2012 P Cr. L J 164
[Balochistan]
Before Muhammad Hashim Khan Kakar and Ghulam Mustafa Mengal, JJ
SHAFI MUHAMMAD and another ---Appellants
Versus
THE STATE ---Respondent
Criminal Review Applications Nos. (S)3 and 4 of 2011 in Criminal Appeals Nos.3 and 4
of 2011, decided on 22nd September, 2011.
(a) Criminal Procedure Code (V of 1898) ---
----S. 369 ---Alteration or review of judgment ---Scope ---"Alter" or "review" ---
Connotation ---Provisions of S.369, Cr.P.C. had precluded the court of criminal
jurisprudence to alter its judgment after it had been written, signed and pronounced,
except to correct a clerical error ---Such principle would apply to the judgments given by
any court, including the High Court, i n exercise of its criminal original jurisdiction ---
Words "alter or review" in S.369, Cr.P.C., connoted reversing an order of allowing the
appeal or dismissing the same and would also include reduction or enhancement of the
sentence ordered in the judgment sought to be reviewed ---Contention that order sought to
be reviewed did not qualify to be a final judgment, was repelled as the word 'judgment' in
S.369, Cr.P.C. would include "any order which would tend to dispose of the matter
finally."
Iqbal v. The S tate and another 2001 PCr.LJ 1634; Maulana Muhammad Azam
Tariq, MNA v. Khursheed Ali and another 1996 PCr.LJ 119; Pir Sultan Ahmed v. Haji
Abdul Hameed and another PLD 1980 Kar. 294 and Juan Sullivan v. The State 1971
SCMR 618 ref.
Shah Nazar Khan and 6 o thers v. Goga Khan and 5 others 2005 YLR 3297 rel.
(b) Criminal Procedure Code (V of 1898) ---
----Ss. 561 -A & 369 ---Inherent jurisdiction of High Court ---Scope ---Provisions of S.561 -
A, Cr.P.C., conferred inherent powers upon High Court to make such ord ers as could be
necessary to give effect to any order under Criminal Procedure Code, 1898; or to prevent
abuse of the process of any court or, otherwise to secure the ends of justice ---Section 561 -
A, Cr.P.C. would not give any power to alter the order pass ed by the court ---Section 369,
Cr.P.C., specifically mentioned that no court, when it had signed its judgment, would
alter or review the same ---Power of review could only be exercised for the specific
purpose of correcting any error, which, prima facie, ap peared on the surface of the record;
and could be deleted without a further elaborate inquiry or investigation.
PLD 1970 Kar. 737 rel.
Kamran Murtaza for Appellant.
Abdullah Kurd, Additional Prosecutor -General for the State.
Date of hearing: 18th Aug ust, 2011.
ORDER
MUHAMMAD HASHIM KHAN KAKAR, J. ---By way of filing instant criminal
review applications under section 561 -A of the Code of Criminal Procedure 1898,
applicants Shafi Muhammad and Akbar seek review of orders of this court dated 30 -6-
2011 (wrongly mentioned the date as 3 -6-2011 in certified copies of the orders and memo
of the appeals), passed in Criminal Appeals No.(S)03 and 04 of 2011, whereby the
appeals filed by the applicants were dismissed as not pressed. Since common question of
law and facts are involved in the matter, particularly when both the applicants, in
connected Criminal Appeal No.(S)02 of 2011, were acquitted of the charge by this court
vide short order dated 30 -6-2011 therefore, we proposed to dispose of these applications
by means of common order.
2. The applicants were tried in case Crime No.15 of 2010, under section 302 read
with sections 147 and 148 of the P.P.C., registered at Police Station City, Usta
Muhammad District Jaffarabad and were convicted and sentenced by th e trial Court,
however, in appeal, both of them were acquitted of the charge by this Court vide short
order dated 30 -6-2011. Similarly, the applicants were also convicted and sentenced in
connected cases registered against them under section 13(e) of the P akistan Arms
Ordinance, 1965 by the trial Court, against which, they preferred Criminal Appeals
Nos.(S) 03 and 04 of 2011 before this Court, however, the said appeals were dismissed as
not pressed by the learned counsel for the appellants vide orders dated 30-6-2011, hence,
these applications.
3A. Mr. Kamran Murtaza, learned counsel for the applicants, contended, inter alia,
that, perhaps, the counsel was under the bona fide impression, while not pressing the
appeals on merits , that the applicants had alrea dy completed their sentences in jail in arms
cases, however, after acquittal in main murder case, when the concerned authority of the
jail was contacted, it transpired that still a considerable period of sentence is left. He
further contended that neither non-pressing of the appeals in said manner was
permissible, nor the counsel was instructed for the same, which has materially prejudiced
the interest of applicants. He next contended that the orders, sought to be reviewed, do
not qualify to be a judgment, creating a bar within the meaning of section 369 of the
Cr.P.C. The learned counsel, lastly, contended that in the event of reviewing orders dated
30-6-2011, either the appeals may be heard on merits or substantial reduction may be
made in the quantum of t he sentences awarded to the applicants.
3B. Mr. Abdullah Kurd, learned Additional Prosecutor -General, representing the State,
has pointed out, at the very outset, that in view of the bar contained in section 369 of the
Cr.P.C., the High Court is precluded to review its own order, to augment the pleas. In this
regard, he placed reliance on the following judgments: --
(i) Iqbal v. the State and another -reported in 2001 PCr.LJ 1634 (Peshawar),
(ii) Maulana Muhammad Azam Tariq, MNA v. Khursheed Ali and another -reported in
1996 PCr.LJ 119 (Lahore),
(iii) Pir Sultan Ahmed v. Haji Abdul Hameed and another -reported in PLD 1980 Kar
294, and
(iv) Juan Sullivan v. The State -reported in 1971 SCMR 618.
4. At this juncture, it would be advantageous to reproduce hereinbelow section 369
of the Cr.P.C, which speaks as under: --
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 a High Court by the
Letters Patent of such High Court no Court when it has signed its judgment, shall
alter or review the same, except to correct a clerical error."
It is crystal clear from the above quoted provision of law that it precludes Court of
criminal jurisdiction to alter its judgment after it has been writt en, signed and
pronounced, except to correct a clerical error. It applies to the judgments given by any
Court, including the High Court, in exercise of criminal original jurisdiction. The words
"alter or review" connote reversing an order of allowing the a ppeal or dismissing the
same and would also include reduction or enhancement of the sentence ordered in the
judgment sought to be reviewed. When attention of learned counsel for the applicants was
drawn to this aspect of the matter, he submitted that the H igh Court possesses jurisdiction
to review its own order and the jurisdiction is not ousted under exceptional
circumstances. We are afraid, there can be no two opinions that section 561 -A of the
Cr.P.C. confers inherent powers upon this 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. But it does not give any power to alter the order
passed by the Court. As already observed, t here is a specific provision of law, which
deals with this aspect of the matter i.e. section 369 of the Cr.P.C., wherein it is
specifically mentioned that no Court, when it has signed its judgment, shall alter or
review the same. The power of re view can only be exercised for the specific purpose of
correcting any error, which, prima facie, appears on the surface of the record and could be
deleted without a further elaborate inquiry or investigation. This view got support from a
judgment -reported in PLD 1970 Karachi 737, relevant portion whereof is as under: --
"25. While pointing out that re -hearing of the same matter by the High Court
would result in conscious violation of the universally recognized principle that "it
is in the interest of the St ate that there should be an end to litigation", his Lordship
observed as follows:
"In view of the finality attaching to judgments of the High Court pronounced on
the criminal side, in appellate or revisional jurisdiction, it is impossible to
conceive of t he High Court making more than one order, in respect of the same
case and in relation to the same question arising there out."
5. Reverting to the next contention of the learned counsel that the order sought to be
reviewed does not qualify to be a final ju dgment, is also devoid of any force, for the
reasons that 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 and 6 others v. Goga Khan and 5 others -reported in
2005 YLR 3297 (Peshawar), wherein it has been observed: --
"Review of judgment ---"Judgment" in legal parlance means judicial verdict
deciding a case, finally so far as the Court seized of the case was concerned and
with its pronouncement pending proceeding/case would stand terminated
leaving nothing for future to be considered or re -considered ---Word
"judgment" could not be confined only to an order of conviction a nd
acquittal of accused person, because that was one aspect of it."
For the discussion made hereinabove, we are of the considered view that the Court
becomes functus officio after it passes and signs the order, resultantly, we find no merit in
the applica tions, which are, accordingly, dismissed.
H.B.T./137/Q Application dismissed.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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