2010 P Cr. L J 658
[Quetta]
Before Jamal Khan Mandokhail, J
HABIB -UR-REHMAN ----Applicant
Versus
THE STATE ----Respondent
Criminal Appeal No.103 of 2008 and C.M.A. No.14 of 2009, decided on 10th
November, 2009.
(a) Criminal Procedure Code (V of 1898) ---
----S. 561-A---West Pakistan Arms Ordinance (XX of 1965), S.13(e) ---Keeping in
possession unlicensed arm and ammunition ---Rectification of judgment ---High Court,
while reducing the sentence of three years' R.I. of accused to the imprisonment already
undergone h ad said nothing in the impugned judgment in respect of sentence of fine of
Rs.50,000 imposed upon him by Trial Court ---Rectification of the judgment was sought by
accused ---Admittedly the impugned order was silent about the sentence of fine of
Rs.50,000 aw arded to accused ---Section 561 -A Cr. P. C. had empowered the High Court to
rectify or review its own order, if the relevant fact had mistakenly been not recorded in the
same, which had affected the right of a party --Impugned order was, consequently,
rectif ied and the fine of Rs.50,000 awarded to accused by Trial Court was reduced to that
of Rs.5000 ---Since the amount of Rs.50,000 had already been deposited by the accused
with Government Treasury, the amount of Rs.45,000 was directed to be refunded to him ---
Petition was disposed of accordingly.
2000 PCr.LJ 1516 rel.
(b) Criminal Procedure Code (V of 1898) ---
----Ss. 561-A & 396 ---Inherent power of High Court ---Review ---Sanctity of finality is, no
doubt, attached to a judgment passed by a criminal Court by virtue of section 369 Cr.P.C.,
but High Court under its inherent power can review or recall its judgment or order if found
to have been passed without jurisdiction, without adjudication on merits, in violation of any
law or obtained by playing fraud on the Court.
2000 PCr.LJ 1516 ref.
Muhammad Qahir Shah for Applicant.
Zahoor Ahmed Shahwani, P. -G.
ORDER
C.M.A. No.14 of 2009
JAMAL KHAN MANDOKHAIL, J. ---The applicant has filed instant application,
seeking correction in the order dated 5 -12-2008 passed by this Court in Criminal Appeal
No.103 of 2008, wherein while reducing the sentence of appellant from three years' R.I.
to that of already undergone, nothing has been mentioned in respect of sentence of fine
of Rs.50,000 imposed by Additiona l Sessions Judge, Killa Abdullah at Chaman vide
judgment dated 21 -11-2008.
2. Learned counsel for applicant has submitted that the applicant has deposited the
amount of fine under objection, because he was not allowed to be released. He has next
contende d that this Court while deciding the fate of appeal, has clearly mentioned that
the appellant shall be released forthwith, therefore, it amounts to setting aside the
portion of judgment regarding fine, as such, the mount of fine deposited by him may be
refunded.
3. Learned P.G. has vehemently opposed the arguments of learned counsel for the
appellant and submitted that fine as imposed by the trial Court has rightly been
deposited by the appellant. The learned State counsel has also filed an application fo r
review of the order dated 5 -12-2008 of this Court.
4. I have considered the contentions put forth by the learned counsel for the parties and
have gone through the record as well as earlier order dated 5 -12-2008 passed by this
Court, relevant portion of the same is reproduced hereinbelow: ---
"There is nothing on record, which could suggest that appellant was previous
convict or habitual offender and the fact that he has been acquitted from the main
case and appellant has already been in custody for mor e than tour months, in my
considered view, the sentence awarded by learned Additional Sessions Judge for
keeping .22 bore pistol and two cartridges is too excessive, as such; I am
inclined to reduce sentence of three years to that of already undergone. He be set
at liberty forthwith, if not required in any other case."
5. Admittedly, the order is silent about the fine of Rs.50,000, which the trial Court has
imposed upon the appellant. It has to be seen whether the earlier order passed in
criminal jurisdic tion can be rectified or reviewed. Section 561 -A, Cr.P.C. empowers the
High Court to rectify its own order, if relevant fact has mistakenly been not recorded in
the same, which effect the right of party. In this regard reliance is placed on the
judgment re ported in 2000 PCr.LJ 1516 relevant portion whereof is reproduced
hereinbelow for ready reference: ---
"A close examination of the above case -law clearly reflects that sanctity of
finality is attached to a judgment passed by a Criminal Court by virtue of section
369, Cr.P.C. But there are conditions where the Court have reviewed/recalled
their judgment and order if it was found to have been passed without
jurisdiction; an order passed without adjudication on merits; if the
judgment/order was passed in viol ation of any law and/or such judgment or order
was obtained by playing fraud upon the Courts. Thus there is an inherent power
in Court to recall or review such orders."
6. In view of the powers conferred under section 561 -A, Cr.P.C. and the aforesaid
reported case -law, this Court can review or rectify the order, because it does not contain
any finding regarding fine imposed by the trial Court upon the appellant.
7. When the aforesaid case -law and provisions of section 561 -A, Cr.P.C. was
confronted to le arned P.G., he has raised no objection, if correction is made in the order
only to the extent of fine.
Thus, the order dated 5 -12-2008 is rectified and fine awarded by the trial Court
amounting to Rs.50,000 is reduced to that of Rs.5,000. Since the amoun t of Rs.50,000
has already been deposited with Government Treasury through Superintendent District
Jail, Quetta, therefore, the appellant Habib -ur-Rehman son of Qari Abdul Samad is
entitled for refund of the amount of Rs.45,000, as mentioned above. The Tre asury
Officer is directed to refund the said amount to the appellant after due verification.
This disposes of C.M.A. No.14 of 2009.
N.H.Q./4/Q Petition accepted.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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