1. ' AFTAB AHMED GORAR, J.---Through C.M.A. No. 2734 of 2013, the applicant/complainant namely, Anwar Alam Siddiqui has made the following prayer:-- "It is, therefore, prayed that this Hon'ble Court may be pleased to pass fresh order after hearing the Applicant re-calling the order dated 2-5-2013."
2. Brief facts, as disclosed in the petition, are that petitioner Ghulam Arif Khan had purchased Vehicle No.ANX-739 Make Toyota Corolla Model 2007 from one Najam Aalam Siddiqui which was registered in the name of his brother viz. The applicant/complainant Anwar Aalam Siddiqui against sale consideration of Rs.10,00,000 out of which Rs.8,00,000 were paid to him and the possession of the vehicle was handed over to the petitioner with documents and the remaining amount was agreed to be paid at the time of transfer of the vehicle. However, on 11-10-2012 the said Anwar Aalam lodged FIR against the petitioner under sections 420/406, P.P.C. In which the petitioner was admitted to pre-arrest bail. After completing the investigation, I.O. Submitted report for disposal of the case under 'A' Class, however, the learned VIth Judicial Magistrate, Karachi South disposed of the case under "C" Class instead of "A" Class. Thereafter on 28-3-2013 the said vehicle was taken away from the bungalow of the petitioner by two constables who directed him to appear before S.H.O. Police Station Clifton. On his appearance, the S.H.O. Misbehaved with him and informed that the vehicle has been impounded in terms of section 550, Cr.P.C. And that arrest of the petitioner was shown in terms of section 54, Cr.P.C. Vide Roznamcha Entry. In the circumstances, the petitioner filed the instant constitutional petition against such actions of S.H.O. Police Station Clifton and for direction to register FIR against him.
3. ' Vide order dated 2-5-2013 this Court disposed of the instant constitutional petition in the following terms:-- "S.H.O. Police Station Clifton, Karachi-South is hereby directed to recover the Car from Anwar Alam and hand over the peaceful custody of car bearing Registration No.ANX-739 GLI, Maker Toyota Corolla, Model 2007, Black colour, Chassis No.NLE-1206067398 and Engine No.X590429 to the petitioner forthwith on furnishing P.R. Bond in the sum of Rs.10,00,000 by the petitioner, as there is/was no justification for taking over the car in possession under Section 550, Cr.P.C. Therefore, the order of learned incharge Judicial Magistrate-V 1, Karachi-South dated 30-3-2013 is hereby set aside. Petitioner. If so advised may approach SSP South-Zone Karachi, detailing his grievance in writing who would look into the matter and thereafter, if a cognizable offence is made out against SIP Shafiq Tanveer and Inspector/Ex SHO Police Station Clifton Saleemullah Khalid Qureshi then he should proceed strictly in accordance with the law."
4. ' As stated above, through C.M.A. No.2734/2013, the applicant/complainant namely, Anwar Alam Siddiqui has prayed for reviewing/recalling the aboe said order.
5. ' Learned counsel for the applicant/complainant contended that the applicant is the exclusive owner of the vehicle in question, and he never sold out the same to the petitioner. In fact, by trusting and believing the petitioner, he had given the vehicle temporarily to him who had promised to return the same within few months but he turned to be dishonest and captured the car by fraudulent means. He further contended that consequent upon impounding of the car by the S.H.O., the applicant moved application under section 523 for handing over its possession to him, he being real owner of the same and the learned VIth Judicial Magistrar, Karachi South vide order dated 30-3-2013 issued directions for handing over the car on `supardarr to the applicant.
6. According to him, the petitioner did not join the applicant/complainant in this petition with mala fide intention and the order sought to be reviewed was passed in his absence without issuing any notice to him, although he was a necessary party. He further contended that this Court in appropriate cases can review or recall its own order and in support of this assertion, he relied upon the cases reported in PLD 1970 SC 335 and 1997 PCr.LJ 776 and 1999 PCr.LJ 771 [Karachi].
7. ' Conversely, learned counsel for the petitioner opposed the review application contending that the same is not maintainable. He submitted that in the review application neither the merits of the case could be agitated nor re-argued and that review in criminal proceedings can be made only in exceptional cases where there is an error apparent on the face of the record which is not the position in the present case as there is no such apparent error in the order sought to be reviewed in support of this plea, he relied upon the cases reported in PLD 2004 SC 32, 2002 SCMR 442 and PLD 1996 SC 178. He contended that the impugned order is just and proper and the applicant has failed to point out any material error in the order which justifies the review of the said order.
8. ' Learned A.P.G. Appearing for the State, while adopting the arguments advanced by the learned counsel for the petitioner, opposed the review application. According to him, in criminal proceedings there is no concept of review.
9. There is no cavil to the proposition that general principles of finality of judgment attaches to the decision or order of High Court passed in criminal cases, yet in exceptional cases, such as; where the order is passed without jurisdiction or without giving any opportunity to the aggrieved party of being heard the High Court in exercise of its inherent powers under section 561-A, Cr.P.C. Can revoke, review or alter its own earlier decisions. For this view I am fortified by the decisions reported in PLD 1970 SC 335. 1999 SCMR 2765, 1997 PCr.LJ 776 and PLD 2005 Karachi 638. Now it is to be seen as to whether such exceptional circumstances exist in this case so as to warrant the review of my order earlier passed on 2-5-2013.
10. ' The petitioner has sought following reliefs in this petition:--
(A) Declare that the action of respondent No.3 (SHO Police Station Clifton) whereby impounding, the Vehicle No.ANX-739 is illegal, unlawful and without lawful authority.
(B) Declare the action of respondent No.3 in showing the arrest of petitioner in terms of section 54, Cr.P.C. Is illegal unlawful with mala fide and void ab initio.
(C) Direct the respondent No.2 (SSP South) to register the FIR against the respondent No.3 under the relevant provision of law.
11. From the perusal of the prayers sought by the petitioner, it is clear that he has not sought any relief for handing over the vehicle which was in possession of applicant/complainant Anwar Alam Siddiqui nor has he impleaded the said Anwar Alam Siddiqui in this petition. It is also apparent that the petitioner has also not challenged the order dated 30th March, 2013 passed by learned VIth Civil Judge and Judicial Magistrate, Karachi South on the application moved by applicant Anwar Alam Siddiqui under section 523, Cr.P.C. Either in this petition or by filing any separate proceedings like Criminal Revision etc. Despite such a position, vide the order sought to be reviewed it was directed, "S.H.O. Police Station Clifton, Karachi-South is hereby directed to recover the Car from Anwar Alam and hand over the peaceful custody of car bearing Registration No.ANX- 739 GLI, Maker Toyota Corolla, Model 2007, Black colour, Chassis No.NLE-1206067398 and Engine No. X590429 the petitioner forthwith on furnishing P.R. Bond in the sum of Rs.10,00,000 by the petitioner, as there is/was no justification for taking over the car in possession under Section 550, Cr.P.C. Therefore, the order of learned incharge Judicial Magistrate-VI, Karachi-South dated 30-3-2013 is hereby set-aside."
12. When there was no prayer for setting aside of the order passed by the Judicial Magistrate on application under section 523, Cr.P.C. Regarding custody of the vehicle or for handing over the vehicle to him, then there was no question of setting aside the same and handing over the vehicle to the petitioner. In my view, these are the "errors apparent on the face of the record" which warrant review of the earlier order to such extent. The case-law relied upon by the learned counsel for the petitioner on this point is of no help as in those cases too it has been held that the review can be made in criminal proceedings on the ground of an error apparent on the face of the record.
13. So far as the office objection that as to how review application is maintainable when the applicant was not a party in this matter is concerned, it may be observed that the inherent powers of the High Court under section 561-A, Cr.P.C. Are meant for doing substantial justice at any stage in a case of unforseen eventualities for which no provision is available in the Criminal Procedure Code.
14. In the instant case the applicant Anwar Alam Siddiqui was not afforded any opportunity to explain his position before passing the order which tantamount to adversely affecting his right as admittedly he was in possession of the vehicle in question on the strength of an order passed by concerned Judicial Magistrate on an application moved by him under section 523, Cr.P.C., therefore it was mandatorily required that he ought to have been afforded an opportunity to explain his position before passing any adverse order against him. This is what section 24-A of the General Clauses Act contemplates, so also the pronouncements of the superior courts made from time to time. In the case reported as Gulzar Hassan Shah v. Ghulam Murtaza and 4 others (PLD 1970 SC 335). Honourable Supreme Court held as under:-- ' Even otherwise the order dated the 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 reexamined and decided in the presence of their 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."
15. ' In the case reported as Gul Muhammad and 4 others v. The State (1999 PCr.LJ 771) this Court held as under:- "The grievance of the learned counsel for the applicant/ complainant is that neither the complainant was made party in the main revision nor he was afforded any opportunity of being heard before passing the order, dated 28-5-1997 seems to be correct land has ample force. The complainant opposed the application under section 540, Cr.P.C. In the Trial Court and it is surprising that he has not been made party, which means that the order, dated 28-51997 has been passed without hearing him and it has caused serious prejudice to him. As such, this Court is otherwise competent to recall its order, which is against the principles of natural justice."
16. ' In the case reported as Mst. Mumtaz Begum and 8 others v. Shakil Hyder and 12 others (1997 PCr.LJ 776) a Division Bench of this Court held:-- "the High Court having wide powers under section 561-A, Cr.P.C. And by exercising the said powers can revoke, alter, review or modify its earlier order in a criminal case, where aggrieved party is neither heard nor afforded a chance of hearing, with the sole object to do real and substantial justice between the parties."
17. In the instant case, as stated above, the petitioner did not join the applicant/ complainant in this petition and the order sought to be reviewed, which certainly adversely affected his rights, was passed in his absence without issuing any notice to him. In this view of the matter, office objection is overruled.
18. ' However, now the said Anwar Alam Siddiqui has been heard through his counsel. It seems that in the Review Application he has disclosed that on 8th October, 2012 he along with his brother Najm- e-Alam Siddiqui visited the house of the petitioner and found the same locked, thereafter he got registered the FIR whereas in the FIR instead of 8th October, 2012 the date is mentioned as 25th September, 2012. Besides the story narrated by the applicant is not appealing to mind, however, as the disputed facts cannot be decided in the constitutional petition, I would avoid to discuss the same. In the peculiar circumstances of the instant case. I am of the opinion that the issue relating to the ownership of the vehicle needs to be decided by a Civil Court of competent jurisdiction after recording of evidence.
19. In this view of the matter, the order dated 2-5-2013 passed in this petition is modified in the manner that the following portion from the operative part of the order is substituted by the one mentioned thereafter:-- "S.H.O. Wire Station Clifton, Karachi-South is hereby directed to recover the Car from Anwar Alam and hand over the peaceful custody of car bearing Registration No.ANX-739 GLI, Maker Toyota Corolla, Model 2007, Black colour, Chassis No.NLE1206067398 and Engine No.X590429 to the petitioner forthwith on furnishing P.R. Bond in the sum of Rs.10,00,000 by the petitioner, as there is/was no justification for taking over the car in possession under Section 550, Cr.P.C. Therefore, the order of learned incharge Judicial Magistrate-VI, Karachi-South dated 30-3-2013 is hereby set aside."
20. ' To be substituted by:-- "S.H.O. Police Station Clifton, Karachi-South is hereby directed to recover the Car bearing Registration No.ANX-739 GLI, Maker Toyota Corolla, Model 2007, black colour, Chassis No.NLE- 1206067398 and Engine No.X590429 from Anwar Alam and handover its custody to the Nazir of this Court who is directed to keep the same in his custody till the ownership/title of the said vehicle is decided by the competent court of civil jurisdiction in the civil proceedings to be initiated by the interested person. The Nazir is further directed to see that the vehicle is behing kept in good condition."
21. ' The review application (C.M.A. No.2734 of 2013) stands disposed of in the above terms. So far as the contempt applications (C.M.As. 3188/2013 and 2911/2013) are concerned. S.S.P. South is directed to serve the notices upon the alleged contemnors. In case of non-service of the notices, the S.S.P.
22. Shall be in attendance on the next date, to be fixed by the office.