ALI BAQAR NAJAFI, J. -- Through this Constitutional petition, a direction is sought to be issued to the respondents to grant remissions and count the sentences to run concurrently awarded to the petitioner on different dates in different offences relating to different occurrences by the Court of Additional Sessions Judge, Taunsa Sharif, District Dera Ghazi Khan as well as Additional Sessions Judge, Jhelum on the ground that the facts and circumstances and the nature of offence were not such which would not entitle him for the requisite relief, which is opposed by the State.
2. Briefly, the petitioner was tried in case F.I.R. No, 229/2009, convicted under Section 392, PPC and sentenced in three years' R.I. with fine of Rs,10,000/- and in default of payment thereof to undergo one month's S.I. He was also convicted under Section 205, PPC and sentence to one year's R.I. He was further convicted under Section 419, PPC and sentenced to three years' R.I. with fine of Rs, 10,000/- and in default of payment thereof to under go one month's S.I. together with the benefit of Section 382-B, Cr.P.C. vide judgment dated 5.3.2011 handed down by Judicial Magistrate Section 30, Jhelum, though the said sentence under Section 392, PPC was enhanced to seven years' R.I. while maintaining the remaining sentence vide judgment dated 4.10.2011 passed by the Revisional Court.
However, on 7.6.2012, the petitioner was also convicted in case F.I.R. No, 98/2009 for an offence under Section 397, PPC and sentenced to seven years' R.-I. with fine of Rs, 2,00,000/- and in default of payment thereof to undergo one year's S.I. alongwith the benefit of Section 382-B, Cr.P.C. was extended to him by the Judicial Magistrate, Taunsa Sharif, District Dera Ghazi Khan. Meanwhile, the petitioner was also convicted in case F.I.R. No, 68/2010 under Section 13 of the Arms Ordinance, 1965 by the Court of Judicial Magistrate, Taunsa Sharif, District Dera Ghazi Khan and sentenced to seven years' R.I. with the benefit of Section 382-B, Cr.P.C. on 22.1.2013 by Judicial Magistrate, Taunsa Sharif, District Dera Ghazi Khan, which sentences were ordered to run concurrently with the sentence passed on 7.6.2012 vide order dated 22.1.2013 passed by Judicial Magistrate Section 30, Taunsa Sharif, District Dera Ghazi Khan. Interestingly, the report submitted by the jail authorities reveals that they are treating the said three sentences to run consecutively and not concurrently.
3. The question whether the sentences awarded by different Courts in different offences related to different occurrences can run concurrently is addressed and answered by the apex Court in the case of Ali Khan Kakar and two others v. Hammed Abbasi (2012 SCM R 334), wherein it has been held that the provisions of Section 397 .C.r.P.C. pertained to a situation (as in the present case) when an offender is tried, convicted and sentenced in other criminal transactions, the commencement of the subsequent sentence takes its effect at the expiry of the earlier imprisonment, has been made discretionary with the Court and in the light of facts and circumstances of each case, depending on the gravity of the offence. It is observed that there was no opportunity for the Court of Judicial Magistrate Section 30, Taunsa Sharif, District Dera Ghazi Khan to have taken into account this aspect while awarding the sentence on 7.6.2012, the petitioner was already sentenced by the Judicial Magistrate, Jhelum on 5.3.2011 in order to decide the question of running the three sentences concurrently or consecutively, therefore, the same can be discussed. I am fortified by the judgment of Division Bench of Peshawar High Court reported as Muhammad Ismail v. Superintendent, Central Prison Peshawar and three others (2011 P.Cr.L.J.1340) 4.Now coming to the pertinent question as to whether the circumstances and gravity of the offence was such that this discretion cannot be exercised in favour of the petitioner, the State has relied upon a judgment of Division Bench of Karachi High Court reported as Abdul Razzaq v. The State (2005 P.Cr.L.J. 237), wherein such benefit was not extended in the cases of 381-A, PPC on the theft of motor-cycles, which was considered to be an alarming menace for middle class. In another judgment of Quetta High Court relied upon by the State reported as Ghous Bukhsh and others v. The State (2012 P.Cr.L.J. 1028), as the sentences under Sections 387/394/511/337- F(iv), PPC were awarded to the minimum, then-the same were not allowed to run concurrently.
5. Coming to the present case, the sentence of seven years' R.I. under Section 392, PPC awarded by the Court of Additional Sessions Judge, Jhelum on 4.10.2011 on the basis of confessional statement as well as the sentence of seven years' R.I. under Section 397, PPC awarded by the Judicial Magistrate Section 30, Taunsa Sharif, District Dera Ghazi Khan on 7.6.2012 are seven years' R.I. under Section 13 of the Arms Ordinance, 1965 are little harsh passed in the offences, which are not graver enough in their nature to persuade this Court to withhold its discretionary powers to order regarding the said three sentences to run concurrently.
6. In this view of the matter, this petition is allowed and it is directed that there sentences passed against the petitioner shall run concurrently and not consecutively and if whenever the petitioner has completed the sentences so declared, he shall be released from the jail forthwith.