Issue
A special court constituted under the Control of Narcotic Substances Act, 1997 has passed an ex parte proceedings order and then a freezing/confirmation order. We have applied for recall of these orders and have raised a contention that recall of these orders is not barred by Section 369 of the Code of Criminal Procedure 1898.
Law
(i) Sections 367, 369 and 561-A of the Code of Criminal Procedure 1898.
Briefly Section 367 defines what constitutes a judgment. Section 369 contains the bar on a criminal court to alter its judgment. Section 561 A provides for inherent powers of the court.
(ii) Sections 37 and 47 of the Control of Narcotic Substances Act, 1997.
Section 37 provides for the special court under this Act to freeze assets of the accused or his relatives when there are reasonable grounds for believing that the accused is guilty of an offence under this law. Section 47 expressly applies the Code of Criminal Procedure 1898 to cases tried under this Act.
Case Law
There is extensive case law on the issue of what constitutes a judgment. The judgments quoted in this section will provide the basis for why the aforesaid orders passed by the learned special court do not constitute a final judgment under the Criminal Procedure Code.
Supreme Court of Pakistan
(i) Muhammad Ramzan v. Allah Ditta; 1982 SCMR 215
(Order based on default of appearance and not merits cannot be controlled by Section 369)
In this case the respondents were tried by the Sessions Judge, Bahawalpur and acquitted. The petitioner then filed a revision petition but on the date of hearing the revision petition was dismissed for default. The petitioner then filed a revision petition in the high court which was dismissed by the High Court because the order sheet of the earlier revision petition showed that the case was called several times but never prosecuted. The petitioner then moved the Supreme Court arguing that there was no provision in the Code of Criminal Procedure allowing dismissal of a Criminal Revision for non-prosecution and that his second petition should have been entertained as an application for restoration of his first petition. The honourable Supreme Court held that “order dismissing a petition or an application in default of the appearance of the party or its counsel without touching upon its merits is not covered by the bar created by Section 369 of the CrPC.” (Page 221 (C))
However the Supreme Court dismissed the appeal because the Petitioner had failed to give any reasons for default of appearance in the first petition.
(ii) Gulzar Hassan Shah v. Ghulam Murtaza; PLD 1970 SC 335
(369 not applicable when order made in default of appearance)
This case pertains to a criminal miscellaneous in the High Court of West Pakistan challenging an order of bail by the Additional Sessions Judge Multan. The High Court cancelled the bail in absence of the respondents. The respondents filed an application asking for the cancellation order to be set aside. The order was recalled. This order was challenged in the Supreme Court asking whether the High Court had inherent jurisdiction to reverse its order. The question that was considered was whether Section 369 of the CrPC controlled Section 498 of the CRPC and the Supreme Court held that “section 369 of the CrPC does not control section 498 and in suitable cases section 561 A of the Criminal Procedure Code can be invoked. In the first place, an order under section 498, CrPC, is not a judgment within the meaning of Section 369…” (Page 339 (B)). The Supreme Court further held that “Even otherwise the order dated the 8th August 1969 suffers from the principles of natural justice. It was passed in the absence of respondents for no fault of theirs. It was, therefore, a nullity in the eye of law and the question involved should have been re-examined and decided in the presence of the parties.” (Pages 341-342 (D))
High Courts
(iii) Muhammad Younus Lakhani v. The State; PLD 2006 Kar 198
(What constitutes a judicial order/judgment in terms of 367 and by implication 369)
The complainant/appellant moved the Supreme Court against the acquittal of the accused. It was contended on his behalf that the order of acquittal was not in the nature of a judicial order. The Supreme Court held that “it is imperative that every order passed under the provisions of any statute in judicial or quasi judicial capacity or even in executive capacity should contain reasons. There should be objectivity in the reasons and it should not be merely subjective in nature. Any order which is merely subjective cannot be termed an an order supported by reasons. The expression reason has not been defined in any law but in common parlance denotes an action taken or order passed by the person, officer or authority which is reasonable, conforming the requirement of reasonability. The reasonability can be gauged by examining findings in order and if there is no discussion or any finding and the order has been passed by mere reproduction of the words used in the statute it would not be a proper order supported by reasons. Such an order would be a non-judicial, non-speaking and unreasoned one.” (Pages 204-205)
(iv) Amir Bux v. The State; 1995 MLD 610
(369 subject to 561-A)
While discussing 561-A of the CrPC, the Karachi High Court held that “ It is also worth mentioning that section 369 in the code, which precludes the alteration or review of a judgment once it is signed, is itself subject to section 561-A aforesaid and no procedural constraints can come in the way of advancement of ends of justice”(Pages 611-612) (Relying on Bashir v. The State, PLD 1991 SC 1145)
(v) Nasrullah v. the State; PLD 1987 Lah 31
(Judgment within the meaning of 369)
In this case the Lahore High Court held that “The word ‘judgment’ means a judgment which is recorded after hearing the parties and which tend to dispose of the cause finally on merits. In Sher Khan v. The State it was held that an order rejecting the appeal without going into merits of the case was not a judgment within the meaning of section 367, CrPC, and therefore was not a bar against rehearing the same under section 369, CrPC.” (Page 34)
(vi) Sarkar v. Mohammad Malik; PLD 1974 Note 110 (on Page 164 of 1974 volume 4)
(Interim orders are not barred by 369)
Contention was that a trial court once having permitted the public prosecutor to cross examine prosecution witness could not review or reverse his own order. The court held that being neither a judgment nor a final order in terms of S. 369, CrPC, trial court was competent to review such order. (Page 164)
Analysis
To address the question, it is patently obvious from the provisions of Control of Narcotic Substances Act, 1997 that a freezing order is by no means a final order or a judgment but is in the nature of an interlocutory order. The clearest indication of this is the reference to reasonable grounds in Section 37 of the aforesaid Act. It is therefore clear freezing order freezes assets pending final adjudication. This view is further strengthened by the use of the word forfeiture in Section 39 of the Act which is subject to a conviction. Therefore a freezing order, and confirmation thereof, are merely interlocutory orders not covered by Section 369 of the Cr.PC. Furthermore, the order does not constitute a judicial order or judgment as it is not reasoned and arrived at after the hearing of both parties. In all such circumstances the bar contained in Section 369 of the Cr.PC does not apply.
Conclusion
Provided there are good reasons for default in appearance, it seems to me that there is a good case for recall of both ex parte proceeding order and the freezing/confirmation order passed by the learned special court.
