P L D 1977 Karachi 833 (PLP)

Rashid Akhtar Qureshi for A: G. (Sind) for the State. Date of hearing a fat June 1977. Appellant Zakir Ali was tried by the learned Sessions Judge, Mirpurkhas, in respect of an offence under section 13(d) of the Arms Ordinance, 1965 for allegedly possessing, without a licence, a flick‑knife, and awarded for the said offence a sentence of imprisonment for 2 years. The appellant was also separately tried for causing hurt with the said knife to one Moharram on the very day that the weapon of offence was secured from the possession of the appellant. For this latter offence also the appellant was awarded by the learned Sessions Judge, however, has committed to direct whether the two offences should run concurrently or consecutively. In the absence of any such direction, the two sentences would run consecutively as provided in section 397, P. P. C.

2. The brief facts of the case are that on 4th June, 1976, at about 12‑30 p.m.. one Moharram, who bad a knife injury in his abdomen. produced the appellant before A. S. T. Ashiq Hussain Shah, at the Mirpurkhas Police Station, alongwith n flick knife, having a blade of 3J', and lodged a report :against the appellant under section 307/326, P. P. C., accusing him of causing an injury with the said flick‑knife to him in his abdomen. The .A. S. L secured the knife in the presence of Mashirs Jumma Khan and Gulistan Khan and registered a case against the appellant under section 13(d) of the Arms Ordinance, 1965.

3. At the trial of the appellant in the case out of which the present appeal has arisen the prosecution examined injured Moharrram, who stated that the appellant bad caused him an injury with a flick‑knife in the abdomen, whereafter, the appellant started running away, but he chased him and managed to apprehend him and secured the flick‑knife from his possession, which he later produced at the police station alongwith the appellant. The prosecution also examined A. S. I. Ashiq Hussain, in whose presence the knife and the accused were produced by Maharram, and Mashirs Jumma Khan. Their evidence, which remained unshaken in cross‑examination. was accepted by the learned Sessions Judge, and on the basis of this evidence be convicted the appellant and awarded him the sentence which has already been mentioned. It may be stated hers that the learned Sessions Judge, for reasons not on record. considered it appropriate to try the injury case separate from the present case and after he had convicted the appellant to the injury case under section 3.24, P. P. C. and awarded him imprisonment of 2 years for the said offence, he tried the present cave and awarded the appellant a similar sentence but without specifying whether the sentence was to run consecutively or concurrently with the earlier sentence awarded ‑in the injury case.

4. The learned Sessions Judge has devoted a considerable portion of his judgment to the Question whether the flick‑knife secured from the possession of the accused is an 'arm' for the purposes of Arms Ordinance, 1965. It is not necessary to devolve at length on this aspect of the case by reason of the fact that by the amendment introduced in the Arms Ordinance by Vest Pakistan Ordinance XI of 1959, all flick‑knives, irrespective of the size of their blade. are deemed to be "arms' and possession thereof .without a licence is punishable thereunder. Mr. Syed Nasiruddin, the learned counsel for the appellant, did not question the conviction of the appellant, by reason of the overwhelming evidence which was led in the case against the accused nor did he question the fact that the knife secured from the accused was a flick‑knife and accordingly an 'arm' for the purposes of the Arms Ordinance. 1965, in view of the amendment made in the said Ordinance by West Pakistan Ordinance XI of 1969. The learned counsel, who was assisted by Mr. Hemraj Kirmani, however, submitted that since the appellant had already been sentences! to 2 years R. 1. for causing an injury with that, knife to Moharram, and since these two offences are really inter‑related, the sentence in the instant case should be ordered to run concurrently with the sentence awarded, to the appellant in the injury case. The learned counsel submitted that the very fact that the learned Sessions Judge has not ordered that the sentences in the instant case should run after the expiry of the sentence awarded in the injury case would seem to suggest that the learned Judge was perhaps of the view that the two sentences should run concurrently. This, however, is not the correct legal position. According to section 397, P. P. C. where a person already undergoing a sentence of imprisonment is sentenced to imprisonment fop another offence, the latter sentence is to commence after the expiration of the former sentence, unless the Court otherwise directs Since in the instant case the learned Sessions Judge has not directed that the sentence is to run concurrently with the sentence awarded in the injury case, by virtue of the provisions of section 397, Cr. P. C., the sentence in this case is to commence after the expiry of the sentence in the injury case. Mr. Najiruddin then submitted that even if the learned Sessions Judge has tailed to direct that the two offences should run concurrently, it is appropriate that they should so run and this Court has the power to direct that the sentences should run concurrently. Mr. Rashid Akhtar Qureshi, the learned Advocate appearing for the A: G., on the other hand submitted that since there were separate trials in respect of the offences of injury and the possession of the flick‑knife, therefore, it was not permissible to award concurrent sentences. In support of this submission of his he sought to place reliance on the provisions of section 35, Cr. P. C. However, when the attention of the learned counsel was invited to the provisions of section 397, Cr. P. C., he conceded that even in the case of separate trials concurrent sentences may be awarded in appropriate cases;

5. Though section 397, Cr. P. C. undoubtedly gives power to the trial Court to award concurrent sentences even in the case of separate trials, ‑the question may be considered whether the High Court, while heating an appeal, has the power to award concurrent sentences in such cases. This question was considered by the Bombay High Court in the case reported as Nagappa Vyankappa Salt v. Emperor (A I R 1931 Bom. 529). In that case the contention that under section 397, C.r. P. C. only the trial Court has tore power to pass concurrent sentences in case of separate trials and this power cannot be exercised by the High Court in appeal was repelled and it was held, following the decision in Emperor v. Sisram (A I R 1929 All. 505) drat the High Court has the power under section 397, Cr. P. C. to direct separate sentences of separate trials to run concurrently. The same view was taken in Baijinath v. State (A I R 1961 Pat 133). In the latter case it was held as follows :‑ "(16).‑The meaning of section 397 (1) is that sentences will take effect in the order in which they are passed. The sentence which is first passed and which the accused is undergoing must be given effect to first, and, any subsequent sentence passed upon the accused must follow after the expiration of the first sentence. Section 397(1), however, gives a discretion to the Court to direct that the subsequent sentence shall run concurrently with the previous sentence. Under this section the High Court also, in its appellate jurisdiction, has power to direct ate sentences of separate trials to ran concurrently."

6. I am in respectful agreement with the above proposition of law/B and take the view that the High Court has the power, while hearing an appeal or a revision application, to order separate sentences awarded in separate trials to run concurrently.

7. It thus only remains to be considered whether it is appropriate in the instant case to order the two sentences to run concurrently. In the fire' place, as already mentioned, the learned Sessions Judge has not ordered that the sentences should run consecutively but they are to so run only by reason of the provisions of section 397, Cr. P. C. Furthermore, the appellant appears to have been given a fairly substantial sentence in the injury case which was committed by him with the help of the knife for the possession whereof he has been convicted in the instant case. Taking all the circums tances into consideration, I am of the view that this is a fit cast in which the two sentences should be ordered to run concurrently. I would accordingly order that they should so run.

8. In the circumstances, the appeal is partly allowed to the extent Indicated above. S. Q. Order accordingly.