1. ' SAIDUZZAMAN SIDDIQUI, J.---The petitioner through the above petition has called in question two orders, dated 21-11-1993 and 18-8-1994, passed by 2 different learned Judges in chambers of High Court of Sindh.
2. ' The relevant facts of the case are that respondent No,1 filed a petition under section 491 read with section 561-A, Cr.P.C. Against the petitioner seeking restoration of the custody of minor Ayesha Rahman who was allegedly taken away from the lawful custody of respondent No,1 by the petitioner. The learned Judge in Chambers of High Court of Sindh after hearing the parties allowed the petition and directed the petitioner to hand over the custody of minor child Ayesha Rahman to respondent No,1. This order was passed by the learned Judge on 21-11-1993 and as stated by the learned counsel for the petitioner a certified copy of this order was supplied to the petitioner on 21- 12-1993. It appears that the petitioner immediately on the announcement of the order dated 21-11- 1993 moved a petition under section 561-A, Cr.P.C. Praying for review of the order dated 21-11-1993 which was entertained and the operation of the judgment was stayed. However, the learned Judge who passed the order, retired from his office soon thereafter, with the result the application for review was taken by another learned Judge of High Court of Sindh and was disposed of by order dated 18-8-1994. A certified copy of this order was obtained by the petitioner on 7-9-1994 and thereafter, a petition for leave to appeal was presented before this Court on which the office raised objection that it is barred by 236 days.
3. ' Mr. S.M. Gharib Nawaz, the learned counsel for the petitioner contended that the delay if any in filing the petition may be condoned as the petitioner had preferred a review application against the order dated 21-11-1993 on the very day the order was passed and the learned Judge in Chambers on the application of the petitioner for review had stayed the operation of that order and this application for review was finally disposed o'n 18-8-1994 and therefore, in these circumstances the petitioner was rightly awaiting decision on his review application before filing a petition for leave to appeal in this Court. The learned counsel accordingly, prayed that the delay if any in preferring petition against the order dated 21-11-1993 may be condoned on the ground of pendency of the review petition filed by the petitioner and the stay order granted thereon by the learned Judge in Chambers. Additionally, it is contended by the learned counsel for the petitioner that in case this Court comes to the conclusion that the petition for leave to appeal is time-barred against the order dated 21-11-1993 then at least against subsequent order passed on review on 18- 8-1994 the petition is within time and therefore, leave petition against the subsequent order may be heard and decided on merits.
4. We will first of all take up the office objection regarding limitation in respect of leave petition. It is not disputed before us by the learned counsel for the petitioner that there is no provision for review in the Code of Criminal Procedure against the order passed by a Court. It is, however, contended by the learned counsel that under section 561-A, Cr.P.C. The Court has the jurisdiction to modify or alter the order passed by it. In support of his contention that a Criminal Court passing an order has the jurisdiction under section 561-A, Cr.P.C. To review its order, the learned counsel for the petitioner has relied on the case Gulzar Hassan Shah v. Ghulam Murtaza (PLD 1970 SC 335). The facts in that case were that the respondents in that case were allowed bail by the trial Court. The order granting bail to the above respondents was challenged before the High Court and a learned Judge in Chambers of Lahore High Court passed the order for cancellation of the bail of respondents in that case in their absence. The respondents came to know about the ex parte order passed by the learned Judge in that case at about 2 p.m. On the same day and they filed application under section 561-A, Cr.P.C. With the prayer that the order cancelling their bail be set aside and they may be admitted to bail. This application was heard by another learned Judge in Chambers of Lahore High Court who allowed the same. This order allowing the application of the respondents in that case under section 561-A, Cr.P.C. Was challenged before this Court and leave was granted to consider, whether the High Court in its inherent jurisdiction under section 561-A, Cr.P.C. Can reverse the order made by it? This Court came to the conclusion that the provisions contained under section 369, Cr.P.C. Do not control provisions of section 498, Cr.P.C. And that in appropriate cases section 561-A, Cr.P.C. Can be invoked. It was further held in that case that order passed under section 498, Cr.P.C. Does not qualify to be a judgment within the meanings of section 369, Cr.P.C.
5. And as such section 369, Cr.P.C. Did not apply. It was finally observed by this Court while discussing the scope of section 561-A, Cr.P.C. As follows:-- "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 561-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 not 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 cases the High Court has inherent power to invoke, 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 circumstances 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."
6. We are, therefore, of the view that the above case cited by the learned counsel for the petitioner is no authority for the proposition that an order passed by a Criminal Court can be reviewed under section 561-A, Cr.P.C. Section 561-A, Cr.P.C. Deals with the inherent power of the Court and therefore, keeping in view the principle that no one should suffer on account of the act of the Court, it cannot be denied that in all such cases the Court can correct a wrong done to a party in exercise of its inherent power under section 561-A, Cr.P.C. The facts of the above-cited case clearly show that the bail granted to respondents in that case was cancelled by the Court without hearing the affected party. It was in this context that this Court observed that an order without jurisdiction could be recalled and varied by the Court in exercise of its inherent power under section 561-A, Cr.P.C. No parallel can be drawn between the case cited by the learned counsel for the petitioner and the present case. The learned counsel attempted to argue that the order passed by the learned Judge in Chambers on 21-11-1993 was an order wholly without jurisdiction as the Criminal Court had no jurisdiction under section 491, Cr.P.C. To deal with the question of custody of a minor which is regulated under the provisions of Guardians and Wards Act. The argument is based on misconception. In the case of Muhammad Javed Umrao v. Miss Uzma Vahid (1988 SCM R 1891) this Court after reviewing entire case-law on the subject observed as follows:-- "The Guardians and Wards Act, as the title itself suggests, deals with the guardians, wards and the problems and questions relating to them. Section 7 relates to the appointment of a guardian by the Court and section 12 authorises the Court to make interlocutory order for protection of minor and interim protection of person and property. The two matters, one dealt with by section 491, Cr.P.C. And the other under the Guardians and Wards Act, are entirely different and there is no question of one excluding the other, the one overlapping the other or the one destroying the other.
7. The law as it stands shows no such repugnancy."
8. In view of the above observation, it is quite clear that in appropriate cases the Court under section 491, Cr.P.C. If it reaches the conclusion that a minor has been illegally removed from the custody of a person who was holding his custody lawfully, the Court is empowered under section 491, D Cr.P.C.
9. Notwithstanding the provisions of Guardians and Wards Act to pass appropriate orders. We are, therefore, of the view that the, jurisdiction of the Criminal Court is not barred under section 491, Cr.P.C. To pass appropriate order with regard to custody of a minor who has been illegally removed from the custody of a person, on account of the provisions of Guardians and Wards Act. The learned counsel for the petitioner in support of his contention that the jurisdiction of Criminal Court is barred under section 491, Cr.P.C. To deal with the question of custody of a minor brought before it relied on the case Adnan Afzal v. Capt. Sher Afzal (PLD 1969 SC 187). This case is quite distinguishable on facts and has no application in the present case. In that case the appellant has applied for grant of maintenance under section 488 of the Code of Criminal Procedure before the Magistrate. During pendency of that case, West Pakistan Family Courts Act, 1964 was promulgated.
10. After the promulgation of West Pakistan Family Courts Act it was contended before the Magistrate that the Court had ceased to have jurisdiction in the matter in view of section 5 of the W.P. Family Courts Act. This plea of the respondents in that case was accepted by the Magistrate and he directed the appellant to seek remedy through the appropriate Court. The appellant took the matter in revision before the High Court but without any success. When the matter ultimately came before this Court it was held that the pending proceedings under section 488, Cr.P.C. Were affected by the promulgation of W.P. Family Courts Act,. Which only changed the forum for decision of such cases. It will thus be seen that the grant of maintenance provided under section 488, Cr.P.C. Was specifically covered under the provisions of he West Pakistan Family Courts Act. Therefore, the Family Courts created under W.P. Family Courts Act had the exclusive jurisdiction, after the date of promulgation of West Pakistan Family Courts Act to try the case of maintenance. No such situation existed in the present case. As earlier pointed out, the two provisions, namely section 491, Cr.P.C.
11. And section 25 of the Guardians and Wards Act deal with two different situations and as such the question of ouster of jurisdiction of criminal Court under section 491, Cr.P.C. On account of provisions of section 25 or 12 of Guardians and Wards Act did not arise at all. There is no overlapping between the provisions of section 491, Cr.P.C. And section 25 of the Guardians and Wards Act. The review petition filed by the petitioner against the order dated 21-11-1993 was therefore, totally misconceived. We are, therefore, of the view that the petitioner cannot claim any advantage for pursuing remedy which was neither provided under the law nor was competent, for the purpose of condonation of delay in filing the present petition. We, therefore, uphold the office objection that the petition is barred by 236 days in so far it relates to impugned order dated 21-11- 1993.
12. ' The learned counsel for the petitioner, however, alternatively contended that against the subsequent order dated 18-8-1994, the petition is competent as it was filed within time. We have already held in the course of preceding discussion that the Criminal Court has jurisdiction in appropriate cases to pass an order under section 491, Cr.P.C. For restoration of custody of the minor who had been illegally removed from lawful custody of a person. The review petition filed by the petitioner was, therefore, rightly rejected by the learned Judge as not maintainable. We find no ground to interfere with the impugned order. The petition is, accordingly, dismissed and leave to appeal is refused.