' The relevant facts for the decision of this Constitutional petition are that the petitioner was apprehended in two cases under Article 3 of Prohibition Order, 1979. The police after completion of the investigation submitted the report under section 173, Cr.P.C. In the Court of learned Sessions Judge, Attock, who proceeded with the trial. The petitioner was found guilty, therefore, convicted and sentenced in both the cases by separate judgment, dated 17-1-1996 as under:-- Case No. OffenceDateof decisionPunishment HaddCaseNo.95of1994Hadd Case No.94of 1994 Under Article 3/4of Prohibition (Enforcement ofHadd) Order, 197917-1-1996Sentenced to undergo R. I. for 4 years and a fine of Rs.25,000 or in default thereof R.I. for6months.
Benefit of section 382-B,Cr.P.C. also allowed.
HaddCaseNo.94of1994UnderArticle 3/4of Prohibition (Enforcement ofHadd) Order, 197917-1-1996Sentencedto undergo R. I. for 3 years and a fine of Rs15,000 or in default thereof R.I. for 4 months. Benefit of section 382-B, Cr.P.C. also allowed.
' The petitioner through this writ petition has prayed for a direction to treat the two sentences concurrent. The petition came up for limine hearing on 15-9-1997 when copy was handed over to the learned Additional Advocate-General with a direction to obtain instructions. The order has been complied with.
2. The learned counsel for the petitioner argued that the petitioner was convicted and sentenced through separate judgments, therefore, the sentence was to run concurrently and the petitioner is to be released the moment he undergoes maximum sentence of 4 years. In this behalf he has referred to sections 35 and 397, Cr.P.C.
3. On the other hand, learned Additional Advocate-General argued that as the judgments in both the cases are silent as to the punishment being concurrent or otherwise, therefore, the sentence would run consecutively. The learned counsel in this behalf has referred to the judgments reported as Mian Gulzar Muhammad v. Crown PLD 1950 Lah. 497 and Ahmad Jan v. District and Sessions Judge and another PLD 1994 Quetta 1. It is argued that in the absence of direction the sentence is to be treated as consecutive.
4. I have given my anxious consideration to the arguments advanced on behalf of the parties, gone through the record, relevant provisions of Cr.P.C. And two precedent cases relied by the learned Additional Advocate-General The learned counsel for the petitioner referred to section 35, Cr.P.C.
The same is not relevant to the present controversy as the petitioner has been convicted at two separate trials and not at same trial for two or more offences. The case is covered by section 397, Cr.P.C., which reads as under:-- " Sentence of 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 clear from the above provision that it is within the discretion of the trial Court passing the second conviction to make the sentence concurrent but in the absence of any direction the same shall run consecutively. In the case in hand the learned Sessions Judge was not pleased to exercise the discretion in favour of the petitioner. There is no difficulty in arriving of the conclusion from the facts on record that one conviction was earlier in time and the same was followed by conviction in the other case. The trial Court has given the petitioner benefit of section 382-B, Cr.P.C., therefore, it could safely be inferred that the omission or failure to make discretion about the sentence being concurrent or otherwise must be intentional. This view is supported by the observation of late Mr. Justice M.R. Kiani in the case of Mian Gulzar Muhammad (supra). The relevant portion reads as under:-- .. I hold that the accused was undergoing his first sentence when the second and third were pronounced on him and that consequently, where there is no order making them concurrent, they will be undergone consecutively. The petition is dismissed."
' This question was again examined by Mr. Justice Munawar Ahmad Mirza, Chief Justice, Quetta High Court as his Lordship then was, with reference to case of Bashir Ahmad and 3 others v. The State PLD 1991 SC 1145. It was held that High Court can allow benefit to the convict regarding the nature of sentence under section 561-A, Cr.P.C. While the trial Court or the appellate Court have absolute discretion to determine whether the sentence shall run concurrently or not? But where such discretion has not been exercised and specific order has not been passed then in consonance and with the spirit of object of law the sentence of imprisonment whether awarded for different offences in the same trial or separate cases without specifying priority or time shall run consecutively i,e, one after the expiry of the other and thereafter, it was held that the Constitutional jurisdiction can only be invoked for challenging the action without lawful authority or in excess of jurisdiction or refraining to exercise lawful authority or discretion. The learned Judge, therefore, proceeded to hold as under:-- ".... Applying above principle there does not appear any plausible reason for exercising inherent jurisdiction in the instant case. Besides, in the absence of any patent impropriety glaring violation of law or breach of 'duty, interference through writ jurisdiction is not warranted..."
The principle noted above fully covered the present controversy, therefore, it is held that respondent No,2 rightly and legally is treating the sentence of the petitioner in both the cases consecutive.
5. The upshot of the above discussion is that there is no merit in this petition. The same is dismissed.