2012 PLP 1691 (YLR)

CH. MUHAMMAD IBRAHIM ZIA, J.

The captioned review petition is addressed against the judgment of this Court dated 15-2-2007.

2. The precise summary of facts giving rise to this case is that on a written application moved by one Abdul Rehman on 20-2-2002 an F.I.R. was registered against the petitioner at Police Station Barnala. After completion of the investi-gation the case was sent for trial to the District Criminal Court under section 17(4) of the Offences Against Property (Enforcement of Hudood) Act, 1985 and under section 341, APC. The learned trial Court, after completion of the required proceedings, vide its judgment dated 30-9-2004 awarded the petitioner death sentence under section 17(4), EHA, one month's imprisonment under section 341, APC, and two years' imprisonment under section 13 of the Arms Act, 1965. On appeal the Division Bench of the Shariat Court converted the death sentence into sentence of 10 years' rigorous imprisonment under section 392 APC. Feeling aggrieved from the judgment of the Shariat Court, the complainant, Abdul Rehman and one Uzma Rani filed appeal before this Court, whereas no appeal filed by the State. This Court, through the judgment under review dated 15-2-2007 set aside the judgment of the Shariat Court and restored the punishment awarded by the trial Court. Thus the instant review petition is filed by the petitioner. After preliminary hearing the same was admitted for regular hearing with the following observation:-- "The case was registered under section 17(4) E.H.A., section 341, APC and section 13, Act, 20 of 1965. Under the provisions of section 17(4), death sentence can be awarded to an accused as "Hadd" and proof of "Hadd" is provided in section 7 of the Act. Apart from the others, in para "B" of section 7 of the Act, it is postulated that if at least two Muslim adult Male witnesses, other than the victim of theft, about whom the Court is satisfied having regard to the requirements of the Tazkia Al-Shuhood that they are truthful persons and abstain from major sins, give evidence as eye-witnesses of the occurrence, then sentence under "Hadd" can be awarded. From the arguments of counsel for the petitioner, it appears that whether "Nisab" laid down in para "B" of section 7 of the Act is fulfilled or not and witnesses are found "Aadil" in Tazkia Al-Shuhood or not and in that case whether passing of sen-tence of death under section 17(4) E.H.A. was permissible or not, were purely legal points which were not considered by the Court while delivering the judgment under review. This is the duty of the Court to apply the correct law. Prima facie it appears an error apparent on the face of record, which needs detailed examination by this Court. The review petition is, therefore, admitted for regular hearing."

3. However, after admission of review petition for regular hearing, a development took place and the complainant party including the heirs of the deceased entered into compromise with the convict-petitioner. Their statements were got recorded in this Court and they categorically stated that they have compromised with the convict-accused and they have no objection if the accused is acquitted from the charge. It is further stated on their behalf that they are no more interested in prosecution of the case and their appeal before this Court may be treated as withdrawn.

4. As it has been observed in the admission order that there are some errors and mistakes in the judgment under review. The admission of review petition for regular hearing resulted into reverting the parties back to the stage of appeal. There are equal chances of acceptance of review petition, which may result into dismissal of appeal and at the same time there are chances that the review may be dismissed. Our this view finds support from a reported judgment of the apex Court of Pakistan titled Pakistan through Ministry of Finance Economic Affairs and another v. Fecto Belarus Tractors Limited (PLD 2002 SC 208), through which the apex Court of Pakistan while accepting the review petition finally concluded as following:-- "For the foregoing reasons, we would review the judgment with the result that the judgment of the Lahore High Court, dated 4th of August, 1997 is restored, earlier judgment of this Court, dated 1st of September, 1999 rendered in C.A. No.1176 recalled and appeal dismissed with costs." Reference may also be made to the cases reported as 2008 SCMR 927, PLD 2005 SC 270, PLD 2003 SC 724 and 2004 SCMR 1077.

5. But the question is, whether in absence of a party in review petition/ appeal, proceedings can be continued or not? As it has been mentioned hereinabove that against the judgment of the Shariat Court, only the private party, complainant/ heirs of the deceased filed appeal, who have now compromised with the convict-accused and they withdrawn from their appeal. They have also stated in their Court statements that they have no objection if the convict-accused is acquitted from the charges. The Shariat Court has awarded 10 years' imprisonment, against which the appeal was filed by the private party (legal heirs of the deceased), who have now withdrawn from the prosecution of the appeal. It means that against the judgment of the Shariat Court the appeal before this Court has been withdrawn, consequently the judgment of the Shariat Court stands restored. The accused is under detention since and after deduction of the remission of sentence it appears that the punishment awarded by the Shariat Court has already been served upon. As it has been observed by the full bench of this Court in a case titled Azad Govt. v. Sarfraz Alam and another 1997 MLD 383, that due to creation of vacuum in absence of party, the proceedings cannot be continued.

6. Thus, in view of the above stated position, the appeal filed by the respondents (herein) deemed as withdrawn. Conse-quently the judgment of the learned Shariat Court stands restored. The Shariat Court awarded 10 years' rigorous imprisonment, which according to the report of Jail Superintendent has already been served out, thus the convict accused, in this case, be released if not required in any other case/offence. In the above stated terms, this lis is disposed of. H.B.T./61/SC(AJ&K) Order accordingly.