the convict the sentences shall run consecutively Even otherwise, on merits too, keeping in view the gruesome murders of three persons for a petty object committed by the appellants, we do not feel inclined to exercise this discretion in their favour." (Emphasis provided)
26. ' Adil's Case (Supra)
27. "All the offences were committed in the course of realization of common object, which an accused person wanted to achieve at a particular point of time."
28. ' Naik Muhammad's Case (Supra)
29. "Commits series of different offences to achieve common objective at a particular point of time."
30. ' Ghous Bakhsh's Case (Supra)
31. "We are conscious of the fact that the trial Court as well as the appellate Court has ample discretion under section 397 of the Cr. P. C. To direct the subsequent and previous sentences of imprisonment to run concurrently, but in the absence of exercise of such discretion, the sentences shall run consecutively. In a case, where two or more offences not connected, taking place at different times and with different persons, this Court can neither in exercise of inherent power under section 561 of the Cr.P.C., nor in exercise of supervisory jurisdiction under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 direct or substitute an order for running subsequent sentence concurrently with previous sentence. Sentences in such cases cannot be justifiably ordered to run concurrently."
32. ' Altaf Hussain's Case (1987 PCr.LJ 2169)
33. "No order regarding commencement of sentence passed by the trial Court would allow the High Court."
34. ' Khan Bahadur's case decided by Division Bench of this Court on 1-2-2011 (W.P. No,2534 of 2010)
35. "In case of "Altaf Hussain v. The State" (1987 PCr.LJ 2169) same and similar concession was granted to an accused, who was convicted for different offences and even by different forums/Courts whereafter, this Court has rendered many judgments that such sentence shall run concurrently thus, the principles laid down in the cited case attract to the present one and the sentence of the petitioner on two counts i.e, 14 years' R.I shall run concurrent and not consecutively." (emphasis provided)
36. ' Abdul Qayyum's Case decided by Division Bench of this Court on 4-10-2012 (W.P. 2618-P of 2012)
37. "The grievance of the petitioner is that he was convicted and sentenced to life imprisonment under section 9(c), C.N. S. Act and at the same time he was also awarded sentence of five (5) years' R.I under section 13, A.O. But the learned trial Judge without taking care of section 397, Cr.P.C.
38. And without , giving any reason, refrained to direct that both the sentences shall run concurrently albeit, it is consistent practice of the Court because in so many cases this Court has taken the same view by directing that such sentences shall ordinarily run concurrently and not consecutively." (emphasis provided)
39. Thus, reviewing the criteria so set in the aforementioned judgments passed by the superior Courts, it is but obvious to note that the standard set by Peshawar High Court holds a lower threshold than that set in the judgments passed by the other High Courts.
40. ' In view of the judgments passed by the Division Bench of the Peshawar High Court, this Court should also follow the rule laid down therein.
8. Now, when we review the facts of the present petition, this Court finds that as far as the three cases decided by the revisional Court in Category 'A', the same were reported by the same set of complainants, namely Sardar Muhammad Sadiq and Muhammad Shafiq regarding matters arising from commercial transaction relating to timber and decided on the same date by the same revisional Court. Hence, the said revisional Court ought to have rendered a finding regarding the sentences awarded in three convictions to run consecutively or concurrently. This omission of the revisional Court, in such circumstances, would fall within the mischief of the criteria set by the Peshawar High Court in Altaf Hussain's Case (Supra), which was duly followed in Khan Bahadur's Case and Abdul Qayyum's Case. Thus, the sentences in the said three cases mentioned in Category 'A' passed by the same revisional Court on the same date should run concurrently.
9. Accordingly, for the reasons stated hereinabove, this Court holds that the petitioner Ali Fouzan, who is serving sentences in the convictions passed in case F.I.R. No,406, F.I.R. No,353 and F.I.R. No,407 are to run concurrently, as the same were decided by the same Court in revisionsal jurisdiction on 30-9-2010.
41. ' Office is directed to send a copy of this judgment immediately to the Superintendent Jail, Mansehra, who is directed to do the needful at his end, in accordance with law.