By means of instant appeal filed under Section 48 of the Control of Narcotic Substances Act, 1997, the appellant has called in question the vires of impugned order dated 3-12-2010, passed by Mr. Muhammad Yar Gondal, learned Additional Sessions Judge, Mianwali camp at Piplan; whereby the learned court by way of dismissing the application filed by the appellant, had declined to review the judgment to the extent of confiscation of case property i,e, motorcycle and handing over the same to the appellant being its real owner.
2. Facts of the case, succinctly required for determination of the lis in hand are that one Muhammad Arif was booked in case F.I.R. No,58, dated 2-2-2009, offence under section 9(c) of the Control of Narcotic Substances Act, 1997, registered at Police Station Kundian, District Mianwali.
After conclusion of the trial, the learned trial court in terms of judgment dated 17-7-2010, convicted the appellant in the following terms:-- "The nutshell of the above discussion is that I have come to the conclusion that prosecution has successfully established the charge against the accused under section 9(c) of C.N.S. Act, 1997, so the accused- is convicted under section 9(c) of C.N.S. Act, 1997 and sentenced to R.I. for five years and fine Rs,25,000. In case of default of payment of fine, he shall further undergo S.I. for six months.
Benefit of section 382-B, Cr.P.C. is also extended to the convict. Case property is confiscated in favour of the State after expiry of appeal or revision if any. File be consigned."
The case property to the extent of motorcycle, used during the occurrence, belonged to the appellant; therefore, he by way of filing an application sought superdari of the motorcycle. It is pertinent to mention here that the appellant, during the course of trial proceedings, never made any attempt to obtain the motorcycle on superdari. Mr. Muhammad Yar Gondal, A learned Additional Sessions Judge, Mianwali, Camp at Piplan, in terms of order dated 3-12-2010, declined the application on the point that as the judgment qua confiscation of the case property had been passed by his predecessor, therefore, the same could not be reviewed due to bar under section 369, Cr.P.C, which has been assailed by the appellant by means of instant appeal.
3. The learned counsel for the appellant vehemently contends that the impugned order passed by the learned Additional Sessions Judge is against the law and facts of the case floating on the record. It is argued that the appellant has no knowledge about use of his motorcycle; therefore, as the same was not owned by the accused rather it was in the ownership of the appellant, therefore, the same could not have been confiscated. It is further contended that the order of the learned Additional Sessions Judge dated 3-12-2010, whereby he declined the application of the appellant seeking motorcycle on superdari, is against the dictum of law of the superior courts of the country laid down in the of wing judgments:- 2003 SCM R 246 Abdul Salm v. The State 2007 PCr.LJ 755 Askari Leasing Limited through Branch Manager v. The State 2010 PCr.LJ 1145 Khayal Muhammad v. The State 2004 PCr.LJ 746 Khan Muhammad Khan v. The State PLD 2004 Peshawar 251 Aamir Khalil v. Government of Pakistan through Director General A.N.F., Rawalpindi and 5 others 1990 PCr.LJ 1959 Shermast Khan, Advocate and another v. The State 1992 M LD 307 Moulvi Sher Muhammad v. The State Learned counsel lastly submits that in this backdrop the order dated 3-12-2010, passed by the learned trial Court is not sustainable in the eye of law, which is liable to be set at naught squarely and the. Motorcycle Honda-Deluxe bearing Registration No,3280/MIC, Model 2006, Engine No,7014347, Chassis No,BJ014238, which is duly registered in the name of the appellant, be handed over to him.
4. Learned counsel for the appellant has been afforded preliminary hearing. We have also gone through the record of the case available on file.
5. Having much regard for the case law cited by the learned counsel for the appellant, we may mention here that the same is quite distinguishable from the peculiar facts of the instant case.
Here, the appellant has assailed the vires of impugned order dated 3-12-2010, passed by the learned trial Court; whereby the learned trial court had dismissed the application filed by the appellant with the following observations:-- "Perusal of the record reveals that as the above said case was decided by my learned predecessor and as per section 369, Cr.P.C. this court has no power to review the judgment, therefore, the application is dismissed, however, the petitioner may assail the findings of learned trial court before any higher court of competent jurisdiction."
Admittedly section 369, Cr.P.C. placed in Chapter. XXVI of the Code, precludes court of criminal jurisdiction to alter its judgment after it has been written, signed and pronounced except to correct a clerical error and even it also applies to the judgments rendered by High Court in exercise of criminal original jurisdiction. It would be advantageous to, reproduce section supra, which reads as under:-- "369. Court not to alter judgment. ---Save as other provided by this Code or by any other law for the time being in force or, in case of a High Court by the Letters Patent of such High Court no Court when it has signed its judgment, shall alter or review the same, except to correct a clerical error."
Therefore, the learned Additional Sessions Judge was well justified while dismissing the application and holding that this court has no power to review the judgment, therefore, the application is dismissed, however, the petitioner may assail the finding of learned trial court before any higher court of competent jurisdiction. We are fortified in our view by the ratio decidendi of august- Supreme Court of Pakistan in the case of Juan Sullivan v. The State (1971 SCM R 618).
6. The upshot of above discussion is that we see no infirmity in the impugned order dated 3-12- 2010, passed by learned Additional Sessions Judge, Mianwali/Camp at Piplan. The instant appeal is devoid of legal justification, which is accordingly dismissed in limine. However, the appellant is at liberty to assail the vires of judgment of the learned trial court to the extent of confiscation of case property.
Criminal Miscellaneous Nos.1 and 2 of 2011
7. As the main appeal has been dismissed by this Court today, therefore, these applications have lost their relevance, which are accordingly dismissed.