NAZEER MASIH vs THE STATE-
This criminal application was filed under Section 561-A of the Code of Criminal Procedure 1898, seeking a review of a High Court order that had dismissed the applicant's criminal revision application on merits. The applicant contended that the revision was dismissed without providing him an opportunity of being heard under Section 439(2) of the Code of Criminal Procedure 1898, as his counsel was absent on the hearing date. The High Court observed that the case was duly listed, but the applicant's counsel failed to appear or seek an adjournment, leading the court to decide the revision on merits with the assistance of the State counsel. The Court held that under Section 369 of the Code of Criminal Procedure 1898, the High Court is precluded from reviewing or altering its own judgment once signed, except to correct a clerical error. Consequently, the application for review of the order passed on merits was deemed incompetent and dismissed, and the applicant's bail was cancelled.
- Does the High Court have the power under Section 561-A of the Code of Criminal Procedure 1898 to review its own final order passed on merits in a criminal revision?
- Does Section 369 of the Code of Criminal Procedure 1898 preclude the High Court from altering or reviewing its judgment once it has been signed?
- Is a criminal revision order passed on merits in the absence of the applicant's counsel, after notice was duly served, liable to be set aside on the ground of lack of hearing?
- Section 304-A, Pakistan Penal Code 1860
- Section 561-A, Code of Criminal Procedure 1898
- Section 439(2), Code of Criminal Procedure 1898
- Section 369, Code of Criminal Procedure 1898
ORDER
1. Applicant Nazir Masih was convicted under section 304-A, P.P.C. And was sentenced to suffer R.I. For 18 months and to pay fine of Rs.2,000 in default to suffer further R.I. For six months. His appeal was dismissed by the learned Sessions Judge Sukkur. The applicant filed revision application which was also dismissed on 14-5-1985. Being aggrieved with the order passed in revision by this Court he has filed this application under section 561-A, Cr.P.C. Praying that judgment may be reviewed on the ground that the applicant was not given an opportunity of being heard as provided under section 439(2), Cr.P.C. The applicant is present and brought an application from his Advocate for adjournment. He was given' time to bring the counsel. He appeared at 12-30 and stated that his Advocate is busy with his personal work.
2. I have heard Mr. Syed Zawar Hussain Jafferi learned A.A.-G. Revision application was dismissed on merits by this Court and there are two concurrent findings of the Courts below. I have perused cause list of 9-5-1985 when the revision application was fixed for regular hearing. Mr. Ghulam Muhammad Durrani was appearing on behalf of the applicant who is from Sukkur and his name appears in the list at serial No. 6 of regular hearing but he did not appear nor he sent an application for adjournment. Therefore, revision was heard with the assistance of the State counsel and was dismissed on merits. I refer to case of Tariq alias Tahira v. Hap Allahditta and another PLD 1983 FSC 497 where it has been held that Court is not bound to hear ell the parties in criminal revision but notice to the parties is necessary. In case of Khan Muhammad v. The State 1985 P Cr. L J 578 it was held that in view of case reported in 1971 SC hi R 616 the provisions of section 369, Cr.P.C.
3. Preclude the High Court from reviewing its own order. In these circumstances this application for reviewing the order already passed on merits is not competent and without merit. The application is dismissed.
4. Applicant Nazir Masih was granted bail by this Court on 22-3-1985. He is present in Court. He may be taken into custody and directed to serve out the sentence awarded by the trial Court.
Cited by 6 cases
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- M. A. BAQI KHAN vs THE STATE and another 1991 PLD Karachi 355
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