2013 P Cr. L J 518
[Balochistan]
Before Muhammad Noor Meskanzai and Muhammad Hashim Khan Kakar, JJ
AFTAB IQBAL KHILJI ---Petitioner
Versus
The STATE ---Respondent
Review Application No.(S) 1 in Criminal Appeal No. 127 of 2004 and Review Application
No.(S) 2 of 2009 in Criminal Appeal No.(S)42 of 2001, decided on 28th November, 2012.
(a) Stare dec isis, principle of ---
----Applicability ---Principle of stare decisis is a greatly valuable doctrine of common law and
court should stand by precedents and should not disturb them but this rule is not so inflexible
which precludes a departure therefrom in any case --- Application of stare decisis must be
determined in each case by discretion of court, keeping in view its peculiar circumstances.
(b) Criminal Procedure Code (V of 1898) ---
----S. 561 -A---Review of judgment ---Principle ---No provision is av ailable for review of any
judgment or order under Criminal Procedure Code, 1898, yet while exercising inherent
jurisdiction under S.561 -A, Cr.P.C. High Court has ample power to correct its own orders or
to recall an erroneous order ---Criminal court can onl y review or recall its judgment and order,
if it is satisfied that earlier order/ judgment is either without jurisdiction or against mandatory
provisions of law and has been delivered inadvertently and out of oblivion of the provision of
law and if such or der / judgment is left intact, it would result in perpetration of manifest
injustice.
(c) Police Rules, 1934 ---
----R. 16.2(2) ---Pakistan Arms Ordinance (XX of 1965), S.13(e) ---Penal Code (XLV of
1860), S.161 ---Prevention of Corruption Act (II of 1947) , S.5---Criminal Procedure Code (V
of 1898), S. 561 -A---Review of judgment ---Reinstatement in service ---Petitioner was
employee of police who was convicted and sentenced in two different cases one for keeping
illegal arms and other for accepting illegal gr atification ---Convictions and sentences awarded
by Trial Courts in both the cases were maintained by High Court ---After lapse of about five
years, petitioner sought review of judgments passed in criminal cases and authorities
reinstated him in service ---Validity ---Any police officer sentenced judicially by competent
court of law to rigorous imprisonment exceeding one month should be dismissed from
service, provided such sentence was not quashed on appeal or revision ---Criminal appeals
filed by petitioner in High Court were dismissed in years 2002 and 2004 respectively and no
appeal or revision was pending before any appellate or revisional forums on 9 -5-2009, when
he was re -instated in service ---No occasion was left with police authorities to reinstate
petitioner in service ---Review petitions were filed on 16 -4-2009, by petitioner after an
unexplained delay of about five years, just to create ground for his reinstatement in service,
which smacked mala fide on the part of petitioner and concerned police autho rity---High
Court declined to interfere in convictions and sentences awarded to petitioner ---Petition was
dismissed in circumstances.
Iqbal v. The State 2001 PCr.LJ 1634; Maulana Muhammad Azam Tariq, MNA v.
Khursheed Ali 1996 PCr.LJ 119; Pir Sultan Ahm ed v. Haji Abdul Hameed PLD 1980 Kar.
294; Juan Sullivan v. The State 1971 SCMR 618 and Shah Nazar Khan v. Goga Khan 2005
YLR 3297 ref.
M. Kamran Murtaza for Petitioner.
Abdul Aziz Khilji, Additional A. -G. for the State.
Date of hearing: 13th Nove mber, 2012.
ORDER
MUHAMMAD HASHIM KHAN KAKAR, J. ---By way of filing the instant
criminal review petitions, petitioner Aftab Iqbal Khilji seeks review of judgments of this
court dated 12th February, 2002 and 1st October, 2004, respectively pass ed in Criminal
Appeal No.(S)42 of 2001 and Criminal Appeal No.(S)127 of 2004, whereby the appeals filed
by the petitioner were dismissed. Since common question of law and facts are involved in the
matters, therefore, we propose to dispose of these petition s by means of this common order.
2. The relevant facts in Criminal Review Petition No.(S)2 of 2009 are that the
petitioner was tried in case F.I.R. No.395 of 2000 dated 9th December, 2000, registered
against him under section 13(e) of the Pakistan Arm s Ordinance. 1965 (the "Arms
Ordinance"), by the Special Judge, Suppression of Terrorist Activities Act, 1975 (STA),
Jaffarabad at Dera Allah Yar, and on conclusion of the trial. He was convicted and sentenced
under section 13(e) of the Arms Ordinance to s uffer seven (7) years imprisonment and to pay
a fine of Rs.10,000 (Rupees ten thousand only), or in default whereof to further undergo three
(3) months' imprisonment vide judgment dated 23rd August, 2001. The petitioner preferred
an appeal i.e. Criminal Ap peal No.(S)42 of 2001 before this Court and, after hearing the
arguments, this Court vide judgment dated 12th February, 2002,dismissed the appeal.
3. Similarly, the petitioner was also tried by the Special Judge, Anti -Corruption,
Balochistan, Quetta in c ase Crime No.4/N of 2000 dated 9th December, 2000 registered
against him under section 161 of the Pakistan Penal Code, 1860 (P.P.C.) read with section
5(2) of Prevention of Corruption Act -II of 1947 and on conclusion of the trial, he was
convicted and sent enced by the trial Court vide judgment dated 10th May, 2004 in the
following manner: --
(i) "Under section 161 of the P.P.C. to suffer three (3) years' rigorous
imprisonment (RI) and to pay a fine of Rs.110,000 (Rupees one lac and ten
thousand only) , or in default whereof to further undergo six (6) months' simple
imprisonment (SI); and
(ii) Under section 5(2) of the Prevention of Corruption Act of 1947 to suffer three
(3) years' RI and to pay a fine of Rs.50,000 (Rupees fifty thousand only ), or in default
whereof to further undergo six (6) months' RI."
The petitioner filed Criminal Appeal No.(S)127 of 2004 before this Court and challenged the
validity of aforesaid judgment. The appeal came up for hearing before this Court on 23rd
Septembe r, 2004 and according to the record, the learned counsel for the petitioner did
not press the appeal on merits and sought moderate reduction in the quantum of
sentences of imprisonment. This court vide judgment dated 1st October, 2004, while
dismissing the appeal on merit, modified and reduced the quantum of sentences of
imprisonment of the appellant as under: --
(i) "Under section 161 of the P.P.C. to suffer two (2) years and to pay a fine of
Rs.50,000 (Rupees fifty thousand only), or in default whereof to further undergo three
(3) months; and
(ii) Under section 5(2) of the Prevention of Corruption Act of 1947 to suffer two
(2) years' RI and to pay a fine of Rs.50,000 (Rupees fifty thousand only), or in default
whereof to further unde rgo three (3) months."
4. Mr. Kamran Murtaza, learned counsel for the petitioner, contended; inter alia, that
perhaps the counsel was under the bona fide impression, while not pressing Criminal Appeal
No.(S) 127 of 2004 on merits; that the petitioner had already completed a substantive part of
his sentence and it is a case of hardship, as the petitioner has also been deprived of 'his
service due to his conviction in the said case; that neither non -pressing of the appeal in said
manner was permissible nor the counsel was instructed for the same, which has materially
prejudiced the interest of the petitioner. He next contended that the order dated 1st October,
2004, sought to be reviewed, do not qualify to be a judgment, creating a bar within the
meaning of section 369 of the Criminal Procedure Code 1898 (Cr.P.C.). The learned counsel,
lastly, contended that this Court, while passing order dated 12th February, 2002 had failed to
consider the fact that the alleged recovery of Kalashnikov was effected from h is house in his
absence, thus, in the event of reviewing orders dated 12th February, 2002 and 1st October,
2004, the appeals may be heard on merits.
5. On the contrary, Mr. Abdul Aziz Khilji, the learned Additional Advocate -General
(A.A. -G.), has vehemen tly opposed the arguments of the learned counsel for the petitioner
and submitted that once a final order is passed, it cannot be reviewed or recalled in line with
section 369 of the Cr.P.C. The High Court is precluded to review its own order, to augment
the pleas. In this regard, the learned A.A. -G. placed reliance on the following judgments: --
(i) Iqbal v. The State, 2001 PCr.LJ 1634 (Peshawar);
(ii) Maulana Muhammad Azam Tariq, MNA v. Khursheed Ali, 1996 PCr.LJ 119
(Lahore);
(iii) Pir Sultan Ahmed v. Haji Abdul Hameed, PLD 1980 Kar. 294, and
(iv) Juan Sullivan v. The State, 1971 SCMR 618.
6. For better understanding of the controversy, it would be advantageous to reproduce
hereinbelow section 369 of the Cr.P.C., which deals with the proposition: --
"369. Court not to alter judgment. Save as otherwise provided by this Code or by any
other law for the time being in force or, in case of High Court by the Letters Patent of
such High Court no Court when it has signed its judgment, shall alter or revi ew the
same, except to correct a clerical error."
The perusal of section 369 of the Cr.P.C. clearly demonstrates that no Court, when it has
signed its judgment, shall alter or review the same, except to correct a clerical error. It applies
to the judgmen ts given by any Court, including the High Court, in exercise of criminal
jurisdiction. The words "alter or review" connote reversing an order of allowing the appeal or
dismissing the same would also include reduction or enhancement of the sentence ordered in
the judgment sought to be reviewed. When attention of the learned counsel for the petitioner
was drawn to this aspect of the matter, he submitted that the High Court possess jurisdiction
to review its own order and the jurisdiction is not ousted under e xceptional circumstances.
Section 561 -A of the Cr.P.C. reads as under: --
"561 -A. Saving of inherent power of High Court ---Nothing in this Code shall be
deemed to limit or affect the inherent power of the High Court to make such
orders as may be necessary to give effect to any order under this Code, or to prevent
abuse of the process of any Court or otherwise to secure the ends of justice."
7. Though the sanctity of finality is attached to judgment passed by criminal Court by
virtue of section 369 of the Cr.P.C. and an order or judgment once delivered and is not to be
altered, reviewed, changed or reversed, yet there are a number of citations, whereby the
superior Courts have reviewed or recalled their judgments under the inherent powers of this
Court. We are in agreement with Mr. Kamran Murtaza, Advocate, that the principle of stare
decisis is a greatly valuable doctrine of common law and the Court should stand by
precedents and should not disturb them, but this rule is not so inflexib le precludes a
departure therefrom in any case. Its application must be determined in each case by the
discretion of the Court keeping in view its peculiar circumstances.
8. Though there is no provision for review of any judgment or order under the Cr.P. C.
yet, while exercising inherent jurisdiction under section 561 -A of the Cr.P.C, this Court has
power to correct its own orders or to recall an erroneous order. The criminal Court can only
review or recall their judgments and orders, if it is satisfied th at the earlier order/judgment is
either without jurisdiction or against the mandatory provisions of law and has been delivered
inadvertently and out of oblivion of the provision of law and if such order/judgment is left
intact, it would result in perpetrat ion of manifest injustice.
9. While considering the cases in hand on the touchstone of the aforesaid criterion, we
are of the considered view that the author of judgment dated 12th February, 2002 has given
valid reasons for his conclusions and the judgme nt sought to be reviewed does not suffer
from any illegality or any material irregularity. The same is neither perverse, nor arbitrary.
Similarly, the judgment dated 1st October, 2004 passed in Criminal Appeal No.(S)127 of
2004 is a consent judgment made o n the request of the learned counsel for the petitioner,
whereby the quantum of sentences was reduced, as detailed above. Neither any allegation that
such order was obtained by fraud or misrepresentation of facts, nor any question has been
raised on the co mpetence of the jurisdiction of this Court to pass such order nor has any
violation of law been pointed out. Thus, the said order, being a consent order, cannot be
modified, altered or reversed without the consent of the other party, especially when the sa me
is neither perverse, nor arbitrary.
10. Reverting to the next contention of the learned counsel that the judgment dated 1st
October, 2004, sought to be reviewed, does not qualify to be a final judgment, is also devoid
of any force, for the reasons tha t the word "judgment" in section 369 of the Cr.P.C. also
includes any order, which tends to dispose of the matter finally. In this regard, we
fortified our view to a case of Shah Nazar Khan v. Goga Khan, 2005 YLR 3297 (Peshawar),
wherein it has b een observed as under: --
"The word "judgment" has not been defined in section 4 of the Criminal Procedure
Code. However, the salient features/characteristics of a judgment have been given
in section 367, Cr.P.C. "Judgment" in legal parlance means judicial verdict deciding a
case finally so far as the Court seized of the case is concerned and with the
pronouncement of it the pending proceeding/case stands terminated leaving nothing
for future to be considered or re -considered, thus, the word "judgme nt" cannot be
confined only to an order of conviction and acquittal of accused person because that is
one aspect of it. True interlocutory or interim order about any matter providing
temporary relief when final determination of the same is to be made at a later date,
would not fall within the definition of judgment and the Court trying the case or
holding the proceeding would be competent to review such order but in true
legal sense it would not amount to review of the order but re consi deration of the
interim order at a later stage which is permissible under the law. To the contrary
all orders and judgments of the nature which finally decide the case and nothing
is left for future course or final decision then the Court passing it becomes "functus
officio" and is left with no authority or jurisdiction to review the same after it has
been pronounced."
11. For the aforesaid discussion, we find no merit in both the review petitions, which are,
accordingly, dismissed.
12. Before parting with the order in hand, it would suffice to add here that in spite of
dismissal of Criminal Appeals No. (S) 42 of 2001 and (S) 127 of 2004, the petitioner was
reinstated in service by the then Regional Police Officer, Eastern Region. Sibi through an
order dated 9th May, 2009, the operative portion whereof reads as under: --
"Keeping in view of the facts/observations explained above, I am of the opinion that
action taken against the appellant was against the Police Rules and Justice as wel l.
Since the appellant has undergone in appeals against his convictions and their appeals
are yet under consideration with the Appellate Courts, therefore in the light of
PR.16.2(2)/ recommendations of PDSP Naseerabad and ADIGP Eastern Region Sibi
and in t he interest of justice and humanitarian grounds, I accept the appeal and re -
instate the appellant in service provisionally from the date of dismissal i.e. 23 -8-2001.
The punishment order of dismissal from service passed by DPO Naseerabad vide
No.5809 -15/EB dated 6 -9-2001 is hereby set aside. The period from 23 -8-2001 to the
date he resumes duty will be considered on receipt of judgments of Appellate Courts
or otherwise (no any financial benefit he will claim until the courts judgment
received).
On re-instatement in service the SI Ajtab Iqbal Khilji is hereby transferred and
posted to Sibi District against an existing vacancy.
Sd/-
(IFTIKHAR HUSSAIN TARAR) PSP
Regional Police Officer
Eastern Region, Sibi."
13. Before dilating upon the legality of the aforesaid order, foremost question for
consideration is whether after dismissal of criminal appeals by this Court, the Regional Police
Officer, Sibi, was authorized to re -open the matter by reinstating the petitione r. Section
16.2(2) of the Police Rules 1934 can be put into service to answer the question noted
hereinabove: --
"16.2(2) An enrolled police officer sentenced judicially to rigorous imprisonment
exceeding one month or to any other punishment not less seve re, if such sentence is
not quashed on appeal or revision, be dismissed. An enrolled police officer sentenced
by a criminal court to a punishment of fine or simple imprisonment, or both, or to
rigorous imprisonment not exceeding one month, or who, having b een proclaimed
under section 87 of the Code of Criminal Procedure, fails to appear within the
statutory period of thirty days, may be dismissed of otherwise dealt with at the
discretion of the officer empowered to appoint him. Final departmental orders in such
cases shall be postponed until the appeal or revision proceedings have been decided,
or until the period allowed for filing an appeal has lapsed without appellate or
reversionary proceedings having been instituted. Departmental punishments under
this rule shall be awarded in accordance with the powers conferred by rule
16.1."
A bare perusal of the aforesaid provision clearly demonstrates that any police officer
sentenced judicially by a competent Court of law to rigorous imprisonment ex ceeding one
month should be dismissed from service, provided such sentence is not quashed on appeal or
revision. It is an admitted feature of the case that the Criminal Appeals No.(S) 42 of 2001 and
127 of 2004 were dismissed by this Court on 12th February , 2002 and 1st October, 2004,
respectively, and no appeal or revision was pending before any appellate or revisional forums
on 9th May, 2009, when the petitioner was re -instated in service, as such, there was no
occasion left with the Regional Police Offic er, Eastern Region, Sibi, to reinstate the petitioner
in service. The instant review petitions were also filed on 16th April, 2009 by the petitioner,
after an unexplained delay of about five years, just to create a ground for his reinstatement in
service, which smacks mala fide on the part of the petitioner and the then Regional Police
Officer, Sibi, thus, the copy of this judgment be sent to the Provincial Police Officer,
Balochistan, with direction to look into the matter, as a convict was i llegally reinstated
in service while causing huge loss to the government exchequer. In this connection, he
can also make a reference to the National Accountability Bureau (NAB), Balochistan, Quetta
for recovery of said amount. Besides, the copy of this order be placed in the personal file of
the then Regional Police Officer, Eastern Region, Sibi with intimation to the Registrar of this
Court.
The review petitions, as stated above, are dismissed being meritless.
MH/16/Q Petition dismi ssed.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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