' SHAHAB SARKI, J.--The pertinent facts of this application are that the applicants vide judgment dated 30-07-2001 were awarded death penalty on 04 counts, R.I, for 07 years for an offence under Section 353, P.P.C., R.I. For 10 years for an offence under Section 324 Qisas and Diyat Ordinance and R.I. For 07 years for offence under Section 13(d) of the Arms Ordinance. They were also given benefit of Section 382-B, Cr.P.C.
2. Thereafter the applicants entered into a compromise with the legal hears of the deceased and upon their application their sentence of death on 04 counts was reduced to R.I. For 14 years.
Subsequent to this, the applicants moved an application before the trial Court wherein, they prayed that the sentences awarded to them in the above offences should run concurrently. The said application of the applicants was heard in detail and thereafter impugned order dated 27-08- 2013 was passed.
3. The learned trial Judge after going through the case law, opined that though the Court has discretion to pass orders for concurrent running of the sentences but, as per his opinion, since his predecessor had not exercised his discretion while passing the judgment, therefore only High Court had the jurisdiction to dilate upon the matter and not the trial Court.
4. ' The learned counsel for the applicants has argued that it is a settled principle of law that the sentences awarded in more than one trial, but of the same incident, should run concurrently, and in such circumitances orders of concurrent nature are a rule and ordering the sentences to run consecutively is an exception. He has also pointed Section 397, Cr.P.C, which according to him gives the Court ample powers to order that the sentences should run concurrently.
5. The learned 'APG appearing for the State on the other hand, has argued that the impugned order is legal and valid as it is the discretion of the trial Court and there are 04 FIRs against the present applicants in which, conviction has been made. He however, has frankly stated that all these 04 FIRs pertain to the same incident and in such cases the Court has jurisdiction to order the concurrent running of the sentences.
6. We have heard the arguments of the learned counsel and perused the record.
7. It will be proper to examine the relevant provisions of Cr.P.C. Which, in the instant case, are Sections 35 and 397 of the Cr.P.C. Section 35, Cr.P.C. States that in case of conviction of several offences at a trial the Court is competent to direct that such punishments shall run concurrently, but if it is not specifically mentioned then the punishment shall run consecutively. However, the proviso to section 35, Cr.P.C. States that the maximum cumulative term of punishment shall not be for a longer period than 14 years. This implies that even if consecutive punishments are awarded their aggregate shall not be in excess of 14 years, thus there is a bar on ordering imprisonment for a term of more than fourteen years for two or more offences at one trial.
8. Coming to Section 397, Cr.P.C. It provides another situation and it caters to the provision that even in case of more than one conviction in different cases, appropriate orders under certain situations, can be passed to order that the sentences shall run concurrently. Section 397, Cr.P.C.
Reads as under:- "397. Sentence on offender already sentenced for another offence. When a person, already undergoing a sentence of imprisonment or imprisonment for life, if sentenced 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 that...........................
9. To thrash out the same we have made some research on our own and have been able to lay our hands on the following case laws:-
(i) PLD 2004 Karachi 589 (Ali Akbar Shah v. The State).
(ii) 2007 YLR 700 (Abdul Ghafoor v. The State).
(iii) 2002 MLD 1079 (Shamshad Hussain alias Shamla v. The State)
(iv) 2010 MLD 1913 (Ather Hussan v. The State):
(v) PLD 2007 Kar. 62 (Nek Mohammad and another v The State).
10. In the case of Ali Akber (supra) it has been held as follows:- "the order within the meaning of section 397, Cr.P.C. Is required to be passed at the time of deciding the case or deciding the appeal and if for any reason or due to some inadvertent omission the same is not passed then the same can be passed by the High Court afterwards by exercising the powers under section 561-A, Cr.P.C. We are also of the view that it will not be reviewing or modifying the judgment but the judgment will be intact concerning the conviction and sentence as the matter of sentence to run concurrently is ancillary to the question of punishment. Only the mode of execution of sentence is to be clarified because the section 397, is available in Chapter XXVII, Cr.P.C.
Which deals with execution".
' In another case of Abdul Ghafoor (supra) it was held that if the trial Court had not ordered for concurrent running of the sentences even then, in the interest of justice, the High Court can pass appropriate orders for concurrent running of the sentences. The same view has also been taken in the case of Shamshad Hussain alias Shamla (supra).
11. In the case of Ather Hussain (supra) a single bench of this Court had held that the applicant was entitled for relief of concurrent sentence as his subsequent trial was in respect of the same crime but of a different offence. It was also held that the High Court has powers under section 561-A, Cr.P.C. To pass such orders.
12. In the case of Nek Muhammad (supra), the following observation was made:- "The discretion of the court to direct running of subsequent sentence concurrently, with earlier sentence is exercised not in a mechanically manner and is not applied as a rule but only as an exception and only when the court finds that all offences were committed in the course of realization of a common objective which a person wants to achieve at a particular point in time".
13. Coming back to the facts of the instant case we have observed that the 04 cases of the applicants tried by the Special Court of Anti-Terrorism Sukkur and Larkana Division at Sukkur bearing Nos. 27, 28, 29 and 30 of 1999 pertained to one and the same incident and even the earlier judgment of the trial Court was a common judgment. There was only one incident but different offences were involved and therefore 04 different FIFs were lodged at the same Police Station and even the Investigating Officer is the same. In such type of cases, in view of the ratio of the (supra) cases, it would be fit and proper that the discretion be exercised in favour of the applicants for concurrent running of the sentences.
14. In view of what has been discussed above, this criminal miscellaneous application is allowed and the sentences awarded to the applicants in Special Case Nos. 27, 28, 29 and 30 of 1999 arising out of Crime Nos.73/1999, 74/1999, 75/1999 and 76/1999 of Police Station, Ahmedpur, District Khairpur are ordered to run concurrently.
' Criminal Miscellaneous Application stands disposed of in the above terms.