2000 PLP 943 (MLD)

Tarid Javed, Asstt. A.-G. for the State. Date of hearing: 4th February, 2000. Briefly stated facts of the case are that the two petitioners stood sureties for Haji Nazir Khan who is an accused in case F.I.R. No.275, dated 13-6-1998 of Police Station Mathra registered under section 302/324/148/149, P.P.C. The accused applied for pre-arrest bail in the Court of learned Sessions Judge on 23-11-1998. The application was marked to the Court of learned Additional Sessions Judge where the accused was allowed ad interim bail in the sum of Rs.200,000 with two sureties each in the like amount.

2. As stated at the bar pre-arrest bail application was finally taken up for hearing by Mr. Muhammad Azeem Afridi, Additional Sessions Judge, Peshawar but the accused having reposed no confidence in the Presiding Officer, moved an application before this Court for the transfer of the bail petition. Earlier too, transfer applications had been moved from the Court of Mr. Muhammad Azeem Afridi by Haji Nazir accused regarding some other matters between the same parties which are also parties to the F.I.R. in question.

3. During the pendency of transfer application in the instant case, the learned Additional Sessions Judge,' named above, on 30-8-1999 fixed the case for arguments, on which date the accused filed an application in the Court of Mr. Muhammad Azeem Afridi for the withdrawal of his bail before arrest application as he expected to get a favourable order in respect of his transfer application pending in this Court. The learned Additional Sessions Judge turned-down the request of withdrawal and dismissed the pre-arrest bail application both on the ground of non-appearance of the accused. The accused on the following day i.e. 31-8-1999 filed an application for pre-arrest bail in this Court which was disposed of by direction to the accused to approach the Sessions Judge in this regard and his application be decided on merits.

4. While passing order on 30-8-1999, the learned Additional Sessions Judge also directed the opening of a separate file under section 514, Cr.P.C. against the petitioners (Sureties). However, while hearing the proceedings under section 514, Cr.P.C., on 24-11-1999 the learned Additional Sessions Judge while presented a reported judgment (1999 PCr.LJ (Pesh.) 1031) having found some irregularity in the proceedings rectified the same by ordering the forfeiture of the bail bonds followed by show-cause notice to the sureties.

5. The order, dated 24-11-1999 has been assailed on the ground that illegality/irregularity having crept in the proceedings on the basis of order, dated 30-8-1999 when no forfeiture was ordered, the learned Additional Sessions Judge has become functus officio and could not have withdrawn the order, dated 30-8-1999 and hence order of forfeiture passed by the same Judge on 24-11-1999 is a nullity in law. Reference was made to section 369, Cr.P.C. and it was contended that a Court having signed its judgment cannot alter or review the same except to correct some clerical error.

6. I have heard the learned Assistant Advocate-General for the State and my finding on the question raised' by the learned counsel for the petitioner are in negative. So far section 369, Cr.P.C. is concerned it places an embargo on the Court seized of the matter not to alter or review its judgment once it is signed. It can only make a. correction if there is some clerical error apparent on record. The word "judgment" signifies the final finding of the Court reached upon after full deliberation on the facts and it decides the point in issue between the parties. Its final verdict makes the Court delivering judgment to. become functus officio. Any irregularity or illegality can only be corrected by the appellate. forum or revisional Court, as the case may be.

7. While passing order 30-8-1999 where the withdrawal application of the accused was rejected and where pre-arrest bail granted was also withdrawn due to absence of the accused and it was ordered that a separate file be opened under section 514, Cr.P.C. for proceedings to commence against the sureties cannot be termed to be a judgment as the pre-arrest bail application of the accused therein still sub judice.

8. The proceedings are started on 31-8-1999 against the petitioners sureties and the flaw therein, if any, has been rectified vide order, dated 24-11-1999 whereby the Court has ordered the forfeiture of the bail bonds and has directed that the show-cause notice to the sureties shall follow, is in consonance with the requirement of section 514, Cr.P.C. As no final order regarding forfeiture of the bail bonds has yet been passed, the grievance of the petitioners is unsustainable. The correction in the proceedings before passing of. final order is proceedings under section 514, Cr.P.C. remained within the domain of learned Additional Sessions Judge as the matter is still pending before it and the order, dated 30-8-1999 nor order, dated 24-11-1999 has culminated into determining the final liability of the -petitioners. There is no legal flaw in the proceedings as are being now conducted and carried out against the petitioner. This petition is, therefore, without merits and is dismissed. N.H.Q./42/P Revision petition dismissed.