Muhammad Sherif alias Baggu has filed this petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973.
2. The facts leading to the filing of the present writ petition are as under:- Muhammad Sherif alias Baggu was involved in case F.I.R. No.133, dated 23-3-1969 under section 302, P.P.C. , Police Station, Mughalpura. He was tried by Special Military Court No.4, Lahore and sentenced to death, on 26-1-1971. He was involved in another murder case F.I.R. No.131, dated 15-8- 1970, Police Station North Gantt., Lahore and tried by Special Military Court No.2 Lahore and sentenced to death. His death sentences in both the cases were commuted by the President of Pakistan to imprisonment for life. Government of Pubjab vide letters dated 10-2-1977 and 13-4-1978 informed Superintendent Central Jail about the commutation of the sentences of deaths to imprisonment for life. The Superintendent Jail sent a reference to the Government of Punjab seeking instructions from which date sentences of life imprisonment in both the cases shall take effect. Government of Punjab vide letter No.S.0.(J-III) C-3/140, dated 17 4-1978 informed the Superintendent Jail, Sahiwal, that the sentence of life imprisonment in case F.I.R. 133, was to commence from 26-1-1971 i.e. The date on which his conviction slip for death sentence was signed by the President of the Special Military Court while in case F.I.R. 131 the sentence of life imprisonment was to commence from 5-10-1971 i.e. The date on which his death conviction slip was signed by the President Special Military Court. The Government of Punjab again informed the Superintendent Jail vide letter dated 22-7-1978 that the matter was referred to the Law Department and the Law Department had advised that since sentences against the accused were passed as a result of two separate trials, those shall run consecutively and not concurrently. The Government of Punjab, yet wrote another letter dated 21-9-1978, informing the Superintendent Jail that the matter had been reconsidered after consultation with higher authorities and it had been decided that both the sentences shall run concurrently and not consecutively. It was further written that instructions were to be strictly adhered to and all previous directions should be considered as superseded. But again the Government of Punjab issued a teleprinter dated 23-10-1978, directing the Superintendent that instructions previously issued shall be held in abeyance till further orders. The Government of Punjab vide letter dated 18-12-1978 informed the Superintendent Jail that as directed by the - Federal Government, both the sentences shall run consecutively. Having felt aggrieved of the various orders whereby both the sentences have been ordered to run consecutively, the petitioner has filed the present petition.
3. It was contended by the learned counsel for the petitioner that under section 135 of the Pakistan Army Act 1952, the sentence of imprisonment for life in both the cases are to be reckoned to commence on the day on which the original proceedings were signed by the President and in these cases one sentence of imprisonment for life is to commence on 26-1- 1971 while the other from 5-10-1971.
4. The learned Assistant Advocate-General contended that the petitioner was tried in two different murder cases by the two different Courts which were decided on different dates and hence after commutation of death sentences, his sentences of imprisonment were to run consecutively and not concurrently as it was not so ordered either by the President of Pakistan or the President of the Special Military Courts.
5. The arguments of the learned counsel for the parties have been considered in the light of the various provisions of the Army Act. Pakistan Army Act is a complete Code. Criminal Procedure Code does not apply to cases under the Pakistan Army Act. Section 15 under Chapter XI of the Pakistan Army Act pertains to commencement of sentence of imprisonment for life or rigorous imprisonment or detention. The words "sentence of transportation" in the Original Act have been substituted by words "imprisonment for life" by Act LI of 1976. It is provided in section 135 of the Pakistan Army Act that whenever any person is sentenced under this Act to imprisonment for life, rigorous imprisonment or detention, the term of sentence shall whether it has been revised or not, be reckoned to commence on the day on which the original proceedings were signed by the President or in the case of a summary Court-martial, by the Court. Under Note
(ii) of section 135 it is laid down that a term of imprisonment for life, imprisonment or detention awarded by way of commutation must commence on. The date of the original sentence even though such sentence was one of a different character. In the instant case the original sentence was of death and of a different character but the President, has commuted death sentence to imprisonment for life and the sentence of death is to commence on the date of the original sentence. Now the question arises as to whether the sentences awarded by two different Special Military Courts in two different murder cases are to run concurrently or consecutively. Where the Criminal Procedure Code is applicable to the trial of cases, this situation has been met by section 397, Cr.P C. It is provided in the said section that 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. In case the Court does not pass an order that both the sentences shall run concurrently the sentences awarded in two different cases are to run consecutively. Under the Criminal Procedure Code, the Court has been given power to pass an order that the sentences in two different cases shall run concurrently. As stated above, Criminal Procedure Code does not apply to proceedings under the Pakistan Army Act. Chapter XI of the Pakistan Army Act deals with the execution of the sentences. Under Note I (i) of section 135 of the Pakistan Army Act, it is provided that under this section a term of imprisonment for life, imprisonment or detention cannot be made to commence at the expiration of a previous term but must #TBS D E #TBE commence on the day on which the sentence is signed. It further provides that if, therefore the Court desires to inflict, e.g. Six months additional imprisonment on a prisoner already undergoing six months imprisonment, of which three months are unexpired, the Court must award nine months. Under the Criminal Procedure Code where an accused person who is undergoing a sentence of imprisonment is convicted in a subsequent trial and no order is passed that his sentences shall run concurrently, it is automatic that his sentences in both the cases shall run consecutively. But it is conversely under the Army Act, where it is laid down under section 135 and Note I of the Pakistan Army Act the sentence is to commence on the day on which the criminal proceedings are signed by the President, even if he is tried by two different Courts at two different trials unless an order is passed to the effect that the subsequent sentence shall be in addition to the previous sentence. Under the Pakistan Army Act if the Court desires to inflict additional imprisonment on a prisoner already undergoing imprisonment he has to pass a specific order that the subsequent term of imprisonment shall be in addition to the previous sentence. Unless such an order is passed the sentences in both the cases are to commence on the day on which the original proceedings were signed in both the cases.
6. Section 144 of the Pakistan Army Act deals with the suspension of sentence of imprisonment, rigorous imprisonment or detention. Federal Government, or the Commander in-Chief or any officer empowered to convene a general or field general Court- martial can suspend the sentence of a person subject to the Army Act who has been sentenced by a Court-martial to imprisonment for life, rigorous imprisonment or detention. Section 150 of the Army Act dealts, with the procedure on further sentence of offender whose sentence is suspended.
It is laid down in section 150 (a) that where an offender, while a sentence on him is suspended, is sentenced for any other offence then if the further sentence is also suspended under this Act, the two sentences shall run concurrently. Section 150 (b) provides that if the further sentence is for a period of three months or more is not suspended under this Act, the offender shall also be committed to prison or military custody on the unexpired portion of the previous sentence, but both sentences shall run concurrently. Form P A F D-911-C under Fourth Appendix is meant for a person whose death sentence is commuted to imprisonment for life. In this form directions have been given from (a) to (g) with regard to theillling of the Form. Against (f), the date on which original sentence Itias signed, is to be recorded.
7. The present law is to disadvantage of the aggrieved parties and surely to the advantage of the accused. But the law can be suitably amended.
8. After having considered the relevant law on the subject, I hold that the sentences of Muhammad Sharif alias Baggu in cases F.I.Rs. 133 and 131 are to commence with effect from 26 1-1971 and 5-10-1971 respectively and those cannot be made to run consecutively. The petition is accepted. Superintendent Jail shall be informed about the result of the writ petition forthwith for further necessary action.