ABDUL GHAFOOR Versus State

ORDER

1. NADEEM AZHAR SIDDIQI, J .---By this revision application the applicant has prayed that the two terms of sentence awarded to him in Crime No.2 of 1997 and 3 of 1997 of Police Station A.N.F., Sukkur be ordered to run concurrently.

2. Brief facts of the case are that the applicant was apprehended on 3-12-1997 with a jute sack on a bicycle and after checking the said jute sack Charas weighing 20 K.G. was found.

3. On the same date and in the same Police Station Crime No.3 of 1997 was registered in which it was alleged that A.N.F. staff took the applicant to his house at Old Nara S.I.T.E. area Sukkur where he pointed out two jute sacks lying beneath a cot. In the said jute sacks 20 packets of Charas were found and were weighed to 40 K.G.

4. Both these cases were proceeded before the Court of Special Judge, C.N.S. Sukkur as Special Case Nos.110 of 1997 and 111 of 1997 and were decided by separate judgments on 25-6-2005.

5. While passing the judgment the trial Court has not ordered for concurrent running of the sentences.

6. After the judgments the applicant has sent application to the trial Court with the prayer that the two sentences may be ordered to run concurrently. The learned trial Court has rejected the application and has held that the applicant was convicted in two separate cases for two distinct offences which were separately registered and tried.

7. The learned counsel for the applicant has submitted that the offence is one and the same but the prosecution has mala fidely registered two distinct cases. He submits that as per the allegation of prosecution the applicant was apprehended from the road on a bicycle with 20 K.G. Charas and thereafter on his pointation from his house then Charas weighing 40 K.G. was recovered. He further submits that the trial Court should have granted concession as provided under section 397, Cr.P.C. to the applicant. He submits that the order dated 3-4-2006 refusing to grant concession as provided under section 397, Cr.P.C. is without lawful authority and is liable to be set aside.

8. The learned Addl. A.-G. states that the powers for granting concession under section 397, Cr.P.C. can be exercised by the trial Court or by the appellate Court at the time of passing the judgment and not thereafter. He further submits that from the perusal of the record it appears that the applicant was convicted and sentenced in two separate cases and at the stage of trial no application was moved for consolidation or amalgamation of two independent trials.

9. The learned S.P.P. states that the provisions of section 397, Cr.P.C. will only applicable if both tits sentences are beyond the maximum limit of 25 years. He further submits that since the applicant was tried and convicted in two separate crimes, the sentence cannot be ordered to run concurrently. The learned S.P.P. has relied upon the case of Sikandar All alias Sikoo v. The State PLD 2003 Kar. 260.

10. We have heard the learned counsel for the parties and perused the record.

11. From the perusal of the judgment in Special Case Nos. 110 of 1997 and 111 of 1997 it appears that both the cases were registered at the same police station on the same date one after another. The Investigating Officer is the same and in the second case the recovery was made on the pointation of the applicant himself after recovery in first case. From the judgment it appears that both the crimes are one and the, same and the prosecution has malafidely separated it into two crimes. The power available under section 397, Cr.P.C. can be exercised where the transaction/incident is one and the same. The trial Court while passing the conviction and sentence in second case ought to have exercise this discretion in favour of the applicant. Non-exercise of discretion in favour of applicant amounts to miscarriage of justice and can be interfered in revisional jurisdiction. The trial Court has also not done substantial justice by not exercising jurisdiction in favour of the applicant. In the case of Shamshad Hussain alias Shamla v. State 2002 MLD 1079 a learned D.B of Lahore High Court has held as under:--

12. "Appellant was arrested on the same day in both the cases registered against him one after the other. He was tried by the same learned Judge, convicted and sentenced on the same day in case F.I.R. No.274 for five years' R.I. and fine of Rs.25,000 and in case F.I.R. No.273 of 1997 for ten years R.I. with fine of Rs.1 Lac. Under section 397 of Criminal Procedure Code, this Court is competent to order running of sentences concurrently although the trial in both the cases were separate as laid down in the case of Altai. Hussain referred above."

13. The facts of reported case of Sikandar Ali are distinguishable as in that case the Court has held that accused had been convicted for three independent offences.

14. From the circumstances of the case it can be said that the second crime is off-shoot of the first crime. To meet the ends of just, we feel it will be in the interest of justice to order that both the sentences be run concurrently. The revision is allowed in the above terms.

15. S.M.B./A-148/K Petition allowed.