Hamid Jan Durrani, Manager Allied Bank of Pakistan, G.T. Road Branch, Peshawar made a written report to S.H.O. Police Station Hashtnagri Peshawar on 13-8-1979 wherein he accused Altaf Hussain petitioner herein along with Ghulam Kibrya, Cashier and Head Cashier of the Bank respectively and Anwarul Haq and Akbar Khan for misappropriating an amount of Rs.Two lacs, one lac each from the branch on 3-7-1979 and 5-7-1979. This report was incorporated in F.I.R. No. 340 of the said Police Station. The petitioner herein was charged under section 409/109, P.P.C. And after investigation the petitioner was sent up for trial before the Special Judge Anti-Corruption (Central) Peshawar. The learned Special Judge charged the petitioner and Ghulam Kibrya under section 409, P.P.C. And accused Anwarul Haq and Akbar Khan under section 109. P.P.C. Read with section 409, P.P.C. All the four accused pleaded not guilty to the charge and claimed trial. The prosecution produced ten witnesses in support of its case. All the four accused were examined under section 342, Cr.P.C. And they refuted the allegations made against them. The learned Special Judge vide judgment, dated 12-12-1983 convicted the petitioner herein and his co-accused. Ghulam Kibrya under section 409, P.P.C. And sentenced the petitioner herein and his co-accused Ghulam Kibrya to undergo five years' R.I. And to pay a fine of Rs.Two lacs each or in default to undergo further imprisonment of two years. The learned Special Judge acquitted accused Anwarul Haq and Akbar Khan. The petitioner herein challenged his conviction and sentence by Criminal Appeal No. 3 of 1984 filed in this Court on 4-1-1984. This appeal was still pending when on 13- 4-1987 the petitioner herein moved the present Criminal Miscellaneous petition wherein he has contended that he was arrested in connection with this case on 16-8-1979 when he was already under arrest since 26-7-1979 in the case F.I.R. No. 309, dated 26-7-1979 of Police Station Hashtnagri under section 409, P.P.C. His further contention was that in the aforesaid case he was convicted and sentenced to 25 years' R.I. By the Special Military Court in March, 1981 and if the conviction and sentence in the present case of F.I.R.
No. 340, dated 13-8--1979, pronounced by the learned Special Judge on 12-12-1983, was ordered to run concurrently with the sentence passed by the Special Military Court and if he was given the benefit of provisions of section 382-B, Cr.P.C. Lie had already completed his sentence and was entitled to release from jail. The petitioner accordingly moved the aforesaid Criminal Miscellaneous Petition with the aforesaid request. He also filed Criminal Miscellaneous No. 21/87 for suspension of the sentence and release on bail till the decision of Criminal Miscellaneous No. 22/87. The present order in Criminal Miscellaneous No. 22/87 will also dispose of Criminal Appeal No. 3 of 1984 filed by the appellant and Criminal Miscellaneous No. 21 of 1987.
2. I have heard arguments of learned counsel for the parties and have also minutely perused record of the case. The investigation record will show that the petitioner was already under arrest since 26-7-1979 by order of the Special Military Court in the case of F.I.R. 309 recorded on 26- 7- 1979 in Police Station Hashtnagri. His formal arrest in the case in hand was made on 16-8-1979. It shall thus be seen that the petitioner was under arrest in connection with the case in hand since 16-8-1979. He was convicted in the present case under section 409, P.P.C. And sentenced to suffer five years' R.I. And to pay a fine of Rs. Two lacs or in default to suffer further R.I. For tyro years by the learned Special Judge by his judgment, dated 12- 12- 1983. It has also been admitted by the learned counsel for the petitioner that the petitioner has not deposited in Court the amount of fine.
This will indicate that the petitioner had to undergo a total of seven years' imprisonment in connection with the case in hand. This period, when counted from the date 16-8-1979, on which his formal arrest was made in the present case, will expire on 15-8-1986, provided the benefit of section 382-B, Cr.P.C. Is afforded to him.
3. The important question for consideration is 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 can be ordered to run concurrently with the sentence to which he has teen previously sentenced. Under the provisions of section 397, Cr.P.C. In such a case ordinarily the latter sentence shall commence at the expiration of the imprisonment or imprisonment for life to which an offender has been previously sentenced. However, the subsequent sentence can run concurrently with such previous sentence if the Court so directs. As such it is to be considered whether the present sentence which was awarded to the petitioner after the sentence awarded to him by the Special Military Court should be ordered to run concurrently with the sentence passed by the Special Military Court. The petitioner was awarded the sentence of 25 years' R.I. By the Special Military Court in March, 1981 for another offence of section 409, P.P.C. This sentence being virtually an imprisonment for life, it would be in the interest of justice that the sentence in the case in hand should be ordered to run concurrently with the sentence passed by the Special Military Court.
4. The next question for determination is that under section 397, Cr.P.C. It is the trial Court which can make such an order and whether this power can be exercised in appeal by this Court. Although there is no much on this point but I have come across some judgments wherein it was held that the Court specified in section 397, Cr.P.C. Includes the High Court in its appellate jurisdiction as well.
Needless to say that under section 426, Cr.P.C. The appellate Court has power to do that which the trial Court could and should have done. Since the petitioner was already undergoing a sentence of 25 years' R.I. At the time he was convicted and sentenced in the case in hand I think it would be appropriate that I exercise the power of the Court as specified in section 397, Cr.P.C. And will, therefore, direct that both the aforesaid sentences shall run concurrently.
5. Since the petitioner remained under arrest in the case in hand since 16-8-1979 and the judgment was passed on 12-12-1983 he is also entitled to the benefit of the provisions of section 382-B, Cr.P.C.
For the period from 16-8-1979 to 12-12-1983. As such the total period of substantive sentence and sentence in default of payment of fine, which-comes to seven years, shall start from the date of arrest and it shall be deemed to have expired on 15- 8-1986.
6. I will, therefore, accept this criminal miscellaneous petition and hold that the petitioner has completed the substantive sentence of imprisonment of five years and sentence of imprisonment of two years in default of payment of fine in the instant case on 15-8-1986. He shall be released forthwith in the instant case if not required in any other case.
7. In view of the aforesaid position, the learned counsel for the petitioner stated at the Bar that the petitioner withdraws from his Criminal Appeal No. 3 of 1984 which is dismissed as withdrawn.
8. The learned counsel for the appellant also stated at the Bar that since the present petition has been accepted, he withdraws from Criminal Miscellaneous Petition No. 21/87 which is also dismissed as withdrawn.