" M.A. No.382 of 2011 ' MUHAMMAD ATHAR SAEED, J.---This application has been filed under section 561-A, Cr.P.C. By the proposed intervenor for being impleaded as a party to the proceedings. The reasons highlighted in the supporting affidavit are that the proposed intervenor was the employer of the present applicant and had filed an F.I.R. No.653 of 2009 before Police Station Boat Basin on 2-12-2009 under sections 420, 468, 469, 408 and 34, P.P.C. For committing fraud and embezzlement of the securities of the proposed intervenor and he submits that since he was the person who got the F.I.R. Registered he has a vested interest in the proceedings of this Criminal Miscellaneous Application which has been filed against the order of the Judicial Magistrate rejecting the report under section 173, Cr.P.C. Filed by the SIO for disposing of the F.I.R. In A-Class and had directed him to include the names of the accused persons including the applicant in the challan and submit the challan before him.
2. This application has been strongly opposed by Mr. Muhammad Ilyas Khan the learned counsel for the applicant.
3. I have heard Dr. Faroagh Naseem the counsel for the proposed intervenor and Mr. Muhammad Ilyas Khan assisted by Mr. Muhammad Farooq the learned counsel for the applicant.
4. Mr. Faroagh Naseem read out the provisions of section 561-A, Cr.P.C. And argued that the provisions of this section provide vast inherent powers to this Court to take any action or pass any orders in the interest of justice and to prevent abuse of the process of law. He submitted that this provision is almost pari materia with the inherent powers enjoyed by this Court under section 151, C.P.C. And Article 187 of the Constitution and therefore he further argued that since there is no provision in the Cr.P.C. Which is pari materia to Order I, Rule 10, C.P.C. For impleading any party who the Court thinks is a necessary A and proper part to be impleaded in a civil matter as a party in that matter therefore the provisions of section 561-A, Cr.P.C. Are applicable as the Courts have held that they are not applicable only if there is a specific provision in the Ordinance itself which provides otherwise. In support of his contention the learned counsel relied on the following judgments:--
(1) Mst. Zahida Sattar and others v. Federation of Pakistan (PLD 2002 Karachi 408)
(2) Muhammad Ayaz alias Cheena and others v. The State (PLD 2004 Karachi 652)
(3) Multiline Associates v. Ardeshir Cowasjee (PLD 1995 SC 423)
(4) Fauji Sugar Mills v. Province of the Punjab and others (1996 CLC 592)
(5) H.M. SAYA and Co., Karachi v. Wazir Ali Industries Ltd. Karachi and another (PLD 1969 Supreme Court 65)
(6) Sher Alam and another v. The state (1999 PCr.LJ 81)
(7) Sher Alam and another v. The State (1998 PSC (Crl.) 1060)
5. He submitted that on the basis of his arguments and the judgments relied on by him he is entitled to be impleaded as a respondent in this case or at least an order should be passed that before passing any final order he should be given an opportunity of being heard. The learned counsel besides relying on the legal pleas has also relied on the factual pleas by submitting that two petitions had been filed by the applicant and his companions before this Court in which he had been impleaded as a respondent by the applicant himself, which petition which was numbered C.P. No.37 of 2010 and an order was passed not to arrest the petitioner subject to furnishing surety in the sum of Rs.0.5 million, which petition was later on withdrawn by the present applicant. He submits that a civil suit is proceeding before the trial Court which is between the same parties. He also submitted that a dirt complaint was also filed against him by the Securities and Exchange Commission of Pakistan in respect of the small matter which was dismissed by the trial Court under section 265-K, Cr. P. C. He therefore submits that in the matters pertaining to the same set of facts the parties are contesting at various forums and he is involved in all these litigations.
6. As already observed, this application of the intervene or has strongly been opposed by Mr. Muhammad Ilyas Khan the learned counsel for the applicant. He first read out the application and then section 561-A, Cr.P.C. To point out that this section clearly states that the inherent powers of the Court can only be exercised by the Court where no other provision of law is provided. He read out the provisions of section 493, Cr.P.C. To point out that the Public Prosecutor may appear and plead before any Court in which any case of which he has charge is under enquiry, trial or appeal and if any private person instructs a pleader to prosecute in any court any person in such case the public prosecutor shall conduct the prosecution and the pleader so instructed shall act under his directions. He submits that since a specific provision has been provided for a private person to take part in criminal proceedings, therefore, the provisions of section 561-A, Cr.P.C. Are not applicable. He in support of his contentions relied on the following judgments.
(1) Dildar v. Safdar and 2 others (1990 PCr.LJ 158).
(2) Muzaffar Iqbal v. The State (1993 PCr.LJ 125)
(3) Moinuddin v. Punnoo and another (1993 Cr.LJ 215).
7. Utilizing his right of rebuttal Dr. Faroagh Naseem has also read out section 493, Cr.P.C. And submitted that section 493 does not apply to the matter in hand as it only applies to any case which is under enquiry, trial or appeal and if a private person instructs a pleader to prosecute he has to act upon the directions of the Public Prosecutor and this case neither pertains to any enquiry, trial or appeal and therefore section 561-A of Cr.P.C.
Will apply.
8. The learned Assistant Prosecutor General has adopted the arguments of Dr. Faroagh Naseem and has prayed that the proposed intervenor may either be allowed to be impleaded as a party or at least he should be allowed to argue the matter before a final decision is passed by this Court.
9. I have examined the case in the light of the arguments of the learned counsel and have perused the impugned order and the judgments relied on by the learned counsel.
10. Since the bone of contention of this case revolves round the applicability of section 561-A, Cr.P.C., therefore, I consider it relevant to reproduce the same:-- 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.
11. After reproducing this section it is seen that the order passed by the Judicial Magistrate which has been impugned in this application is order passed in exercise of proper jurisdiction as the Judicial Magistrate has got the jurisdiction to consider and examine the report filed by the Investigating Officers under section 173, Cr.P.C.
And to either approve it or if he does not agree with it then reject the report and pass and since the applicant has been prejudiced by that order therefore he has filed this application under section 561-A, Cr.P.C. Asking the Court to examine the order and set it aside as according to the applicant the report of the Investigating Officer under section 173, Cr.P.C. Was an elaborate report in which all aspects of the case were considered and enquiry had been made and proper inference was drawn from that enquiry.
12. It has to be seen as to whether the proposed intervenor has any vested interest in the decision which may be taken by the Court on this matter. I, looking at the facts of the case and the fact that this Criminal Miscellaneous Application stems from the F.I.R. Filed by the proposed intervenor against the present applicant and visualizing that if report under section 173, Cr.P.C. Was accepted by the Judicial Magistrate then perhaps an application under section 561.A, Cr.P.C. Against the order of the Judicial Magistrate would have been filed by the proposed intervenor, am of the view that one fact which cannot be denied is that the proposed intervenor has a vested interest in the matter and any decision which may be taken by this Court on the Criminal Miscellaneous Application will affect him. In the light of this observation I have examined the judgments relied on by the learned counsel.
13. I will first take up the judgments relied on by the learned counsel for the applicant.
14. In the case of Dildar v. Safdar quoted supra wherein the learned Single Judge of the Peshawar High Court while relying on an observation of the honourable Supreme Court in the case of Shahkot Bus Service v. State and another reported in 1969 SCMR 325 held that to secure the ends of justice, it is the foremost duty of the Court in exercise of its inherent power under section 561-A, Cr.P.C. To interfere with and strike down such orders as appear to it illegal, arbitrary or unfair. The learned counsel has failed to appreciate the extract of the judgment of the honourable Supreme Court relied on by the Peshawar High Court, in which the honourable Supreme Court has held that the High Court can make all such orders which may be necessary to do real and substantial justice and prevent abuse of the process of Court, subject only to the limitation that it cannot override an express provision of the Code.
15. In the case of ,Muzaffar Iqbal quoted supra again the same law has been laid down that powers under section 561-A, Cr.P.C. Cannot be invoked in respect of matters directly covered by any specific provision of the Code of Criminal Procedure Code.
16. Although the learned counsel has relied on a number of judgments from civil jurisdiction but I would now take up the judgment of the honourable Supreme Court in the case of Zahida Sattar quoted supra wherein the honourable Apex Court had held as under:--
(16) The law by now is firmly settled that no person can be condemned unheard as regards any matter in which he has any interest. It has also been laid down as principle of law by the superior Courts that in every statute, principle of natural justice of hearing a person before condemning him as to his right shall be deemed to have been embodied unless application thereof has been expressly or impliedly done away with. In the absence of any express provision to exclude the applicability of principles of natural justice of hearing of a person adversely affected by an order or judgment of the Court under NAB Ordinance, we would hold that he (benamidar) has a right to approach the said Court during the trial 'and before final judgment is passed that he should be heard.
We may also observe that in all such cases, where the properties are alleged to have been purchased by an accused person in the names of his spouse, relative and others as benamidars, the Court should itself summon those persons and give them opportunity to produce evidence in support of their claim as to ownership in their own right to substantiate that they had sufficient sources of their own to acquire the properties and thereafter decide the case. As regards remedy of appeal, it being a substantive right cannot be availed by a person unless conferred by the statute. Under the relevant provisions of NAB Ordinance as regards appeal against final judgment of the Accountability Court, it can only be maintained by the State or the accused person. This being so, the ostensible owners or benamidars if heard by the Accountability Court and findings recorded against them, may invoke any other remedy in such situation including remedy under Article 199 of the Constitution.
17. However, this judgment was objected by Mr. Muhammad Ilyas Khan on the ground that it is under the provisions of NAB Ordinance and section 13 of the NAB Ordinance specifically lays down that the parties against whom any order is to be passed could invoke the constitutional jurisdiction of the High Court.
18. I would also like to consider the judgment passed by a Division Bench of this Court in the case of Muhammad Ayaz qouted supra where the learned Division Bench of this Court after examining the provisions of section 561-A, Cr.P.C. In the light of the judgments of the honourable Superior Courts went on to hold that under exceptional circumstances in rare cases where no specific provision of law is available, if the High Court is satisfied that the earlier order was passed without jurisdiction or against the mandatory provisions of law and has been delivered inadvertently and out of oblivion of the provisions of law and if such order 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. Despite the fact that there is no provision of law in Cr.P.C. To . Review or correct any such order which has . Already been passed and had attained finality and in.Fact such actions have been barred specifically.
19. In the light of the above judgments it is to be examined whether section 493 provides a procedure for a private party to become parties to prosecute in all forms of criminal matters proceeding before the Court to assist the Public Prosecutor and act under his directions. At this stage, it will be relevant to reproduce section 493, Cr.P.C.
(493) Public Prosecutor may plead in all Courts in cases under his charge pleaders privately instructed to be under his direction. The Public Prosecutor may appear and plead' without any written authority before any Court in which any case of which he has charge is under inquiry, trial or appeal, and if any private person instructs a pleader to prosecute in any court any person in any such case, the Public Prosecutor shall conduct the prosecution and the pleader so instructed shall act therein, under his directions.
20. A perusal of the above section leads to the conclusion that this provision provides that a private person can instruct a pleader to prosecute in any case only where there is a charge under enquiry, trial or appeal and therefore in my humble opinion it would not extend to all the criminal matters which are pending in any Court. I am therefore inclined to agree with the learned counsel for the proposed intervenor that section 493 does not provide him an opportunity to interfere and seek permission from the court to assist the prosecution in this Criminal Miscellaneous Application.
21. In this case since I have already held that the applicant has acquired a vested right in this matter and any decision of this court on this Criminal Miscellaneous Application will affect him considerably therefore, I am allowing the application of the intervenor to the extent that before taking any decision on this Criminal Miscellaneous Application, the proposed intervenor may be provided an opportunity of presenting his arguments in the above matter and file any documents in support of his pleadings, consideration of which will be taken by the Court.
' This application is disposed of in the above manner.