Didar Khan vs Supdt. Jail etc.

JUDGMENT SHEET

IN THE PESHAWAR HIGH COURT,

PESHAWAR

(Judicial Department)

Writ Petition No.2507-P/2014

Date of hearing: 30.10.2014

Petitioner (s) : Didar Khan by Mr. Iftikhar Ali Advocate.

Respondent(s) :by Mian Arshad Jan AAG.

JUDGMENT

ASSADULLAH KHAN CHAMMKANI, J.- By

invoking the constitutional jurisdiction of this court under Article 199 of the Constitution, petitioner Didar Khan, seeks conversation of consecutive sentences into concurrent, awarded to him by learned Sessions Judge and Additional Sessions Judge-II, Nowshera, in proceedings under section 514 Cr.P.C. in different criminal cases, in which he stood surety for different accused, in the following manner:-

1.Vide order dated 10.12.2013 to pay Rs.25,000/- as forfeited amount of the bail bond or in default thereof to undergo *M.Siraj Afridi P.S. D

6 months S.I. in case FIR No.433 dated 20.06.2013, registered under section 489- B PPC at Police Station Pabbi Nowshera.

2.Vide order dated 17.01.2014, to pay Rs.2,00,000/- as forfeited amount of bail bond or in default thereof to undergo 6 plus 6 months S.I. in case FIR No.25 dated 12.01.2013, registered under section 9 CNS, Act, 1997 registered at Police Station Risalpur.

3.Vide order dated 12.02.2014, to undergo 90 days S.I. in case FIR No.125 dated 05.03.2013, registered under sections 302/34 PPC at Police Station Akora Khattak, Nowsshera.

4.Vide order dated 31.03.2014, to pay Rs.50,000/- as forfeited amount of bail bond or in default thereof to undergo 03 months S.I. in case FIR No.961 dated *M.Siraj Afridi P.S. D

20.12.2012, registered under section 9 CNS, Act, 1997.

2.Learned counsel for the petitioner argued that petitioner is a poor chap of an advance age, who stood surety for the accused only on humanitarian ground without any monetary gain, therefore, in the interest of justice, sentences awarded to him under section 514 Cr.P.C. in different criminal cases, may kindly be directed to run concurrently.

3.Conversely, learned AAG contended that from bail bonds furnished by petitioner coupled with impugned orders, it is manifest that he is an habitual tout and stood surety for accused in lieu of monetary gain, therefore, deserves no leniency.

4.We have heard arguments of both the sides and perused the record.

5.It appears from the record that petitioner is permanent resident of Akora Khattak, District *M.Siraj Afridi P.S. D

Nowshera, and he stood surety for four accused in following different criminal cases:-

i)For accused Imran son of Mubarak Shah, resident of Bara Khyber Agency, involved in case FIR No.433 dated 20.06.2013, registered 489-C PPC, Police Station Pabbi, Nowshwera, on 22.06.2013 by furnishing bail bond in the sum of Rs.50,000/-.

ii)For accused Muhammad Afzal son of Muhammad Aslam, resident of Ali Housing Colony Faisal Abad, involved in case FIR No.25, dated 12.01.2013 registered u/ s 9 CNS, Act, 1997 at Police Station Risalpur on 08.03.2013 by furnishing bail bonds in the sum of Rs.4,00,000/-.

iii)For accused Muhammad Faisal son of Nizam ud Din, resident of Faisal Abad involved in case FIR No.25, dated *M.Siraj Afridi P.S. D

12.01.2013, registered under section 9 CNS, Act, 1997 , at Police Station Risalpur on 08.03.2013 by furnishing bail bonds in the sum Rs.4,00,000/-.

iv)For accused Mst. Nagina wife of

Ubaidullah, resident of Jehangira,

involved in case FIR No.125 dated

05.03.2013, registered under sections 302/34 PPC at Police Station Akora by furnishing bail bond in the sum of

Rs.1,00,000/-.

6.Bare perusal of addresses of all the accused mentioned in bail bonds referred above, reveal that they all are residents of different areas, having no nexus with the petitioner, so much so that accused Muhammad Faisal and Muhammad Afzal, are residents of Faisal Abad (Punjab), while accused Imran is the inhabitant of Khyber Agency (tribal territory). We see nothing on the record to justify the assertion of petitioner qua his standing *M.Siraj Afridi P.S. D

as surety on humanitarian ground. Rather one of the impugned order dated 31.03.2014, depicts that he is an habitual tout and a separate case under sections 419/420 PPC, has also been registered against him by virtue of his submitting fake revenue papers along with bail bonds in some other criminal case. Respondents/Sessions Judge and Additional Sessions Judge, Nowshera have provided ample opportunity to the petitioner to produce the accused before the court, but he failed, and in such circumstances, the respondents were left with no option but to proceed against him under section 514 Cr.P.C. The petitioner has already been dealt with leniency by both the respondents while awarding him sentence under section 514 Cr.P.C.

We see no convincing ground and circumstance to compel us for taking further lenient view against the petitioner.

7.Admittedly, consecutive sentences is a general rule while concurrent sentences only an *M.Siraj Afridi P.S. D

exception and to be awarded in circumstances of each case. No doubt, section 397 Cr.P.C. can be invoked by a court awarding second sentence or court having appeal/revision arising out of second conviction. Court has the discretion to direct the subsequent and previous sentences to run concurrently, but such direction can be exercised by the court, only on having found that all the offences have been committed in the course of realization of common object which the accused wanted to achieve at a particular point of time. Where, all the offences have been committed with distinguishable and separate criminal objectives, sought to be achieved, at different places and point of time, accused is not entitled for running of sentence concurrently. Power conferred upon the Court under section 397 Cr.P.C. for directing various sentences awarded in different cases to run concurrently, are discretionary in nature and are to be exercised after taking into consideration the allegations and *M.Siraj Afridi P.S. D

circumstances of each individual case. As regard the case of the petitioner, we do not find the same to be falling within the ambit of section 397 Cr.P.C., thus, he cannot derived any benefit from the same.

Moreso, as stated earlier, power conferred upon the court under section ibid, are discretionary to be exercised judiciously, keeping in view facts and circumstances of each case.

8.As regard the argument of the learned counsel for the petitioner that no monetary gain was involved and petitioner stood surety on humanitarian ground, is unpersuasive, because there is nothing in black and white to justify the aforesaid argument, rather, sufficient material is available before us proving the petitioner an habitual tout in lieu of monetary gain. Admittedly, where a court allows bail to an accused with condition that he would furnish bail bonds in a particular amount through sureties, and if such sureties fail to produce the accused, when required *M.Siraj Afridi P.S. D

by the court, any leniency of the court in favour of the surety, in case of failure of the surety in production of accused, would tantamount to violating law and would encourage non-production of accused, who is allowed bail on the basis of bonds furnished by the sureties.

9.For the forgoing reasons, we see no illegality or violation of any law, much less any jurisdictional defect, which may call for interference by this court in the impugned orders, in its constitutional jurisdiction. Resultantly, this petition being without any legal substance stands dismissed.

Announced.

JUDGE

JUDGE

*M.Siraj Afridi P.S. D

*M.Siraj Afridi P.S. D