As a result of trial in case F.I.R. No. 316 dated 23.12.1996 under Articles 3/4 of the Prohibition (Enforcement of Hadd) Order 1979 rcad with Section 9(c) of the Control of Narcotic Substances Ordinance, (Ordinance No. XCIV) of 1996 registered at Police Station Tulamba, Distt. Khanewal for recovery of two kilograms charas Sardar Khan, petitioner was convicted under Section 9(c) of the Ordinance No. XCIV of 1996 by the learned Addl. Sessions Judge, Mian channu and sentenced to suffer four years' R.I. and a fine of Rs.4000/- in default of payment of which to further Undergo four months' S.I. vide judgment dated 1.12.2005. It so happened that during investigation of above said case F.I.R. No.316/1996 the petitioner also made disclosure and then got recovered 110 kilograms charas as a result of4which F.I.R. No. 317 dated 23.12.1996 under Section 9(c) of the Ordinance No.XCIV of 1996 was also chalked out against him and he was simultaneously tried in the said case also, which culminated into his conviction by the learned Addl Session s Judge, Mian channu who sentenced him to death with a fine of Rs.50,000/- or in default thereof to undergo imprisonment for one year vide judgment dated 1.12.2005.
2. The petitioner assailed his above convictions and sentences by way of filing two separate appeals i.e. Cr. Appeal No. 751 of 2005 against conviction in trial of case F.I.R. No. 316 of 1996 which was however , dismissed by this Court vide order 'dated 18.6.2009 having become infructuous by flux of time whereas in the other one i.e. Cr.
Appeal No. 752 of 2005 against his conviction in case F.I.R. No.317/1996, his conviction was maintained by dismissing the appeal on merits but sentence of death was converted to that of imprisonment for life by this Court vide judgment dated 18.6.2009 while extending benefit of Section 382-B, Cr .P.C.
3. Feeling dissatisfied with the judgment passed by this Court in case F.I.R. 317/1996 the petitioner approached the apex Court by way of filing Jail Petition No. 939 of 2009. However , the same could not find favour and leave to appeal was declined by the Hon'ble Supreme Court vide order dated 1.3 2010.
4. By filing this petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 the petitioner prays for order for concurrent running of both the sentences awarded to him in above said two cases.
5. Relying on the provisions of Section 397 read with Section 35 Cr.P.C. 1898 learned counsel for the petitioner has contended that mandate of law required that the Court while awarding sentences of imprisonment ought to have passed appropriate orders for concurrent running of the sentences but the same has not been done as a result of which the petitioner is bound to undergo a sentence of about 29 years which is not intent of the legislature and consequently prays that sentences of imprisonment in both the cases be directed to run concurrently .
6. Conversely , learned Law Officer has vehemently opposed the petition on the ground that under Section 397, Cr.P.C. relief sought by the petitioner could be granted only by the trial/appellate court at the time of passing judgments of conviction and this constitutional petition cannot be substituted for the said forums and further that the petitioner was convicted and sentenced in two different trials/appeals for the commission of two different offences and as such the sentences awarded to the petitioner should run consecutively .
7. We have given our anxious consideration to the arguments advanced by both sides and relevant law on the subject.
8. Though the sentences of imprisonment for life and imprisonment for four years were awarded on conviction in two different trials/appeals, yet they pertain to one and the same person i.e. the petitioner . Section 397, Cr.P.C. contemplates that sentences awarded to a person in a subsequent trial would commence at the expiration of imprisonment for which he had been previously sentenced, however , discretion has been left with the court to direct concurrent running of sentence awarded in a subsequent trial. It would be advantageous to reproduce relevant portion of said provision which runs as under: "397. Sentence on 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."
It is manifest from above quoted premision of law that command of law for consecutive sentence is general rule while direction for concurrent sentences is discretionary power of the court. Althou gh appropriate order within the meaning of Section 397, Cr.P.C. ought to be made at the time of deciding the case or appeal but if, for any reason or due to some inadvertent omission, direction could not be issued at that time there is no embargo that the same cannot be passed afterward. In the safe administration of criminal justice, the court can exercise discretionary power at any time to direct that sentences in two differed trials would run concurrently . While expounding this provision of lay's, in the case titled 'Sajjad lkram and others v. Sikandar Hayat and others (2016 SCMR 467) the Hon'ble Supreme Court held as under: "12. The aggregate of punishment of imprisonment for several offences at one trial were deemed to be a single sentence. However , the position of an accused person is different who while already undergoing a sentence of Imprisonment for life, is subsequently convicted and sentenced in another trial. Such subsequent sentence in view of section 397 Cr.P.C. would commence at the expiration of imprisonment for life for which he had been previously sentenced but even then in such cases, the said provision expressly enable s the Court to direct that the subsequent sentence would run concurrently with the previous sentence, It is clear from section 397,Cr .P.C. that the Court, while analyzing the facts and circumstances of every case, is competent to direct that sentences in two Afferent trials would run concurrently , In that eventuality , the Court has wide power to direct that sentences in one trial would run concurrently . The provision of section 397, Cr.P.C. confers wide discretion on the Court to extend such bone t to the accused in a case peculiar nature like the present one, Thus extending the beneficial provision in favour of the appellant would clearly meet the ends of Justice (emphasis supplied by us) In the present case the '.petitioner was convicted and sentenced simultaneously and even his appeals were decided at the same time, it appears that while converting sentence of death into imprisonment for life passing appropriate orders for concurrent running of sentences escaped notice of this Court as it was not brought to its notice, that the petitioner was also convict of case F,1,R,No, 316 of 1996. Thus, to our mind, it would be in the fitness of things that benefit of this provi sion should be extended in favour of the petitioner in order to meet the ends of Justice. Steering thought In this regard have been gathered from cases Juma Khan and another v. The State (1986 SCMR 1573 ), Javaid Shaikh v. The State (1985 SCMR 153) and Mst, Zubaida v. Palak Sher and others (2007 SCMR 548) So far as contention of learned Law Officer that the relief sought by the petitioner could be granted only by the trial/appellate Court at the time of passing Judgments of conviction and this constitutional petition cannot be substituted for the said forums and that the petitioner was convicted and sentenced in two different trials/appeals for the commission of two different offences and as such the sentences awarded to the petitioner should run consecutively , is concerned, observations of the Hon'ble Supreme Court in case Mst.
Shahista Bibi and another v. Superintendent, Central Jail, Mach and 2 others (PLD 2015 SC 15), may be referred which are to the following ef fect: "8, Besides the provisions of section 35, Cr.P.C. the provisions of section 397, Cr.P.C. altogether provide entirely a Afferent proposition widening the scope of discretion of the Court to direct that sentences of imprisonment or that of life imprisonment awarded at the same trial or at two different trials but successively , shall run concurrently . Once the Legislation has conferred the above discretion in the Court then in hardship cases, Courts are required to seriously take into consideration the same to the benefit of the accused so that to minimize and liquidate the hardship treatment, the accused person is to get and to liquidate the same as far as possible. In a situation like the present one, the Court of law cannot fold up its hands to deny the benefit of the said beneficial provision to an accused person because denial in such a case would amount to a ruthless treatm ent to him/her and he/she would certainly die while undergoing such long imprisonment in prison. Thus, the benef it conferred upon the appellant/ appellants through amnesty given by the Government, if the benefit of directing the sentences to run concurrently is denied to hint/them, would be brought at naught and ultimately the object of the same would be squarely defeated and that too, under the circumstances when the provision of S.397, Cr.P.C. confers wide discretion on the Court and unfettered one to extend such benefit to the accused in a case of peculiar nature like the present one. Thus construing the beneficial provision in favour of the accused would clearly meet the ends of justice and interpreting the same to the contrary would certainly defeat the same.
'9. It is also hard and fast principle relating to interpretation of criminal law, which curtails the liberty of a person that it should be construed very strictly and even if two equal interpretations are possible then the favorable to the accused and his liberty must be adopted and preferred upon the contrary one.'
Reliance is also placed on cases Faiz Ahmed and another v. Shafiq-ur-Rehman and another (2013 SCMR 583), Shah Hussain v . The State (PLD 2009 SC 460 ) and Ishfaq Ahmad v . The State (2017 SCMR 307 ).
9. Resultantly , this petition is accepted and it is directed that sentence of impris onment for life awarded to the petitioner by this Court vide judgment dated 18.6.2009 passed in Cr. Appeal No. 752 of 2005 shall run concurrently with the sentence of imprisonment for four years awarded to the petitioner by the learned trial Court vide judgment dated 1.12.2005 passed in trial of case FIR No.316 of 1996 of Police Station Tulamba, Distt. Khanewal, subject matter of Cr . Appeal No.751 of 2005.