' RAJA ABDUL AZIZ BHATTI, J.--- The facts leading to the institution of the present writ petition are that a case was registered vide F.I.R. No,78, dated 5-7-1992 under sections 420, 468 and 371, P.P.C.
On the complaint of Muhammad Yasrab, Joint Secretary. Resultantly, the petitioner was arrested by the C.I.A. Police, Islamabad on 16-7-1992 from Peshawar but the arrest was shown on 18-7-1992 from Rawalpindi. For some days the petitioner remained on physical remand and thereafter he was sent to the judicial lock-up on 2-8-1992. Under order of the Federal Government vide Notification No,F.I.(107)/92 H.C., dated 21-10-1992, the case was transferred to the Court of former Special Court for Speedy Trials, Rawalpindi. The said Court received the challan on 22-12-1992 and summoned the petitioner along with other five co-accused for 23-12-1992. Originally only one challah was submitted against the accused but on technical/legal objection it was sent back.
Ultimately on 4-5-1993, the prosecution submitted 17 challahs under the same F.I.R. The trial in challah No,1, was concluded on 5-8-1993 but the judgment was announced on 25-1-1994. In the remaining challahs some witnesses appeared repeatedly and made their statements. However, on 25-4-1994, the petitioner was convicted under section 468, P.P.C. To undergo seven years' R.I. With a fine of Rs,50,000, in default of its payment to suffer further one year's R.I. And the benefit of section 382-B, Cr.P.C. Was also given to the petitioner. Same conviction was ordered in the case of challah No,2. However, the remaining accused except one Qari Ghulam Sarwar were acquitted.
2. Accordingly, the petitioner filed two separate appeals before the former Supreme Appellate Court, Rawalpindi. The learned Supreme Appellate Court heard the appeals on 1-3-1994 and 2-3- 1994. Thereafter both the appeals were dismissed. However, it was announced that sentences of both the challahs/cases would run concurrently. After the announcement of the judgment, when copy of the judgment was received in jail after about five months i,e, on 31-7-1994, the petitioner came to know about the running of sentences one after the other and not. Concurrently. He, therefore, filed a Constitution petition under Article 184(3) of the Constitution of the Islamic Republic of Pakistan in the Honorable Supreme Court of Pakistan. It was heard on 20-3-1995. After advancing some arguments the petition was withdrawn and the following order was passed by the Honorable Supreme Court of Pakistan:-- Constitution Petition No,39 of 1994.
' Mirza Ghias Baig v. Government of Pakistan. ORDER ' After hearing the petition at some length, learned counsel for the petitioner has decided to withdraw the petition in order to file writ petition before the High Court.
' Dismissed as withdrawn.
' (Sd.)
' Manzoor Hussain Sial, J.
' (Sd.)
' Muhammad Munir Khan, J.
' (Sd.)
' Mir Hazar Khan Khoso, J.
3. Through the present petition learned counsel for the petitioner/convict has challenged the conviction on the following grounds:--
(a) That the petitioner has been convicted under section 468, P.P.C., which is not a scheduled offence. He maintains that the judgment and the order of the Special Court for Speedy Trials and the Supreme Appellate Court deserve to be struck down on this score alone;
(b) that the Special Court for Speedy Trials has no jurisdiction to deal with the offence under section 468, P.P.C.;
(c) that the Special Court for Speedy Trials Act, 1992 is/was an Act which is against the Article 25 of the Constitution of the Islamic Republic of Pakistan because it violates the principles contained in the said Articles;
(d) that the Supreme Appellate Court, respondent No,4 failed to appreciate the evidence, especially for the reasons that in this case no proper hearing was given. Moreover, the judgment was delivered with a delay of five months; .(e) that 17 challahs have been made out from one F.I.R., which was improper and prejudiced the case of the petitioner. While the same set of witnesses appeared again and again (17 times) in the cases. This course of proceedings is not permissible in the eyes of law;
(f) that provisions of Act IX of 1992 (Special Courts for Speedy Trials Act) are against the fundamental rights, conferred by Chapter 1 of Part II of the Constitution of the Islamic Republic of Pakistan, 1973. Thus, the proceedings against the petitioner were bad in law; and
(g) that Act IX of 1992 (Special Courts for Speedy Trials Act) may be declared against the fundamental rights, conviction order against the petitioner may be declared without lawful authority and the petitioner be set at liberty or in the alternatively the orders of the Honorable Supreme Appellate Court (respondent No,4) may be modified to the effect that the sentences in both the challahs/cases shall run concurrently on the grounds-- "that when matter of both those appeals went to the Supreme Appellate Court, both the appeals were heard and dismissed. While dismissing the appeals, the sentences in both the cases awarded by the Supreme Appellate Court were ordered to run concurrently. But incidentally, when the judgment was written and delivered after five months, it was not mentioned that the sentences would run concurrently. Hence necessary correction may be ordered that the sentences awarded to the petitioner in both the. Cases may run concurrently."
4. The present writ petition deals with the Criminal Appeal No,1 of 1994 and Criminal Appeal No,2 of 1994 (titled as Mirza Ghias Baig v. The State), which were heard by the Honorable Supreme Appellate Court, Islamabad on 1st and 2nd March, 1994.
5. The learned counsel for the petitioner argued quite at length on the merit of the case but at one juncture, he did not like to press all other points and made a request that necessary order be passed with regard to the last prayer. About this prayer, he argued that the Supreme Appellate Court heard the arguments on 1st and 2nd March, 1994 at Islamabad, when some other counsel/lawyers were sitting in the Court Room. Both the appeals were ultimately dismissed, however, order was announced in the pen Court that sentences awarded to the petitioner in both the cases should run concurrently. Learned counsel for the petitioner vehemently stated that regarding the order announced in the open Court, affidavit had been placed on record by the number of lawyers. According to the contents of the affidavit the following order was announced:-- "In both the challahs the sentence shall run concurrently."
6. The affidavit has been sworn by the five lawyers. Learned counsel for the petitioner seeks that necessary correction may be made mentioning that the sentences awarded to the petitioner shall run concurrently. He also pointed out that the matter was taken to the Honorable Supreme Court of Pakistan. For this end, the petition was withdrawn with the prayer to seek remedy from the High Court under Article 199 of the Constitution of the Islamic Republic of Pakistan read with section 561- A, Cr.P.C., which is reproduced below:- "Section 561-A. Saving of inherent power of High Court.--- Nothing in this Code shall be deemed to limit or affect the inherent power of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice."
7. According to the contents of this section of the Criminal Procedure Code, nothing in the Code shall limit or affect the power of the High Court to make such orders as may be necessary to give effect to any order under this Code or to prevent view of the process of any Court or otherwise to secure the ends of justice. .8. The matter being agitated has two aspects. Firstly, as to whether it falls under section 561-A, Cr.P.C. Or not. Secondly, as to whether this Court can interfere in the matter under Article 199 of the Constitution of the Islamic Republic of Pakistan read with section 561-A, Cr.P.C. Or not. As far as the factual side is concerned, the petitioner party has submitted affidavit of five learned Advocates.
Their names and other details are given in the affidavit. All these deponents had no motive to depose falsely at all. Thus, we have no alternative but to rely upon the affidavit submitted on their behalf. They forcefully supported the contention of the petitioner. It is not appropriate for this Court to indulge as to why, this portion could not be made part of the judgment passed by the Supreme Appellate Court because we are not in a position to express any view in this respect.
9. Now the only question is that how to give effect to the last contention of the petitioner if found correct that sentences in both the cases shall run concurrently. We have given anxious thought to this legal aspect. As far as the section 561-A, Cr.P.C. Is concerned, it goes in favour of the petitioner, as reported in 1991 PCr.LJ 90 that "Omission to give effect to a statutory requirement has to be remedied in the exercise of inherent powers and no one is to suffer for the act of the Court".
10. In nutshell, the arguments of the learned counsel for the petitioner is that because of sheer mistake it could not be mentioned in the judgment passed by the Supreme Appellate Court regarding running of the sentences concurrently. Learned counsel further states that it is within the power of this Court to pass order for the correction of the aforesaid omission/mistake/error.
11. We have gone through the order passed by the Supreme Appellate Court, which bears the signatures of the Honorable Judges. Nowhere it gives impression that words "the sentences in both the cases shall run concurrently" were intentionally left over. The section 369, Cr.P.C. Deals with the matter in question, wherein it is written that "save as otherwise provided by this Code or by any other law for the time being in force, or in the 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". As far as this section is concerned, a Court which passed the order has no jurisdiction/power to alter the judgment or review the same except to the extent of Clerical error. As far as the section 561-A, Cr.P.C. Is concerned, it favors the contentions of the learned counsel for the petitioner, in case there was some error.
12. The prosecution case is that the matter concerned with the Supreme Appellate Court which ultimately decided the appeals. No correction can be ordered regarding the running of sentences concurrently by this Court.
13. We carefully considered the arguments and the circumstances made basis of the judgment ordered by the Supreme Appellate Court. Placing of affidavit of the five lawyers, on record, wherein it is stated that when they were sitting in the Court Room, the judgment was announced. They have fully supported the contention of the learned counsel for the petitioner regarding the running of the sentences concurrently. It compels us to rely that error in the nature of omission has been committed in this case, where for the petitioner is to suffer the sentences twice. The Supreme Appellate Court, provisionally existed but now have since been abolished. Having no remedy except to seek lawful remedy from this Court coupled with the direction of the Honorable Supreme Court of Pakistan for the petitioner to appear before the High Court. Hence the matter is seized to adjudicate. Besides firstly, this type of petition was filed before the Honorable Supreme Court of Pakistan for seeking correction of error but the petitioner withdrew the same to file before this Court. In these circumstances, the petitioner has every right with reference to Article 4 of the Constitution of the Islamic Republic of Pakistan to enjoy the protection of law and to be treated in accordance with law.
15. On the other hand, learned State Counsel argued that it amounts to altering the judgment and not correction of an error. No Court has power to make alteration in the judgment after it is signed.
The Supreme Appellate Court does not now exist. Hence this petition does not lie and the matter stands closed finally.
16. We have considered all the aspects of the case. We are of the view that it amounts to a mere correction of error. The matter is aided by the affidavit of the lawyers, who were present in the Court room. Thus, nobody is to suffer on account of the omission/error committed by the Court which was purely unintentional.
17. In view of the above, writ petition is accepted. The petitioner is awarded concession that his sentences in both the cases in question shall runI concurrently and not consecutively.