1. ' AFTAB AHMED GORAR, J.---Through this Criminal Miscellaneous Application filed under section 561-A, Cr.P.C. The applicant has prayed for recalling the order dated 6-11-2012 whereby this court admitted respondent No,2 to bail.
2. ' Brief facts of the case, giving rise to the filing of the instant Criminal Miscellaneous Application, are that respondent No,2 was booked for the offence under section 365-B P.P.C. Registered at Police Station Darakhshan. The allegation against him was that he had kidnapped Mst.Sajida, the sister of the present applicant/complainant, and committed zina-bil-jabr with her. Criminal Bail Application No,1143 of 2012 was moved on his behalf which was granted by this court vide order dated 6-11-2012.
3. Through instant Criminal Miscellaneous Application, the applicant/complainant has prayed for cancellation of bail granted to respondent No,2.
4. ' Learned counsel for the applicant/complainant contended that the impugned order is based on non-reading of the evidence on the record as this court was not properly assisted by the learned A.P.G. At the time of hearing the bail application. He further contended that respondent No,2 has misused the concession of bail by extending threats to the advocate of the complainant/applicant.
5. According to him, bail can be cancelled even on grounds other than misuse of the concession of bail. In support of this plea, he relied upon unreported order dated 14-12-2009 passed by this court in Criminal Miscellaneous Application No,196 of 2009, 1993 PCr.LJ 2051, 1997 PCr.LJ 408, 1998 PCr.LJ 69, 1998 PCr.LJ 1022, 1983 PCr.LJ 2005, 1984 PCr.LJ 2086 and PLD 1970 SC 335. He further contended that sole testimony of the rape victim can be made basis for conviction of the accused if it inspires confidence. On this point he relied upon PLD 1991 SC 412, 2005 SCMR 1936, PLD 1989 SC 742, 1999 PCr.LJ 699, PLD 1966 Kar. 101, 2007 PCr.LJ 1408, 1977 PCr.LJ 573, 1996 (2) SCC 384, 1983 (3) SCC 217, 2002 SCMR 1009, PLD 2007 SC 183, PLD 1950 Baghdad-ul-Jadid 71, (1990) 1 SSC 550, 2004 PCr.LJ 1039,1988 PCr.LJ 343, AIR 1992 SC 1161, 1999 YLR 101, -1975 SCMR 69, AIR 1987 SC 1080, (1998) (8) SCC 635, 2002 PCr.LJ 1169, 2002 PCr.LJ 807, 1987 PCr.LJ 1979 and 2005 MLD 440. Learned counsel further argued that the statement of victim girl is corroborated by the Medical and Chemical Examiner evidence which aspect of the case was not considered while granting bail to the accused. In support, he relied upon the decisions reported in 2002 SCMR 1009, (1996) 2 SCC 384, (1983) 3 SCC 217, 1999 YLR 101, 1975 SCMR 69, 1977 PCr.LJ 573. He further contended that presence of resistance and marks of violence are not necessary for convicting an accused for the'offence of rape. On this point he relied upon AIR 1987 SC 1980, PLD 2005 SC 252, 2002 SCMR 1009, 2005 SCMR 1936 (1996) 2 SCC 384, (1990) 1 SCC 550, PLD 1989 SC 742, 1975 SCMR 69, 1975 SCMR 394, 1977 PCr.LJ 573, AIR 1960 P&H 303, 1998 8-SCC 635, (1987) PCr.LJ 1541 and PLD 1966 Kar.
101. He further contended that even 'semen grouping', 'DNA Testing' or 'Potency Test' are not necessary or mandatory for conviction of an accused for the offence of rape. In support he relied upon the cases reported in 2002 SCMR 1009, PLD 1998 Lahore 383, PLD 1995 FSC 135, 1969 PCr.LJ 1333.
6. He further submitted that this court while granting bail did not consider the fact that respondent No,2/accused in order to restrain the advocates to represent the victim girl, had filed Criminal Miscellaneous Application No,323 of 2012 wherein he maligned 51 advocates. According to him, this amounts to misuse of concession of bail. He lastly prayed for recalling the impugned order and cancelling the bail granted to respondent No,2.
7. ' Conversely, learned counsel for respondent No,2 contended that the instant Criminal Miscellaneous Application is not maintainable and is barred under section 369 Cr.P.C. He further contended that it is also a settled principle of law that inherent powers of this court under section 561-A Cr.P.C. Cannot be exercised to alter or review its own order except to the extent of clerical error or typographical mistake. In support of his contention he relied upon the judgment passed by a Division Bench of this Court reported in 2012 PCr.LJ 700. He further contended that there is no allegation that the accused tried to tamper with prosecution evidence by threatening the prosecution witnesses or attempted to abscond. According to him, the threats allegedly extended by the accused to the advocate for the complainant does not fall under the definition of 'misusing the concession of bail'. He further contended that this court while granting bail to the accused/respondent had discussed the merits of the case, as such the same cannot be reconsidered by this court. He relied upon the cases reported in 2004 SCMR 231, 1999 MLD 408, 1996 SCMR 986 and 2002 YLR 2440. He prayed for dismissal of Criminal Miscellaneous Application.
8. ' Learned A.P.G., while adopting the arguments advanced by the learned counsel for respondent No,2, supported the impugned order and contended that the Criminal Miscellaneous Application is liable to be dismissed being not maintainable under the law.
9. ' I have heard the arguments advanced by the learned counsel for the parties and perused the material available on the record.
10. ' In the instant case the legal objection as to the maintainability of Criminal Miscellaneous Application filed under section 561-A Cr.P.C. Has been raised. It is now well settled that the point of maintainability of the proceedings is to be decided in the first instance. In view of this legal position, I would first deal with the question as to whether this court in exercise of powers vested in it under section 561-A Cr.P.C. Has the jurisdiction to alter or review its own order.
11. ' This question has been dealt with by the superior courts in various cases. In the case of Darya Khan v. The State reported in PLD 1989 Karachi 115 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.
12. 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.
13. 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."
14. ' In the case of Iqbal v. The State reported in 2001 PCr.LJ 1634 it was observed:-- "A perusal of the judgment referred by the learned counsel for the State proves 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."
15. ' In the case of Rahmat '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 point for himself for coming to this Court. Such an exercise must be condemned. "
16. ' In the case of Ghulam Sarwar and another v. The State reported in 1979 SCMR 43 the apex court held:-- "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."
17. ' In the case of Juan Sullivan v. The State reported in 1971 SCMR 618 it was held by the honourable Supreme Court as under:- "The High Court was apparently right in holding that section 362 of the Code of Criminal Procedure precluded them from reviewing the order."
18. ' 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"
19. ' In 2003 PCr.LJ 1847 a Division Bench of this Court held as under:-- "The Bench also, after examining the provisions of section 369, Cr. P. C. For correction of "clerical error", concluded that the High Court has no power under the law to alter the judgment and only where some clerical errors are to be corrected that might be done."
20. ' Another Division Bench of this Court, while discussing the above-cited decisions, in the case of Zeeshan Ahmed v. The. State and another reported in 2012 PCr.LJ 700, held as under:-- "The High Court is not given nor did it ever possess an unrestricted and undefined power 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."
21. ' Now question arises as to whether the bar contained under section 369, Cr.P.C. Also applies to the 'orders' passed in criminal proceedings. In this connection it would be advantageous to refer to a judgment reported in 2005 YLR 3297 wherein it was held as under:- "Judgment includes final order. Word judgment' though had been used in S. 369, Cr. P. C., but it would not be construed and placed in watertight compartment by excluding other orders of the Court deciding case conclusively after touching upon its merits because judgments and orders of that nature were interchangeable and were synonymous with each other. Judge or Magistrate delivering the final judgment/order was denuded of authority/jurisdiction to alter or review same after it has pronounced it in accordance with S. 369, Cr.P.C."
22. ' In the case of Zeeshan Ahmed (supra) too it was a matter of cancellation of bail filed under section 561-A, Cr.P.C. And the Honourable Division Bench of this Court declined to review its own order and cancel the bail already granted to the accused.
23. ' On the point of maintainability, learned counsel for the applicant/complainant has relied upon an unreported judgment passed by a learned Single Judge of this Court in Criminal Miscellaneous Application No,196 of 2009. In this said case while relying upon the judgment reported in PLD 1970 SC 335, earlier order passed by the learned Single Judge grating bail to the accused was recalled and bail was cancelled. The said judgment is not helpful to the applicant, complainant for two reasons, firstly; the said order was passed by a learned Single Judge whereas contrary view has been taken by Division Benches as well as Honourable Supreme Court in the afore-cited cases which are binding on me. So far as the judgment of the honourable Supreme Court reported in PLD 1970 SC 335 on the basis of which the learned Single Judge cancelled the bail earlier granted to accused is concerned, suffice it to say that the said judgment of the ape court was delivered in the year 1970 whereas the view contrary to the said view has been taken by the honourable Supreme Court in the judgments delivered subsequent to the said judgment. Needless .To say that in case of conflicting views, the most recent judgment is to be followed. If any authority is needed on this point, reference can be made to PLD 2009 Lahore 415.
24. Even otherwise it is now well settled that consideration for cancellation of bail are different from the consideration for the grant of bail and in the absence of strong and exceptional grounds warranting interference, bail earlier granted to the accused cannot be cancelled. See 2004 SCMR 231.
25. ' In view of my finding that the Criminal Miscellaneous Application itself is not maintainable, there is no need to discuss other points raised by the learned counsel for the parties. Even otherwise it was open for the applicant/complainant to challenge the bail granting order and raise all such grounds regarding merits of the case and misuse of the concession of bail by the accused before the honourable Supreme Court.
26. The upshot of above discussion is that the Criminal Miscellaneous Application, being not maintainable, is dismissed in limine.