Jaffar Khan v. the State,

2010 Y L R 2205

[Quetta]

Before Mrs. Syeda Tahira Safdar, J

JAFFAR KHAN ---Applicant

Versus

THE ST ATE ---Respondent

Criminal Miscellaneous Jail Application No. 173 of 2009, decided on 16th October, 2009.

Penal Code (XLV of 1860) ---

----Ss. 453 & 380 ---Criminal Procedure Code (V of 1898), Ss.35 & 397 ---Lurking house - trespass and theft ---Sentences a warded in two cases ---Application for running of sentences concurrently ---Accused had been convicted in respect of two incidents, in one case accused was awarded punishment for lurking house -trespass for a period of two years with fine of Rs.5000, while in other offence under S.380, P.P.C. he was awarded punishment of imprisonment for a period of three years and fine of Rs.10,000 ---Accused had prayed that sentences given to him in both the cases be counted jointly as there was no direction of the Trial Cour t in respect of running of the sentences concurrently, which would mean that said concession was declined to accused ---Accused was a young man with poor financial position, he did not seem to be a previous convict as nothing of that sort had come on record ---Lenient view was required to be taken to meet the ends of justice ---Allowing application of accused, it was directed by High Court that both the sentences made in two cases, would run concurrently, however sentences of imprisonment in default of payment of fine being not sentence of imprisonment within meaning of S.35, Cr.P.C., said sentences could not be directed to run concurrently.

Zahoor Ahmed Shahwani, P.G. for the State.

ORDER

MRS. SYEDA TAHIRA SAFDAR, J .---It is jail application submitte d by the appellant/convict with contention that he has been convicted in Case No.183 of 2008 Police Station Zhob, under sections 453, 380, P.P.C. for three years' R.I. with fine of Rs.15000 or 14 months' imprisonment. While it has also been ordered that th ese punishments are to be run consecutively. According to him he appealed against said order, which was rejected by the Court of Sessions Judge, Zhob. He has prayed that as he is innocent, therefore, it may be ordered that both the sentences be run concurr ently.

Record of Appellate Court has been received. The perusal of the same reveals that as per judgments of the trial Court made on 23 -1-2009 and 17 -1-2009 two F.I.Rs. bearing Nos.182 of 2008 and 183 of 2008 were registered, which were tried and decided by the Courts while appeals were also decided. The perusal of these judgments reveals that in both the cases the applicant has been convicted in respect of two incidents, both reported on 5 -11-2008, whereby theft and lurking house trespass were allegedly committed. Though in both these cases the accused was not nominated, but arrested thereafter along with one Mozamil. After completion of trial the accused/present applicant was convicted of the offence, while the co -accused was acquitted of the charge. The appeals filed by the accused/applicant were also rejected by the Appellate Court, while upholding the order of conviction made by the trial Court. Now the applicant through present application has prayed that the sentences given to him in both these cases be counted jointly.

As per section 35, Cr.P.C. the Court is competent to inflict such punishment 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 s uch punishment shall run concurrently. In present case as per record in Case No.43 of 2008 pertaining to F.I.R. No.182 of 2008 the applicant was awarded punishment for offence under section 457, P.P.C. for a period of two years with fine of Rs.5000, in def ault he has to undergo further imprisonment for a period of six months, while for offence under section 380, P.P.C. he has to undergo punishment of rigorous imprisonment for a period of three years and fine of Rs.10,000 and in default he has to undergo fur ther imprisonment for a period of nine months. It is specifically mentioned therein that both the sentences shall run concurrently. While as per judgment made on 17 -1- 2009 in Case No.42 of 2008 the applicant is convicted under section 453, P.P.C., while sentenced to suffer rigorous imprisonment for a period of two years with fine of Rs.5000, in case of default of payment he has to suffer further simple imprisonment for a period of six months. While under section 380, P.P.C. the applicant is sentenced to suf fer rigorous imprisonment for a period of three years with fine of Rs.10,000, in default he has to suffer simple imprisonment for a period of nine months. It has further ordered that both the sentences shall run concurrently.

Now through present applicat ion the applicant seeks that the orders made in both the cases and sentences awarded to him in both these cases be run concurrently. While section 35, Cr.P.C. only deals with the case of conviction of several offences at one trial. But section 397, Cr.P.C. provides the instance whereby a person already undergoing a sentence of imprisonment is sentenced to imprisonment in such case the second sentence shall commence at the expiry of the previous sentence, unless the Court direct that the subsequent sentence shall run concurrently with such previous sentence. In present cases the first sentence was imposed through judgment made on 17 -1-2009 convicting him and sentence for imprisonment. As such the provisions of this section are applicable in present case. Ther e is no direction of the trial Court in respect of running of the sentences concurrently, which means that this concession is declined to the applicant.

It is to be noted that the applicant/ convict has to undergo imprisonment for a period of six years i n toto, as the sentences are to run concurrently in each case. Without touching merits of the case the bare perusal reveals that only in Case No.43 of 2008 the applicant made admission /confession of the offence, while in other case there is no such admiss ion from his side. But keeping in view the contents of his present application and contents of appeals filed by him before Appellate Court it is apparent that the applicant is a young man with poor financial position, he does not seems to be a previous con vict as nothing of the sort has come on record. Therefore, a lenient view is required to be taken to meet the ends of justice. As such the application is allowed, it is ordered and directed that both the sentences made in Case No.42 of 2008 in respect of F .I.R. No.183 of 2008 and Case No.43 of 2008 in respect of F.I.R. No.182 of 2008 shall run concurrently. While it is to be pointed out that sentences of imprisonment in default of payment of fine is not a sentence of imprisonment within meaning of section 3 5, Cr.P.C., as such these sentences cannot be directed to be run concurrently.

H.B.T./55/Q Application allowed.