1. ' HASAN FEROZ, J.---This is an application filed on behalf of the respondents Nos. 9 to 16 sticking review of order dated 6-3-2014 passed by this Court in the above Criminal Miscellaneous Application No,292/2012 whereby the impugned order dated 4-7-2012 passed by 1st Judicial Magistrate, Karachi (West) was set aside and the petition was allowed.
2. ' Initially Constitution Petition No,D-2644/2012 was filed which was converted into Criminal Misc.
3. Application No, 29/2012 by this Court vide its order dated 5-10-2012 was filed by the petitioner being aggrieved and dissatisfied with the order of learned 1st J.M. Karachi (West) on the report of 173, Cr.P.C. Filed in F.I.R. No,156 of 2012 under section 302/34, P.P.C.
4. ' I have heard the learned counsel for applicants/respondents as well the counsel of petitioner and perused the record.
5. ' The learned counsel for the applicants/respondents has contended that the investigation of the F.I.R. No,156/2012 was conducted by the I/Os and after examining the statements, evidence, material, documents and papers etc., a report under section 173, Cr.P.C. Was submitted which was accepted by the respondent No,2 and the said F.I.R. No,156/2012 was disposed of/filed under "C" class (Cancel class) instead of "B" class (False class) which was recommended by the respondents Nos.7 and 8. He has contended that DIG (East Range) without conducting proper inquiry and so also without recording the statements and the facts of real encounter directed the authority concerned to register the case/F.I.R. Against the police officials whom petitioner nominated. He has further contended that during the course of investigation NADRA record was called by the I/O and found that deceased Zahid Hussain is neither son of petitioner nor nephew hence his version in F.I.R.
6. Is false. He also contended that the record of cell phones of witnesses of petitioner has been collected by the I.O. Which shows that none of them was present at the alleged time of 2:45 p.m. At the spot of incident of taking away the deceased by respondent No,10.
7. ' He has also contended that the I.O. Also collected the evidence of taxi driver, ambulance driver and other witnesses who are the witnesses of encounter between police and deceased accused and such F.I.R. Bearing No,147/2012 and F.I.R. No,148/2012 were also recorded at the Police Station.
8. The recovery of pistol along with live rounds and also Motorcycle from deceased accused clearly indicates that he was involved in the said crime and in the light of evidence of various independent witnesses, the I.O. Submitted 173, Cr.P.C. Report which was duly accepted. The learned counsel has also contended that the petitioner is a habitual criminal and several F.I.Rs, are lodged against him.
9. The learned Counsel has also relied upon 2013 PCr.LJ 1518, 2001 PCr.LJ 895, 2000 M LD 1932, 1999 SCM R 2765 and 2000 PCr.LJ 1516 while arguing the present application.
10. ' I have also heard the learned counsel for petitioner who has vehemently opposed this Review application and has contended that the order of this Court is on sound footing and requires no correction/ modification. He has further contended that power to review and recall in criminal cases pursuant to passing of final order/judgment is not permissible and section 369, Cr.P.C. Infact places a clog to exercise such powers until and unless the order so sought to review suffers any arithmetical or clerical error.
11. ' I have in my view that there is a specific provision of law which deals with this aspect of the matter regarding correction/ clarification and that is incorporated in section 369, Cr.P.C. And on the bare reading of section 369, Cr.P.C. And it is specifically and categorically mentioned in this section that no Court when it has signed its judgment shall alter or review the same, except to correct the clerical error. Now therefore, it is clear and crystal from this provision of law that except correction of clerical error no Court has power to alter or review. However, section 561-A, Cr.P.C. Which confers inherent powers upon this Court for the purpose of giving effect to any order under the Code of Criminal Procedure, to prevent the abuse of process of Court and to secure the ends of justice but nowhere it gives powers to this Court to make correction/clarification of an order passed by this court, therefore, the instant application which has also been preferred under section 561-A, Cr.P.C.
12. Is to be considered in the light of provisions of section 561-A, Cr.P.C.
13. ' The contentions which have been taken by the learned counsel for the applicants/respondents with regard to NADRA record which according to him suggests that the petitioner is neither father nor uncle of deceased Zahid Hussain, in this regard it is well settled principle of law that any person either aggrieved or otherwise may furnish information of any cognizable offence to a police officer or a Magistrate competent to take cognizance of the offence and may furnish information of the offence. The cell phone record which according to learned counsel indicates the position of witnesses of the petitioner at the time of taking away of deceased Zahid Hussain by respondent No,10 in his private car who later on was shown to have been injured and thereafter expired in hospital in result of police encounter allegedly took place while the deceased was committing robbery and in my humble view the such aspect of the case can only be ascertained on the scale of evidence during trial.
14. ' As far as the contention of learned counsel for respondents/applicants with regard to the involvement of petitioner into several cases is concerned, the same could have been filed before the concerned competent Courts of jurisdiction for trial according to law.
15. ' I have in my view 2001 PCr.LJ 1634 wherein it has been laid down that there could 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 given 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 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 arithmetical or clerical error. High Court could not review its own order passed in the criminal jurisdiction as the Court would become functus officio after it had passed and signed the order.
16. ' I have in my respectful consideration the submissions made before me and I have also gone through the case-law so cited by the learned counsel for the applicants/respondents and I am of the view that the exercise of inherent powers in order to provide justice is always available under section 561-A, Cr.P.C. Where the circumstances so required however in the present case the order passed by this Court do not require any interference by review which ostensibly has been preferred in shape of appeal and this Court cannot sit in appeal against its own order. In order to attract or invoke review as the grounds urged by the counsel for respondents/ applicants forms matter of trial whereas the order passed by this Court under section 561-A, Cr.P.C. Was passed after assessing the material available on record. As held in 1999 SCM R 2765 that under inherent jurisdiction of High Court correction of its own order by High Court or to recall an erroneous order is distinguishable on above facts and circumstances of the present case.
17. ' I have also in my view the case-law cited i,e, 2000 PCr.L.J 1516 (Karachi) wherein it has been held that the Court could review or recall its judgment or order which was found to have been passed without jurisdiction; without adjudication on merits, in violation of any law or same having been obtained by playing fraud upon Court. I have also in my view 2013 CLC 518 wherein principle of stare decisis is to be determined in each case by discretion of Court keeping in view its peculiar circumstances. No provision is available for review of any judgment or order under Cr.P.C. Yet while exercising inherent jurisdiction under section 561-A, Cr.P.C. High Court has ample power to correct its own order or to recall an erroneous order, which are not attracted with the present case with reference to the application in hand.
18. ' In view of the above, I am of the firm opinion that no apparent or glaring error to which calls for review and/or invoking of inherent jurisdiction under section 561-A, Cr.P.C. Could be pressed into service as the order dated 6-3-2014 has been passed on merits, so also taking into consideration the facts and the law involved, therefore, the instant application merits no consideration, which is hereby dismissed accordingly along with listed Application No,3069 of 2014.