Abdul Wali(WaliKhan) Vs Abdur Rashid Arif

2013 P Cr. L J 767

[Peshawar]

Before Mrs. Irshad Qaiser and Rooh-ul-Amin Khan, JJ

ABDUL WALI (WALI KHAN) and 3 others---Petitioners

Versus

ABDUR RASHID ARIF and 2 others---Respondents

Writ Petition No.63 of 2010, decided on 12th December, 2012.

(a)Criminal Procedure Code (V of 1898)---

----S. 369---Review, powers of---Scope---No specific provision for review existed in Criminal Procedure Code, 1898, rather S. 369, Cr.P.C. provides specific bar on review of final judgment passed in criminal case--- Power of review may only be exercised in exceptional cases, where any arithmetical error appears on the surface of record.

(b)Illegal Dispossession Act (XI of 2005)---

----Ss.5 & 8---Criminal Procedure Code (V of 1898), Ss.369 & 345---Constitution of Pakistan, Art. 199---Constitutional petition---Alternate remedy---Compromise, implementation of--- Respondent filed complaint under Illegal Dispossession Act, 2005, against petitioners and due to compromise between the parties, petitioners were acquitted by Trial Court---Later on, petitioners filed application before Trial Court for summoning respondent and directing him to implement compromise entered before the court---Petitioners filed application for taking legal action against respondent and to punish him in accordance with law, besides directing him to refund the amount to petitioners---Validity---Such application had no legal footing and was violative of S. 369, Cr.P.C.---If any action was taken on the application, the same would amount to review of previous order of acquittal which had not been provided under law---Criminal court was not vested with power to alter, modify, reopen or review the case after final decision---Provisions under Art. 199 of the Constitution could not be invoked, if alternate remedy was available to aggrieved party---Trial Court had rightly dismissed the application filed by petitioners--- Constitutional petition was dismissed in circumstances.

(c)Words and phrases---

----"Judgment"---Definition.

Dr. A. Basit, Advocate v. Deputy Registrar (Judicial) and others PLD 2001 SC 1028; Human Rights Case (Environment Pollution in Balochistan) PLD 1994 SC 102 and Muhammad Yusuf and another v. Muhammad Sarfaraz Cheema, Additional District Judge and others PLD 1987 SC 21 rel.

Asghar Ali for Petitioners.

Ghulam Nabi for Respondents.

Date of hearing: 12th December, 2012.

JUDGMENT

ROOH-UL-AMIN KHAN, J.---Through the instant writ petition the petitioners have called in question the validity of the impugned order dated 14-12-2009 with the prayer that the same may be declared as illegal, without jurisdiction and without lawful authority.

2.Brief, but relevant facts of the case are that on 9-12-2006 the respondent No.1 had filed a complaint under section 3 of the Illegal Dispossession Act, 2005 before the Sessions Judge Peshawar, wherein he claimed himself as owner on the basis of Mutation bearing No.6970 dated 14-4-2003 and in possession of a house measuring 6 Marlas, situated at Sultan Colony Dalazak Road Peshawar. He alleged in the complainant that a few days before he abandoned his accommodation in the disputed house and shifted to another house. In the meanwhile respondents (hereinafter referred to as the petitioners), entered and forcibly occupied the house and illegally dispossessed him. The complaint was dismissed for non-prosecution, thus after a few days he filed another complaint, wherein he claimed forcible dispossession from a house measuring 12 Marlas, despite the fact that in previous complaint he had alleged his dispossession from a house measuring 6 Marlas. The petitioners were summoned by the Additional Sessions Judge-V, Peshawar and during the course of proceedings and trial of the case, the parties arrived at settlement and consequently the petitioners were acquitted of the charge vide order dated 18-7- 2009 in the following manner:--

"Complainant Abdul Rahid son of Haji Qalandar Khan present with counsel Mr. Ghani- ur-Rehman, Advocate. All the respondents present in person with counsel Mr. Abdul Aziz Kundi Advocate.

The parties stated at the bar to have settled the matter outside the court by way of compromise. The respondent agreed to pay Rs.13,50,000 to the complainant who will transfer the remaining Six Marlas of disputed house in the name of respondents No.2 to 5 from his name or the name of his wife whosoever amongst them is recorded owner of the said area of the house.

Accordingly, the respondents paid Rs. 13,50,000 in court to the complainant who received the same in presence of counsel and agreed to transfer the remaining six marlas within 10 days to the respondent. In this respect the statement of complainant was recorded and after admitting the same was signed by him duly countersigned by his counsel. The compromise statement was also signed by respondent and their counsel Mr. Abdul Aziz Kundi, which was placed on file Exh.PA.

Since the parties have compromised the matter and today the complainant received cash amount of Rs.13,50,000 from respondent who admits possession of respondents of the house already taken by them and also admits to transfer the remaining Six Marlas from his name/name of his wife and also bound to attend the office of Tehsildar/Registrar in case of mutation registered in the name of respondents Nos.2 to 5, failing which he would face the consequences of law whereafter, the complainant did not press to proceed with the complaint.

Accordingly, in these circumstances, the accused/respondents are acquitted on the basis of compromise, they are on bail, their bail is cancelled whereafter the sureties are also relieved from the liability of bonds".

3.As mentioned in the above said judgment the respondent No.1 received sale consideration in lieu of 6 Marlas house and made undertaking and promised before the Court for transfer of the disputed house in the name of the petitioners. The respondents failed to fulfil the promise and undertaking within the stipulated time, therefore, the petitioners filed an application before the learned Additional Sessions Judge-V Peshawar, (Trial Court) for summoning the complainant and directing him to implement the compromise statement dated 12-7-2009, recorded before the Court, or to take appropriate legal action against the complainant/respondent No.1 and to punish him in accordance with law. The petitioner also prayed for issuance of direction to the respondent for return of the sale consideration i.e. 13,50,000, which he has received in the Court for transfer of 6 Marlas house in the name of the petitioner. On 14-11-2009 the complainant-respondent No.1 namely Abdur Rashid Arif along with his counsel appeared before the Additional Sessions Judge and agreed to honour the order dated 18-7-2009, but on the next date i.e. 23-11-2009 the counsel for the petitioners produced photo-copies of certain mutations, whereby it transpired that the respondent No. 1 had already alienated his entire holding and was thus left with no property, which he could be transferred to the petitioners. The case ultimately came up for hearing on 14-12-2009 and on the date fixed the learned Additional Sessions Judge dismissed the application of the petitioners with observation that the petitioners would be at liberty to seek their remedy in Civil Court, if they so desire. Hence this petition.

4.Having heard the learned counsel for the parties and perusal of the record reveals that respondent No.1 had filed the complaint under section 3 of Illegal Dispossession Act, 2005 before the Sessions Judge Peshawar, which was marked to Additional Sessions Judge Peshawar for trial. During pendency of trial the parties patched up the matter and effected compromise, thus the petitioners were acquitted of the charges on the basis of compromise. Since at the time of acquittal, the petitioners were in possession of the disputed house, therefore, the learned Additional Sessions Judge did not pass any order for delivery of possession under section 8 of the Illegal Dispossession Act.

5.While passing the order of acquittal the learned Additional Sessions Judge finally decided the case and nothing was left to be taken at a future date. The above said order of acquittal falls within the meaning of "judgment" as envisaged in the provision of section 367 of Criminal Procedure Code. The word "judgment" is not defined in the Criminal Procedure Code, but in general words it means a final judicial determination of a case by a competent Court of law. In legal parlance it would mean, "judicial verdict of a Court, deciding a case finally". With

pronouncement of a judgment all the proceedings pending before the Court would stand terminated, leaving nothing for future to be considered or re-considered. No doubt in the instant case the judgment has been passed by the Additional Sessions Judge under Illegal Dispossession Act, 2005, but section 9 of the Act ibid provides that unless otherwise provided in the Illegal Dispossession Act, the provisions of the Criminal Procedure Code 1898 shall be applicable to all the proceedings under the Act ibid. In the instant case after announcement of judgment and acquitting the petitioners of the charge, the trial Court has conclusively decided the matter and the adjudication has attained finality, thus the trial Court has become functus officio and in no manner was competent to alter, change or review the judgment. There is no cavil that there is no specific provision for review in Criminal Procedure Code, rather section 369, Cr.P.C. provides specific bar on the review of final judgment passed in a criminal case. The power of review may only be exercised in exceptional cases, where any arithmetical error appears on the surface of the record.

6.The petitioners filed the application before the trial Court for summoning respondent No.1 and directing him to implement the compromise statement dated 18-7-2009 made before the Court. He also requested for taking legal action against the respondent No.1 and to punish him in accordance with law, besides, directing him to refund the amount of Rs.13,50,000 to the petitioners. The above said application has no legal footing and violative of section 369, Cr.P.C. If any action on the above mentioned application of the petitioners is taken, it would amount to review of the previous order of acquittal, which is not provided under the law and the Criminal Courts are not vested with the power to alter, modify, re-open or review the case after final decision. Besides, the petitioners have more than one alternate remedies to avail before Civil as well Criminal Courts. A similar proposition came before the August Supreme Court of Pakistan in Dr. A. Basit, Advocate v. Deputy Registrar (Judicial) and others (PLD 2001 SC 1028), wherein law was laid down in the following terms:--

"-----we hold that while exercising jurisdiction under Article 184(3) of the Constitution the findings recorded by this Court in aforesaid Criminal Appeals cannot be set aside/modified, nor any portion of it can be expunged or substituted".

7.Article 199 of the Constitution of Islamic Republic of Pakistan 1973 provides that the same may not be invoked if alternate remedy is available to the aggrieved party. In one of the case, it was observed by the honourable Supreme Court of Pakistan that jurisdiction under Article 199 could be exercised only on proof of non-availability of adequate remedy. In support of the above observations, reliance may be placed on Human Rights Case (Environment Pollution in Balochistan) (PLD 1994 SC 102) and Muhammad Yusuf and another v. Muhammad Sarfaraz Cheema, Additional District Judge and others (PLD 1987 SC 21).

In the light of the above discussion and circumstances of the case this writ petition being devoid of any merit is hereby dismissed with no order as to costs.

MH/56/P Petition dismissed.