Petitioners have questioned the legality and propriety of the two orders one dated 10.12.2004 and the other passed on the review petition of the petitioners dated 3.5.2005 both passed by learned Sessions Judge, Abbottabad. Through the first order, on the written complaint of the respondents, registration of criminal case was ordered against the police officers who are amongst the petitioners before this Court.
2. Briefly, facts leading to the present controversy are that Respondents 1 to 5 filed complaint under Section 22-A read with Section 25-A Cr.P.C. before the learned Sessions Judge, Abbottabad with a prayer to issue direction to the local police to register a criminal case against accused-petitioners for committing criminal house trespass and looting away Rs, 8,50,000/-, cash amount, alongwith gold ornaments weighing three taulas as the local police station had refused to register the F.I.R.
The said complaint was filed after the complainants exhausted all their remedies making loud cries and when their final complaint to the I.G. Police, NWFP, did not bear fruit because the said complaint was sent back for inquiry and report to those who were squarely charged for the alleged crimes. Thus the report sent back as was expected was sharply in the negative.
The learned Sessions Judge issued notices to the accused charged in the complaint as well as to the State. In response some of the accused appeared before the Court while the State was represented by the Public Prosecutor and after hearing the parties vide impugned order dated 10.12.2004 the learned Sessions Judge through a brief order directed the registration of criminal case against the accused police officers/officials of different ranks. This order was challenged through a review petition by the petitioners-accused which was filed on 15.12.2004, but was dismissed through the second impugned order dated 3.5.2005 for reason that the order dated 10.12.2004 is a judgment within the meaning of Section 367 read with 369 Cr.P.C. Hence could not be reviewed in view of statutory bar.
3. Learned counsel for petitioners came up with three fold contentions, firstly, that the initial impugned order dated 10.12.2004 was passed without notice to the Incharge of the Police Station who had refused the registration of the case and on this score it was bad in law as right of hearing was not provided; secondly, that the said order was of interlocutory nature and did not fall within the definition of a judgment and having been passed in disregard of statutory law and principle of natural justice, therefore, was liable to be reviewed. The third contention was that no finality is attached to any order passed in criminal jurisdiction if it is found contrary to the' provisions of statutory law or it violates in any manner principle of natural justice and the provision of Section 369 Cr.P.C. being part of Chapter XXVI, therefore, it shall apply only to judgment as defined by Section 367 Cr.P.C. and not to any order passed by a Criminal Court, and that much care and caution is required to be observed by the Sessions Judge while exercising authority and powers under the provisions of Sections 22-A, 22-B read with Section 25-A Cr.P.C. lest false implication of innocent persons through frivolous complaints would become the order of the day and there will be no end to it. On merits of the case the learned counsel did not dilate in any manner.
4. To the contrary learned counsel for respondents-complainants forcefully argued that no judgment or order can be reviewed in criminal matters in view of the explicit bar contained in Section 369 Cr.P.C. and that not only the accused officers were put on notice but they were also provided right of audience and hearing as well before delivering the impugned judgment dated 10.12.2004 and that they were fairly defended and represented by the State counsel which fact is evident from the said order, therefore neither any statutory provision was violated nor the principle of natural justice, the review petition filed before the learned Sessions Judge therefore was entirely misconceived one. He further contended that the complaint lodged by the complainants- respondents clearly constitutes cognizable crimes and keeping in view the provision of Section 154 Cr.P.C. and the case law on the subject, police has no authority to refuse registration of criminal case on the basis of its whims particularly in this case when their colleagues were charged and when there were enough materials in its support hence the refusal to register the case amounts to breach of a statutory duty, being based on ulterior consideration.
5. The word "judgment" has not been defined in Section 4 of the Criminal Procedure Code. However, the salient features/characteristics of a judgment have been given in Section 367 Cr.P.C.
"Judgment" in legal parlance means judicial verdict deciding a case finally so far as the Court seized of the case is concerned and with the pronouncement of it the pending proceeding/case stands terminated leaving nothing for future to be considered or re-considered, thus, the word "judgment" cannot be confined only to an order of conviction and acquittal of accused person because that is one aspect of it. True that interlocutory or interim order about any matter providing temporary relief when final determination of the same is to be made at a later date, would not fall within the definition ofjudgment and the Court trying the case or holding the proceeding would be competent to review such order but in true legal sense it would not amount to review of the order but re-consideration of the interim order at a later stage which is permissible under the law. To the contrary all orders and judgments of the nature which finally decide the case and nothing is left for future course or final decision then the Court passing it becomes "functus officio" and is left with no authority or jurisdiction to review the same after it has been pronounced.
6. The provision of Section 369 Cr.P.C. has placed an absolute bar on altering or reviewing a- judgment and to understand the said provision it is reproduced below:- "Section 369--Court not to alter judgment--Save as otherwise provided by this Code or by any other law for the time being in force, or in the case of a High Court, by the Letters Patent of such High Court, no Court, when it has signed its judgment, shall alter or review the same, except to correct a clerical error."
7. The plain language of the above provision of law leaves nothing for a debate that judgment can be reviewed or altered by a Criminal Court once it is signed, dated, sealed and pronounced by it after conclusively determining the rights and liabilities of the parties- no merits and leaving nothing for the future to be taken up for decision.
8. Although word judgment" has been used in Section 369 Cr.P.C. but it shall not be construed and cannot be placed in water tight compartment by excluding other order of the Court deciding a case conclusively after touching upon its merits because judgments and orders of this nature are inter-changeable and are synonymous for one and other. The true legal test for an order as to whether it comes within the meaning of a judgment envisaged by the provision of Section 367 Cr.P.C. is as to whether it has touched upon the deep merits of the case and has conclusively decided the matter and the adjudication has attained finality so far as the Court delivering it is concerned. When nothing is left to be taken at a future date for final decision the order is a judgment and is a final one which cannot be reviewed or re-opened on any ground what so ever nor it can be corrected except to the extent permitted by the provision of Section 369 Cr.P.C. The wisdom behind the prohibition contained in Section 369 Cr.P.C. is with the object to maintain regularity and consistency so that the criminal justice is put to correct and proper channels. If on any ground review of a final judgment is permitted that could create serious choas and the system would stand eroded shattering the public confidence and faith in it. It is by now well settled principle that a Judge or Magistrate delivering the final judgment/order is denuded of authority/jurisdiction to alter or review the same after it has pronounced it in accordance with Section 369 Cr.P.C.
9. The provisions of Sections 435, 439, 439-A and Section 561-A, Cr.P.C. besides other provisions relating to right of appeal are the full machinery provisions to correct legal jurisdictional errors in a judgment committed by the subordinate Court. These remedies provided by different statutory provisions of the Code are substitutes for the review powers/jurisdiction rather these are more efficacious in nature and substance. Final judgments/orders even obtained by misrepresentation can well be challenged in appeal/revision or before the High Court by invoking its inherent powers under Section 561-A Cr.P.C. but the Court which passes it is debarred from making substantial amendments/alterations in the same.
10. Looked at from the above legal angles the plea of the learned counsel for the petitioners that all such judgments are liable to be reviewed is nothing but paradoxical and cannot be permitted to prevail as it is fraught with fatal consequences for the system of criminal justice. Any liberal view if taken in this regard permitting review of final judgments/orders would open a flood gate and would also have a way for Criminal Courts to alter or review judgments on whimsical grounds by pressing into service the principle of natural justice or on other grounds albeit trivial in nature.
11. What are interim and interlocutory orders it is difficult to lay down a defined criteria and standards for the same because it depends upon the nature and substance of the order itself as their may be cases where interlocutory orders may amount to a final order/judgment if it decides a case/lis conclusively. Ordinarily interlocutory orders are those which in no manner decide the pending matter finally but provide for interim arrangements and the authority and jurisdiction to take final decision is retained by the Court seized of the case/matter till the final judgment is delivered. In these categories of cases fall bail petition, subject of course, to the principle laid down by the apex Court in the case "State vs. Zubair" PLD 1986 Page 173, the discharge of sureties from bail bonds, obtaining of fresh surety bonds from accused, the renewal of surety bonds or enhancing the liability of the sureties, the transfer or re-transfer of cases from the diary of one Court to the other, the attachment of immovable property, the interim custody of immovable or movable properties/articles, the re-examination, recalling for examination witnesses dropped by a party to a case and other cases of the like nature where the decision made is not final in its nature and substance as such orders do not attain finality and, therefore, are not hit by the prohibition contained in Section 369 Cr.P.C. The case law "Gulzar Hussain Shah vs. Ghulam Murtaza etc. PLD 1970 S.C. 335, Muhammad Sayar and another vs. The State MLD 2000 page 943, Muhammad Asif vs. State P.Cr.L.J. 2001 page 895, Gul Muhammad etc. vs. The State NLR 1999 Cr. page 291, Abdul Fateh Babar Sani vs. Mst. Nooreen and 2 others P.Cr.L.J. 2000 page 1516, Barkat Ali vs. Additional Commissioner 2004 MLD page 1633 and Municipal Committee Gujra vs. Deputy Director MLD 2004 page 1170 and lastly Muhammad Aslam vs. Addl. Sessions Judge P.Cr.L.J. 2004 page 1214" referred to by the learned counsel for the petitioners on perusal certainly relates and pertains to the realm of that category of cases and orders which can be conveniently termed interlocutory or interim orders while the last case "Muhammad Aslam vs. Addl. Sessions Judge, P.Cr.L.J, 2004 page 1214" in no manner detracts and goes away from the above principle of law consistently laid down.
However, on perusal the facts of the said case are entirely different from the facts of the present case, hence is not attracted to the present one.
12. The legislature has deliberately omitted provision of review from the criminal procedure code at the pattern like the one provided by way of Section 114 read with Order 47 C.P.C. This omission is meaningful and cannot be lightly ignored. As discuses in the earlier part of this judgment for the correction of legal or jurisdictional error in a judgment/order powers of revision and appeal have been given to the revisional and appellate forum besides conferring inherent powers on the High Court under Section 561-A Cr.P.0 and these provisions can be conveniently pressed into service by the aggrieved party for the redressal of its grievance against the final judgment and order.
The plea of the petitioners' counsel that Section 369 Cr.P.C. being part and parcel of Chapter XXVI, therefore, shall remain confined to the judgment defined in Section 367 Cr.P.C. is unfounded and entirely fallacious one because as discussed earlier, judgment includes a final order, thus the said provision would cover all these orders which finally and conclusively decide a case/matter on merits, its applicability, therefore, cannot be limited or narrowed down. The construction placed by him on the said provisions is, therefore, misconceived one which if it allowed to prevail would create grave mischief instead of promoting the cause of justice more particularly when the legislature has neither expressly nor by necessary implications limited the scope of applicability of the said provision of any defined sphere.
13. The powers conferred on Sessions Judge under Section 22-A sub-section (6) Cr.P.C. read with other relevant provision quoted above although are not at par with those of the writ of mandamus but are substantially of that nature .where the Sessions Judge (as a justice of peace) may direct In-charge of a Police Station to register a criminal case reported to it if cognizable offence is made out. In the instant case when the complainant failed to get justice from the high ups of the hierarchy including the I.G. Police he filed petition under Section 22-A Cr.P.C. before the learned Sessions Judge who put the accused and the State on notice. The accused were present on the date of the order impugned herein, they were provided right of audience and opportunity of hearing while the State counsel who represents all the functionaries of the State was also present and was heard and thereafter the order was passed directing the local police to register the case for crimes which are made out or constituted from the contents of the complaint made by the respondents/complainants. The nature of the order in unambiguous terms suggests that it is a final order and has consluviely and finally decided the case pending before the learned Sessions Judge and nothing was left for the future to be considered or re-considered, thus it is for all legal purposes a judgment or final order and was not liable to be reviewed as suggested by the petitioners, therefore, the review petition filed by them and its dismissal through the' second impugned judgment/order was perfectly in accordance with law and settled principle of justice.
14. The learned D.A.G. appearing for the State was unable to controvert the above legal position and could not throw challenge to the impugned order of the learned Sessions Judge however he made attempts to open the case on merits but he was cautioned that any deep discussion on merits of the case at such level and stage would have serious consequences and the end result and fate of the case would be seriously prejudiced one way or the other and such aspect is to be left for the investigating agency and then for the trial Court which has the exclusive jurisdiction/powers to take cognizance on the police report or to act the other way, the learned D.A.G. then conceded to this proposition as well. The inherent powers of the High Court under Section 561-A, Cr.P.C. are extra ordinary in nature and for exercise of the same three well defined tests are laid down which are to give effect to any order passed under the Code"; secondly, "to prevent the abuse of the process of the Court or that of law" and third "to pass any order securing the ends of justice". Such inherent powers of the High Court are meant for to do substantial justice in a case of unforeseen eventualities for which no provision is available in the code and these powers are to be used with great care and cautions and not to interrupt, impede or stifle down any proceedings or any legal course which are regulated or controlled by the other provisions of the Code, as for carrying out these, different authorities are invested with powers. The petitioners have shown no good ground for invoking the inherent powers of this Court.
15. For what has been discussed above this petition is devoid of all legal merits and being misconceived one is, therefore, dismissed and both the impugned judgments of the learned Sessions Judge are maintained. The interim order dated 26.6.2005 restraining the police from registration of the case is also recalled. The order of the learned Sessions Judge directing registration of the case be given full effect in letter and spirit and the case be registered according to law. However, keeping in view the nature of the accusation made in the complaint and because allegations have been made against police officers/officials including those of high ranks, the apprehension of the learned counsel for respondents-complainants that they would not get fair treatment and justice if local police is allowed to investigate the case, are well founded. It is, therefore, directed that after registration of the case it shall be entrusted by the I.G. Police to any senior officer of the Crimes Investigation Wing Head Quarter Peshawar not below the rank of A.I.G. or S.S.P. The needful be done within a period of one month.