AHMAD NADEEM ARSHAD, J. Criminal appeals Nos. 608 of 2021, 1136-J and 1140-J of 2019 are fixed for today whereas in compliance of order of this Court remaining appeals filed by appellant have also been fixed by the office by issuing supplementary cause list.
2. Criminal Appeals Nos. 581 of 2019 and 1138 of 2019 are still at motion stage and have been admitted to regular hearing. Notices issued have been accepted by the learned Additional Prosecutor General.
3. Although all the criminal appeals are against independent judgments but as only the benefit under section 397, Cr.P.C. has been asked by learned counsel for appellant therefore, all are being decided together by way of this single judgment.
4. As appellant has been convicted and sentenced in all the cases by one and the same court of learned Additional Sessions Judge Dera Ghazi Khan so without referring the name of the Court in subsequent discussion, the facts of each appeal are as under:-
1. Criminal Appeal No.581 of 2019 It is directed against the judgment dated 09.05.2019 on the basis of which appellant was convicted under section 9(b) of the Control of Narcotic Substances Act, 1997 (Act) and sentenced to undergo 28 months' RI with fine of Rs.13000/- (thirteen thousand). In default of payment of fine he was ordered to further undergo 04 months' and 15 days Si. The allegation against appellant wad that on 27.10.2016 he was found in possession of Charas 670 gram,
2. Criminal Appeal No. 608 of 2021 It is directed against the judgment dated 30.09.2019 on the basis of which appellant was convicted under section 9(e) of the Act and sentenced to undergo 04 years' and Q6 months' RI with fine of Rs.20000/- (twenty thousand). In default of payment of fine he was ordered to further undergo 05 months' SI. The allegation against appellant was that on 29.97.2017 he was found in possession of Charas 1060 gram.
3. Criminal Appeal No. 1131 of 2019 It is directed against the judgment dated 12.06.2019 on the basis of which appellant was convicted under section 9(e) of the Act and sentenced to undergo 04 years and 06 months' RI with fine of Rs,20000/-. (twenty thousand), In default of Payment of fine he was ordered to further undergo 05 months SI. The allegation against appellant was that he was found in possession of charas 12 grams.
4. Criminal Appeal No. 1136 of 2019 It is directed against the judgment dated 12.06.2019 on the basis of which appellant was convicted under section 9(c) of the Act and sentenced to undergo 04 years' and 06 months' RI with fine of Rs.20000/- (twenty thousand). In default of payment of fine he was ordered to further undergo 05 months' SI. The allegation against appellant was that he was found in passession of Charas 1710 grams.
5. Criminal Appeal No.1137 of 2019 It is directed against the judgment dated 12,06.2019 on the basis of which appellant was convicted, under section 9(c) of the Act and sentenced to undergo 04 years' and 06 months' RI with fine of Rs.20000/- (twenty thousand). In default of payment of fine he was ordered to further undergo 05 months' SI, the allegation against appellant was that he was found in possession of Charas 1600 grams.
6. Criminal Appeal No 1138 2019 It is directed against the Advent dated 12.6.32019 on the basis of which appellant was convicted under section 9(c) of the Act and sentenced to undergo 04 years' and 06 months' RI with fine of Rs, 20000/- (twenty thousand). In default of payment of ne he Was ordered to further undergo 05 months` SI. The allegation against appellant was that he was found in possession of Charas 1150 grams.
7. Criminal Appeal No. 1140 of 2019 It Is directed against the judgment dated 12.06.2019 on the basis of which appellant was convicted under section 9(c) of the Act and sentenced to undergo 04 years' and 06 months' RI with fine of Rs.200Q0/- (twenty thousand). In default of payment of fine he was ordered to further undergo 05 months' SI. The allegation against appellant was that he was found in possession of Charas 1020 grams.
5. Benefit of section 382-B, Cr.P.C. was also extended to appellant in all the cases,
6. Learned counsel for appellant at the very outset states that under the instructions of his client he does not press these appeals as no good case is made out in his favour, however, he maintains that the benefit of section 397, Cr.P.C. be extended to appellant.
7. Learned Additional Prosecutor General has opposed the said request.
8. Section 397 of the Code of Criminal Procedure 1908 for reference is reproduced as under: - "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.
Provided, that where a person who has been sentenced to imprisonment by an order under section 123 in default of furnishing security is, whilst undergoing such sentence, sentenced to imprisonment for an offence committed prior to the making of such order the latter sentence shall commence immediately."
9. The above provision is beneficiary and to be used in favour of convict unless there are compelling circumstances to do otherwise. The apex court in "Shaista Bibi and another v.
Superintendent Central Jail Mach and 2 others (PLD 2015 SC 15)" while entertaining the same question when a lady was convicted in four cases registered under the provisions of the Explosive Substances, Act 1908 was pleased to observe as under: - "Besides the provisions of section 35, Cr.P.C. the provisions of section 397, Cr.P.C. altogether provide entirely a different 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 treatment to him/her and he/she would certainly die while undergoing such long imprisonment in prison. Thus, the benefit conferred upon the appellant/appellants through amnesty given by the Government, if the benefit of directing the sentences to run concurrently is denied to him/them, would brought at naught and ultimately the object of the same would be squarely defeated and that too, under the circumstances when the provision of section 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."
10. On the same question of law in case titled "Rahib Ali v. The State (2018 SCMR 418)" the honorable Supreme Court of Pakistan was pleased to observe as under: - "Generally, where a convict is undergoing sentence in earlier conviction and later in a separate trial(s) stand convicted and sentenced for imprisonment for life or otherwise for a shorter term, sentence in subsequent trial commences after sentence in earlier trial is exhausted. However, the trial court seized of subsequent trial and the Appellate Courts in appeal arising there from are empowered under section 397, Cr.P.C. to direct that the subsequent sentence(s) to run conjointly with previous sentence(s) of imprisonment of lift or otherwise as the case may be. In the cases cited as Mst. Zubaida v. Falak Sher and others (2007 SCMR 548), this Court attending to question of multiple convictions in more than one crime and trial took charitable view of section 397, Cr.P.C., while declining leave; observed that section 397, Cr.P.C. empowers the court to direct the subsequent sentence would run concurrently with the previous sentence. In the case of Shahista Bibi and another v. Superintendent, Central Jail, MACH and 2 others (PLD 2015 Supreme Court 15) this court examined provisions of section 35, Cr.P.C. together with section 397, Cr.P.C. also took charitable view and adopted interpretation beneficial to the accused by ordering concurrent running of sentence in two different trials. In a more recent pronouncement in the case of Sajjad Ikram and others v. Sikandar Hayat and others (2016 SCMR 467) this Court at page 473 held that "The provisions of section 397, Cr.P.C. confers wide discretion on the court to extend such benefit to the accused in case of peculiar nature" and court further observed "that there is nothing wrong in treating the sentence of imprisonment for life of convict/appellants on three count to run concurrently."
11. It is important to refer here that although appellant was convicted on one and the same date by one and the same trial court, but the moment he was convicted in second case, he was to be considered to be sentenced in earlier case and this goes on till he was convicted in the last case.
The learned trial court while convicting the appellant in all the cases skipped the said provisions and we find that the appellant deserves for the benefit thereof.
12. We, therefore dismiss all the appeals with direction that appellant shall be entitled for benefit under section 397, Cr.P.C. and his sentences in all the cases shall run concurrently, however, sentences of fine and consequence in default thereof are maintained. Benefit of section 382-B, Cr.P.C. shall remain available to him. The case properties shall be disposed of in the same manners as directed by the learned trial court.