RAHMAT HUSSAIN JAFFERI, J.---On 19-11-2003, convict Ali Akbar Shah through Superintendent Central Prison Karachi has sent an application with a request that his two convictions passed in two separate cases and trials may be ordered to run concurrently.
2. The background, in which the present application has been filed, is that on 26-5-1991 the convict along with other accused persons abducted a person for ransom purpose, therefore: a case under section 365-A, 34, P.P.0 was registered at Police Station Bahadurabad being F.I.R No,174 of 1991. After about 4-1/2 months on 19-10-1991, the convict along with others persons abducted another person for ransom purpose, therefore, F.I.R No,196 of 1991 was registered under section 365-A, 34, P.P.0 at Police Station ,Aziz Bhatti. The latter case was tried in which the trial Court sentenced the convict to imprisonment for life. His appeal to High Court and Supreme Court failed.
3. In the earlier case being F.I.R No,174 of 1991 the convict was tried but the trial Court acquitted him.
The State preferred an appeal against the judgment of acquittal passed by the trial Court. On 28- 8-2003, the appeal was allowed. The convict was convicted under section 365-A, P.P.0 and sentenced to imprisonment for life and forfeiture of his property to the extent of Rs,50,000 (Fifty Thousand Rupees) with benefit of section 382-B, Cr.P.C. The convict has moved the present application with the request that his sentence awarded by this Court in F.I.R No,174 of 1991 may be ordered to run concurrently with his earlier sentence as provided under section 397, Cr.P.0 by invoking the inherent powers of this Court.
4. The convict was not represented by any Advocate, therefore, Mr. Mehmood A. Qureshi Advocate was appointed as amicus curiae to assist the Court, as legal point was involved. .
5. We have heard Mr. Mehmood, A. Qureshi advocate/amicus curiae and Mr. Habib Ahmed, A.A.-G for the State.
6. Mr. Mehmood A. Qureshi has stated that when an accused is tried in two cases, then in subsequent trial in two cases, then in subsequent trial, if the appellant is convicted in first trial, second sentence can be ordered to run concurrently as per section 397, Cr.P.C. But as the said order was not passed while deciding the appeal of F.I.R No,174 of 1991, therefore, the same is required to be passed by invoking the provisions of section 561-A, Cr.P.C. He has relied upon a decision of Division Bench of this Court delivered in an unreported case Muhammad Prayal v. State C.P. No,D-1305 of 1992. He has further stated that as the convict has been convicted in two cases of similar nature and has remained in custody for 12 years, therefore, it is in the interest of justice that both the sentences should be made to run concurrently.
7. On the other hand Mr. Habib Ahmed learned A.A.-G. Has stated that no order within the meaning of section 397, Cr.P.C., was passed in the appeal arising out of F.I.R No,174 of 1991 which was subsequently decided, therefore, no separate order can be passed at this stage because it will amount to modification of the judgment which is not permissible under section 369, Cr.P.C. And that when specific provision is provided under the law to meet any situation then provisions of section 561-A, Cr.P.C. Cannot be invoked, he has relied upon decision of a Division Bench of this Court in a case of Sikandar Ali v. State (PLD 2003 Kar 260). He has further stated that the convict had committed two serious offences of abduction for ransom; that the convict has been found guilty of both the offences and that the above mentioned offences are increasing day by day, therefore, the convict is not entitled for any concession.
8. We have given due consideration to the arguments and have gone through the various provisions of law and the rulings cited at the bar.
9. A perusal or Criminal Procedure Code reveals that there are two provisions, which deal with the sentences either to run concurrently or consecutively. The said sections are 35 and 397 of Cr.P.0 section 35 deals with various sentences passed in a single trial of two or more offences. The sentences are to run consecutively unless the Court directs to run such sentences concurrently.
Section 397, Cr.P.0 deals with sentences when an accused person is tried in two trials, which provides that the sentence of second trial is to run consecutively unless the Court directs to run the said sentence concurrently, section 397, Cr.P.C. Covers the present case.
10. We have gone through the judgment of both the appeals delivered by this Court in two separate appeals by which the convict has been convicted. The earlier decision was given by this Court on 5-3-1998. The latter decision in F.I.R No, 174 of 1991 was given on 28-8-2003. In the latter appeal no order within the meaning of section 397, Cr.P.C. Was passed. As such, now, a point arises whether at this stage this Court is competent to pass such order. On the above point Mr. Mehmood. A. Qureshi and Mr. Habib Ahmed have advanced their arguments and relied upon decisions of two different Division Benches of this Court.
11. The earlier decision on this point is of an unreported case of Muhammad Parayal (supra) referred to by Mr. Mehmood. A. Qureshi. In the similar circumstances the Division Bench of this Court observed as under; "In view, the various sentences awarded to the petitioner in separate trials, can be regulated under section 561-A, Cr.P.C., so as to make them run concurrently and this will not amount to altering, reviewing or modifying the judgment of the trial. Court."
12. A different view was taken by another Bench of this Court in the case of Sikandar Ali (supra) and at page 265 it has been observed as under: "Even otherwise after dismissal of the appeal in above mentioned two cases with modification of sentences in one judgment, the judgments have attained finality under section 369, Cr.P.C., fresh direction for concurrent running of the sentences in exercise of powers under section 561-A, Cr.P.C.
Would amount to alteration and review or modification of the appellate judgment of High Court which is not permissible. In the case of Muhammad Khan (supra), the Full Bench of Lahore High Court held that any fresh direction for concurrent running of sentences would amount to alteration and review of the judgment not permissible under section 369, Cr.P.C."
13. From the above decision it is clear that there is conflict of opinion in the two Division Benches of this Court. Nevertheless, the same point was examined by the Hon'ble Supreme Court of Pakistan in a case of Bashir v. State reported in PLD 1991 SC 1145 and at page 1172 it has been observed as under: Last but not least, the duty of the trial Court to finally address itself to the question whether the sentences awarded should run concurrently or consecutively, irrespective of the rule contained in section 35(1) of the Code, and whether the detention undergone by an accused during his trial should be treated as period spent by him as a convict, for the purpose of the benefit available under section 382-B of the Code, are as much mandatory for determination as the question of punishment itself. Basically, they are matters ancillary to the question of punishment, but otherwise highly important. Where there is a failure on the part of the trial Court to determine these questions, difficulty would arise, because of section 369 of the Code. However, during appeal or revision before the High Court, the High Court could itself, examine these questions, subject to limitations, if any, provided by law and principles laid down by this Court, and determine these matters. Again, whereby inadvertence there is failure on the part of the High Court to determine these questions, I cannot see any reason why resort cannot be had to section 561-A of the Code to cure the failure, in order to secure the ends of justice. Surely an attempt to cure inadvertent omission in the nature of errors ancillary to punishment cannot be allowed to be frustrated by section 369 of the Code.
Section 369 falls under Chapter XXVI of Part VI of the Code, whereas sections 424 and 430 fall in Chapter XXXI of Part VII of the Code. Under section 424, the rules contained in Chapter XXVI asto the judgment of a criminal Court of original jurisdiction mandatorily apply, so far as may be applicable, to the judgment of any Appellate Court other than a High Court. Under section 430, judgment and orders passed,by an Appellate Court upon appeal are treated as final, except' in the cases provided for in section 417 and Chapter XXXII. Section 417 deals with appeals against acquittal and Chapter XXXII deals with references and revisions. In view of sections 424 and 430, the bar of section 369 only applies to judgments of the High Courts given in the exercise of their criminal original jurisdiction; but not if given in the exercise of their criminal appellate jurisdiction."
14. Keeping in view the decision of the Hon'ble Supreme Court of Pakistan we are of the considered view that the order within the meaning of section 397, Cr.P.C. Is required to be passed at the time of deciding the case or deciding the appeal and if for any reason or due to some inadvertent omission the same is not passed then the same can be passed by the High Court afterwards by exercising the powers under section 561-A, Cr.P.C. We are also of the view that it will not be reviewing or modifying the judgment but the judgment will be intact concerning the conviction and sentence as the matter of sentence to run concurrently is ancillary to the question of punishment.
Only the mode of execution of sentence is to be clarified because the section 397, is available in Chapter XXVIII, Cr.P.C. Which deals with execution. Even otherwise the bar contained in section 369 which is in part XXVI of Cr.P.C. Will not apply to High Court exercising appellate jurisdiction by virtue of section 424, Cr.P.C. Further under section 430, Cr.P.C. The judgment and order of appellate Court are final except in the cases provided under section 417 and Chapter XXXII of Cr.P.C. The subsequent appeal concerning F.I.R No,174 of 1991 was under section 417, Cr.P.C. Sections 424 and 430, Cr.P.C. Read as under:- "424. Judgments of subordinate Appellate Courts.--The rules contained in Chapter XXVI as to the judgment of a Criminal Court of original jurisdiction shall apply, so far as may be practicable to the judgment of any Appellate Court other than a High Court: Provided that, unless the appellate Court otherwise directs, the accused shall not be brought up, or required to attend, to hear judgment delivered."
"430. Finality of orders on appeals.--Judgments and orders passed by an Appellate Court upon appeal shall be final, except in the cases provided for in section 417 and Chapter XXXII."
15. After considering the gravity of the offence in this case and particularly the fact that the convict had committed two offences of serious nature within a period of 5 months we are of the view that the convict does not require any leniency. He knew that the sentence of the offence was death or imprisonment for life but he did not care for his future. He himself is responsible for his acts, which have been proved, and the Courts have found him guilty of commission of these offences. It is not out of place to mention here that the offences of abduction for ransom amount have increased tremendously, therefore, the Legislature have enhanced the sentence from imprisonment for life to death. The purpose of punishment is to deter the persons from committing such offences and that should be an eye-opener for others not to repeat such type of offences.
16. In the present case there is no justification for ordering the sentence to run concurrently. The application is dismissed.