Form No: HCJD/C-121

ORDER SHEET
IN THE ISLAMABAD HIGH COURT, ISLAMABAD.
JUDICIAL DEPARTMENT.

Crl. Appeal No.273/2023

Imran Ahmed Khan Niazi

Versus
District Election Commissioner, Islamabad
S. No. of Date of Order with signature of Judge and that of parties or
order/ order/ counsel where necessary.
proceedings Proceedings
11.12.2023 Sardar Latif Khan Khosa, Sardar Shahbaz Ali Khan
Khosa, Ms. Suzain Jehan Khan and Mr. Ghulam Murtaza
Malik, Advocates for the applicant/appellant.
M/s Amjad Pervaiz and Muhammad Nawaz Chaudhry,
Advocates for the respondent along with Mr. Zaigham
Anees, Law Officer, E.C.P.

C.M. No.462/2023

This is an application under section 561-A of the Code of

Criminal Procedure, 1898 (Cr.P.C), on behalf of the appellant for

rectification of order dated 28.08.2023, by way of suspension of the

judgment dated 05.08.2023, passed by the Trial Court.

2. Learned counsel for the applicant/appellant, inter alia,

contended that during the course of arguments, in the suspension

application (C.M. No.01/2023), it was submitted that judgment may

also be suspended. It was contended that judgment requires to be

suspended under section 426 Cr.P.C on the basis that the Election

Commission of Pakistan on 08.08.2023 issued a notification,

whereby the applicant/appellant was disqualified. It was submitted

that the referred notification attracts bar on the applicant to head

the political party of which he was the Chairman. It was added that

under Article 17 (2) of the Constitution of Pakistan, 1973, right to

form or be a member of political party also includes to head the

same. Reference was made to Miss Benazir Bhutto versus

Federation of Pakistan (PLD 1988 SC 416), Mian Muhammad Nawaz

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Sharif versus President of Pakistan (PLD 1993 SC 473). Learned

counsel further argued that under section 426 Cr.P.C, this Court has

jurisdiction to suspend the judgment as well. Reference was made

to Makhdoom Javed Hashmi versus The State (2008 SCMR 165) as

well as Adnan Zafar versus The State (2005 YLR 1281). It was

contended that conviction attracts disqualification under Article

63(1)(h) of the Constitution. Reference was made to Sikandar Hayat

Khan Bosan versus Syed Yousaf Raza Gillani (2008 CLC 240) as well

as Ch. Zahid Iqbal versus Returning Officer, NA-162 (Sahiwal-III)

(2013 CLC 1856). Learned counsel highlighted that the jurisdiction

of this Court, under section 561-A Cr.P.C, is very wide and it can

grant such relief. Reference was made to Habib-ur-Rehman versus

The State (2010 PCrLJ 658) as well as Mukhtar Ahmed alias Mokha

versus the State (1999 PCr.LJ 1905), Shahkot Bus Service, Shahkot

versus The State (1969 PCr.LJ 764), Gulzar Hassan Shah versus

Ghulam Murtaza (PLD 1970 SC 335), Saleem Akhtar versus The

State (PLD 1980 Lahore 127), Amir Masih versus The State (PLD

2013 Lahore 249) & Muhammad Hayat Khan versus Imtiaz Ahmed

Khan (PLD 2008 SC 85).

3. Learned counsel for the respondent vehemently contested

the application and it was submitted that this Court while hearing

application for grant of suspension of sentence did allow the relief

and the sentence was suspended and the applicant was ordered to

be released on bail. It was submitted that the instant application is

an afterthought inasmuch as disqualification notification dated

08.08.2023 was in the field and was in the knowledge of the

applicant yet no request for modification of the prayer was made in

the application. It was contended that there does not exist any
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jurisprudence that relief is to be granted on oral request of the

applicant; it was argued that during arguments on application for

suspension, the sole emphasis by the learned counsel for the

applicant was on the ground that it is a short sentence. It was

contended that the jurisprudence in Pakistan is different from the

one in India inasmuch as in the Indian jurisprudence, the judgment

has been suspended by the superior courts of India but they have

laid down parameters for the same and have observed that this

jurisdiction is not be exercised in routine. It was further contended

that this Court allowed the application of the applicant/appellant and

the instant application for rectification was filed almost after a

month and if the appellant was aggrieved of the order of this Court,

challenge should have been made before the Hon’ble Supreme

Court of Pakistan as such. It was argued that application is just an

afterthought and nothing else. Learned counsel further argued that

once application under section 426 Cr.P.C stands decided, the

matter ended and now in presence of a specific application, relief

cannot be sought through a general provision of law and it is trite

law that subsequent bail application is not maintainable. Reference

was made to Nawabzada Iftikhar Ahmad Khan Bar versus Chief

Election Commissioner Islamabad (PLD 2010 SC 817), Raja Shaukat

Aziz Bhatti versus Major (R) Iftikhar Mehmood Kiani (PLD 2018 SC

578), Muhammad Rizwan Gill versus Nadia Aziz (PLD 2010 SC 828),

Allied Bank of Pakistan versus Khalid Farooq (1991 SCMR 599), Ali

Gohar versus Pervaiz Ahmed (PLD 2020 SC 427), Abdul Kabir versus

The State (PLD 1990 SC 823), Muhammad Usman versus The State

(Criminal Petition No.1233/20233), Allah Ditta Khan versus The

State (PLD 2002 SC 845), Mitho alias Muhammad Mithal Lakhan

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versus The State (Crl. Appeal No.88/2011), Saleem Khadra versus

The State (2015 PCr.LJ 722) & The State versus Syed Qaim Ali Shah

(1992 SCMR 2192).

4. Submissions of the parties have been heard and the

documents placed on record examined with their able assistance.

5. Before embarking upon the analysis of the submissions

made by learned counsels for the parties, it is apt to give

background in which the present application has been filed. The

appellant was tried in the Reference by the District Election

Commissioner, Islamabad under section 190 of the Elections Act,

2017 with respect to offences under sections 167 and 173 of the

Elections Act, 2017. He was convicted vide judgment dated

05.08.2023. He filed appeal against the judgment and also filed an

application for suspension of the sentence (C.M. No.01/2023). This

Court, after putting the respondents on notice and hearing the

parties, decided the application for suspension of sentence vide

order dated 28.08.2023. The appellant did not challenge or assail

the said order but has moved the instant application for rectification

of the order dated 28.08.2023 on the basis that during the course of

arguments, a verbal request for suspension of the

judgment/conviction was also made which relief has not been

granted inadvertently.

6. As noted above, the instant application is under section

561-A Cr.P.C. Under the Code of Criminal Procedure, 1898, there is

no specific provision for review or rectification of the order per se,

however, time and again resort has been made to section 561-A

Cr.P.C for the said purpose. For ease of convenience, the said

provision of law is reproduced:-

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“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.”

Bare reading of section 561-A Cr.P.C shows that this Court has

inherent power to make such orders as may be necessary to give

effect to any order under the Code or to prevent the abuse of

process of any Court or otherwise to secure the ends of justice. This

provision has been interpreted to provide jurisdiction to this Court to

modify or rectify the orders earlier passed. In Habib-ur-Rehman

versus The State (2010 PCr.LJ 658), the Balochistan High Court

while passing the judgment reducing the sentence of three years R.I

imprisonment already undergone did not observe anything about

fine of Rs.50,000/-. Application under section 561-A Cr.P.C was filed

which was accordingly allowed and it was observed that section

561-A Cr.P.C empowered the High Court to rectify or review its

order if the relevant fact had not been mistakenly recorded in the

same. Similar jurisdiction was exercised by the Lahore High Court in

Mukhtar Ahmed alias Mokha versus the State (1999 PCr.LJ 1905).

The Supreme Court of Pakistan, while interpreting powers of the

High Court under section 561-A Cr.P.C, in Shahkot Bus Service,

Shahkot versus The State (1969 PCrLJ 764), observed that inherent

power of a High Court is of very wide and indefinable nature and in

exercise of this power, a High Court can make all such orders which

may be necessary to do real and substantial justice and prevent

abuse of process of the Court, subject only to the limitation that it

cannot override an express provision of the Code. [Underlined by the

Court].
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7. The above dicta clearly indicate that in appropriate cases,

section 561-A Cr.P.C can be invoked to correct error or prevent the

abuse of process of the Court or to secure the ends of justice. Bare

reading of the application for suspension filed by the appellant

(C.M.No.01/2023) shows that it was for suspension of the sentence

only. It is the stance of learned counsel for the appellant that a

verbal request for suspension of the order/judgment was also made

and that this Court had omitted to pass the order on the same

inadvertently. The order dated 28.08.2023 does not reflect any such

request and categorically produces the prayer made in the

application. In order to proceed with request of the appellant to

modify order dated 28.08.2023 and suspend the conviction, it is also

to be seen that whether this Court does have jurisdiction under

section 426 Cr.P.C to suspend the judgment. Learned counsel for

the appellant had made reference to decisions of the Supreme court

of Pakistan in cases reported as Makhdoom Javed Hashmi versus

The State (2008 SCMR 165) and Adnan Zafar versus The State

(2005 YLR 1281). In the former case, the Supreme Court of

Pakistan, after discussing the issue of suspension of the sentence,

concluded that conviction and sentence are suspended, however,

the only detailed judgment on the issue where discussion regarding

suspension of sentence and conviction was made is Abdul Kabir

versus The State (PLD 1990 SC 823). The Supreme Court of

Pakistan in the referred judgment observed as follow:-

“A conviction is complete as soon as the person charged has

been found guilty by a Court of competent jurisdiction. During
the pendency of an appeal, appellate Court may suspend the
sentence under section 426, Cr.P.C. So execution of sentence of
petitioner is suspended and not his conviction which remains
operative till it is set aside by the higher appellate Courts.
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Pendency of the appeal for decision does not ipso facto mean
that the conviction is wiped out. The appellate Court has no
authority under section 426 to suspend the conviction. Conviction
and sentence connote two different terms. Conviction means
proving or finding guilty. Sentence is punishment awarded to a
person convicted in criminal trial. Conviction is followed by
sentence. It cannot be accepted as principle of law that till
matter is finally disposed of by Supreme Court against convicted
person, the conviction would be considered as held in abeyance.
This interpretation is not in consonance with the spirit of law and
against logical coherence. The suspension of sentence is only a
concession to an accused under section 426, Cr.P.C but it does
not mean that the conviction is erased. Therefore, in view of the
fourth proviso, the third proviso to section 497(1), Cr.P.C is not
attracted to the case of the petitioner.”

The bare reading of the judgment shows that the Supreme Court of

Pakistan has categorically given the findings that conviction cannot

be suspended. The Lahore High Court, in Ch. Zahid Iqbal versus

Returning Officer, NA-162 (Sahiwal-III) (2013 CLC 1856), while

hearing a constitutional petition on the issue of candidature of a

person whose conviction had been suspended, observed that

suspension of the sentence under section 426 Cr.P.C does not ipso

facto suspend the conviction and where such is the position, a

person is disqualified to contest election. While relying upon the

judgments from across the border, it was observed that in

appropriate cases, conviction may also be stayed/suspended. The

jurisprudence evolved across the border is different from ours

inasmuch as the Indian Supreme Court has held that in appropriate

cases, conviction may be suspended but only as an exceptional

measure in extraordinary circumstances which have to be pleaded

and a specific prayer for stay of conviction is to be made. Reference

is made to KC Sareen versus CBI (2001 SCC 584).

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8. The main ground that has formed basis for seeking

rectification, it seems, is because of notification dated 08.08.2023.

The appellant faces the consequences of disqualification from being

head of the political party. This Court was informed that challenge

to the notification has already been made before the Lahore High

Court by way of a constitutional petition in which notices have been

issued. Moreover, notification was in the field when application for

suspension was made, however, no reference was made to it nor it

was pleaded in the application that remedy of suspension of

conviction be also granted. A specific application for suspension was

made under a specific provision of law i.e. section 426 Cr.P.C and

relief was sought which was granted, however, now an

extraordinary relief is being sought by way of a general provision of

law i.e. section 561-A Cr.P.C. In Allied Bank of Pakistan versus

Khalid Farooq (1991 SCMR 599), the Supreme Court of Pakistan

observed that power under section 561-A Cr.P.C can only be

invoked in extraordinary and exceptional circumstances where no

other procedure or remedy is available or is provided by the Code.

Similar observations were made by the Sindh High Court in Saleem

Khadra versus The State (2015 PCr.LJ 722).

9. The above case law makes it clear that section 561-A

Cr.P.C is only invoked where there is no specific provision under the

Code. Appellant, here, had invoked a specific provision but did not

specifically pray in the same for suspension of the conviction.

Decision in Abdul Kabir versus The State (PLD 1990 SC 823) is

very categoric that conviction cannot be suspended, however,

subsequent judgment of the Supreme Court of Pakistan in

Makhdoom Javed Hashmi versus The State (2008 SCMR 165)

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alluded that it can be done, however, no reasons were given as to

the reasons or circumstances in which it can be done. Likewise, in

Ch. Zahid Iqbal versus Returning Officer, NA-162 (Sahiwal-III)

(2013 CLC 1856), the Larger Bench of the Lahore High Court has

drawn distinction between suspension of sentence and conviction

and emphasized that a specific prayer for suspension of conviction

had to be made and exceptional circumstances were to be

highlighted for which relief of suspension of conviction is sought and

the appellate Court is then to examine the case accordingly; the

appellant did not do so in his application for suspension (C.M.

No.01/2023). Plea under section 426 Cr.P.C is akin to bail

application; it is established law that in bail application, all grounds

available to the applicant are to be agitated and if it is not done, it

tantamount to relinquishing those grounds. Second or subsequent

bail applications are only maintainable if any fresh ground is

available to the applicant. In the instant case, no specific plea was

raised and subsequent application has been made to cover up the

omission. Even no extraordinary or exceptional circumstances were

mentioned in the earlier application though they existed in the form

of notification dated 08.08.2023 when application for suspension of

sentence was filed.

10. In view of the foregoing, the instant application is not

maintainable and is accordingly dismissed.

(CHIEF JUSTICE)
(TARIQ MEHMOOD JAHANGIRI)
JUDGE

M.Shah/*