Malik Muhammad Umar Khan Versus Mst. Saadia Bibi
Order
Mohsin Akhtar Kayani, J .--- Through the instant application, the applicant Muhammad Zaman has prayed for amendment/ correction in judgment dated 26.04.2023, passed in Criminal Appeal No. 213-2019, whereby, the same was allowed by this Court vide judgment dated 15.06.2023, and the applicant Muhammad Zaman was convicted and sentenced to two years imprisonment with fine of Rs.50,000/-. He has also been extended the benefit of Section 382-B Cr.P.C., and sentenced to the following effect:-
Therefore, at this stage the Criminal Appeal No.213 of 2019 is allowed to the extent of offence under Section 452 read with Section 149, P.P.C. and respondents/ accused namely Dilawar Hussain, Shoaib Munir, Muhammad Zamman, Tayassar Bashir, Muhammad Imran and Saadia Bibi are hereby convicted for criminal trespass with rigorous imprisonment of two (02) years each with fine of Rs.50,000/- each by extending benefit of Section 382-B Cr.P.C., whereas all the respondents are taken into custody and transmitted to jail authorities to serve out their sentence. However, during the course of pendency of this appeal, one of the respondent/ accused namely Akhtar Ali had died, therefore, proceedings to his extent stands abated. The Crl. Appeal No.55 of 2021 is also not made out and the same is also hereby dismissed.
2. Learned counsel for the applicant contends that applicant Muhammad Zaman has wrongly been referred in last para of the impugned judgment of this Court in appeal and convicted, despite the fact that cross appeal was filed from the accused side against the complainant in this case by way of private complaint titled as Allah Yar v. Muhammad Umar Khan and others, and the same was also decided through the connected Criminal Appeal No.55-2021 and dismissed by this Court. The conviction of the applicant Muhammad Zaman is based upon the testimonies of PW-12, PW-13, PW-14, the Investigation Officers, who confirmed the arrest of accused persons Shoaib Akhtar, Akhtar Ali, Imran, Tayssar Bashir, Muhammad Qasim, Raja Shoaib, Naziran Bibi, Sanam Bibi, Saadia Bibi and Dilawar Hussain from the spot and in this backdrop, they were convicted in terms of Section 452 read with Section 149, P.P.C. by this Court in appeal. The applicant contends that his name was not referred among the persons apprehended on the spot, and in this scenario, he has prayed for rectification/correction of this clerical error in the judgment dated 26.04.2023 passed by this Court. The counsel for the applicant has relied upon the case law reported as 2003 PCr.LJ 847 (Abdul Hussain v. The State), PLD 2017 Balochistan 76 (Wali Muhammad v. Special Judge, Anti-Terrorism Court-I, Quetta and another).
3. Conversely, learned counsel for Malik Muhammad Umar Khan has raised the question of maintainability of instant application. The learned counsel contends that that once a Court has passed a final judgment, it becomes functus officio, after which no correction or amendment can be made, except in the case of a clerical error, which is not the case in hand as the applicant Muhammad Zaman has tried to persuade this Court to review the judgment of conviction after reappraisal of the evidence, which is not permissible.
4. Arguments heard and record perused.
5. Before proceeding with the merits of the case, I have confronted learned counsel for the applicant qua the maintainability of instant application on the ground that the applicant, after passing of the judgment of this Court dated 26.04.2023 (announced on 15.06.2023), had not surrendered nor lodged to the jail authorities in order to serve his sentence, which fact was conceded by the counsel for the applicant, who further rendered an explanation that the applicant has not challenged the impugned judgment before the Supreme Court of Pakistan without surrendering to judicial custody due to the heavy backlog in the Supreme Court, and there is a likelihood that if the applicant challenges his sentence before the Supreme Court, his appeal would not have been fixed before the expiration of his sentence. As a result, he intends to have this error corrected or amended by this Court in accordance with Section 561-A Cr.P.C.
6. While considering these arguments, we are of the view that unless the convicted person surrenders before the court and lodges in jail at the time of announcement of judgment of conviction, his application for correction or rectification (if any) or appeal or revision is not entertainable by any of the courts, including the Supreme Court of Pakistan.
7. This Court has been guided with the principle set out in 1981 SCMR 1 (Hayat Bakhsh v. The State), wherein, it was held that a fugitive from law loses right of audience if he defies the orders of the Court for his surrender and or otherwise abuses its process. A universal rule was reiterated that it is an essential condition of the administration of justice in a case affecting an individual or individuals that the persons concerned should submit to the due process of justice, which was not done so in the case in hand. Such aspect was also appreciated by the Supreme Court of Pakistan in PLD 1985 SC 402 (Awal Gul v. Zawar Khan and others), wherein it was held that unexplained noticeable abscondance disentitles a person to the concession of bail notwithstanding the merits of the case. The principle being that the accused, by his conduct, thwarts the investigation qua him, in which valuable evidence like recoveries is simply lost or is made impossible to be collected by his conduct; however, the case in hand is on different footings.
8. This court has taken guidance from case laws reported as 2012 [8] SCC 730 (Lavesh v. The State), PLD 2007 SC 564 (Raja Shamshad Hussain v. Gulraiz Akhtar), where different categories of absconder/fugitive offender have been dealt. Firstly, the accused, who has absconded and failed to join the investigation or to surrender before the Court of law prior to conviction, in which case his rights could not be upheld unless he surrenders before the Court of competent jurisdiction or the police authorities, and is consequently not entitled to bail. The second category pertains to those accused persons, whose sentences have been suspended under Section 426 Cr.P.C., pending in appeal whereafter they abscond. In such cases, the absconded accused are also not entitled to any concession of bail from any Court of law, unless they lodge in jail as their custody has been handed over to the surety while suspending their sentence, even their bail orders stand cancelled ipso facto as held in 2019 SCMR 1641 (Fawad Ali v. The State.).
9. At this juncture, it is also pertinent to mention that the power of the Court in suspension of sentence under Section 426, Cr.P.C is not wider than the power to grant bail under Sections 497 and 498, Cr.P.C., as laid down in 1969 SCMR 81 (Bahar Khan v. The State), rather it is narrow. The said principle further confirms that the appellant, who has absconded after suspension of his sentence, should have been lodged to jail prior to acceptance of any of the application by the appellate Court. The third category, which we are dealing in the present case is the applicant, who has been convicted by this Court whereafter he has not surrendered before the court nor lodged to jail. In this scenario, any application for rectification/correction of order / judgment, whether under Section 369 or Section 561-A Cr.P.C. is not entertain-able by the office or any Court, unless the absconder has been taken into custody and lodged in jail first.
10. The powers referred in section 369 Cr.P.C. by the counsel for applicant is only meant to correct the clerical/typographical mistake/ error occurred inadvertently in the impugned judgment or order apparent on the face of the record and without such exception, no judgment or order of a Court could be reviewed/modified. This aspect has been appreciated by the Supreme Court of Pakistan in case law reported as PLD 2015 SC 322 (The State v. Daniyal alias Dani), wherein it was held that:-
It goes without saying that in a case where the judgment is reserved a Court is well within its jurisdiction to fix the matter for rehearing of any point which needs further elaboration but if a judgment is announced with a final verdict regarding the fate of an accused person and such announcement is through a short order to be followed by detailed reasons and such short order is actually signed by the Members of the Bench then the Court is left with no jurisdiction to change the verdict subsequently or even to fix the case for rehearing on the merits or even on the question of sentence unless such Court possesses review jurisdiction which may even be exercised suo motu. In the case in hand the matter was that of a criminal appeal and in such a matter the High Court of Sindh, Karachi had no review jurisdiction available to it and, therefore, once the above mentioned short order had been passed by it deciding the fate of the respondent and of his appeal then the High Court was subsequently bereft of any jurisdiction to order rehearing of the matter for the purposes of considering alteration of its earlier announced judgment.
11. Even otherwise, we are convinced that the High Court is not equipped with any power of review under the Criminal Procedure Code, 1898 as compared to Section 114 of the Civil Procedure Code, 1908, and for this reason, once a judgment has been announced, 'the Court becomes the functus officio. The language of Section 369 Cr.P.C. confirms the same viewpoint, wherein the legislature has applied a negative notion by using the phrase "no Court when it has signed its judgment shall alter or review the same, except to correct the clerical error."
12. All these factors were conceded by the learned counsel for the applicant, and at this stage, he has prayed for withdrawal of the instant application, therefore, the same is hereby DISMISSED AS WITHDRAWN.
13. Before parting with the order, this Court finds it necessary to issue a direction to the Office to the effect that no application of any nature from a fugitive offender (post-conviction) for any anticipatory bail, suspension of sentence, revival of his bail orders, or review, alteration, or correction of any order in sentence should be entertained unless the fugitive offender surrenders before the Court or lodged in jail. In order to convey the spirit of law, following factors are highlighted in Urdu:
JK/130/Isl. Application dismissed.