JUDGMENT TASSADUQ HUSSAIN JILANI, J.- Through this PSLA the petitioner has challenged the order/judgment dated 17.2.1993 whereby the learned Sessions Judge Bahawalpur acquitted the respondents in the private complaint filed by the complainant/petitioner under sections 302/307/148/149 PPC.
2. Brief facts leading to the above-noted petition are that qua an occurrence dated 1.7.1990 in which Shaukat Ali was murdered and some persons were injured, a case was registered vide FIR No. 142 dated 1.7.1990 P.S.Yazman under sections 302/307/148/149 PPC on the complaint of Safdar Ali, an injured eye-witness. Thirteen persons were named in the FIR. The allegation was that accused Ashiq, Sabir, Shabhir, Saifullah, Asghar, Iftikhar, Muhammad Aslam and Allah Ditta armed with carbines and Habibullah, Mohammad Sarwar, Zulfiqar and Sanaullah armed with guns while Bashir accused empty-handed ambushed the complainant party. Sanaullah and Mohammad Sarwar fired at Shaukat Ali who died at the spot, In all about eight persons were injured. The motive alleged in the complaint was to fold:-
(i) that Shaukat deceased and Safdar PW.4 had given shoe-beating to Bashir respondent about 4/5 months prior to the occurrence; and
(ii) that a day before the occurrence Shaukat Ali deceased slapped the children of Ashiq Hussan.
Sabir Hussan and Shabhir Hussan accused-respondents who had obstructed the watercourse of Shaukat Ali deceased.
3. During trial, the complainant examined eleven witnesses. The accused, when examined under section 342. Cr.P.C denied the prosecution story and gave their own version of the occurrence. Only Sabir Hussan accused admitted his presence at the spot. He, however, took up the plea that a day before the incident his son was taking bath in the pacca watercourse to which Shaukat Ali deceased objected and abused his wife Mst. Seeman Bibi and slapped his son Sajjad Ali. A Punchayat was convened in the village. Shaukat Ali deceased felt insulted. On the fateful day and time he alongwith others having armed themselves with fire-arms started firing at their house. It was in self defence that his nephew Ijaz made one or two fires which hit Shaukat Ali deceased and injured others. According to him the story as narrated in the complaint, was false.
4. The learned trial court acquitted all the accused on the grounds that:-
(i) the prosecution story that the complainant party was returning, back after digging the water course is not supported by record;
(ii) the injured PWs have made inconsistent statements;
(iii) the recovery of crime empties is not credible;
(iv) the discrepancies in the ocular account and the site plan make the prosecution story further doubtful;
(v) that the non-appearance of injured Ashgar Ali, Mst, Anwar Bibi, Mohammad Arif, Mohammad Qasim and Ghulam would throw an adverse presumption against the complainant parly; and
(vi) the defence plea taken by Sabir Hussan accused in his statement under section 342 Cr.P.C, is plausible and worthy of credit.
5. Before we could ask the learned counsel for the petitioner/complainant to address arguments on the merits of the main appeal, we were faced with a rather un-usual situation. This PSLA was tiled on 12.4.1993 and on 12.5.1993 this Court was pleased to summon the record. Meanwhile, the State also filed an appeal against the acquittal of respondents on 9.8.1993 in which record was called on 19.10.1993. On 21.11.1993 this court, after hearing the learned Assistant Advocate-General, dismissed-the State appeal in limine. The instant PSLA should have been heard and disposed of together as they had assailed the same judgment. However, owing to an office mistake this appeal was not listed with the State appeal. Hence the anomalous situations. Now if the PSLA is heard it would apparently amount to a review of this Court's order dated- 21.11.1993 whereby the State appeal was dismissed and on a superficial view that course may be violative of section 369 Cr.P.C, in terms of which having once signed a judgment, the same cannot be altered or reviewed "except to correct a clerical error". At the same time the question of the dismissal of the State appeal against the impugned judgment without hearing the, petitioner/complainant and the effect of the said dismissal on the instant appeal weighed very heavy on our minds.
6. The learned counsel for the complainant as well as the learned counsel for the respondents (Mr. Mohammad Afzal Wattoo. Advocate who has entered appearance on behalf of the respondents on pre-admissions notice) and the learned Assistant Advocate General were asked to address arguments on the aforementioned point. Mr. A.R. Tayyab, Advocate, was also called upon to address the Court as an amicus curiae. The learned counsel for the petitioner has submitted that the complainant has been condemned un-heard and that this Court has ample powers under section 561-A, Cr.P.C, to recall the order passed in Slate appeal and to rehear the appeals together.
Conversely, the learned Assistant Advocate General as also the learned counsel for the respondents made submissions which are as follows :-
(i) that the private complainant has no right of being heard in the State appeal.
(ii) merits that this court has become functus officio and cannot re-open and review its own judgment in view of section 369 Cr.P.C.; and
(iii) that even on merit it was a fit case of acquittal and the learned trial court has given cogent reasons in its finding which is neither perverse nor illegal.
7. Mr. A.R. Tayyab, Advocate, appeared as amicus curiae has more or less supported the stand taken by the law officer and the learned counsel for the respondents.
8. Having heard the learned counsel for the parties as also the learned amicus curiae we are of the view that it is a fit case in which this court may exercise its powers under section 561-A, Cr P.C. And recall its earlier order dated 21.11.93 whereby the State appeal was dismissed. The admitted position in this case is that the judgment under appeal was announced in a private complaint case.
During trial the case was not conducted by the Public Prosecutor but by the counsel for the complainant. The complainant filed the instant appeal on 12.4.1993 which was prior in time then the State appeal. We think that judicial propriety required that both the appeals should have been heard together so that the complainant had an opportunity of being heard and represented.
Rather the instant appeal should have been first. The dismissal of the State appeal against a judgment passed in private complaint case without hearing the petitioner complainant is unjust and violative of the principles of natural justice.
9. The inherent powers of this Court are to be exercised where there is no express remedy" to secure the ends of justice". The bar contained in section 369 Cr.P.C, would not be applicable in the facts and the circumstances of this case. Section 369 Cr.P.C, reads as under:- "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, not Court, when it has signed its judgment, shall alter or review the same, except to correct a clerical error."
10. The expression "save as otherwise provided by this-Code" is significant and would lead to the irresistible conclusion that the inherent powers of this court conferred under section 561-A Cr.P.C are intact and can be exercised to secure the ends of justice and to prevent the abuse of the process of the court. It is well established principle of justice that an act of the Courts shall not prejudice any party. It is not denied that on account of a serious lapse on the part of the office of this court, the instant appeal was not fixed alongwith the State appeal.
In case the order of dismissal passed in State appeal is not recalled the petitioner/complainant would be condemned un-heard. The right to file an appeal is a statutory right guaranteed under the Criminal Procedure Code. The right to file an appeal includes the right to be heard in person or through representation. Nothing could be a greater abuse of the process of the Court than a denial of such a right. We are fortified in our view by the following judgments:-
(i) AIR 1959 Allah Abad 152;
(ii) AIR 1951 Allah Abad 441;
(iii) AIR 1927 Calcutta 702;
(iv) AIR 1948 Allah Abad 106;
(v) AIR 1949 Allah Abad 176;
(vi) PLD 1974 Karachi 22,; and
(vii) Air 1959 Allah Abad 315.
11. Coming to the merits of the appeal we are of the view that the learned trial court has disbelieved five injured witnesses on reasons which are not tenable in law and has occasioned a serious miscarriage of justice. While disbelieving the aforementioned witnesses, the court has drawn an adverse presumption for the non-appearance of the remaining injured witnesses which presumption is conjectural and amounts to non-reading of the material evidence on record. In a case of broad daylight occurrence where the FIR was lodged promptly and the accused were assigned specific roles. Recoveries affected in time and the case being supported by the injured eye-witnesses who stood test of cross-examination, the acquittal of the respondents is perverse and not sustainable in law.
12. In view of the above, the order dated 21.11.93 passed in Crl. Appeal No. 68/93 (The State Versus Sabir Hussan etc.) is hereby recalled and this petition is admitted to regular hearing. Bailable warrants of the respondents shall be issued in the sum of Rs. 20,000/- each with two sureties each in the like amount returnable to the District Magistrate Bahawalpur.