1. According to the petitioner, his son Muhammad Akram was serving as Sub-Divisional Officer, WAPDA and while on duty in his office in the West of Jan Muhammad Road, Quetta on 10-1-1977 at about 9-50 a.m. Be was killed by accused/respondent No. 1. The petitioner being father of the deceased is directly connected with and interested in the matter. After usual investigation the case under section 302, P. P. C. Was put up to the Court of Sessions Judge, Quetta against the accused/respondent No. 1 for trial. An application was made by the respondent No. 1 before the Sessions Judge, Quetta that he had no jurisdiction to try the case as the place of commission of offence was outside the Municipal limits of Quetta town and as such the case was triable under Criminal Law (Special Provisions) Ordinance II of 1968. This application was dismissed by the learned Sessions Judge by means of his order dated 22-2-1977 holding that the provisions of Ordinance II of 1963 were not applicable . To the case. The learned Sessions Judge dismissed the application moved by the respondent No. 1 on the ground that the "Industrial Area" having been declared Police Station within Quetta Sub-Division the Sessions Judge had the jurisdiction.
2. The accused/respondent No. 1 successfully challenged the order of learned Sessions Judge by means of Revision petition under section 439, Cr. P. C. The map was filed by the accused in that petition indicating the place of occurrence outside the limits of Quetta Municipality. The Acting Chief Justice Mr. Justice Abdul Hayee Qureshi by an order dated 5-11-1977 accepted the revision petition and the operative part of the order is as under :-, "(3) The point involved is a very short one namely whether the place of occurrence was located within such area as falls within Municipal or Cantonment areas of Quetta. If the place of occurrence is outside the said limit the normal process of law does not run. The learned Advocate- General has placed before me a sketch of the Quetta Municipality civil Station as well as a certificate issued by the Assistant Engineer and Building Inspector of Quetta Municipality.. The sketch in question was prepared by the Assistant Engineer to show the scene of occurrence was shown by the Investigating Officer. The certificate as well as the sketch show that the place of occurrence was 90' away from the Municipal boundary.
(4) Under these circumstances, the learned Advocate-General stated before me that the Sessions Court has no jurisdiction in this case and that this revision application may be allowed. I order accord--ingly."
3. It is pertinent to note that the petitioner was not a party to that revision petition and only the State was made a party. The revision petition was accepted by the learned Single Judge on the basis of the statement made by the learned Advocate-General before him. A sketch of Quetta Municipality as well as a certificate issued by the Building Inspector Quetta Municipality was also placed before the Court. Before the learned Sessions Judge both the parties had pointed out from the maps in their respective possession showing that the place of occurrence was or was not within the Municipal or Cantonment limits of Quetta town. The learned Sessions Judge also relied upon notification dated 10-6-1976 whereby the Industrial Area has been declared as police station within Quetta Sub-Division of Quetta District.
4. The learned counsel for the petitioner has submitted that he had not been heard by the Court at that time. In support of this petition, the petitioner has produced the certificate of Municipal Engineer, Quetta Municipality Annexure `C' stating that the office of Sub-Divisional Officer, WAPDA is within Municipal limits of Quetta Municipality. The Administrator Sirki Municipality vide Annexure `D' has also certified that the office of Sub-Divisional Officer, WAPDA is not within the limits of Sirki Municipality. The petitioner has also filed a sketch showing that the place of incident is within the limits of Quetta Municipality. On the directions of this Court the Secretary, Local Government has also sent the maps of Quetta Municipality and Sirki Municipality showing that the place of occurrence is within the limits of Quetta Municipality. Neither the State nor the respondent No. Lhas produced any other map or certificate controverting the contention of the petitioner. The learned Advocate-General and counsel for the respondent No. 1 has opposed this petition on the ground that the present petition is not maintainable because the High Court has already passed an order in revision and the same order cannot be reviewed by the High Court and the proper remedy for the petitioner was to assail it before the Supreme Court. The learned counsel for the petitioner has submitted that this is an application under section 561-A, Cr. P. C. And the High Court has the inherent power to make such orders as may be necessary to prevent the abuse of the process of any Court or to secure the ends of justice. It is therefore to be considered whether the inherent power can be invoked by the High Court under section 561-A against its own order. Under section 369 of the Criminal Procedure Code, no Court when it has signed its judgment, shall alter or review the same except to correct a clerical error. The learned Advocate-General has referred to the following authorities in support of his contention that the present petition is not competent. Anwar Ahmed v. Abdullah Ahmed and others (PLD 1962 Kar. 282), Abdul Ghafoor v. Abdul Karim and others (PLD 1971 Lah. 616), Soomar v. State and others (PLD 1975 Kar. 80and Juan Sullivan v. The State (1971 SCMR 618The facts of the case reported in Anwar Ahmed v. Abdullah Ahmed and others are that a dispute gave rise to the proceedings under section 145, Cr. P. C. The order passed by the Magistrate in those proceedings became subject-matter of revision petition before the Sessions Judge who made a reference to the High Court. Accepting the recommendation of the Sessions Judge the High Court made order that the land in dispute be attached until the decision of the main dispute which was pending before the Civil Court. Then an application under section 561-A was made for review of the order passed by the High Court. Another Judge of the High Court dismissed the petition holding that the judgment of the High Court cannot be altered or reviewed accept for the purpose of correcting its clerical mistakes. The same view was expressed in Abdul Ghafoor v. Abdul Karim and others. However it is further stated that the cases where judgment is passed either without-jurisdiction or in default of appearance, without adjudication on merits, the High Court has jurisdiction. In Soomar v. State and others it has been observed that mere fact that the earlier order does not on the merits appear to be just would not constitute such an exception. If, however, the earlier order was passed without jurisdiction or in violation of mandatory provisions of the law or the principles of natural justice. Section 561-A of the Criminal Procedure Code would confer the necessary power. The last case cited by the learned counsel is Juan Sullivan v. The State. It supports the proposition made by the learned Advocate-General. The learned counsel for the respondent No. 1 has also referred to Muhammad Samiullah khan and another v. The State (PLD 1961 Lah. 227) wherein the same principle has been laid down.
5. The first authority which supports the proposition that the High Court has the inherent jurisdiction to review its own order is contained in Gulzar Hassan Shah v. Ghulam Murtaza and others (PLD 1970 SC 335The relevant part is at page 341 which. Reads as under :- "General principle of finality of judgment attaches to the decision or order of the High Court passed in criminal cases. But it will not apply to cases where an order is passed without jurisdiction or without giving any opportunities to the parties of being heard. In such cases section 561-A, Cr. P. C.
6. Can be invoked for the purpose of doing justice between the parties and for seeing that the act of the Court does not cause injury to any of the parties. This is an inherent power of the Court and has been reserved by the above provision of law. In rare and exceptional cases the High Court has inherent power to revoke, review or alter its own earlier decisions in cases which are not governed by sections 369, 424 and 430, Cr. P. C. With a view to give effect to any order under the Code or to prevent abuse of the process of any Court or otherwise to secure the ends of justice It is, however, not possible to enumerate the circumstances in which this provision can be invoiced."
7. Muhammad Hanif v. The State (PLD 1974 Kar. 22has followed the dictum of Supreme Court referred to above and in this case the learned Chief Justice had recalled the earlier order passed by him. The scope of section 561-A has also been discussed in Muhammad Samiulla Khan v. The State (PLD 1963 SC 237). It has been held :- "The jurisdiction under section 561-A of the Criminal Procedure Code, 1898 is of an extraordinary nature intended to be used in extraordinary cases where there is no other remedy available. It is of a limited scope and cannot be utilised where there is other express remedy provided by the Code of Criminal Procedure. In the exercise of the inherent jurisdiction under this section the High Court can neither exercise the powers of a Court of appeal nor can it enhance a sentence nor can it even reconsider the question of sentence. It is designed to prevent an abuse of the process of Court and cannot be regarded as being wide enough to give to the High Court the same power that it has under section 435 read with section 439 of the Code of Criminal Procedure to examine the correctness, legality or propriety of any finding, sentence or order passed by an inferior Court Such wide powers can only be exercised under section 439 of the said Code. The scope of the jurisdictions exercised under these two provisions is not similar. The revisional jurisdiction of the High Court under section 439 is indeed wide and is not confined merely to errors of law. In the exercise of its revisional jurisdiction the High Court can even, in appropriate cases, disturb findings of fact, as, for example, where the subordinate Court has wrongly placed the onus of proof or not applied the correct principles relating to the appraisement of evidence or an important piece of evidence has been ignored. These things the High Court cannot do under section 561-A. The two jurisdictions are thus fundamentally different. Indeed, as a rule, the inherent jurisdiction of the Court to correct an abuse of process of Court or a patent injustice cannot be invoked where there is an express provision in the Code under which the case can be adequately dealt with."
8. The Supreme Court authority in Samiullah's case was relied upon in Abdul Halim v. Sadhan Ranjan Dey and another (PLD 1958 Dacca 229). In Muhammad Bakhsh v. Hajl Muhammad and another (PLD 1969 Kar. 22) it has been held that the illegal orders cannot be upheld merely because of inelegant pleadings. In Assistant Government Advocate v. Upendra Nath Mukerji (AIR 1931 Pat.
9. 81earlier order passed by the High Court was recalled under section 561-A and in this context it was observed "Where an order is passed ex parte it must be regarded as a tacit term of such an order that though unqualified in expression it should be open to reconsideration at the instance of the party prejudicially affected. This rule applies to orders made under the Civil Procedure Code as well as the Criminal Procedure Code but is subject to the qualification that inherent power cannot be invoked on a point where the Code has made express provisions."
10. In Edward Few v. Emperor (AIR 1939 Lah. 244it has been observed :- "There is no conflict between sections 369 and 561-A. Section 561-A does not confer upon the High Court new powers but merely declares that such inherent powers as the Court may possess shall not be deemed to be limited or affected by anything contained in the Code. The High Court has therefore no power to alter or review its own judgment in criminal cases, once it has been pronounced and signed, except in case where it was passed without jurisdiction or in default of appearance without an adjudication on the merits, or to correct a clerical error."
11. The overall conclusion from the above-stated circumstances is that generally High Court should not revise, alter or amend its own orders. Special Jurisdiction recognised by section 561, Cr. P. C.
12. Can be invoked only in exceptional cases for which there is no express provision in the Code. When there is specific provision in the Code, then the aid of section 561-A may be avoided. It is also wrong to move in the first instance an application under section 435/439, Cr. P. C. And after disposal of this application another application under section 561, Cr. P. C. May be made. There may be some circumstances in which departure has to be made from the general principle in the interest of justice. Some of these cases are when the order is passed without jurisdiction or patent injustice has been done and that order cannot be revised except under section 561-A. Similarly when a party against whom an order has been passed in revision has no notice of, that petition.
13. Furthermore when the matter has not been adjudicated one merits. The paramount consideration in exercising the power under section 561-A is that such an order would prevent the abuse of the process of~ any Court or otherwise it would secure the ends of justice.
14. Coming to the merits of the present case, the petitioner was not a party in the revision petition. It is stated by the learned Advocate-Genera and counsel for respondent No. 1 that the petitioner was not a necessary party as the case against the accused was conducted by the State, and the Advocate-General had appeared on behalf of the State. Technically it may be correct but factual position is that the son of the petitioner was allegedly murdered by the respondent No. 1. The order passed in revision had taken away jurisdiction of normal Courts constituted under the Code of Criminal Procedure, where if a case is proved against the respondent No. l it is possible that maximum penalty of death be awarded. Under Ordinance II o 1968 the sentence of death cannot be imposed. The trial under the normal law would be conducted by the Sessions Judge having sufficient experience of law. But the trial under Ordinance II of 1968 would be done by a Jirga of which Naib-Tehsildar may be the President. The petitioner has been adverely affected by the order in revision therefore he, is an aggrieved person and in the circumstances of, the present case I am of the opinion that the petition is maintainable under section 561-A, Cr. P. C. ` The learned Sessions Judge in his order has stated that the incident had occurred within the territorial limits of Quetta Municipal Committee and therefore the Court of Session had the jurisdiction. The learned Acting Chief Justice passed the order in revision on the basis of the statement made at the bar by the learned Advocate-General and this opinion of Advocate---- General is based on the certificate of the Building Inspector. On the other hand, in this petition the petitioner has asserted that the Building Inspector has wrongly mentioned in the map of Quetta Municipality that the incident had occurred outside Quetta town. In this petition the Court had called for the report from the Provincial Government. The Municipal Engineer who in fact is the proper person had furnished the map showing that the incident had occurred within the limits of Quetta town.
15. In the light of the above discussion, I am of the opinion that it is necessary to prevent the abuse of process of the Court and to secure the ends of justice that the order passed in revision be recalled.
16. However the learned Sessions Judge is directed to hold the inquiry after giving both the parties an opportunity to prove their respective contentions on the basis of the maps and certificates furnished by both the parties. If as a result of inquiry it is found that the occurrence had taken place within the limits of Quetta Municipality or Cantonment, he should proceed with the case but if he finds otherwise, then the case be sent to the proper forum. With this observation and direction the present petition is accepted and the order dated 22-2-1977 is recalled.