KHAN MUHAMMAD Versus THE STATE

ORDER

1. Appellant Khan Muhammad preferred this appeal, on 20‑9‑1982, against his conviction tinder section 161, P.P.C. read with section 5(2) of the Prevention of Corruption Act‑11 of 1947 and sentence therefor of fine Rs.5,000 (Five Thousand Rupees) or rigorous imprisonment for five months In default awarded by the learned Special Judge, Anti-Corruption, Sukkur, by judgment dated 19th September, 1982, for having taken illegal gratification of Rs.150 from one Syed Sikandar Ali, while he was serving as a Food Inspector at Faiz Ganj in District Khairpur. The appeal was admitted on 21‑9‑1982. It came up before me for hearing on 17‑5‑1984, when it was dismissed by the following order:‑

2. "Perused the judgment with the assistance of the learned Advocate for the State. The appellant is alleged to have been caught red handed while accepting Rs.150 as illegal gratification. The sentence of fine of Rs.5,000 only is not excessive. The appeal stands dismissed."

3. The learned Advocate for the appellant has made the application (M.A.No.354/84) on 21‑5‑1984, for restoring the appeal, in exercise of powers under section 561‑A, Cr.P.C. This application is being disposed of by this order.

4. The main grounds agitated in the application for restoration of appeal are that the Advocate for the appellant had no notice of preparation of paper book and he became conscious of the date of hearing of the appeal on 17‑5‑1984 when he received cause list on 16‑5‑1984 and he appeared in the Court on 17‑5‑‑1984 and awaited turn of hearing of the appeal till the closing time of the Court at 1‑30 p.m. According to him, he waited upto 1‑40 p.m. and then left the Court room with the impression that the hearing of the cases which had not reached their turn would be discharged. It is stated that the appeal was called at 1‑50 p.m. and it was dismissed by a short order. The learned counsel leas reiterated tire same grounds while arguing tire application for restoration of the appeal. He has filed his affidavit alongwith the application.

5. On tile other hand, the, learned Advocate appearing for the State hers opposed tire application, contending that the appeal was enlisted in the cause list for its hearing on that day and it must have been called for hearing during the course of Court time, although he could not re‑collect at what time it had been called. He has further contended that the Advocate for the appellant could have waited till the matter could be called or the board was discharged. He has lastly contended that the record and proceeding of the case was examined by the Court with the assistance by tire Advocate for the State and was dismissed on merits and the order amounts to judgment under section 369, Cr.P.C. and it cannot be recalled. He has relied upon the cases P L D 1958 SC 333; P 1. 1) 1962 8 C 97, 1968 P Cr. L J 1818, P L D 1971 S C 223 arid 1975 1 Cr. L J 707.

6. In reply to the legal plea advanced by the learned counsel for tile State that the order of dismissal of appeal dated 17‑5‑1984 is deemed to be judgment and it cannot be recalled under the provisions of section 561‑A, Cr.P.C. pressed in aid on behalf of the appellant, the learned counsel for the appellant has urged that the order cannot be deemed to be judgment visualised in section 369, Cr.P.C. and it can be recalled in exercise of powers conferred under section 561‑A, Cr.P.C. lie has cited A I R 1925 Lah. 355, P L D 1953 S C 133 and 177, P L D 1970 S C 335 and P L D 1979 Quetta 84 as the supporting authorities.

7. The order of dismissal of appeal, dated 17‑5‑1984 has been reproduced above in the opening paragraph. It would appear that the appeal was dismissed on merits and not on the ground of non‑prosecution. According to the learned counsel for the appellant, the order is very brief and it does not contain points for determination arid reasons therefor as required under section 167, Criminal Procedure Code, arid, therefore, it is not a judgment envisaged under sections 367 and 369, Criminal Procedure Code. But it is laid down under section 424 of Criminal Procedure Code that the rules contained in Chapter XXVI of tile: Code of Criminal Procedure relating to judgment (sections 366 to 373) do not apply to the judgments of the High Court in its appellate jurisdiction. The appeal was enlisted for its hearing on 17‑5‑1984. The learned counsel for the appellant was, according to his own statement, aware thereof and he had actually appeared in the Court but he was not present in the Court when the appeal reached its turn. The learned counsel has advanced the plea that the appeal had not reached its turn till the Court sitting time was over and he had left under the impression that the hearing of the appeal and the not reached cases would be discharged. The Court sitting time is not ordinarily extended, but even if any matter was proceeding, tie could have waited to hear the orders iii respect of riot reached matters. It is mentioned in the order that tire Advocate for the State was heard and it is obvious that the matter was taken tip during the Court sitting time and probably at the stage nearing the closing of the day's Court sitting Sessions, as the cases for regular hearing get their turn after the disposal of fresh urgent and miscellaneous matters. The impression formed by the learned counsel was at the risk of the appellant and the order passed on merits amounts to judgment and it does riot call for its recalling factually.

8. Reference may now be made to tile legal aspect of the matter. The learned counsel for the appellant has cited following cases:

(i) Muhammad Sadiq v. The Crown A I R 1925 Lah. 355.

(ii) Khalil and another v. The Crown P L D 1953 E C 133.

(iii) Gulzar Hussain v. Ghulam Murtaza arid 4 others P L D 1970 S C 335.

(iv) Masood Ali Khan v. Muhammad Aslam and another P L D 1979 Quetta 84.

9. In the first case viz. Muhammad Sadiq v. The Crown A I R 1925 Lah. 355 it was held that dismissal of appeal under section 421(1), CV.P.C. Without affording reasonable opportunity of hearing to the appellant or his Advocate was without jurisdiction and could be recalled by the Court in the circumstances of the case. However, observation was made that the view adopted, as aforesaid, would not be construed to have been held that the Court had inherent power under section 561‑A, Cr. P. C. to review its own order. It would be pertinent to mention that section 421 provides for summary dismissal of an appeal presented under the provisions of sections 419 and 420, Cr.P.C. But the dismissal of the appeal in the instant cases was under the provisions of section 423, Cr.P.C. There is marked distinction between the provisions of section 421 and section 423, Cr.P.C. It is laid down under section 421, Cr.P.C. that no appeal presented under section 419 shall be dismissed unless tire appellant or his pleader has had a reason able opportunity of being heard in support of the game. It may be mentioned that section 421 relates to tire stage of the admission of an appeal. Section 423, Cr.P.C. provides that the Appellate Court has to decide art appeal after perusing the record of the case and hearing the appellant or his pleader, if he appears, and the Public Prosecutor, if he appears. In the instant case, the record of the case was perused and the Advocate appearing for the State was heard while the Advocate for the appellant did not appear at the time the matter was taken up for hearing, although he was fully aware that the appeal was fixed in the Court on that day. Obviously, the disposal of appeal was made in accordance with tire provisions of section 423, Cr.P.C.

10. In the case at S.No. (if), it was held that summary disposal of an appeal under section 421, Cr. P. C. must indicate brief reason for its dismissal. As pointed out above, tire order of dismissal passed in this Court was not made under section 421, Cr.P.C. but it is an order under section 423, Cr.P.C. and the case relied upon does not apply to the facts of this case.

11. In the case at Serial No.(iii), it was held that section 369,Cr.P.C. does not control section 498 Cr.P.C. and section 561‑A, Cr.P.C. can be invoked for recalling an order under section 498, Cr.P.C., which is not a judgment. The instant case is altogether different and the case cited above is riot applicable.

12. In the last case, it was observed that a High Court should not reverse, alter or amend its own order unless the order has been passed without jurisdiction or patent injustice has been done arid in that case resort may ire had to the provisions of section 561‑A, Cr. P. C. in exceptional cases for doing proper justice. No such circumstances referred to in that ease for invoking the powers of the High Court under section 561. A . Cr. P. C. exit in the instant case.

13. The learned Advocate for the State has cited following cases:‑

(a) Malik Feroz Khan Noon v. The State P L D 1958 S C 333.

(b) Amin Sharif v. Syeda Khatun and another P L D 1962 S C 97.

(c) R.H. Brightling Manager American Express v. Saeed Ahmad Chaudhry 1968 P Cr.

1. J 1818.

(d) Asif Ali v. The State P L D 1971 S C 223.

14. (e)State Bank of Pakistan v. Wasiuddin Ahmed 1975 P Cr. L J 707.

15. In the first case, it was held that by reason of section 369 of the Code of Criminal Procedure, a High Court has no inherent jurisdiction to amend its judgment. In the second case, it was held that judgment envisaged under sections 366, 367 and 369 of the Criminal Procedure Code is that which is duly written and finally signed and pronounced in the open Court, and if that is not done there is no proper judgment and section 369 of Criminal Procedure Code does not bar further action thereon. In the third case, it was held by a Single Judge of the Lahore High Court by a brief order that High Court cannot review its own order passed in Criminal jurisdiction. In the fourth case, it was held that dismissal of a criminal appeal by the High Court after hearing the counsel for the Stale and on refusal by the counsel for the appellant to argue the appeal on rejection of his adjournment application was in accordance with law. In the last case, it was held that provisions of section 369 of the Criminal Procedure Code also extend to the judgment of the appellate Court.

16. Reference may also be made to some other cases in which the scope and extent of sections 369 and 561‑A, Cr.P.C. were considered. In a case Soomar v. The State etc. P L D 1974 Kar. 535, it was observed that order and decision of High Court in Criminal cases, which are not judgment within the meaning of section 369, are reviewable only in rare or exceptional cases. It was further held that the provisions of section 561‑A are invocable for review of an order which has been passed without jurisdiction or in violation of mandatory provisions of law or principles of natural justice. It was even held that an order passed in default did not qualify for review under section 561‑A, Cr. P. C. unless it was without jurisdiction. In a case Abdullah v. Din Muhammad Shah and 4 others P L D 1976 Kar. 1184, it was held by a Single Judge of the High Court of Sind that order passed on merits In a Revision Application falls within the purview of section 369 of the Criminal Procedure Code. In a case Anwar Ahmad v. Abdullah Ahmed and others P L D 1962 Kar. 282, it was held that High Court cannot review its own order passed in Revision Application in view of the provisions of section 369 of the Cr. P.C. In a case Juan Sullivan v. The State 1971 S C M R 618, it was held by the Supreme Court that the provisions of section 369 preclude High Court from reviewing its own order.

17. It would appear from the review of the preceding cases in the preceding paragraphs that an order passed on merits by the High Court in its criminal jurisdiction is not reviewable. This is legal aspect of the case. On facts also, there is no merit in the application for recalling the order of dismissal of appeal on considering merits.

18. The application was dismissed by short order on 3‑10‑1984 and the aforesaid are the reasons therefor.

19. M. A. K. Application dismissed.