2009 P Cr (PLP)

NADEEM AZHAR SIDDIQI, J.

The appellant, who is produced in custody today, has moved this application through jail with the prayer that after considering the period of his confinement in jail and remission admissible to him he may be released. From the perusal of the record it appears that the appellant was convicted and, sentenced by the learned Sessions Judge, Karachi South vide judgment dated 14-9-2006 for the offence punishable under section 397, P.P.C. to undergo R.I. for .seven years and to pay fine of Rs.50,000 and in case of default thereof, to further undergo R.I. for six months. Benefit of section 382-B, Cr.P.C. was given to the appellant. The appellant was also convicted and sentenced by learned IX-Judicial Magistrate, Karachi South vide judgment dated 10-42007 for the offence punishable under section 13-D of Arms Ordinance, 1965 to undergo R.I. for two years and to pay fine of Rs.5,000 or in default thereof, to undergo S.I. for three months more. Benefit of section 382-B, Cr.P.C. was also given to the appellant. The Jail Roll has been called which shows that the total sentence awarded to the appellant in both the above cases was nine years and nine months. The appellant has served three years, eleven months and twenty seven days, has earned remission for one year, two months and nineteen days and unexpired portion of the sentence as on 14-3-2009 was four years six months and fourteen days. The appellant has filed appeal challenging the convictions and sentences in both the above cases by filing Criminal Appeal No.6 of 2008, which was dismissed as time-barred on 16-1-2008. He has moved this application, which was treated as criminal miscellaneous application. From the perusal of the Jail Roll it appears that remissions were provided to the appellant. It has not been specifically challenged that which type of remissions were not granted to the appellant and in absence thereof, it cannot be said that due remissions were not granted to the appellant. From the perusal of the judgments, it appears that both the offences are interconnected with each other. Both the offences were committed at once and the same time and both the F.I.Rs. were registered one after other at one police station and the appellant was also arrested on the same day in both the cases. The trial Court which passed the subsequent conviction should have granted the concession available under section 397, Cr.P.C. to the appellant. By not providing the concession available under the law to the appellant the trial Court has not acted judicially and in accordance with law. In the reported case of Ali Akbar Shah v. The State PLD 2004 Kar. 589 a learned D.B. of this Court relying upon the judgment of Bashir v. State PLD 1991 SC 1145 has held as under:

"Order within the meaning of section 397, Cr.P.C. is required to be passed at the time of deciding the case or appeal and if for any reason or due to some inadvertent omission the same is not passed then the same can be passed by the High Court afterwards by exercising the powers under section 561-A, Cr.P.C. We are also of the view that it will not be reviewing or modifying the judgment, but the judgment will be intact concerning the conviction and sentence as the matter of sentence to run concurrently is ancillary to the question of punishment. Only the mode of execution of sentence is to be clarified because the section 397 is available in Chapter XXVIII, Cr.P.C. which deals with execution." In the reported case of Shamshad Hussain alias Shamla v. State 2002 MLD 1079 a learned D.B. of Lahore High Court has held as under: -- "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." In another reported case of Abdul Ghafoor v. The State 2007 YLR 700 a learned D.B. of this Court has held as under:

"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 trial Court while passing the subsequent conviction and sentence ought to have exercised this discretion in favour of the appellant. Non-exercise of discretion in favour of the appellant amounts to miscarriage of justice and can be interfered by exercising the jurisdiction under section 561-A, Cr.P.C. The learned State counsel has no objection for providing concession to the appellant in terms of section 397, Cr.P.C. Keeping in view the circumstances of the case, it is ordered that the sentences in both the offences i.e. section 397, P.P.C. and section 13-D of Arms Ordinance be run concurrently. Office is directed to inform the Jail authorities accordingly. The application is disposed of in the above terms. H.B.T./M 71/K Order accordingly.