1. ' QURBAN SADIQ IKRAM, J.-Facts necessary for this judgment are give in brief as follows :- ' The petitioner Muhammad Khan son of Lal Khan. In four differen Session trials and by separate judgments was convicted by learned Add tional Sessions Judge, Campbellpur (Attock) Camp at Gujranwala on 23-6-1969 as detailed below-
(a) Sessions Case No, 1 of 1969 ' Sentenced to death under section 302/34, P. P. C. On six counts f murder of Muhammad Khan son of Ahmad Khan, Shah Nawaz Muhammad Nawaz, Allah Yar, Mst. Jindo and Mst. Mulkhan He was further sentenced to 7 years' R. I. Under section 307/34,, P. P. C. On five counts for murderous assault on Mst. Bhag Bhari, Mst. Mehr Bhari, Mst. Bharan Khatoon, Mot. Alam Khatoon and, Sher Baz P. Ws. It was ordered that "his sentences under section 307/34, P. P. C. Shall run concurrently and in case the death sentence is not confirmed by the High Court and any other sentenc is passed by the High Court, his sentences under section 307/34, P.P.C. Shall run concurrency with any other sentence passed by the High Court".
(b) Sessions Case No, 4 of 1969 ' Sentenced to death under section 302/34, P.P.C. For intentional murder of Mian Muhammad deceased. He was further sentenced to 7 years' R. I. Under section 449/34, P.P.C. For criminal trespass in the house of Mian Muhammad deceased. It was ordered that "in case the death sentence is not confirmed and any other sentence is passed against the accused, the sentence passed under section 449/34, P.P.C. Against him shall run concurrency with any other sentence passed against the accused".
(c) Sessions Case No, 5 of 1969 ' Sentenced.To death under section 302/34, P. P. C. For the intentional murder of Aitbar Khan.
(d) Sessions Case No, 6 of 1969 ' Sentenced to death under section 302/34, P. P. C. For intentional, murder of Musharraf Khan. He was also sentenced to 7 years' R. I. Under section 449/34, P. P. C. For trespass in the house of Musharra Khan deceased. It was ordered that "in case his death sentence I not confirmed and any other sentence is passed on this count then the sentence under section 449/34, P. P. C. Shall run concurrently with that sentence".
2. ' Muhammad Khan petitioner was acquitted in Sessions Cases Nos. 2 and .3 of 1969, Hasham Khan, a brother and co-accused of the petitioner, died before the commencement of trials.
2. Muhammad Khan petitioner filed Criminal Appeals Nos. 489, 491 492 and 493 of 19o9 in the Lahore High Court to challenge his conviction and sentences given in detail above. All these appeals alongwith murder references were decided by the High Court vide judgment, dated 2-2- 1972. Is conviction and sentences were maintained. The sentences of death in 11 the cases were confirmed.
3. ' Muhammad Khan petitioner went before the Supreme Court against the judgments of High Court but did not succeed. The conviction and entences were maintained by the Supreme Court of Pakistan.
3. On 22-12-1971, the President of Pakistan ordered General Amnesty to all those prisoners who had been sentenced to death and were awaiting execution. On that date, the appeal/murder references of Muhammad han petitioner were still pending in. High Court and for that reason, the ase of Muhammad Khan petitioner was not found covered with the said order of General Amnesty.
4. After dismissal of his appeals and mercy etitions, the execution of the death sentence of Muhammad Khan petitioner was fixed in January, 1976. He filed Writ Petition No, 25 of 1976 n the Lahore High Court on the plea that sentences of death also stood commuted by President's Order, dated 22-12-1971 and as such, he could not be hanged by neck till death. The Home Secretary, Government of the Punjab, vide letter, dated 15-6-1977 informed the Registrar of this Court that 'the President has been pleased to commute the sentence of death passed upon Muhammad Khan son of Lal Khan to that of imprisonment or life. Further action may appropriately be taken accordingly". In view f this letter, the writ petition was disposed of. Muhammad Khan petitioner was consequently taken out of the condemned prisoner's cell. A few ayes thereafter it transpired that in the subject/title of the letter, dated 15-6-1977, there was reference of Criminal Appeal No, 489 of 1969 only. The remaining three appeals were not indicated in the subject/tice of the letter. He prison authorities, therefore, opined that death sentence was commuted only regarding death sentences awarded in Criminal Appeal No, 489 of 1969 and that the letter, dated 15-6-1977 did not affect the sentences of death a the remaining three cases. As a result of this, Muhammad Khan was gain lodged in the death cell. He filed a fresh mercy petition before the resident of Pakistan. The result of this mercy petition was communicated y the Home Secretary, Government of the Punjab, to Jail Authorities, vide etter dated 1-1-1980 which stated that "according to the Ministry of interior clarification, the commutation order of the President of Pakistan n respect of the condemned prisoner Muhammad Khan son of Lal Khan ow confined in your jail conveyed in this Government's Memorandum o. 1413-MP/DC, dated 15-6-1977, applies to all the four death cases and he commuted sentences shall run consecutively, repeat consecutively."
5. ' Muhammad Khan petitioner feeling aggrieved by the words "and the ommuted sentences shall run consecutively, repeat consecutively", filed e present Constitutional petition on the grounds :-
(I) that the petitioner has already suffered transportation for life and there being only one span of life, the second imprisonment for life/ transportation for life cannot be ordered ;
(ii) that the Government/President of Pakistan had no jurisdiction/ authority to order that in all the four cases the commuted sentences shall run consecutively ; and
(iii) that in any case, the petitioner deserves mercy and leniency and as such, his sentences of imprisonment in all four cases be ordered to run concurrency.
6. ' In the words of learned counsel for the petitioner, the precise relief claimed was as follows :- ' In this case the sentences have been commuted from death to life imprisonment in all four cases by one order, the petitioner ENTREATS that these sentences no ordered to run concurrency by invoking inherent powers under section 561-A, Cr. P. C."
7. ' A Division Bench, vide order, dated 4-4-1984 referred this case to a Full Bench to "consider the interpretation of section 379, Cr. P. C. In the light of two judgments reported as Fazal Haq v. The State (1) and Surja Ram v. The .State (2).
4. The learned counsel for the petitioner contended -that section 35, Cr. P. C. Was not applicable in the instant case ; that section 397 of the Code of Criminal Procedure (herein referred to as the Code) was not attracted to the facts or this case because firstly, the petitioner was not undergoing' any sentence of imprisonment at the time of the pronouncement of punishment in these cases ; secondly, the petitioner having been sentenced to death, there was no occasion for the trial Court to record any order under this section ; and thirdly, there being only one span of life, petitioner, a convict, cannot be made to undergo/suffer any other sentence of imprisonment or imprisonment for life transportation for life. Reliance was placed on a Division Bench judgment of this Court in Fazal Haq v. The Stare and that making an order in. This Constitutional petition that the sentences in all four cases shall run concurrently would not amount to "alteration or review of judgment" within the meaning of section 369 of the Code.
8. ' The learned Additional Advocate-General controverted the contentions on behalf of the petitioner.
5. It is apparent from the four judgments of the trial Court that firstly, these were announced on the same day i,e, on 23-9-1969 ; secondly, in Session Case No, 5, the petitioner was charged and sentenced on one count while in each of the remaining three cases, he was charged and sentenced on more than one count ; thirdly, in each case of more than one charge, the trial Court made an order that in case sentence of death is not confirmed the substituted sentence will run concurrently with sentence of imprisonment under other charge and fourthly that no order in terms of section 397, Cr. P. C. Was recorded in any of these cases.
9. ' The learned counsel for the petitioner advanced an amazing argument that section 35 of the Code did not apply in the instant case. The precise argument of learned counsel was that section 35 of the Code was not applicable to Session trial and as such, there was no occasion for the trial Court to make an order in an individual case that the substituted sentence will run concurrently with the sentence of imprisonment on other charge. It was argued that the provisions of section 35 of the Code were applicable to trial held only by a Magistrate and not to the Court of Sessions.
10. According to the learned counsel, this situation
(1) PLD 1982 Lab. 452 (2) AIR 1963 Raj. 202 created an anamoly justifying exercise of inherent powers of this Court under section 561-A, Cr. P. C.
11. Section 35 of the Code runs as under :- "35 (1).--When a person is convicted at one trial of two or more offences, the Court may, subject to the provisions of section 71 of the Pakistan Penal Code sentence him, for such offences, to the several punishments prescribed therefor which such Court is competent to inflict; such punishments, when consisting of imprisonment .To commence the one after the expiration of the other in such order as the Court may direct, unless the Court directs that such punishments shall run concurrently.
(2) In the case of consecutive sentences, it shall not be necessary for the Court, by reason only of the aggregate punishment for the several offences being in excess of the punishment which it is competent to inflict on conviction of a single offence, to send the offender for trial before a higher Court :- ' Provided as follows :-
(a) in no case shall such person be sentenced to imprisonment for a longer period than 14 years ;
(b) if the case is tried by a Magistrate (other than a Magistrate acting under section 34), the aggregate punishment shall not exceed twice the amount of punishment which he is, in the exercise on his ordinary jurisdiction, competent to inflict.
(3) For the purpose of appeal (the aggregate of consecutive) sentences passed under this section in case of conviction for several offences at one trial shall be deemed to be a single sentence.
12. A study of this section would show that it is applicable when a person is convicted at one trial of two or more offences. Its subsection (1) is of general application and not, in any way, restricted in nature. I applies to all kinds of trials by all "classes of criminal Courts". Subsection (2) of section 35 is applicable to a Court who after trial of accused on two or more offences forms an opinion that the case be sent for hearing before a higher Court because of serious nature of the charges against the accused and in his opinion h cannot award adequate punishment. Subsection (2) provided that in the case of consecutive sentences, it will be unnecessary for the Court, "by reason only of the aggregate punishment for the several offences being in excess of the punishment which it is competent to inflict on conviction of a single offence, to send the offender for trial before a high Court." The limit of consecutive sentences which such Court can award is provided in provisos (a) and (b) of this subsection. Proviso (a) relates to the Magistrate who can inflict sentence of imprisonment not exceeding seven years whereas proviso (h) is applicable to all other Magistrates who are empowered to pass various terms or imprisonments under section 32, Cr. P. C. There is no such limit in subsection (1) of section 35 of the Code. The only limit is relatable to section 71 of the Pakistan Penal Code. As stated above, this section is of general applicability and not restricted to the Courts of Magistrates who exercise power to pass sentenc under sections 32 and 34 of the Code. A Sessions Judge is empowered t inflict any punishment/sentence provided in law. Lie under subsection (1) is competent to order that the sentences of an accused in. One trial. On charges of two or more offences will run concurrently. We are clear in our mind that subsection (1) of section 35 of the Code was applicable to all trials by all "clases of criminal Courts" as described in section 6 of the Code and that subsection (2) was applicable to criminal Courts with jurisdiction to pass sentence limited by sections 32 and 34 of the Code. The arguments of learned counsel were wholly misconceived on this point and are accordingly repelled. The trial Court, in the instant case, had the jurisdiction to make an order under section 35 of the Code in each individual trial of the petitioner in which he was charged with two or more than two offences. This fact makes another thing clear than firstly, the learned Additional Sessions Judge at the time of recording conviction of the petitioner was conscious of the possibility that the sentences of death awarded by him may not be confirmed. He, therefore, visualising the said situation passed a very legal order under section 35 of the Code that in such like situation, the substituted sentence will run concurrency with the sentence of imprisonment awarded to the petitioner on ocher charge. Secondly it also indicates that the omission to record an order under section 397 of the Code was not because of the fact that there was no occasion for the Court to make that order but it appears that keeping in view the serious nature of the cases against the petitioner, the learned trial Judge deliberately did not pass any order under section 397 of the Code. There is, therefore, no force in the contention of the learned counsel for the petitioner that the petitioner having been sentenced to death there was no occasion or necessity for the trial Court to record an order under section 397 of the Code.
13. It was contended on behalf of the petitioner that on 23-9-1969 at the time of his conviction, he was not undergoing any other imprisonment for any offence and as such, section 397 of the Code was not attracted. We have carefully considered this contention. Muhammad Khan petitioner was tried in six separate Sessions cases. He was acquitted in two cases and convicted in four cases by separate judgments as given in detail above, in Sessions Case No, 1 of 1969, he was sentenced to death under sections 302/34, P. P. C. On six counts for intentional murder of six persons. He was further sentenced under section 307/3 , P. P. C. To suffer seven years' R. I. On five counts for murderous assault on five witnesses. Thereafter, he was convicted in Sessions Cases Nos.
4. 5 and 6 of 1969 to death and also imprisonment of various terms. Muhammad Khan petitioner was in custody in all the cases during the trial. We are, therefore, of the view that he was undergoing imprisonment within the meaning of section 397, Cr, P. C. From the moment the sentence in Sessions Case No, 1 of 1969 was passed. The sentence in that case commenced immediately from the moment it was announced. We, therefore, hold that the petitioner was undergoing his, first sentence when the second, third and fourth were pronounced on him and that secondly, where there is no order making them concurrent, they will be undergone consecutively. "If it is held that the words 'undergoing a sentence' mean that the sentence is being actually and phrsically undergone, the Courts would be driven to the adoption of farcical devices". Thus, in the present case, the accused "would be sent out of Court to undergo about half an house of sentence and called back to hear the second sentence and then sent out and called back afresh to hear third and fourth pronouncements. That surely would not have been the intention", as was held in Gulzar Muhammad V. Crown (1). It may here be observed that the conviction and
(1) PLD 1950 Lah. 497 sentences of Muhammad Khan petitioner awarded by the trial Court were maintained by the High Court as well as Supreme Court of Pakistan. His sentences of death were commuted by President, Government 0 Pakistan in mercy petitions. The effect of the commutation of the sentence would be that the sentences of death in each case would be substituted by sentences of transportation for life/imprisonment fon life. The order of commutation will have no effect on other part or C contents of the judgment of the trial/appellate Courts. The only elect is substitution of transportation for life for the sentence of death. The commuted sentence will thus be deemed to be the sentence awarded by the Trial Court and form part of its judgment. The Government of Pakistan directed that the commuted sentences of imprisonment for life will run "consecutively repeat consecutively".
14. It was argued by the learned counsel that the Government had no authority to make such order.
15. We are not prepared to agree with the learned counsel. The Government can while commuting the sentence impose conditions on commutation of death sentences. Even if the said order directing sentences to run "consecutively repeat consecutively" is ignored, then also there being no order by the appellate or Trial Court, the substituted sentences in four different trials will be deemed to run one after the other and not concurrently. In fact, the direction of the Government of Pakistan tha the sentences in four different cases will run consecutively was in line with the judgment of the Trial Court.
6. The learned counsel laid much stress on the contention that there was only one span of life and as such, the petitioner could not be required to undergo any further imprisonment after he had undergone one term of transportation for life/imprisonment for life. We have considered this contention in the light of the cited judgments.
16. ' The words "imprisonment for life" did not appear in Pakistan Penal Code before 1972. Section 57, P.
17. P. C. Prior to its amendment read as follows :- "57. In calculating fractions of terms of punishment, transportation for life shall be reckoned as equivalent to transportation for twenty years."
18. This section was amended by Law Reforms Ordinance, 1972. It now runs as follows :- "57. In calculating fractions of terms of punishments (imprisonment) for life shall be reckoned as equivalent to transportation for (twenty-five years)."
19. Similarly, Prison Act IX of 1894 was also amended. In subsection (1) of section 57 of the Prison Act, for the word "transportation", the words "imprisonment for life" were substituted. Clause (5) of section 59 of this Act provided that Provincial Government may make rules consistent with this Act for "the award of marks and shortening of sentences, so, however, that a sentence of imprisonment for life is not shortened to a period of imprisonment less than 15 years". This means that while computing the sentence of imprisonment for life in prison, the convict will have to undergo at least 15 years' imprisonment in jail under the impugned judgment. A study of the above provisions of law would indicate firstly, that imprisonment for life or transportation for life were not vague terms in law.
20. Transportation for life was reckoned as equivalent to transportation for 20 years. After the amendment, imprisonment for life is reckoned as equivalent to transportation for 25 years. As provided in the Prison Act, a person sentenced to imprisonment for life has to undergo, subject to remission in sentence by Government to any extent, minimum 15 years' imprisonment in prison.
21. Thus, by spending 15 years' imprisonment prison, it cannot be said that one span of life has come to an end. The learned counsel for the petitioner has placed reliance on Fazal Haq v. The State, Surja Ram v. The State and Baijnath Kurmi v The State (1) in support of his contention. We have examined these judgments.
22. ' In the case of Baijnath Kurmi and another, the accused were convicted under sections 399 and 402, I. P. C. On 22-1-1959 by Assistant Sessions Judge, Arrah. In another trial, they were convicted under section 19-F and section 20 of Arms Act on 23-2-1959 by Assistant Sessions Judge, Sasaram.
23. The learned A. S. J., Sasaram did not record any order under section 397(1) of the Code that the sentence being recorded by him will run concurrency, awarded to the accused on 22-1-1959 by A.
24. S. J., Arrah. It so happened that an appeal against the second conviction under Arms Act was brought to the High Court which was dismissed in limine on 19-5-1959. Thereafter, an appeal against the first conviction was brought to the High Court which was dismissed by another learned Judge on 14-7-1960. An oral application was made on 14-7-1960, praying that the two sentences may be made to run concurrency under section 397(1) of the Code The matter was referred to the learned Judge who had earlier dismissed the appeal against the conviction under Arms Act. The learned Judge in exercise of his inherent powers under section 561-A ordered that both the sentences shall run concurrently in the facts and circumstances of the said case. The juigment in Baijnath's case was not applicable to the facts of the present case because firstly, the said case was decided keeping in view the facts and circumstances of that particular case ; secondly, the request for an order that the sentences in both cases be ordered to run concurrently was made at the time of the hearing of the appeal before the High Court in which the learned Judge hearing appeal against the first conviction observed that he would have allowed the prayers but for a legal difficulty that the appeal before him was against the first conviction and not the subsequent conviction ; and thirdly, the provisions of law contained in section 397 of the Indian Code of Criminal Procedure are different than the Code in Pakistan. This judgment is, therefore, of no help to the petitioner.
25. ' The facts in the case of Surja Ram were that the appellant was convicted by Sessions Judge, Ganga Nagar under sections 302, 307, 309 Bikaner Penal Code and he was sentenced to death under section 302 and to ten years and nine months' R. I. Under sections 307 and 309, B. P. C., respectively. The sentence of death was confirmed by the High Court of Bikaner and also by the Bikaner State Council. It was, however, commuted by his Highness Maharaja of Bikaner from death to imprisonment for life. It was further mentioned in the order of commutation that life imprisonment was deemed to be imprisonment for 20 years. The Superintendent of Jail, after commutation of the sentence of death, referred the matter to Sessions Judge for clarification n if the sentence of life imprisonment and other two sentences of imprisonment should be
(1) AIR 1961 Pat. 138 executed concurrently or consecutively. The reply was that the sentences shall have to be undergone consecutively. Surja Ram, therefore, moved an application through jail to the High Court. This was accepted in view of the provisions of subsection (2) of section 397, Criminal Procedure Code. It was held that section 397, Cr. P. C. Did not apply to the said case and that section 35, Cr. P. C. Was applicable to the facts of the case. It was observed that "it is also significant that when a person is sentenced to imprisonment for life, it cannot be conceived that he shall be made to undergo sentences of various terms of imprisonment that may have been passed at the same trial under other sections after serving the term of life imprisonment. After the life of convict is finished there cannot remain any opportunity for enforcing other terms of imprisonment against him." In our view, this judgment was also not applicable to the facts of the case in hand firstly because Surja Ram appellant was convicted under various charges in one trial and secondly, the Code of Criminal Procedure as in force in Pakistan was different from the one in India. Section 397 of the Code of Criminal Procedure in Pakistan runs as follows : - "Section 397. 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 concurrency with such previous sentence): (Provided further, 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 later sentence shall commence immediately.)"
26. ' On the other hand, section 397 of the Indian Code of Criminal Procedure is as follows:- "Section 397. (l) When a person already undergoing a sentence of imprisonment is sentenced on a subsequent conviction to imprisonment or imprisonment for life, such imprisonment or imprisonment for life shall commence at the expiration of the imprisonment 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.
(2) When a person already undergoing a sentence of imprisonment for life is sentenced on a subsequent conviction to imprisonment or imprisonment for life, the subsequent sentence shall run concurrently with such previous sentence."
27. ' A bare perusal of these two provisions would make it clear that they are divergent from each other. The difference is so glaring that it needs no comments. In view of the above situation, the judgment in Surja Ram's case was not applicable to the facts of this case.
28. ' The judgment in Fazal Hag's' case was delivered by a Division Bench of this Court. The facts in this case were that Fazal Haq in one trial was sentenced to death under section 302, P. P. C. For the murder of Mansabdar and to seven years' R. I. Under section 307, P. P. C. For murderous assault on Maula Bakhsh. In appeal, the High Court maintained his conviction but altered the sentence from death to imprisonment for life. There was no order either by the trial Court or by the appellate Court that the two sentences in one trial would run concurrently under section 35, Cr. P. C. After about four years of the dismissal of his appeal by the High Court, Fazal Haq moved an application under section 561-A, Cr. P. C. With a prayer that both his sentences under sections 302 and 307, P. P. C. Be ordered to run concurrency. This petition was allowed firstly, because the learned State counsel took "pains to point out that this Court had jurisdiction to direct that the two sentences can be ordered to run concurrently."; secondly, reliance was placed on the judgments in Baijaath Kurmi and Surja Ram, already discussed above and on a judgment in Mathra Das v. The Crown (1), thirdly, it was held by their Lordships that the omission to record an order that both sentences shall run concurrency was inadvertent and that "in accordance with normal practice", in the circumstances of the case, "both sentences would have been directed to run concurrency"; and fourthly, that no one can be made to suffer for the omission of the Court to issue clear direction in terms of section
35. The learned Judges agreeing fully with the "logical, humane and eminency just reasoning and the conclusions" in the judgment in Surja Ram's case, allowed the Miscellaneous Application of Fazal Haq and directed that the two sentences in one trial will run concurrently. With respect, we find ourselves unable to agree with the observations and conclusions in Fazal Hay's case. It appears that the learned Judges were not properly assisted by the learned counsel appearing on behalf of the parties. Secondly, the judgment in Fazal Haq's case is based on two judgments from Indian jurisdiction which were based on the law prevalent in that country, not relevant in Pakistan.
29. Foreign judgments , are not binding on Courts in Pakistan. After Independence, both Pakistan and India amended their existing laws and promulgated new divergent laws to suit the requirements of society of their respective countries. As such, Courts in Pakistan should examine judgments of post-Independence Indian jurisdiction with utmost care and caution specially when we have begun adopting Islamic principles of interpretation of G statutes in Pakistan; thirdly, the learned Judges had also placed reliance on the judgment in Mathra Das v. The Crown which was overruled only a few months thereafter in Raju and another v. Emperor (2) and fourthly the omission of Court to record an order under section 35 of the Code was held to be an inadvertent omission and against normal practice. These findings are not based on correct appreciation of law. A perusal of both, section 35 and section 397 of the Code would show that general rule is that sentences of imprisonment or imprisonment for life in each offence are to run consecutively and concurrent running of sentences is an exception. If, therefore, while recording conviction in one trial for two or more than H two offences or in separate trials the Court does not record any order that the sentences will run concurrently, the rule of law is that the said sentences will run one after the expiry of other. As such, it could not be
(1) AIR 1927 Lab. 139 (2) AIR 1928 Lah. 462 said that omission of an order making sentences to run concurrency under two offences in one trial or sentences recorded in different trial, was an inadvertent omission or a failing on the part of Court. It also canno be held that making sentences to run concurrency in a particular case was normal practice. There is no such practice nor any practice can be a substitute for substantial law.
30. Each case has to be decided keeping in view the facts and circumstances of that case. It is a general principle of law that whenever an offence is proved against any person, a conviction must necessarily follow and every conviction must be followed by a punishment except as expressly provided in section 71, P. P. C. Whenever a sentence is passed on conviction, the general principle of law is that it takes effect immediately. Where there are 'several sentences for different convictions against the same person, the rule that the sentences should run consecutively has been enacted by the Code. This means that each sentence of imprisonment or imprisonment for life will run after the expiration of the other unless the Court directs that they shall run concurrently. The object of section 35 and section 397 of the Code is to increase the period of punishment that the Coarts are competent to inflict. If after recording conviction, Court does not specify under any of these two sections that the sentences will run concurrently, it must be held that they shall run consecutively.
31. As such, the observation in Fazal Haq's case that the omission to record such an order was inadvertent cannot be accepted. This observation is clearly against the substantive provisions of law. The judgment in Fazal Hay's case is, therefore, overruled and cannot be made applicable to the facts of the present case. It has been held above, that Sessions Judge is a Court competent to inflict all kinds of sentences. In the instant case, the, learned trial Judge did record an order under section 35 of the Code but recorded no order in terms of section 397, Cr. P. C. This would mean that the trial/appellate Courts did not' intend to order that the sentences recorded in different trials should run concurrently in view of serious nature of cases against the petitioner. One can visualise fantastic conclusions if petitioner's contention is accepted. The distinct use of word 'imprisonment' and words "imprisonment for life" in section 397, Cr. P. C. Clearly indicate the intention of Legislature in, such like cases.
7. There is another aspect of this case which requires consideration. It was argued by the learned counsel that if an order in this Constitutional petition or an order under section 561-A, Cr. P. C. Is made directing that the sentences of Muhammad Khan petitioner should run concurrently, it will not contravene the provisions of section 369, Cr. P. C. The relevant provisions of section 369 of the Code of Criminal Procedure are as follows:- "Section 369. Save as otherwise provided by this Code of by any other law for the time being in force, or in the case of a High Court by the Letters patent of such High Court, no Court, when it has signed its judgment, shall alter or review the same, except to correct a clerical error."
32. ' Before entering in discussion on the legal aspect of this point, it will be proper to determine as to whether, an order, at this stage, directing that the sentences in all four cases of Muhammad Khan petitioner should run concurrently will amount to alteration or review of the judgments of the trial or appellate Courts. We have already held that the effect cif commutation of sentence was only substitution of sentence of imprisonment for life/transportation for life for the sentence of death awarded to the petitioner by Courts. The order of commutation does not, in any way, tend to change or modify any other part of the judgment of the trial or appellate Courts. By the order of commutation, only the word "death' will be substituted by the words "imprisonment for life or transportation for life". The substituted sentence of imprisonment will take effect not from the date of commutation of the sentence but from the date of the announcement of judgment by the learned trial Judge. Resultantly, Muhammad Khan convict will have to undergo sentences of transportation for life one after the expiry of the other. If on the other hand, at this, stage, it is ordered that sentences in all the four cases should run concurrently, it would mean that Muhammad Khan will have to undergo sentence of o e transportation for life in all the four cases. This will be a material alteration/modification in the judgments of the learned trial Judge as well as in the appellate judgments. The argument of the learned counsel for the petitioner that an order of this Court that the sentences should run concurrently will be only by way of clarification of the intention of the learned trial Judge who inadvertency omitted to record an order under section 397, Cr. P. C. Is without any basis and cannot be accepted. We have already observed that the learned Judge was mindful of the situation that the sentences of death may not be confirmed. He, therefore, in each individual case recorded an order under section 35 of the Code directing that the substituted sentence of imprisonment for life will run concurrently with the sentence of imprisonment under other charge but did not record any order in terms of section 397, Cr. P. C. This was a conscious omission by the trial Judge. We find no ambiguity in the judgments of the trial Court nor any clarification is required.
33. Any fresh direction for concurrent running of sentences will amount to alteration and review of the judgments not permissible under section 369, Cr. P. C.
34. ' It was contended by the learned counsel for the petitioner that in exercise of its Constitutional jurisdiction or in exercise of inherent powers under section 561-A, Cr. P. C., this Court should direct that the sentences of petitioner in all four cases should run concurrency. We have carefully examined this contention and have also examined the precedent law.
35. ' In Banwari Lal v. Emperor (1) it was held by a Division Bench that the High Court cannot review an order passed by itself in exercise of revisional jurisdiction. The High Court possessed no inherent power to review its judgment before the amendments of 1923. Consequency, it cannot be held that section 561-A either modifies the provisions of section 369, or clothes the Court with any fresh power.
36. ' In Laxmanrao Parashrarn Deshmukh v. Emperor (2), in an application for review of an order passed by Pollock, J, it was held that there never was inherent power in the High Court to alter or review a judgment in a criminal case and section 561-A does not confer such power on the High Court.
37. ' In the case of Edward Few v. Emperor (3), it was conflict between sections 369 and 561-A, Cr. P. C.
38. Does not confer upon the High Court new powers that such inherent power as the Court may possess, held that there is no The latter section but merely declares shall not be deemed R 1938 Nag. 74
(1) AIR 1935 All. 466 (3) AIR 1939 Lab. 244 to be limited or affected by anything contained in the Code. The High Court has, therefore, no power to alter or review its own judgment in criminal cases once it has been pronounced and signed except in cases where it was passed without jurisdiction or in default of appearance without an adjudication on the merits or to correct a clerical error. The only authority that can interfere in such a case the Provincial Government.
39. ' In Lala Ghansham Das Birla v. Suraj Bhan (1) the High Court on a transfer application had directed de novo trial by the trial Magistrate. On an application seeking clarification on the ground that the said order was obscure, it was held by the High Court that it had no power to amend its own orders by way explanation.
40. ' In Juan Sullivan v. The State (2) the order of the High Court refusing to review its order was challenged. It was held by the Supreme Court that High Court righcy turned down the request to review its order on the ground that section 369, Cr. P. C. Barred review of order already passed.
41. ' In Amiruddin v. The State (3) following the judgment in Gulzar Hussain Shah v. Ghulam Murtaza (4) it was held that general principle of finality is attached to the decisions or orders of the High Court passed in criminal cases and as such, judgments cannot be altered or reviewed under section 369, Cr. P. C. Though the said bar was not applicable to order allowing or cancelling bail. We, therefore, hold that the order suggested by the learned counsel to be delivered by this Court cannot be passed in exercise of its inherent powers under section 561-A of the Code being barred by section 369, Cr. P. C.
42. ' It will be noted that the conviction and sentences of Muhammad Khan petitioner were upheld by the High Court and the Supreme Court of Pakistan. Any alteration or modification in the judgments of the trial Court will also amount to alteration, review or modification of the judgments of the High Court and the Supreme Court. This is not permissible.
8. In view of the decision on above points, we consider it unnecessary to undertake detailed examination of the scope of, inherent powers of this Court under section 561-A, Cr. P. C., or Constitutional jurisdiction.
9. As a result of above discussion, we find no merits in this petition which is accordingly dismissed.
43. There will be no order as to costs.
44. After announcement of the judgment, the learned counsel for the petitioner verbally prayed that a certificate under clause ( f ) of sub-Article (2) of Article 185 of the Constitution be issued to the petitioner for filing appeal before the Supreme Court. The learned Additional Advocate-General conceded this request by saying that he has no objection if the certificate is granted. We accordingly certify it to be a fit case for appeal to Supreme Court of Pakistan.
(1) AIR 1940 Lah. 192 (2) 1971 SCMR 618
(3) PLD 1977 SC 602 (4) PLD 1970 SC 335