2001 PLP 536 (YLR)

Mr. Nadir Hussain learned counsel for the applicant after referring to the relevant facts of the case firstly contended that from the Court diaries of Special Case No.236 of 1997 it is clear that even after grant of bail to accused Nangar on 22-5-1996, during the period from 12-6-1996 to 26-2-1998 he was confined in Central Prison, Hyderabad, and was not physically released on alleged furnishing of surety by the present applicant and, therefore, imposition of penalty on present applicant/surety is unwarranted by law. Learned counsel next contended that the applicant had moved application before the trial Court for obtaining certified true copy of the surety bond, furnished by him before the trial Court but on verification of record it was found that no such surety bond was available in the case record and in such circumstance when there is no surety bond available with the trial Court allegedly executed by the applicant, there was no binding commitment of the applicant before the trial Court to produce the accused Nangar Khan before the Court and order for imposition of penalty is thus illegal. In support of these contentions learned counsel relied upon Muhammad Ali v. The State (1984 PCr.LJ 14) Muhammad Ishaque v. The State (1984 Cr.LJ 2892 Karachi), Hassan v. The State (1990 ALD 455(2)), Malik Sultan Ahmed v. The State (1986 PCr.LJ 1446), The State v. Piass Ali (PLD 1986 Kar. 355) and Ali Akbar v. The State (1986 PCr.LJ 611). Mr. Habib Ahmed, A.A.-G. for the State in his reply arguments firstly challenged the maintainability of this application and contended that the order, dated 1-12-1999 is a final order within the meaning of section 369, Cr.P.C. and, therefore, any prayer for review of such order is untenable. In support of this contention learned A.A.-G. placed reliance on the cases of Nawab Khan v. The State (2000 PCr.LJ 733) and Maulana Muhammad Azam Tariq v. Khursheed Ali and another (1996 PCr.LJ 119). On facts learned A.A.-G. contended that. this is an admitted position that accused Nangar jumped the bail bond and applicant despite repeated opportunities failed to produce him before the trial Court. In such circumstances, the order, dated 1-12-1999 is in accordance with law and no fresh ground calling for review of such order has been made out by the applicant, which otherwise has already attained finality. Mr. Nadir Hussain replying the question of maintainability of this application under section 369, Cr.P.C. contended that the applicability of section 369, Cr.P.C. is only confined to the trial Court judgments, and not to the proceedings before the revisional Courts and, therefore, instant application is maintainable. To fortify his contention learned counsel referred following reported cases:

(1) Gulzar Hassan Shah v. Ghulam Murtaza and 4 others (PLD 1970 SC 335). (2) Muhammad Hanif v. The State (PLD 1974 Karachi 22). (3) Soomar v. State and 3 others (PLD 1975 Kar. 80). (4) Zulfiqar Ali v. The State (PLD 1984 Lah. 461). We have carefully considered the arguments advanced by the learned counsel and perused the case record. In order to decide the question of maintainability of C.A. No.247 of 2000 with reference to section 369, Cr.P.C. as raised by Mr. Habib Ahmad, A.A.-G., we have perused the, relevant provisions of law and also the cases referred by the learned counsel in this context and deduced following conclusion:-- (i) Availability of section 369, Cr.P.C. in Chapter XXVI, Cr.P.C. which deals with the judgment by any Criminal Court of original jurisdiction, denotes intention of the Legislature to confine its applicability only to the judgments of criminal Courts of original jurisdiction, therefore, unless it is specifically made applicable to other proceedings under the Criminal Procedure Code as such same will have no application to other proceedings. However, general principle of finality of a judgment in a criminal case is attached to all the decisions and orders passed by the Courts in criminal cases. (ii) There is no parallel/analogous provision either to section 369 (Chapter XXVI) or to section 430 (Chapter XXXI), Cr.P.C. in Chapter XXXII, Cr.P.C. which deals with the revisional powers of Criminal Courts to prevent exercise of powers of review or recall by such Courts. Thus, subject to limited scope of review, an order passed in revision is open to review, alter or recall and in appropriate cases, to avoid abuse of the process of Court, for doing complete justice between the parties, and ensuring that any wrongful act or omission of the Revisional Court does not cause injury to a party. Court can have recourse to its inherent powers under section 561-A, Cr.P.C. to revoke, review or alter an earlier decision or order. To sum up, we are of the view that an application for review of an order passed in a revision application can be considered on merits, if a case for review is made out within the limited parameter of review and such application cannot be dismissed merely on the ground of bar of section 369, Cr.P.C. as urged by the learned A.A.-G. Even wrong caption of an application will not make much difference as such application; if the facts and circumstances of the case so demand can be treated as an application under section 561-A, Cr.P.C. and decided on merits. Reverting to the facts, in the instant case it is an admitted position that at no stage of the proceedings before the trial Court the applicant/surety ever disputed the execution of surety bond before the trial Court for accused Nangar Khan in terms of the bail order, dated 22-5-1996 passed in Bail Application 11o.9 of 1996. According to the report of the Superintendent, Central Prison, Hyderabad, dated 1-12-1999, which has been referred and reproduced in the order, dated 1-12-1999 passed in this revision application, it is clear that the accused Nangar Khan was physically released from Central Prison, Hyderabad on 26-6-1996. In such circumstances mere mentioning of fact in the case diaries of the trial Court on certain dates that accused Nangar Khan was not produced from jail does not amount to a verdict of the Court that accused Nangar Khan on these dates was in custody and was not released on bail on furnishing of surety by the applicant, but it merely reflects lack of knowledge of the. trial Court about the release of accused on bail on furnishing of surety and execution bond as required by law. It is pertient to note that after his release from jail on 26-6-1996 neither the accused Nanger Khan appeared before the trial Court even on a single date of hearing nor any such, intimation was given to the trial Court and therefore, the trial Court was rightly under the impression that accused Nangar Khan was still under custody. Any such bona fide mistake in maintaining correct case diary does not prove that during the period from 12-6-1996 to 16-2-1998 the accused was in custody. This version of the applicant is also belied from the report of Superintendent Jail, Hyderabad which was, as a matter of fact, earlier called by this Court only to examine the same contention. The other contention of Mr. Nadir Hussain that no surety bond executed by the applicant before the trial Court is available in the trial Court record and, therefore, passing of an order for imposition of full surety amount as penalty is unwarranted by law has also no force. Perusal of the case diaries of the trial Court goes to show that uptil 25-3-1998, the trial Court was not aware about the release of accused Nangar Khan from jail, however, when this fact came to the knowledge of the trial Court, on 25-3-1998 his bail was cancelled and surety bond was forfeited. It was thereafter that on various dates the applicant/surety sought time from the trial Court for producing accused Nangar Khan before the Court. Reference in this regard may be made to the Court Diaries, dated 7-9-1998. 14-10-1998, 18-11-1998, 21-12-1998, 27-1-1999, 24-4-1999, 5-5-199, 12-5-1999, 9-6-1999, 17-7-1999 and 26-10-1999. On none of these dates the applicant/surety either asserted that on his furnishing of surety for accused Nanger Khan he was not released from jail or that he did not execute any surety bond in the sum of Rs.1,00,000 for accused Nangar Khan. It is also relevant to mention here that after passing of order, dated 1-12-1999 on 26-1-2000 applicant/surety moved an application before the trial Court for obtaining certified true copy for the surety bond executed by him for accused. Nanger Khan and on such application the Assistant Sessions Judge, Kotri passed order, dated 1-2-2000 that request for issuance of certified copy of surety bond cannot be considered as the same is not available in Court record. From all this it appears that at this belated stage the applicant has tried to set up a case which was never urged by him earlier. The possibility of tampering with the record of the trial Court by some interested party to take advantage out of it also cannot be ruled out. In such circumstances no case for view of order, dated 1-12-1999 is made out. The listed application is, therefore, dismissed. N.H.Q./P-23/K Petition dismissed.