1. MUHAMMAD AFZAL SOOMRO, J.---Through this application, filed under section 561-A, Cr.P.C. For recalling the order dated 18-2-2005 passed by me whereby the main Criminal Revision Application filed by the Applicant was dismissed in limine holding that order, passed by the learned 1st Addl.
2. Sessions Judge Karachi South, impugned therein, does not show that any illegality had been committed in his order having been passed elaborately. I have heard. Mr. I.A. Usmani, learned counsel appearing for the applicant. Mr. Abdul Jabbar Lakho, learned Assistant Advocate- eneralSindh, appearing for Respondent No,1/State. Mr. Rehmat Ali Randhawa, learned counsel appearing for Respondents Nos. 2 to 5 and Mr. Mirza Sarfraz Beg, learned counsel appearing for Respondent No,6. It has been contended by the learned counsel that the questions of law firstly, whether the learned Addl. Sessions Judge, acting as Justice of Peace under S.22-A, Cr.P.C. Was empowered to impose fine of more than Rs,1,00,000 (Rupees one lac only) on a complaint under section 22-A, Cr.P.C. While dismissing the complaint; secondly, whether the bailiffs of the Court are immune and exempted from criminal trial and legal proceedings when admittedly, they have committed the offences in personal capacity under sections 181/193/196/199/468/471/ 420/34, P.P.C. Thirdly, whether the provisions of sections 76/77 and 78, P.P.C. And section 195, Cr.P.C. Are applicable in case of bailiff of the Court who has committed the offence; fourthly, whether the bailiffs, acting in their official capacity are allowed to commit the offences under the above sections and cannot be tried for the said offences; and fifthly, whether the justice, of peace appointed under section 22-A,Cr.P.C.
3. Cannot pass order for, lodging the F.I.R. Against the Court bailiff who had, admittedly, committed the offence. It has, also, been contended by the learned counsel that applicant was the tenant of Shop No,3 and Go down No,7 situated at Survey No,66, Sheet No,NP-2. Bhangari Street, Napier Quarters, Karachi on pugree-cum-rental basis since very long i,e, for the last about 35 years where he is doing business of crockery in the name and style of New Price Stainless Steel. It has, further, been argued that the applicant was originally tenant of M/s. Anwar and Company from whom Mst.
4. Amina Begum purchased the property. However, the said landlady did not serve any notice upon the applicant under section 18 of Sindh Rented Premises Ordinance, 1979. She through her Attorney Farukh file Rent Case bearing No,307 of 2003 against the Applicant in the Court of Vth Senior Civil Judge and Rent Controller Karachi South about which the applicant had no knowledge prior to 10- 5-2004. He even did not know either about the pendency or disposal of the case nor he had any knowledge that any order to vacate the shop was passed by executing Court. However, the applicant, through his counsel, got examined the record of the case and learnt that said landlady through her Attorney (Respondent No,5 herein) disclosing to be owner of the premises, in question, had initiated Rent Cases bearing Nos.307 and 308 of 2003 and got decided ex parte against him upon report of bailiff (Respondents Nos.3 and 4) disclosing the service held good. Since the applicant was not in the knowledge of the proceedings, the said Amina Begum after expiry of the appeal period filed Execution Application in the Court which was allowed ex parte in her favour. It has, further, been contended that during the proceedings before the learned Rent Controller, Karachi South in Rent Cases Nos.307 and 308 of 2003 as well as during proceedings in Execution Nos.07 and 08 of 2004 the Respondents herein with active connivance and collusion submitted false and fabricated reports of service as well as made misstatement on Oath simply to effectuate the service on the applicant and on the basis of the said false, fabricated and forged reports obtained ex parte decree and writ of possession from the learned trial and Executing Court. It has, also, been contended by the learned counsel that the said writ of possession issued for 10-5-2004 could not be served on account of non-availability of police aid on 8-5-2004. It has therefore, been contended by the learned counsel that the said respondents were duty bound to submit their report in the Court on the same day and should have obtained extension of time for said writ of possession from the Court but with sheer mala fide and while brushing aside all norms and procedure of the Court said Respondents on their own will went to the premises, in question, on 10- 5-2004 and submitted their report on 12-5-2004 without mentioning the fact about quarrel, dispute or disturbance from any corner during the course of execution of said writ of possession and said writ of possession returned unserved solely on the ground that the applicant had obtained a restraining order from the Appellate Court. In this background, it has been contended that the applicant not only filed a complaint to the Hon'ble Chief Justice of this Court on 12-5-2004 with the copy to the learned District Judge Karachi South duly acknowledged and received by the office. It has, further, been contended by the learned counsel that the said Respondents upon having knowledge about the above-stated complaint themselves filed complaint before the learned District Judge Karachi South on 13-5-2004 at about 3-00 p.m. Against the brothers of the applicant leveling thereby false allegations of hampering and interfering into the official work with the request that an F.I.R. Against the brothers of the applicant be lodged. The learned District Judge, without giving an opportunity to the brothers of the applicant (Respondents in that complaint) directed S.H.0 concerned to register a case, as prayed. Furthermore, during the aforesaid proceedings the Respondents had shown only two witnesses namely Muhammad Shakeel and Muhammad Ikram, alleged to have been present at the time of pasting of Court Notices/Summons by Respondents Nos.3 to 5 during the proceedings. The applicant, being aggrieved by the aforesaid illegal acts of the Respondents, preferred an application under section 22-A, Cr.P.C., before the Court of learned 1st Addl. Sessions Judge Karachi South bearing Criminal Miscellaneous Application No,277 of 2004 wherein said alleged witnesses have also submitted their affidavits on oath stating therein that they never accompanied any of the Respondents nor any Court Notice was ever served or pasted by the said Respondents in their presence. They further deposed that copies of their National Identity Cards were obtained by Respondent No,6 on the pretext of taking a telephone connection for his shop and said copies were misused by the Court Staff on his whims and wishes. It has, also, been contended by the learned counsel that learned 1st Addl. District Judge, Karachi South vide order dated 14-9-2004 had not only dismissed the application of the applicant but had also imposed heavy cost on the applicant which is harsh, unjust, illegal and nullity in the eye of law, hence the applicant filed this Revision Application before this Court on the legal ground which was dismissed without taking into account that whether the learned Addl.
5. Sessions Judge, acting as Justice of Peace under section 22-A, Cr.P.C. Was empowered to impose fine of more than Rs,1,00,000 (Rupees one lac only) on a complaint under section 22-A, Cr.P.C. While dismissing the complaint. He has, therefore, contended that this application has been filed for alteration of their order dated 18-2-2005 passed by this Court. He has relied upon the cases of Fateh Ali and another v. The State 1997 MLD 2235; Hussain Ahmed v. Mst. Irshad Bibi and others 1997 SCMR 1503; Mukhtar Ahmed alias Mokha and another v. The State 1999 PCr.LJ 1905; Chairman, Minimum Wages Board, Peshawar and another v. Fayyaz Khan Khattak, Research Officer, Minimum Wages Board, Peshawar 1999 SCMR 2768; Allah Rakha v. The State 2000 MLD 1932; Haji Muhammad Abbas v. Mrs, Naila Tranum Jamshed and 4 others 2001 PCr.LJ 628; Faizur Rehman v. The State and others PLD 2002 Peshawar 6 in support of his contentions. On the other hand, learned Assistant Advocate-General Sindh has partly opposed the application partly conceded. He supported the order, sought to be reviewed, on the legal aspect but has, at the same time, contended that the learned 1st Addl. Sessions Judge Karachi South was not empowered to impose the cost while deciding the application of the applicant, filed under section 22-A, Cr.P.C. Mr. Niamat Ali Randhawa Advocate for Respondents Nos. 2 to 5 supports the order, sought to be reviewed, fully on the ground that neither the applicant approached the Police Station firstly for redressing his grievance nor he exercised his ultimate right i,e, to file direct complaint before competent Court of law. However, he approached to Justice of Peace under section 22-A, Cr.P.C.
6. Who, keeping in view all facts and circumstances as well as the law, reproduce in his order, passed an order, which is just and proper. So far as imposition of costs/fine is concerned, he submitted that such imposition is very much necessary to restrain the parties who usually try to create problems in the functions to be done for compliance of the Courts orders which results in wasting of precious time of the Courts. He has relied upon the case of Mian Khan and others v. Inspector- General of Police, Punjab and others PLD 2002 Lah. 619; Muhammad Yousuf v. Dr. Madad Ali alias Gulab Laskani and others PLD 2002 Kar.328; Ghulam Ali alias Sadoro and others v. S.H.O. Police Station Veehar, District Larkana 2003 YLR 2168 and Peer Abdul Qayyum Shah v. S.H.O. And others 2005 PCr.LJ 357 in support of his contentions. Mr. Mirza Sarfraz Ahmed, learned counsel for respondent No,6 submits that this application, having, been filed malafidely, is not maintainable inasmuch as order, sought to be reviewed, passed by this CoUrt dismissing main Revision. Application, filed under sections 435/439 read with section 561-A, Cr.P.C. After hearing detailed arguments, is not supposed to be reviewed under section 561- A. Cr.P.C. He has relied upon the case of Bashir Ahmad v. Zafar-ul-Islam PLD 2004 SC 298 in support of his contentions. I have considered the arguments of all the learned counsel appearing for respective parties, perused the record and have also gone through the case-law, cited at the bar.
7. It is true that order passed in Revision application under sections 435/439 read with section 561-A, Cr.P.C. Cannot be reviewed because nowhere in the Criminal Procedure Code any provision is available to review the order passed on Revision Application but under A the same section i,e, 561- A, Cr.P.C. This Court has got inherent powers to alter its order or rectify if any ambiguity has been created or any point which should have, thoroughly, been considered at the time of passing order on the Revision Application. Reference can be made to the case of Muhammad Ayaz alias Cheena and others v. The State PLD 2004 Kar.652 wherein Division Bench of this Court comprising of my learned brother Mujeebullah Siddiqui and myself, while relying upon the theory of per incur am, held that:- "Although the normal rule of the criminal administration of justice is that an order or judgment, once delivered attains finality and is not to be altered, reviewed, changed or recalled. However, under exceptional circumstances in rare cases, where there is no specific provision of law and this Court is satisfied that the earlier order/judgment is either without jurisdiction or against the mandatory provisions of law and has been delivered inadvertently and out of oblivion of the provision of law and if such order/judgment is left intact it would result in perpetration of manifest injustice, this Court may exercise its inherent jurisdiction under section 561-A, Cr.P.C., to correct the manifest error floating on the record without involving long drawn process of arguments or re- interpretation or reexamination of facts, without any attempt to arrive at any other conclusion which is also possible in the facts and circumstances of the case. In the words of Tufail Ali A.
8. Rehman C.J., we would like to guard ourselves by clarifying that this correction or recalling of order/.Judgment shall be resorted to only in such exceptional and rare circumstances, whereby no process of arguments the earlier order/judgment can be found within the parameters of law and the only conclusion is that the earlier order/judgment is without jurisdiction or against the mandatory provisions of law. The resort to inherent jurisdiction under section 561-A, Cr.P.C. Can be made under the principles of stare devises. This doctrine has been explained in corpus juris secundum as follows:- :Under the stare decks is rule, a principle of law which has become settled by a series of decisions generally is binding on the Courts and should be followed in similar cases. This rule is based on expediency and public policy and although generally it should be strictly adhered to by the Courts it is not universally applicable.' However, a rider has been added that, 'previous decision should not be followed to the extent that grievous wrong may result and accordingly the Courts ordinarily will not adhere to a rule of principle established by previous decision which they are convinced is erroneous'. The rule of stare decisis is not so imperative or inflexible as to preclude a departure therefrom in any case, but its application must be determined in each case by the discretion of the Court and previous decision should not be followed to the extent that error may be perpetuated and grievous wrong may result Maktul v. Mst. Manbhari AIR 1958 SC 918."
9. Accordingly, I am of the considered view that the learned 1st Addl. Sessions Judge Karachi South was not justified rather empowered to impose fine/costs upon the petitioner while rejecting his application, filed under section 22-A, Cr.P.C., though it is again maintained that the said order otherwise does not call for any interference inasmuch as the same was passed elaborately.
10. In the circumstances, exercising inherent powers available to this Court under section 561-A, Cr.P.C.
11. 1, while maintaining my order dated 18-2-2005, though dismiss this application but at the same time I recall my said order and alter the same to the extent that imposition of fine by the learned 1st Addl. Sessions Judge was not justified and such part of his order is set aside.
2. Disposed of having been infructuous. M.As. Nos.1192 and 1193 of 2005 stand disposed of.