ABDUL SHAKURUL SALAM, J.--Relevant facts for the disposal of this application from Jail by Fazal Haq; are that in M. R. No. 105/1976 and Criminal Appeal No. 1050/1975, his conviction under section 302, P. P. C. For the murder of Mansabdar was maintained but sentence of death substituted by life imprisonment. His conviction under section 307, P. P. C. For the attempted murder of Maula Bakhsh was maintained and so also sentence of 7 years' R. I. In this behalf vide order dated 6-11-1977. The prisoner prays that the two sentences of imprisonment for life and seven years be ordered to run concurrently and the period during which the prisoner has remaned in custody for the offences be taken into account in computing the period of punishment in accordance with the amendment introduced in section 382-B, Cr.P.C.
2. A notice was issued to the State. Mr. Irshad Ahmad Khan, Advocate has appeared. Learned counsel has taken pains to point out that this Court has jurisdiction under section 561-A, Cr. P. C. To direct that the two sentences of life imprisonment under 302, P. P. C. And seven years' R. I. Under section 307, P. P. C. Can be ordered to run concurrently. He has referr--ed to Baijnath Kurmi and another v. The State AIR 1981 Pat.
138. He has also submitted that the prisoner was entitled to the benefit of section 382-B, Cr. P. C.
3. Section 35 of the Cr. P. C. Provides that "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 therefor which such Court is competent to inflict ; such punishments when consisting of imprisonment to commence one after the expiration of the other in such order as the Court may direct unless the Court directs that such punishment shall run concurrently." In other words, the punishments of imprisonment were to commence one after the other in such order as the Court were to direct, or, the Court could direct that both shall run concurrently. Unfortunately, neither the order of com--mencement of the two sentences was passed nor was it directed that both shall run concurrently. The omission was inadvertent, otherwise, in accordance with normal practice, in the circumstances of the case, both sentences would have been directed to run concurrently. The question now arises as to whether this Court has the jurisdiction to so direct in view of the provisions of section 369, Cr. P. C. Which lays down that "Save as otherwise provided by this Code or any other law for the time being in force or in the case of High Court-by the Letters Patent of such High Court,. No Court, when it has signed its judgment, shall alter or review the same except to correct a clerical error". There are two points to be taken note of ; firstly, that there is clerical error in so far as that for commencement of one sentence or the other, the order in which those were to run, the Court omitted to direct as required by the first alternative given in section 35, Cr. P. C. The omission can be taken advantage of by the petitioner and he can say that the sentence of imprisonment for life shall commence first, which it usually does, and since this is imprisonment for life though it may come to an end under the rules before the expiry of life, yet he having undergone life imprisonment, after life he cannot be made to suffer the 7 years R. I. Secondly, it would appear that the prisoner cannot be made to suffer for the omission of the Court to issue clear direction in terms of section 35, Cr. P. C. Or to take into consideration the period during which he had remained in custody as required by section 382-B, Cr. P. C. It is elementary law that for acts of Courts nobody is to suffer. High Court's inherent power to secure ends of justice, is expressly recognized by section 561-A, Cr. P. C. In the case referred to by the learned counsel for the State, a person was convicted in two different trials. His sentences were ordered, after the judgments had become final, to run concurrently in exercise of power under section 561-A; Cr. P. C. In Mathra Das v. The Crown AIR 1927 Lah. 139,the conviction was altered but sentence maintained by the High Court in revision. Subsequently, an application under section 561- A, Cr. P. C. Was presented. Declining to reopen the question of the applicants' guilt, notice was issued to re-examine the question of sentence. When it was urged that section 369, Cr. P. C. Was a bar and that section 561-A, Cr. P. C. Could not override the specific provision of section 369, Cr. P. C., it was held w, that "the object of enacting section 561-A was to enable this Court, when the ends of justice required, to make such orders as might be necessary and that it is in no way limited or governed by section 369". As I read these two sections "this Court has power to reconsider the question of sentence when the ends of justice requires it". The application was accepted and sentence reduced in the circumstances. Besides that section 561-A, Cr. P. C. Expressly provides that "Nothing in this Code shall be deemed to limit or affect the inherent jurisdiction of this. Court," in the case in hand, there is, in fact, no question of altering the judgment of this Court either. What has to be seen is as to how the prisoner is to undergo the two sentences of life imprisonment and 7 years R. I. In a case Sivaj Ram v. The State (1) the facts were that a person was sentenced to death under section 302 and to 10 years and 9 months under sections 307 and 309 respectively. The sentences were confirmed by the High Court and maintained by the Bikaner State Council. His Highness the Maharaja of Bikaner commuted the death sentence into a sentence of imprisonment for life and directed that it shall be deemed to be imprisonment for 20 years only. The prisoner filed an application under section 491, Cr. P. C., probably after he had suffered the life imprison--ment. A learned Division Bench observed that "it is also significant that when a person is sentenced to imprisonment for life, it cannot be conceived that he shall be made to undergo sentences of various terms of imprisonment that may have been passed at the same trial under other sections after serving the term of life imprisonment. After the life of convict is finished there cannot remain any opportunity for enforcing other terms of imprisonment against him. In this view of the matter we think that the imprisonment under sections 307 and 309 Bikaner Penal Code passed against the petitioner could not be conceived to have been enforced after the expiry of the life imprisonment passed against him. The only answer therefore, which can be given to the question, is that the two terms of imprisonment under sections 307 and 309 shall have to be enforced concurrently with the life imprisonment." We fully agree with the logical, humane and eminently just reasoning and the conclusion. Therefore, we direct the Jail authorities to so enforce the two sentences of life imprisonment and 7 years R. 1. i. e. both shall run concurrently. The prisoner is entitled to the benefit of the amendment in the law by section 382-B, Cr. P. C. The period during which he was detained in custody for the offences shall be computed towards the sentences he is to undergo. Omission to give effect to the statutory requirement can, always be remedied in exercise of powers under section 561-A, Cr. P. C., for the reasons given above that nobody is to suffer for the acts of the Court and that "Nothing in this Code shall be deemed to limit or affect the inherent power of the High Court-" In the case of Sri Ram and another v. Emperor (2) where after dismissal of a' revision petition by the High Court, it was brought to its notice under section 561-A, Cr. P. C. That a mandatory provision in an amending Ordinance had been. Overlooked, the learned Division Bench of the said High Court observed in para. 7 as follows :-
(1) AIR 1963 Raj 202(2) AIR 1948 All. 106 "The next question for consideration is whether we can interfere at this stage under section 561-A, Criminal P. C. The learned Government Advocate has drawn our attention to section 369 of the Code and has urged that this Court having disposed of the revision in the manner indicated by us above, it has now no power of review, nor can it in any way alter its judgment except to correct a clerical error. We are not prepared to accept his submission. Section 369 begins with the words `Save as otherwise provided by this Code; and we consider that under section 561-A, where this Court is satisfied that it is necessary, to secure the ends of justice, that it should interfere under its inherent powers, it ought to do so. We do not want to encourage successive revisions. Where a revision has been decided, we are not of the opinion that a second revision would lie or that a party has a right to have the matter reheard or reargued, but where, as in this case, a mandatory provision of law has been overlooked, we think this Court has power to correct an obvious error."
In the result their Lordships reduced the sentence of imprisonment of the prisoner. Moreover, the present application does not, by any means, involve alteration in the judgment but requires a direction to enforce it in accordance with law.
4. In view of what has been stated above; the Jail authorities are directed to execute the two sentences of life imprisonment and 7 years R. 1.,4 under sections 302 and 307, P. P. C., concurrently and to give benefit of section 382-B, Cr. P. C. By counting the period of detention towards the sentence of life imprisonment. The prisoner be informed of this order.