1. WAHIDUDDIN AHMAD, J.-This appeal by special leave is directed against the order of the High Court of West Pakistan, Lahore dated the 21st August 1969, whereby the order of can--cellation of bail of the respondents was recalled and they were allowed to remain on bail.
2. The facts leading to this appeal are that on a report made by the appellant, a case under sections 302, 148 and 149, P. P. C. Was registered against respondents Nos. 1 to 4 and four other persons, namely, Ghulam Yasin, Muhammad Siddiq, Muhammad Shafi and Ghulam Rasul at Police Station Khanewal, District Multan. The allegation against the accused is that they had, on the 14 July 1969, at about 11-00 p. m.Formed themselves into an unlawful assembly armed with fire-arms and had attacked and killed Hussain Shah deceased by causing him gun shot injuries. The occurrence had taken place outside a touring Cinema House in Katcha Khuh where the deceased along with appellant and some other companions had gone to see a filmshow The attack was made when the deceased and his companions had come out from the Cinema hall during the interval in the show. The F. I. R. Was lodged at 3-15 a.m. On the 5th July 1969 at Police Station Khanewal which is at a distance of 15 miles from the place of occurrence, by the appellant, who is an eye-witness of the incident. The motive for the crime was a long outstanding enmity between the deceased and the accused party leading to the criminal cases between them.
3. It appears that on an application made under section 498, Cr. P. C., Mushtaq Hussain Munir J., by his order dated the 7th July 1969, admitted respondents No3. 1 to 4 to an interim bail for a period of three days. This order was made without adverting to the merits of the case and in order to enable the respondents to make an application for bail before the learned Additional Sessions Judge.th Thereupon, respondents Nos. 1 to 4 made an application to the learned Additional Sessions Judge, Multan, who admitted them to bail by an order dated the 16th July 1969. In this connection he observed as under :- "There are two glaring circumstances which lead me to the conclusion that there are reasonable grounds to believe that the petitioners may be innocent. Firstly five crime empties recovered from the place of occurrence were of 32 revolver and the wounds found on the dead body may be of pistol shots, therefore, the possibility cannot be ruled out that none of the petitioners was there. The case of the prosecution is that they were armed with guns and they fired shots by guns. The second circumstance is that the prosecution version is supported by two friends of the deceased whereas numerous persons were present and their evidence was also recorded but they did not support the version that they were eight accused. In these circumstances, I admit all the four petitioners to bail. The bail already granted is confirmed."
4. This order was challenge) in Criminal Miscellaneous No. 4303 of 1969 in the High Court of West Pakistan, Lahore. Mushtaq Hussain J., by his order dated the 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. They came to know about it at 2-00 p.m. And moved an application under section 561-A, Cr. P. C., and prayer that the order of cancellation of bail passed earlier be set aside and they may be admitted to bail. There being vacation, this application cam: up before Shafi-ur-Rahman, J., who by his order dated the 21st August 1969, recalled the order of cancellation of bail and allowed respondents Nos. 1 to 4 on bail. He based his conclusion, amongst others on the following reasons :- "Apart from the facts mentioned by the learned Sessions Judge, further material has been referred to by the learned counsel for the petitioners for supporting that order. In this connection he has referred to the presence of the stabs wound on the dead body which had not been accounted for and the matching of the recovered empties with 765mm pistols, omission to indicate the presence of the petitioners on the site plan and to the fact that incomplete challan has been submitted in Court. The learned counsel has also explained the circum--stances in which the petitioners were reluctant to part with their fire-arms and that the reason given by the petitioners had found favour with the investigating officer.
5. I find that the learned Sessions Judge has taken factors into consideration which he could have normally taken into consideration and the order is such as not to require interference by this Court.
6. The petitioners are allowed to remain on bail, the order dated 8-8-1969 cancelling their bail ex parte is recalled, and the petition for the cancellation of their bail before arrest is rejected."
7. The appellant has challenged this order in this appeal before this Court.
8. Leave was granted in this case to consider-
(i) whether the High Court could in its inherent jurisdiction recall or reverse an order made and signed by it; and
(ii) to consider whether bail had been granted to the respondents herein in disregard of the principles laid down by this Court.
9. PLD 1961 Lah. 227). The contention of the learned counsel has not impressed me. The Indian Supreme Court decision is distinguishable because in that case it was held that an appellate Court has no power to review or restore an appeal which has been disposed of ex parte. This view was taken after taking into consideration section 369, Cr. P. C. Read with section 424 of the Criminal Procedure Code which makes it clear that the appellate Court is not to alter or review the judgment once signed, except for the purpose of correcting a clerical error. It was in that connection that the following observation was made :- "An appellate Court has no power to review or restore an appeal which has been disposed of. A Sessions Judge cannot set aside his first order passed in appeal dismissing the appeal, when neither the appellants nor their counsel appeared and cannot order the re-hearing of the appeal.
10. Section 369, read with section 424 of the Code makes it clear that the appellate Court is not to alter or review the judgment once signed, except for the purpose of correcting a clerical error."
11. It was further observed as under :- "Further assuming that the Sessions Judge can exercise inherent powers, he cannot pass the order of the rehearing of the appeal in the exercise of such powers when section 369 read with section 424 of the Code specifically prohibits the altering or reviewing of its order by a Court. Inherent powers cannot be exercised to do what the Code specifically prohibits the Court from doing."
12. There is no quarrel with this proposition of law. The question for consideration is whether section 369 of the Criminal' Procedure Code controls section 498, Cr. P. C. Or section 561-A of the Criminal Procedure Code applies to it. In my opinion, section 369 of the Cr. P. C. Does not control section 498 and in suitable cases section 561-A of the Criminal Procedure Code can be invoked. In the first place, an order passed under, section 4S8, Cr. P. C. Is not a judgment within the meaning of section 369, Cr. P. C. Moreover, section 369 of the Criminal Procedure Code is in the Chapter relating to original trial and' unless it is specifically applied to other proceedings under the Criminal Procedure Code, it cannot be said to have any applica--petition to other proceedings.
13. Mr. Mahmud A.I Qasuri, learned counsel for the appellant, has drawn our attention to a decision of a Special Bench of the Lahore High Court in the case of Emperor v Atta Muhammad (AIR 1945 Lah.
14. 130). In that case, the question was where a convicted person who is called upon to show cause why his sentence should not be enhanced, is entitled to show cause against his conviction, notwithstanding the fact that his petition for revision of the order by which he was convicted has already been dismissed in limine under section 435, Criminal Procedure Code. The answer of the Bench, which consisted of 3-Judges, was in the affirmative. It was in this context that the question also arose whether section 369, Cr. P. C. Would be a bar for taking such a view. It was urged on behalf of the Crown that the right to show cause against his conviction was taken away where a revision petition filed by the respondents has been previously dismissed in limine by virtue of section 369 of the Code or alternatively by the rule of the inherent incapacity of the High Court to review or alter its own decision.
15. This contention was repelled by Blacker, J., with the following observations :- "The first of these questions can be considered in two aspects, first whether such an order comes within the definition of the word `judgment', and, secondly, whether the language of the Code itself does not indicate that an order passed in revision is not a `judgment'. In AIR 1939 FC 43, it was pointed out by Sulaiman J. That every order in a criminal matter was not a judgment and that `judgment' in the Criminal Procedure Code means a judgment of conviction or acquittal. Applying this definition it will be seen that an order under section 435 can with difficulty be called a judgment. All that a Judge does at this p elementary stage is either to send for the records of the lower Court with a view to examining them under section 439(1) or to refuse to do so It is difficult to see how the latter can possibly be called a judgment of conviction. When such an order consists of the one word `Dismissed' can it necessarily be taken as a judicial pronounce--ment that in the opinion of the Judge the respondent was rightly convicted upon the evidence? It seems to me that all that it means is that the Judge sees no ground disclosed in the petition or on the face of the judgments for proceeding further."
16. Similarly Mahajan, J. At p. 135 observed as under : - "The decision of a Division Bench of this Court in 10 Lah. 241 and the authorities cited therein have in my view, I speak with the greatest respect, erroneously limited this valuable right of the subject by treating section 369, Criminal P. C., as a bar to the exercise of that right in cases where in the exercise of appellate or revisionable jurisdiction an order refusing to call for the record under section 435, Criminal P. C., or to set aside the conviction after calling for such record, has already been made by the High Court. Section 369 in my opinion considering it in its context in Chap. 26 is in terms limited to judgments given in the exercise of original jurisdiction, and by the provisions of section 424, Cr. P. C, the scope of section 369 has been enlarged, and it has been made applicable to judgments of the appellate Courts but by no provision of the Code it has been in express terms made applicable to orders passed in revision; on the other hand section 442 of the Code describes them as decisions or orders and not as judgments. An order dismissing a revision petition is an order and not a judgment under section 369, Criminal P. C., and cannot as such affect the right of the accused under section 439(6). Moreover, an order made in the exercise of an extraordinary discretionary jurisdiction, unless it be a judgment in rem cannot, in any way, operate as a bar to the decision of the same matter when it arises in the exercise of ordinary appellate jurisdiction. With the greatest respect to the learned Judges who decided 10 Lah. 241 and the various cases cited in 10 Lah. 241, I confess I am unable to hold that a determination of a revision petition filed on behalf of the accused operates as res judicata or judgment by estoppel or creates an inherent disability in another Judge to go against order passed on that petition. A right in the nature of an appeal conferred on a person on the happening of a contingency cannot be taken away because in the past that person approached the same Court and prayed for a favour, as in my view, praying for exercise of revisional jurisdiction is in practice nothing more than asking for a favour."
17. Judging the contention of the appellant from this angle, it is quite clear to me that section 369 of the Criminal Procedure Code, which reads as under does not control section 498, Cr. P. C. :- "Section 369.-Save as otherwise provided by this Code or by any other law for the time being in force or, in the case of a High Court, by the Letters Patent of such High Court, no Court, when it has signed its judgment, shall alter or review the same, except to correct a clerical error."
18. I am conscious of the fact that general principles of finality of judgment attaches to the decision or order of the High Court passed in criminal cases. But it will not apply to cases where an order is passed without jurisdiction or without giving any opportunity to the parties of being heard. In such cases section 54-A, Cr. P. C. Can be invoked for the purpose of doing justice between the parties and for seeing that the act of the Court does no injury to any of the parties. This is an inherent power of the Court and has been preserved by the above provision of law. In my opinion in rare and exceptional eases the High Court has inherent power to revoke, review or alter its own earlier decisions in cases which are not governed by sections 369, 424 and 430, Cr. P. C. With a view to give effect to any order under the Code or to prevent abuse of the process of any Court or otherwise to secure the ends of justice. It is, however, not possible to enumerate the circum-- stances in which this provision can be invoked. It may, however, be mentioned that the learned counsel for the appellant has conceded that application for bail can be made from time to time on fresh material. There is thus no difficulty in such cases.
19. Coming now to the merits of the case, there is little doubt that the Courts below have not followed the principles laid down by this Court for granting bails. In the case of Farid v. Ghulam Hussain and others (1969 SCMR 924), it was held that "the Court is not called upon at the stage of bail to conduct anything in the nature of preliminary trial to consider the probability of an accused---s guilt or innocence, though it is necessary to ascertain as to whether there exists any reasonable ground upon which its belief can be founded that he had been guilty of such an offence". In Muhammad Aslam v. The State (PLD 1967 SC 539), it was held that "in dealing with an application under sections 497 and 498, Cr. P. C., the High Court is not required to enquire into the merits of the prosecution case or the plea of defence for arriving at the conclusion whether the accused has been guilty of an offence punishable with death or transportation for life". The only requirement is whether reasonable ground exists tending to connect an accused with crime. These principles were not followed in the present case. Both the learned Additional Sessions Judge and the learned Single Judge of the High Court have entered into the merits of the case and have made observations which tend to prejudice the case of the prosecution. The question whether the wounds were caused by bullets or by pellets of the gun is a question which can only be decided at the trial of the case on the material which is brought on the record. It was premature to go into the merits of these points. The learned Courts below even failed to notice that in this case the investigation was made by a person who was inimical towards the prosecution. It was for this reason that the investigation was not completed for a long time and the case was hanging on.
20. Considering all the circumstances of the case, I am satisfied that the learned Additional Sessions Judge and the High Court were not justified in releasing the respondents on bail. The appeal is, therefore, allowed the bail bonds of the respondents have already been cancelled. They have surrendered.
21. The decision of this appeal will, however, not prevent the respondents to move further bail application after the evidence of the prosecution has been recorded.
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