IMAM BUX BALOCH, J.---Through the instant Miscellaneous Application, applicant Zeeshan Ahmed prayed as under:- "In view of the above facts and attendant circumstances, this Hon'ble Court may be pleased to review the order dated 21-4-2011, to set aside the impugned orders dated 11-10-2010 and order for the cancellation of the bail of the respondent No,2 Syed Babar Razvi on the consideration of above grounds and he may be committed in custody in the interest of justice.
' And/or this Hon'ble Court may be pleased to pass further order which this Hon'ble Court may deem fit and proper."
2. The facts in a nutshell are that accused Syed Babar Razvi is facing trial for offences under sections 409/420/468/471/477-A/109, P.P.C. In the Special Court (Offences in Banks) Sindh at Karachi. On 11-10-2010 the accused was granted bail on medical grounds by the learned trial Court on furnishing surety in the sum of Rs,15 Millions. The applicant who is Branch Operation Manager Standard Chartered Bank (Pakistan) Ltd. Challenged the order of the learned trial Court dated 11- 10-2010 through Criminal Miscellaneous Application.
3. Notices were issued to the accused/respondent No,2, who appeared along with his counsel Mr. Syed Amjad Ali Shah Advocate. Matter was proceeded and on 21-4-2011, the application filed by the applicant for cancellation of bail was dismissed on the ground that accused was entitled to bail on medical ground.
4. Again in 'the same Criminal Miscellaneous Application, the applicant has moved instant application under section 561-A read with sections 435 and 439, Cr.P.C. Read with section 5(6) of offences in Banks for review of the order dated 21-4-2011, whereby his application for setting aside the order dated 11-10-2010 passed by learned trial Court was dismissed.
5. We have heard Mr. Muhammad Ashraf Kazi learned counsel for the applicant Mr. Khawaja Naveed Ahmed learned counsel for the respondent No,2 and Mr. Sadaqat Ali learned standing counsel.
6. Mr. Muhammad Ashraf Kazi learned counsel for the applicant stated that in the order dated 21- 4-2011 a Division Bench of this Court has not considered the law cited on behalf of the applicant. He contended that under section 561-A, Cr.P.C. This Court has vast powers to review its own order. He further contended that the case of Allied Bank of Pakistan Ltd. v. Khalid Farooque (1991 SCMR 599) was not considered with its true perspective and other cases i,e, Muhammad Ilyas Chief Manager/Attorney Allied Bank Ltd. v. Shahidullah and others (PLD 2009 SC 446), Dadio v. Sobharo and another (2010 SCMR 576), Kazi Talmiz alias Tani v. Syed Maqbool Muhammad Shah (2010 SCMR 605), Ghulam Raza v. Khuda Bux and another (2005 SCMR 1904) and Muhammad Arshad v.
The State (1997 SCMR 1275) have not been considered in the order dated 21-4-2011. Learned counsel argued merits of the case again and contended that the trial Court has granted bail without jurisdiction as there is a bar under section 5(6) of the Offences in Respect of Banks (Special Courts) Ordinance 1984. He further argued that the grant of bail on medical grounds was not available with the respondent No,2. He further argued that while dismissing the main Criminal Miscellaneous Application, this Court has not dilated upon the. Law laid down by the honourable Supreme Court for grant of bail on medical grounds. He lastly argued that the order dated 21-4- 2011 may be reviewed by invoking extraordinary jurisdiction under section 561-A, Cr. P .0 .
7. On the other hand Mr. Khawaja Naveed Ahmed learned counsel for the respondent No,2 contended that in the Code of Criminal Procedure no provision is available to review order/judgment which is finally decided, announced and signed. He conceded that this Court has vast powers under section 561-A, Cr.P.C. To rectify error if apparent on the face of order and order passed without jurisdiction then extraordinary jurisdiction of this Court is to be invoked under section 561-A, Cr.P.C. He further argued that after hearing both the parties this Court has passed order by dismissing the Criminal Miscellaneous Application of the applicant. On merits learned counsel contended that the case of Allied Bank of Pakistan Limited which is relied upon by the learned counsel for the applicant was examined in the case of The State v. Syed Qaim Ali Shah (1992 SCMR 2192) and the bail granted by this Court on medical grounds was not disturbed by the honourable Supreme Court. He further contended that the case has been commenced and normally appellate Court does not consider proper to cancel bail granted by the Lower court. He has relied upon the case of Sher Muhammad Khan v. Muhammad Ashraf Khan Tareen and others (1991 SCMR 239) and the case of Tariq Bashir and 5 others v. The State (PLD 1995 SC 34) and concluded his arguments that the trial Court has rightly granted bail to the respondent No,2 on medical grounds and this court rightly dismissed the main Criminal Miscellaneous Application.
8. Learned standing counsel supported the contention of Mr. Muhammad Ashraf Kazi and submitted that the trial Court has granted bail without jurisdiction.
9. We have considered the submissions advanced at the Bar and we have also examined the case-law. The main controversy is that whether there is any proviso available in Cr.P.C. Under section 369, Cr.P.C. For review of order/judgment which was passed after hearing both the parties and whether a party could be allowed to reopen the case when it was decided, announced and signed. Section 561-A, Cr.P.C. Confers powers to this Court if it came to the conclusion that an act if continued would be abuse of the process of law to allow a suitor to litigate over again, which raised a question already decided by the Court of competent, jurisdiction. The High Court is not given nor did it ever possessed an unrestricted and undefined powers to make any order which, it might please to consider, was in the interest of justice. Its inherent powers are as such controlled by principles and precedents and its express powers by statute. Under inherent powers of the High Court, the High Court has no jurisdiction to alter, review its own order except to the extent of clerical error or typographical mistake or an order passed without jurisdiction.
10. The applicant now seeks to reopen the case. In the case of Ghulam Sarwar and another v. The State (1979 SCMR 43), it was held as under:-- "The petitioners now seek to reopen the case as if it was in appeal by recourse to the appraisal of evidence as essentially corroboration is a matter which is interwoven with it. This is beyond the realm of review jurisdiction."
11. In the case of Raju and another v. Emperor (AIR 1928 Lahore 462), a Division Bench observed as under:-- "This does not affect any powers inherent in the Court, as there never has been an inherent power in the High Court to alter or review its own judgment in a criminal case once it has been pronounced and signed except in cases where it was passed without jurisdiction or in default of appearance without an adjudication on the merits. With this view all the Courts in India are in accord, and it is not disputed that this was the law prior to the addition of S.56I-A to the Criminal Procedure Code by the Act of 1923. Mr. Mehtab Singh contends that the introduction of this section has altered the law and given to the High Court power to do something which it could not do before. As I have already pointed out this is not the case. The instances of inherent powers possessed by the High Court given in S.561-A, namely to make such orders as may be necessary, to give effect to its decisions, or to prevent an abuse of the process of any Court, have always been assumed by Courts of record."
12. In the case of Rehmat Ali alias Lunda v. The State (1971 SCMR 513), the honourable Supreme Court held as under:-- "Review is not admissible in criminal proceedings under the Code of Criminal Procedure. It seems that by filing a review petition and getting it dismissed, the petitioner merely resorted to a ruse to create a fresh starting point for himself for coming to this Court. Such an exercise must be condemned."
13. In the case of Muhammad Siddique v. Imtiaz Begum and 2 others (2002 SCMR 442), the honourable Supreme Court held as under:-- "After hearing the learned counsel for the Petitioner at quite some length, we do not find any substance in this review petition, for the offences under section 452, P.P.C. And section 18 of the Offence of Zina (Enforcement of Hudood) Ordinance 1979 are non-bailable, therefore, none can claim bail as of right in non-bailable offences even though the same do not fall under the prohibitory clause of section 497, Cr.P.C. This Court has ample power to pass any appropriate order on bail cancellation application after taking into account the relevant material on record and need not remit the case to the Court whose order is impugned before it. As far divergence of opinion of the two Investigating Officers is concerned, suffice it to say that in view of the report of the second Investigating Officer a prima facie case connecting the accused with the crime has been made out, therefore, the question of doubt at this stage cannot be entertained.
' Learned counsel could not refer to any error apparent on the face of the record, he rather discussed the merits of the case which, in our view, was not permissible in review jurisdiction as in review neither the merits can be re-agitated nor reargued, therefore, finding no merits in this review petition, we dismiss the same. However, the prosecution is directed to expeditiously put in the challan in the Court of competent jurisdiction who shall decide the case as early as possible."
14. In the case of Darya Khan v. The State (PLD 1989 Karachi 115) a Single Bench of this Court held as under:- "In criminal cases there is no provision of review and it has been observed in case of Rahim Jan v.
Ahmed Jan and others reported in 1986 PCr.LJ 122 that remedy of review is like a remedy of appeal and same cannot be claimed in absence of an express conferment of such remedy by a Statute.
In case of Nazeer Masih v. The State reported in 1986 PCr.LJ 1224 it has been observed that section 369, Cr.P.C. Precludes the High Court from reviewing his own order. On this point I also refer to the case reported in 1985 PCr.LJ 578 and 1971 SCMR 618."
15: In the case of Iqbal v. The State (2001 PCr.LJ 1634), a learned Single Judge of Peshawar High Court observed as under:-- "There can be no two opinions that section 561-A, Cr.P.C.Confers inherent powers upon this 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. But it does not give any power to make correction/clarification of order passed by the Court. There is a specific provision of law which deals with this aspect of the matter and that is incorporated in section 369, Cr.P.C. It is specifically and categorically mentioned in the said section that no Court when it has signed its judgment shall alter or review the same, except to correct a clerical error. A perusal of the judgments referred by the learned counsel for the State prove conclusively that High Court cannot review its own order passed in criminal jurisdiction. It is not denied that the Court becomes functus officio after it passed and signs the order.
' Resultantly, I hold that petition is not maintainable as no clarification/correction or review of any order passed by a criminal Court is warranted by law. The Petition fails which is hereby dismissed."
16. We have also examined the case of Kaloo Khan v. Muhammad Manzoor Khan and another (1997 MLD 600), the honourable Supreme Court of AJ&K observed as under:-- "From the perusal of the above cited authorities, it appears that since the bail order strictly speaking, is not a judgment within the meaning of section 369, Cr.P.C. So a ground which was neither urged nor resolved at the time of previous bail applications there seems to be no bar to agitate it in the subsequent round and get it resolved."
17. The facts of in the Kaloo Khan case are that the respondent was granted bail by Trial Court and Kaloo Khan preferred an appeal before Shariat Court was dismissed. Both the orders of the Courts below had been challenged before the honourable Supreme Court of AJ&K and it was held that the ground which was neither urged nor resolved at the time of previous bail applications there seems to be no bar to agitate it in the subsequent round and get it resolved. In the instant case, the application has challenged the bail granting order of the trial Court in a Criminal Miscellaneous Application which was heard and consequently was dismissed. The facts and the circumstances of Kaloo Khan case are quite different.
18. We have also examined the case of Gulzar Hassan Shah v. Ghulam Murtaza and 4 others (PLD 1970 SC 335). The facts of Gulzar Hassan Shah were that the respondents were granted bail by the learned trial Court and the petitioner challenged such order in Criminal Miscellaneous Application No,4303 of 1969 in the High Court of West Pakistan Lahore where his Lordship Mushtaq Hussain, J.
(as his lordship then was) by his order dated 8th August, 1969 cancelled the bail and directed respondents Nos.1 to 4 to surrender' to the police. This order was passed in the absence of the respondents. The respondents came to know about it at 2-00 p.m. On the same day and moved an application under section 561-A, Cr.P.C. And prayed that the order of cancellation of bail passed earlier be set aside and they may be admitted to bail. There being vacation this application came up before his Lordship Shafiur-Rehman, J. (as his lordship then was) who passed order dated 21-8- 1969 recalled the order of cancellation of bail and allowed the respondents Nos.1 to 4 on bail on the ground that the order dated 8-8-1969 canceling the bail of respondents was ex parte order and the same was recalled and petition for cancellation of bail of the respondents was rejected. The petitioner challenged such order before the honourable Supreme Court and the honourable Supreme Court was pleased to observe as under:-- "In the present case, the allegation of the respondents was that they had no knowledge of the hearing of the petition of cancellation of bail on the 8th August 1969, before Mushtaq Hussain, J.
This contention is not ill-founded. It is in evidence that Mian Hamiduddin, who was engaged by the respondents did not receive the supplementary list in which the case of the parties appeared and had no knowledge that the case was fixed before Mushtaq Hussain, J. In these circumstances, Mushtaq Hussain, J., was perfectly justified to entertain a fresh application for considering the question whether the order of cancellation of bail should be recalled or not. Even otherwise, the order dated 8th August, 1969, suffers from the principles of natural justice. It was passed in the absence of respondents for no fault of theirs. It was, therefore, a nullity in the eye of law and the question involved should have been re-examined and decided in the presence of the parties in the light of the above discussion, I am quite clear that the application made under section 561-A, Cr.P.C. Was quite competent and the order passed by Shafiur-Rehman, J., later on, on that application does not suffer from any lack of jurisdiction."
19. Perusal of the above judgment of the honourable Supreme Court, it appears that when the order passed without jurisdiction or ex parte then the powers conferred upon the High Court under section 561-A, Cr.P.C. Are to be invoked for reviving order/orders and in the present case the counsel for the parties have been heard at length and after hearing the learned counsel for the parties the short order was passed and case of Allied Bank was also considered by this Court. We have no hesitation to hold that when order is perverse, without jurisdiction or ex parte, the extraordinary jurisdiction of this Court under section 561-A, Cr.P.C. Is to be invoked.
20. We have also noted that the applicant has ample opportunity to challenge the order before the apex Court but the applicant has not adopted such course and chose to file review application and wants to reopen the case and that the learned counsel for the applicant has touched upon the merits of the case which was already decided by order dated 21-4-2011. After considering all aspects of the case in our view once the merits of the case have been decided by an order, the same cannot be reopened in review jurisdiction, which is not available in Criminal Procedure Code.
21. We have also noted that as the order was passed on 21-4-2011, it seems that by filing a review application and getting it dismissed, the applicant merely resorted to a ruse to create a fresh starting point for himself for approaching the honourable Supreme Court. Such an exercise must be condemned.
22. For the foregoing reasons, we see no merits in this. Criminal Miscellaneous Application for review of order dated 21-4-2011 and the same is dismissed.