SHAMSHAD HUSSAIN alias SHAMLA vs THE STATE

' RAJA MUHAMMAD SABIR, J.---This judgment will cover Criminal Appeals Nos.75 of 2000 and 76 of 2000 both filed by Shamshad Hussain appellant against the judgment dated 3-1-2000 passed by the learned Sessions Judge Layyah in case F.I.R. No,273 of 1997 dated 14-7-1997 under Articles 3/4 of Prohibition (Enforcement of Hadd) Order, 1979 and section 9 of the Control of Narcotic Substances Act, 1997 and in case F.I.R. No,274 of 1997 dated 14-7-1997 under Articles 3/4 of Prohibition (Enforcement of Hadd) Order, 1979 and section 9 of Control of Narcotic Substances Act, 1997 both registered on same day against appellant at Police Station City Layyah.

2. After investigation of said cases two separate challans were submitted in the trial Court.

Appellant pleaded not guilty and prosecution was directed to adduce evidence to prove the charge Khadim Hussain constable P.W.1, Abdul Sattar constable P.W.2, Sajjad Hussain Sindhu Investigating Officer appeared as P.W.3 and prosecution tendered report of the Chemical Examiner Exh.P.D. Muhammad Ramzan Head Constable was summoned as C.W.1 by the trial Court. Learned trial Court believed the prosecution evidence and recovery of 2 Kgs. Churs in case F.I.R. No,274 of 1997 and 10 Kgs. Opium in case F.I.R. No,273 of 1997 from him and sentenced him under section 9(c) of C.N.S.A. 1997 to five years' R.I. With fine of Rs,25,000 failing which he would undergo one years imprisonment in case F.I.R. No,274 of 1997 and ten years' R.I. With fine Rs,1,00,000 failing which he would further undergo two years imprisonment in the other case F.I.R. No,273 of 1997. He was given benefit of section 382-B, Cr.P.C. Also.

3. Learned counsel for the appellants does not challenge the conviction but request that as the trial of the appellant was concluded in both the case on the same day, therefore, sentences may be ordered to run concurrently and in this context relied upon Niaz Ali v. State (PLD 1961 (W.P.) Lahore 269), Altaf Hussain v. The State 1987 PCr.LJ 169 and Bashir and 3 others v. The State (1981 SCM R 1217).

4. Learned counsel for A.N.F. Has opposed the request.

5. Heard, Record perused. In the case of Bashir and 3 others referred above Supreme Court observed in para. 14 as under-- "the cases where-the Court has sentenced a convict to death and subsequently by an executive order the death sentence is commuted into life imprisonment, the position is somewhat different. It is different because neither section 35(1) nor section 397, Cr.P.C. In terms apply to such a case. The Court cannot pass any order with regard to its being concurrent or otherwise. In the absence of any provision directly applying to the case, the sentence so commuted shall be required to be undergone concurrently and not consecutively."

' Similarly in Niaz Ali's case it was observed that offence falling under more than one enactment trial or conviction under different enactments is valid but separate consecutive sentences cannot be passed.

' In the last case of Peshawar jurisdiction the accused was awarded sentence of 25 years' R.I. By a Special Military Court for another offence under section 409, P.P.C., subsequently he was sentenced to 5 years' R.I. By Special Judge Anti-Corruption and in the appeal a prayer for running the sentences concurrently was made. Since no order for commencement of sentences was passed by the trial Court it was observed that the High Court was competent to exercise power under section 397, Cr.P.C. In directing both the sentences to run concurrently.

6. Judgment of Peshawar High Court in Altaf Hussain's case referred above and provisions of section 397, Cr.P.C. Show that the High Court is competent to pass such an order as prayed by the learned counsel for the appellant.

7. 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 Rs,25,000 and in case F.I.R. No,273 of 1997 for ten years' R.I. With fine 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 Altaf Hussain referred above.

8. For the reasons stated above, we feel that it will be just and fair to accede to the request of the counsel for the appellant. Accordingly the appeals are dismissed and the convictions of the appellant are maintained but the sentences awarded to him by the learned trial Court in both the cases shall run concurrently.