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Petitioner: Abdul Sattar VS Respondent: State
Court Name: Sindh High Court Judge(s): Muhammad Ali Mazhar, Salahuddin Panhwar, Zulfiqar Ahmad Khan Title: Abdul Sattar vs State Case No.:(1) Cr. Accountability Appeal No. 33 of 2001 (2) Cr. Revision Application No.
95 of 2001 (3) Cr. Revision Application No. 96 of 2001 Date of Judgment:2018-12-24 Reported As: PLD 2019 Sindh 418, 2018 SHC 1210 Result: N/A Judgment Muhammad Ali Mazhar, J: This full bench has been constituted under the administrative orders of the honourable Chief Justice, Sindh High Court to resolve the situation congregated in the midst of my learned brothers Justice Salahuddin Panhwar and Justice Zulfiqar Ahmad Khan after announcement and signing the short order with concurrence as a result of which the accused was acquitted and connected revision applications were also disposed of accordingly. However vide separate reasons, Justice Zulfiqar Ahmad Khan dismissed the Appeal and connected Revision applications and maintained the conviction. 2. The learned counsel for the appellant argued that the short order in the above matter was passed on 27.11.2017 in the open court and duly signed by the learned Judges, as a result, the appellant was acquitted, his bail bond was discharged and the connected Criminal Revisions were also disposed of. On 12.12.2017 detailed reasons were authored by the learned senior member of the divisional bench in support of the short order . The other learned member of the same bench also signed the reasons on 15.12.2017 but added a note that "I will write my own reasons" but he did not put any dissenting note. There was no difference of opinion between the bench with regard to short order as well as para 19 of the detailed reasons dated 12.12.2017, hence a larger bench or a referee judge could not be nominated/constituted in the circumstances. Once a short order is signed and announced in the open court it attains finality . In support of his line of argument, the learned counsel cited the following judicial precedents: D.G. A.N.F . Rawalpindi & others v. Munawar Hussain Manj & others (2014 SCMR 1334 ) Office Reference dated 28.04.1981, answered on 24th May, 1981 (PLD 1982 Karachi 250), The State v. Asif Adil & others (1997 SCMR 209 ) and Basar v . Zulfiqar Ali & others ( 2010 SCMR 1972 ). 3. The learned counsel for the applicants in the connected Revision Applications argued that other learned member of the bench also signed the same reasons on 15.12.2017 and while signing and agreeing to the paragraph 19 of the reasons did not put any dissenting note and accepted the judgment of the Senior Member . He further argued
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that there was no difference of opinion hence a larger bench could not be constituted. It is well settled principle of law that once a short order is signed and announced in the open court, it attains finality . In support of his argument, the learned counsel referred to case of District Bar Association v. Federation of Pakistan (PLD 2015 SC 401), Chief Justices of Pakistan Iftikhar Muhammad Chaudhry v. President of Pakistan (PLD 2010 SC 61), Ghulam Hussain v. The State (PLD 1981 Karachi 711), Office Reference dated 28.04.1981, answered on 24th May, 1981 ( PLD 1982 Karachi 250 ) The State v . Asif Adil & others ( 1997 SCMR 209 ). 4. He further argued that Section 369 of the Cr.P.C. precludes a court from altering or reviewing its judgment once it is signed and announced in open court and thus the court has become functus officio. He further contended this court does not possess or vests in any inherent power to alter or review the order/judgment in the criminal case which has been finally decided by it. Having signed the short order and the reasons recorded on 15.01.2018, it had to be in consonance with the short order and could not deviate or contradict. The matter could not have been referred to the hon'ble Chief Justice for passing any administrative order for constituting larger bench. The learned counsel also referred to the case of Iqbal Pervaiz v. Harsan and others (2018 SCMR 359) & Dr.Imran Khattak and others v. Ms.Sofia Waqar Khattak (2014 SCMR 122). 5. It was further averred that an adminis trative order cannot override a judicial order , thus the constitution of the larger Bench amounts to double jeopardy" and is in violation of Section 403 of the Criminal Procedure Code, 1898. Once the accused was acquitted by a court of competent jurisdiction, he cannot be tried for the same offence as he enjoys the presumption of double innocence. The party cannot be made to suffer from an act or omission on part of the court. Ref: Ch.Muhammad Akrm v. Registrar , Islamabad High Court and others (PLD 2016 SC 1961) & Nazir Ahmed v . Capital City Police Officer , Lahore ( 2011 SCMR 484 ) 6. The learned counsel also focused on the judgment passed in the Review Petition in the case of Justice (Retired) Abdul Ghani Sheikh and others, reported in PLD 2013 SC 1024 . He contended that other learned member of the bench misapplied this judgment which is quite distinguishable as in this very judgment Mr.Justice Anwar Zaheer Jamali, (as he then was), observed that the matter may be referred to hon'ble Chief Justice of Pakistan to take up this case as suo motu by constituting a larger bench to resolve the difference of opinion whether the review can be withdrawn or not. But it was categorically held by the majority of the bench that the short order signed and recorded by the judges and announced in open court was the final order . As regards the another judgment cited by the second learned member of the Division Bench, reported as Tahir Jawed @ Tara v. The State , (2017 SCMR 1946 ), the learned counsel invited attention that in this case also the short order was treate d to be a final order and the case was treated as disposed of, however the circum stances in the instant case are altogether different from the reported judgment, here the learned member has also signed the detailed reasons supporting the short order , however he put up a note that "I will write my own reasons". 7. The Special Prosecutor NAB did not oppose to the arguments of counsel for appellant/applicants with regard to the implication and consequence of short order and candidly conceded to the settled principle of law that when a short order is signed and announced in open court, it cannot be altered or reviewed within the scope of Section 369 Cr.P.C. on account of having attained finality. However he stated that under Section 561-A CR.P.C, this court may review an order to avoid abuse of process. 8. Heard the argument. Before leading ahea d, it is quite imperative to jot down sequential minutiae of the case. On 27.11.2017, the above Cr. Accountability Appeal and Revisions were fixed when my two learned brothers/members of this full bench (Justice Salahuddin Panwar and Justice Zulfiqar Ahmed Khan) while holding the Divisional Bench passed the following short order: "For hearing of case. 27.11.2017 Mr. Shahab Sarki advocate along with appellant. Mr. Abid S. Zuberi advocate for applicants in Cr . Revisions. Mr . Munsif Jan, Special Prosecutor , NAB. For reasons to be recorded later, impugned judgment dated 23d June 2001 passed in Reference No.15/2000 is hereby set aside. Appellant is acquitted from the charge. Appellant is on bail, his bail bonds are discharged. [Emphasis applied]r
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As a result, Criminal Revision Applications are disposed of. Sd/- (Justice Salahuddin Panhwar) Sd/- (Justice Zulfiqar Ahmad Khan) 9. After announcement of the short order with concurrence and togetherness, the reasons authored by Justice Salahuddin Panhwar were passed on to Justice Zulfiqar Ahmad Khan. For the ease of reference, the last paragraph of the reasons is reproduced as under: "19. In view of above discussions, we are of the considered view that conviction of the appellant cannot sustain. Thus while considering the prosecution evidence insufficient and sketchy , this Appeal was allowed by order dated 27.1 1.2017 and listed Cr . Revision Applications were disposed of. Sd/- (Justice Salahuddin Panhwar) 12.12.2017 Sd/- (Justice Zulfiqar Ahmad Khan) 15.12.2017 I will write my own reasons." 10. After putting a note that "I will write my own reasons" to the reasons assigned by Justice Salahuddin Panhwar in furtherance and sustenance of short order , Justice Zulfiqar Ahmad Khan penned down his own reasons on 15.1.2018. The paragraph No.22 and 23 have much significance which are reproduced as under:- "22. I am thus of the considered view that the prosecution having satisfied fully the ingredients of offence under Section 9(a)(v) of NAO being present, shifted the burden towards the Appellant, and the Appellant being a civil servant having miserably failed to show that he has not accumulated assets and pecuniary resources disproportionate to his known source of income, as well as, failing to satisfy or to provide an account of the same, leads me to the conclusion identically reached by the trial court that the properties as detailed in the impugned judgment are actually the properties accumulated by the Appellant in the names of his wife, children, relatives and associates. I therefore find no reasons to interfere with the impugned judgment, hence dismiss this appeal. As a corollary , connected Revision Applications filed by the beneficiaries/claimants in respect of movable and immovable properties are also dismissed. [Emphasis applied] 23. Before parting, it is imperative to pen down that my above view is in contrast to the conclusion reached in the Short Order, which is though not an extremely desirable situation, however under the circumstances where huge sum of public exchequer are involved, and being cognizant of the fact that a short order is no order unless followed by detailed reasons (2017 SCMR 1946 and 2017 PCrLJ 706), guidance for such a departure could be steered through the Apex Court's judgment rendered in the case of Reviews on behalf of Justice (Retd.) Abdul Ghani Sheikh & others (PLD 2013 SC 1024) where it has been held by three Hon'ble Members of the Bench that in situation where despite unanimous Short Order of the court, subsequently there was difference of opinion, it was appropriate that the matter be referred to the Chief Justice to take up the case suo motu by constituting a larger Bench to resolve such difference of opinion amongst the Members of the Bench, more particularly, when huge sum of public exchequer was involved in the matter which was a sacred trust". 11. As a consequence, Office had put up a Reference to the honourable Chief Justice of this court for orders. Relevant portion of the of fice reference is reproduced as under:- "It is further submitted that in the end of reasons recorded by Hon'ble Mr. Justice Zulfiqar Ahmad Khan, his Lordship in paragraph No.23 has been pleased to refer to Apex Court's judgment rendered in the case of Reviews on behalf of Justice (Retd.) Abdul Ghani Sheikh & others (PLD 2013 SC 1024) where following has been held by three Hon'ble Members of the Bench:-
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"that in situation where despite unanim ous Short Order of the court, subsequently there was difference of opinion, it was appropriate that the matter be referred to the Chief Justice to take up the case suo moto by constituting a larger Bench to resolve such difference of opinion amongst the Members of the Bench, more particularly , when huge sum of public exchequer was involved in the matter which was a sacred trust." The Short Order dated 27.11.2017 and detailed reasons recorded by their Lordships, separately , may kindly be seen at flags "A" "B" & "C" respectively . It is proposed that the matter may be placed before Hon'ble Chief Justice for kind perusal and appropriate orders. Sd/- Assistant Registrar (Criminal Branch)" On 19.1.2018, the hon ?ble Chief Justice was pleased to pass following order on the aforesaid Of fice Reference: "In view of dicta laid down by Hon'ble Supreme Court in PLD 2013 S.C 1024 , larger bench is constituted, to be headed by Justice Mohammad Ali Mazhar and the two members of the bench, who decided the appeal for re-hearing" . 12. It is well settled exposition of law that a right of appeal is a right of entering into a superior court and invoking its aid and interposition to redress the error of the court below. It is essentially continuation of the original proceedings as a vested right of litigant to avail the remedy of an appeal provided for appraisal and testing the soundness of a decision and proceedings of the court below. It is always explicated and elucidated that the right of appeal is not a mere matter of procedure but it is a substantive right. While considering the matters in appeal, the appellate courts may affirm, modify, reverse or vacate the decision of lower courts. It is understood rather well- established principle that while deciding the appeal, the Court/judge who heard and decided the matter must have full comprehension and command as to what was argued; what was debated upon at the time of hearing of the matter and what was the understanding of the Judge or judges while adverting and attending to the pleas raised by the appellant and defence counsel. It is also assumed that the evidence led in the trial court has also been appreciated pertinently by the appellate court before passing the judgment. 13. The set of circumstances in this case are unique, distinctive and exceptional. Rather than moving ahead, it is indispensable to first determine my own role in this bench. It is somewhat communal that in the event of any difference of opinion or dissent by any member of a division bench, they both contribute their own separate judgments/orders and in order to resolve the diversity and miscellany of viewpoints to an ultimate order/judgment of the court, the Chief Justice by means of an administrative order transmit the matter to any senior judge of the same court as a referee judge to consider both findings and jot down his verdict as a referee judge however in that particular situation he may agree or disagree any of the findings before him as referee judge to make an ultimate order of the court. Another situation is rehearing of the case which situation can only arise or come across when in any case the judgment is reserved but at the time of writing judgment any vital question is cropped up in the minds of judge or judges or any point needs further elaboration or explanation which was not addressed or take care of perfectly at the time of hearing, the same bench in its own wisdom may direct the office to fix the case for rehearing with notice to the parties. Here the situation is poles apart. Neither is it case of rehearing nor a case of deviating views or a case of note of dissent which could have been resolved through the intercession of referee judge. The circumstances in this case are quite the reverse where a short order was signed by both the honourable judges and compliance of the order was also made by the office, thereafter Justice Salahuddin Panwar authored the reasons and when it was passed on to Justice Zulfiqar Ahmed Khan, his lordship signed the reasons without any demur but added a note the he will write his own reasons. From this note it could not be comprehended that my lord was going to withdraw his consent or concurrence on the short order nor it signifies that he wanted to show any dissent/disagreement or any reservation on the reasons of the short order authored by Justice Salahuddin Panwar. It is time and again seen in the various dictums laid down by the Supreme Court and High Courts that where any important or intricate question of law is interpreted or any legal fiction is expounded or entrenched, the honorable members of the bench every so often contribute their own notes in support of the reasons assigned by the author judge and sometimes they add their note of dissent. The
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honourable Chief Justice of this court constituted this full bench with my addition to rehear the case but with all humility to my command and self-efficacy, the rehearing does not deserve in the unique circumstances. Even the judicial precedents cited by Justice Zulfiqar Ahmed Khan in his separate reasons are not applicable in the present scenario for constitution of full bench by the Chief Justice after signing the short order and signing the reasons by Justice Zulfiquar Ahmed Khan which were assigned by Justice Salahuddin Panwar. 14. The appellate court possesses such a jurisdiction where the entire matter reopens so in all conscience when my both learned brothers heard the above appeal, it is believed that they must have heard the arguments at length and also appraised the evidence and thereafter reached to a conclusion that the impugned judgment before them is liable to be set aside and with concurrence signed the short order without any reservation or demur . Why it is obvious? The reason that the matter was not reserved but the impugned judgment was set aside through a short order announced in the open court for the reasons to be recorded later. The decision so made and announced through short order is presumed to be solemn, well considered, conscious, deliberate and a final verdict covering all points arising out of the case. Both the honourable judges signed the short order and compliance was made by the office. In the division bench, the mem bers may have divergent views with their independent application of mind and in the case of any diversity of views or opinion, instead of announcing short order in court, it is most suitable way to reserve the judgment for reflection which is quite common practice but after signing the short order and even after signing the reasons assigned by other member of bench with a note that he will assign his own reasons does not mean or permit that the separate reasons may differ the short order however the separate reasons may be contributed in support of consensual short order but not against it. If it is on, with all humility to my command, this will upset well settled principles of administration of justice and create a sense of disquiet or more precisely become a sword of Damocles for other benches and their members as from the date of passing the consensual short order by the bench till signing the reasons by all members or contributing independent note in support of short order and not in deviation of it. It will also give life to an undesirable practice or situation for future which would be quite precarious to our judicial system and administration of justice. 15. In various judicial precedents, the aftermath and ramification of "short order" and consequences of no reasons assigned in the backing of short order or the reasons assigned with departure and divergence have been articulated very eloquently as under:- 1. The Judges of the Supreme Court signed the short order , then for all intents and purposes it had to be treated as a final disposition, and absence of any detailed judgment did not require rehearing of the same matter . 2. Short orders recorded and signed by the concerned judges and pronounced in Court. Such order shall be fully operative in law and in consequence thereof, the case in respect of which the same has been passed shall stand disposed of in law . 3. Short orders duly signed and pronounced by Judges of High Court for all intents and purposes in view of the situation obtaining are final orders. Party should not be made to suffer on account of an act or omission on the part of court or other State functionaries. 4. Short order/order of the court was in fact the judgment of the Court and was valid even in the absence of supporting reasons. 5. The judgment of 20th of July had been signed by all the thirteen Honourab le Members of the Bench and, even in the absence of the supporting reasons, was a valid judgment as declared by this Court in the case of State vs. Asif Adil and others ( 1997 SCMR 209 ). 6. Sections 369 & 561-A. Such orders not open to review except in case of being coram non judice or in contravention of law or where no opportunity of hearing afforded to parties concerned. 7. High Court never invested with inherent power to alter or review a criminal case finally and legally decided by it Short order passed by High Court. 8.Division Bench hearing appeal passing short order allowing appeal and proposing to pronounce reasons subsequently but one of Judges died hence no reasons recorded. Division Bench having not only signed its short order acquitting appellants but further in pursuance of such order writ of release for appellants
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also having been issued, neither such order can be modified or revised nor can appeal be reheard due to order having been passed with jurisdi ction and after hearing parties concer ned. Remaining Judge having also heard appeal can however write his reasons in support of short order passed previously . 9. Verbal decision announced without even a short order being recorded by Court. Cannot be an effective judgment disposing of case. 10. Cases in which short orders recorded and signed by concerned Judge stand disposed of as such orders fully operative in law. 11. Judge ceasing to hold office cannot record reasons in cases where verbal orders announced. Reasons in support of decision recorded by one of available members of Bench, on request to serve as minutes of his individual opinion for use before Supreme Court in case of appeal. 12. The cases in which short orders have been recorded and signed by the conce rned Judges, these cases stand disposed of as these orders are fully operative in law . 13. The Judges who have ceased to hold office cannot record reasons, but in cases in which one of the Members of the Bench was a Judge who is still available, he may be reque sted to record his reasons in support of the decision which will, however , serve as minutes of his individual opinion for use as deemed fit by the Supreme Court in case appeals are filed against such orders. 14. Once a case was finally decided, the court became functus officio. Only provision which allowed changes in the final order was the provision of review , scope of which was limited to correcting an error that was floating on the face of the record. To have a second opinion of the findings reached in the final order by the same court was not permissible while exercising power of review . 15. Short orders which have been recorded and signed by the judges concerned and have been pronounced in Courts shall be fully operative in law and in consequence thereof the cases in respect of which the same have been passed shall stand disposed of in law . 16. Short Order would be determinative of the rights and obligations of the various parties in the matter . 17. Reasoning for Short Order which was recorded at a later date could only be in support of the Short Order and not in deviation from the same. 18. Short Order was sufficient for disposal of a lis as well as being operative for all intents and purposes and even in the absence of the supporting reasons, was a valid judgment. 19. Such Order which had been recorded and signed by the Judges concerned and had been pronounced in court shall be fully operative in law and in consequence thereof, the case in respect of which the same had been passed shall stand disposed of in law even in the absence of the supporting reasons, was a valid judgment. 20. In the present case, short order was analogous to a decree while the detailed reasoning of each of five Judges (given separately) could be equated with a judgment; "decree" i.e. operative part had been made by all the five Judges while each of them had given his own respective reasons. 21. Reasoning of the Judges could only support the Short Order and could not be in variation from the same. Parties concerned will have to follow the Short Order in letter and spirit with all consequences of such Order taken to their logical and legal conclusion. 22. The learned High Court, as discussed above, has not put in the detailed reasons/judgment for its short order. The cases pending before the deposed Judges in which order has been announced and the short order had been recorded/signed by the hon'ble Single Judge and in case of Division Bench, by both the hon'ble Members of the Division Bench, shall be treated as disposed of cases. In these circumstances, we are of the firm opinion that notwithstanding the fact that learned High Court has answered the murder reference in the negative and while maintaining the convictions of the appellant and his co-convict, reduced the sentence of appellant from death to imprisonment for life, it would not be proper to scrutinize the evidence on record in absence of detailed reasons which would have weighed with the learned High Court while reaching the said decision. We, therefore, allow this appeal, set aside the short order passed
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by the learned High Court and remand the case back to the…
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