ASJAD JAVAID GHURAL, J.---Through this constitutional petition under Article 199 of the Constitution of Islamic Republic of Pakistan 1973, petitioner Akhtar Maqsood has sought the benefit of concurrent running of his sentences in case FIR No.83 dated 02.07.1995, in respect of offences under sections 302, 324, 148 and 149, P.P.C., registered at Police Station Chung, Lahore and in a subsequently registered case FIR No.136 dated 31.05.1997, in respect of an offence under section 302, P.P.C., registered at Police Station Chung, Lahore.
2. The petitioner was arrested in the earlier registered case on 23.07.1995 and was released on bail on 08.07.1996. He absconded himself and was declared proclaimed offender on 25.09.1999. During the period of his absconsion, another case FIR No.136 dated 31.05.1997 was registered against him wherein he was arrested on 28.10.2000 but his arrest was not shown in the earlier registered case. He was again granted post arrest bail and was released from jail in both the aforementioned cases on 24.06.2009 but he once again concealed himself and was declared proclaimed offender on 30.11.2009. He was arrested in both the cases on 28.08.2010 and ultimately, after completion of trial in both the cases, he was convicted and sentenced to the imprisonment for life in the subsequently registered case vide judgment dated 27.04.2011 and in appeal before this Court, he was acquitted of the charge vide judgment dated 26.03.2019 whereas in the earlier case, he was convicted and sentenced to capital punishment vide judgment dated 18.10.2011. The capital sentence was converted into imprisonment for life by a Division Bench of this Court vide judgment dated 24.04.2018. The vires of said judgment of this Court have been called in question by the petitioner before Apex Court by filing Cr.
P.L.A. No.837-L of 2018, which is pending adjudication. The period of detention as an under-trial prisoner from 28.10.2000 to 24.06.2009 (not shown in the earlier registered case) is not being reckoned by the jail authorities as 'period undergone' in order to extend him the benefit of section 382-B, Cr.P.C. in case FIR No.83 dated 02.07.1995 (the earlier registered case) as directed by a Division Bench of this Court vide judgment dated 24.04.2018.
3. Learned counsel for the petitioner submits that the petitioner remained in jail for a continuous period of nine years and he faced the trial as under trial prisoner in both the cases simultaneously, which stood concluded one-by-one with the span of six months; that, at present, the petitioner has served out more than the period of imprisomnent for life but the jail authorities are reluctant to include the period of nine years extending him the benefit of section 382-B, Cr.P.C. for the reason that at the time of his arrest in the subsequently registered case, the same was not shown by the investigating officer in the earlier one; that section 397, Cr.P.C. confers wide discretion upon the Court to direct that the sentences in two different trials would run concurrently.
4. Learned Law Officer has gracefully conceded that the petitioner is legally entitled to the relief sought for.
5. I have heard learned counsel for the petitioner as well as learned Law Officer and perused the record with their able assistance.
6. The petitioner was arrested in the earlier registered case FIR No.83/1995 wherein he was granted post arrest bail on 08.07.1996 and during the pendency of the trial, he was declared proclaimed offender on 25.09.1999.
Another criminal case FIR No.136/.1997 stood registered against him at the same Police Station wherein he was captured on 28.10.2000 and sent into the judicial lockup without showing his arrest in the earlier case in which he had already been declared proclaimed offender. He faced the trial in both the cases as an under-trial prisoner till year, 2009 and after conclusion of trial in the earlier registered case, he was convicted and sentenced by the learned trial court to the capital punishment vide judgment dated 18.10.2011, which was converted into the imprisonment for life by a Division Bench of this Court vide judgment dated 24.04.2018. Cr.
P.L.A. No.873-L/2018 filed by the petitioner before apex Court against said judgment dated 24.04.2018 is still pending adjudication. In the subsequently registered case, the petitioner was convicted and sentenced to the imprisonment for life by the same Court but, in appeal, he was acquitted of the charge by this Court vide judgment dated 26-3-2019. The only hurdle in the way of releasing the petitioner from jail is that the jail authorities are reluctant in counting the period from 28.10.2000 to 24.06.2009 for the purpose of benefit of section 382-B, Cr.P.C. because his arrest on 28.10.2000 was not entered in the earlier registered case by the police officer wherein he is presently undergoing the sentence of imprisonment for life although he had faced the trial on summoning from jail by the trial court. The petitioner had faced the, agony of trial for about nine years in both the cases being under-trial prisoner and also the proceedings of appeal before this Court for further more than ten years. He has been tried and convicted by the same learned trial Court in two different cases and different trials, arising out of two different FIRs registered at the same police station. Under the mischief of section 397, Cr.P.C., wide discretion lies with the Court to direct two different sentences in two different trials to run concurrently. The question before this Court is that whether the period in which an accused is in the judicial lockup in one case and the trial is/was in progress in the other case in which he had been granted bail but not released from jail due to the pendency of the other cases, shall be reckoned in order to extend him the benefit of section 382-B, Cr.P.C. It has been held in case titled "Sajjad Ikram and others v.
Sikandar Hayat and others" (2016 SCMR 467) that:- "The provisions of section 397, Cr.P.C. confers wide discretion on the Court to extend such benefit to the accused in a case of peculiar nature, like the present one. Thus, extending the beneficial provision in favour of the appellant, would clearly meet the end of justice. We, therefore, observe that there is nothing wrong in treating the sentences of imprisonment for life of the convict/appellants on three counts to run concurrently, in view of facts and circumstances discussed above."
In case titled "Khadim Hussain v. Province of Punjab and others" (2014 SCMR 669), it has been held as under:- "The offence committed by the petitioner in respect of murder, wrongful confinement and abduction were parts of same transaction and, thus, ordinarily the sentences passed for such offences ought to have been ordered to run concurrently to each other.----"
In the case of Rahib Ali v. The State (2018 SCMR 418), in a similar proposition as in hands, it was held that:- "In the light of discussion made above, there remains no doubt that the High Court and so also this Court have jurisdiction under section 561-A, Cr.P.C. read with section 35 and/or section 397, Cr.P.C., as the case may be, to order such multiple sentences in same transaction/trial or in a separate and subsequent trial to run concurrently."
In the instant case, both the aforesaid cases were registered against the appellant at one Police Station with the span of about two years but he was tried simultaneously in both the cases before the same court and ultimately, he was convicted and sentenced one-by-one vide judgments dated 27.04.2011 and 18.10.2011 in earlier and subsequent case respectively. At present, the petitioner is facing hardships due to the mistake of the police officer, who had arrested him in the subsequently registered case but did not enter his arrest on the judicial remand paper of his earlier registered case in which he was a declared proclaimed offender and, thus, I persuade to hold that the jail authorities have no legal justification in excluding the period under gone by the petitioner as an under-trial prisoner in both the cases simultaneously mere on account of a mistake of the police officer. In the peculiar facts and circumstances of the case, it is observed that the petitioner shall be entitled to the benefit of section 382-B, Cr.P.C.
7. This petition is, therefore allowed with the direction that the petitioner's period of detention in the subsequently registered case, wherein he has already been acquitted, shall be reckoned in the earlier registered case wherein he is presently undergoing the sentence of imprisonment for life for the purpose of extending him the benefit of section 382-B, Cr.P.C.