' This is an application under section 497(5), Cr.P.C. Filed by Maulana Muhammad Azam Tariq, M.N.A. For the cancellation of bail granted to Khurshid All son of Amir Hussain by this Court vide order, dated 21-9-1994.
2. Briefly the relevant facts which give rise to the present application are that a case F.I.R. No,136, dated 22-8-1994 under section 302/324/148/149/ 440/107/216/212, P.P.C. And 4/5 of Explosives Act was registered with Police Station Shahpur Saddar, Sargodha on the written complaint filed by the petitioner. One Malik Ahmad Khan filed Writ Petition No,10113 of 1994 and C.M. No,2215 of 1994 in the aforementioned writ petition and sought a direction in the nature of habeas corpus regarding the respondent No,l. My learned brother Mr. Justice Iftikhar Hussain Chaudhry vide his order, dated 1-9- 1994 summoned the S.H.O. Police Station, Shahpur District Sargodha; on 4-9-1994, Inspector Abdul Sattar alongwith A.S.I. Muhammad Hayat appeared before the Court and stated that neither the persons mentioned in the writ petition were in their custody nor they knew anything about them.
The learned Judge consequently directed the D.I.-G., Sargodha to depute some senior Police Officer to trace the detenus and submit a report in the Court on 12-9-1994; on the said date neither the D.I.-G. Submitted the report nor any Senior Police Officer appeared before the Court. The D.I.-G. Was again directed to comply with the orders of the Court and appear before the Court on 19-9-1994 alongwith the record. On 19-9-1994 Khurshid Ali respondent No,1 being in the confinement of S.P.
Crimes, Sargodha moved C.M. No,2215 of 1994 praying release on bail till the decision of the case aforementioned. On the same date i,e, 19-9-1994 Mr. Asghar Ali, S.P. Crimes also appeared before the Court and explained that respondent No,1 had voluntarily surrendered before him in his office on 12-9-1994 and was not handed over to him by the police and was on physical remand in his custody. The S.P. Was accordingly directed to produced Khurshid Ali on 21-9-1994. On 21-9-1994 Khurshid Ali respondent when produced before the Court stated that he did not appear at his own before the S.P. Crimes but in fact was taken into custody by the police on 27-8-1994 from his village Mauza Lao alongwith his three sons, one nephew and one cousin in the presence of S.S.P., Sargodha and was handed over to S.P. Crimes while handcuff on 12-9-1994. As the statements of Inspector Abdul Sattar and A.S.I. Muhammad Hayat were factually incorrect and misleading to the extent that respondent No,1 the then detenu alongwith the others was very much in their confinement and the Police Officer intentionally flouted the order of this Court, taking serious view of the conduct of the police I intended to issue contempt notices to them but the Police Officers in the presence of learned Advocate-General tendered unconditional apology and put themselves at, the mercy of the Court which was accepted and no action was taken against the Police Officers.
Keeping in view the peculiar facts and circumstances of the case, Khurshid All respondent No,1 was released on bail by exercising powers under Article 199 of the Constitution.
3. The learned counsel for the petitioner contended that all matters relating to the Suppression of Terrorist Activities (Special Courts) Act, 1975 including bail matters are to be dealt with by a Bench of not less than two Judges of this Court in the light of the observation made by their Lordships of Supreme Court of Pakistan in the case The State v. Syed Qaim All Shah 1992 SCM R 2192; hence the order passed by this Court is beyond jurisdiction being contrary to the aforementioned dictum laid down by the Supreme Court.
4. The learned counsel for the respondent pointed out at the very outset that the order was passed by this Court in exercise of jurisdiction under Article 199 of the Constitution which are unfettered coupled with exercise of criminal jurisdiction with the result that this Court is not competent to "review" its own order and referred to the provisions of section 369, Cr.P.C.
5. The preliminary question which arises for consideration at this stage is whether the Court is competent to recall its own order and revise the same.
6. The expression "judgment" as used in section 369 of the Cr.P.C. Obviously includes decisions and orders passed by criminal matters on the merits of the case and the High Court has no jurisdiction to amend its judgment by deleting passages from it as observed in case Malik Firoz Khan Noon, Prime Minister's House, Karachi v. The State PLD 1958 SC (Pak.) 333. In case Juan Sullivan v. The State 1971 SCM R 618 their Lordships observed---"We have heard Mr. Riaz Hashmi for the appellant and the learned Additional Advocate-General for the State. Mr. Hashmi attempted to argue that the High Court could have revised its own order under section 439 of the Code of Criminal Procedure.
This contention is without force as that section clearly applies only when orders passed by Court subordinate to the High Court, call for consideration. The High Court was apparently right in holding that section 369 of the Code of Criminal Procedure precluded them from reviewing the order"
7. In case R.H. Brightling Manager American Express Co. (Inc.), Lahore v. Saeed Ahmad Chaudhry 1968 PCr.LJ 1818 it was held that the High Court cannot review its own order passed in criminal jurisdiction and cannot alter the judgment. It may be observed that the power to review can only be exercised for the specific purpose of correcting any error which prima facie appears on the surface of the record and could be deleted without a further elaborate inquiry or investigation. This power can be exercised to correct accidental or arithmetical mistake pointed out regarding the date of F.I.R. Or any other mistake due to human forgetfulness; not involving mental process of reasoning or the appreciation of any law or the facts already proved or admitted.
8. Any other view would eliminate the real distinction between the right of power of appeal where the entire subject-matter is open to re-assessment or redecision by the higher forum. In case Syed Saghir All v. Mehar Din and others 1968 SCM R 729 it was observed by their Lordships that "where certain facts require re-appraisement by the Court; it is not a ground for review. As it seems seeking a rehearing but that cannot be done".
9. The present application under section 497(5), Cr.P.C. Praying for cancellation of bail of respondent No,1 in fact amounts to review the order passed in writ petition.
10. There is no denying the fact that the dictum laid down by their Lordships of Supreme Court in Syed Qaim All Shah 1992 SCM R 2192 case is binding on this Court. It is noteworthy that the learned counsel for the petitioner remained present during the arguments of the writ petition himself had argued at length but did not rely upon the aforementioned dictum laid down by the Supreme Court; with due respect to their Lordships; the dictum laid down in the supra case is not applicable to the facts of the case in hand as the order was basically passed while exercising jurisdiction under Article 199 of the Constitution. For this view, I am fortified by the judgment of the Honourable Supreme Court in the case of Government, of Sindh through the Chief Secretary, Karachi and 4 others v. Raeesa Farooq and 5 others 1994 SCM R 1283 wherein it was held that:-- "It is now settled principle of law that where petition under Article 199 is filed challenging the arrest and detention of any person, the High Court will not straightaway refuse to exercise jurisdiction the moment an information is laid that the detenu is involved in any criminal case registered with the police. The High Court has the jurisdiction to examine the facts and information laid before it to determine prima facie that it does not lack bona fides, is not a cooked up or manipulated affairs, the detenu has not been illegally detained without a proper and legal remand order where it is required and there appear reasonable grounds for believing that the detenu is involved in the crime charged with. If once it is conceded that on receipt of information as supplied the High Court should refuse to exercise its Gonstitution jurisdiction without examining it, the very provision of the Constitution (Article 199(1)(b)(i) conferring power of judicial review will be frustrated. The High Court is competent to examine and satisfy itself that the detenu is not being held in custody without lawful authority or in an unlawful manner. This can be achieved only when the Court examines the information, reasons, facts and causes leading to detention. While examining, the High Court will not act as an Appellate Court nor will it make sifting investigation. In such Constitution petition the prosecution is bound to disclose the material upon which it has acted and the Court is to satisfy itself that such action is lawful and not in violation of law and fundamental rights."
11. As already observed that High Court is not competent to revise its own order under section 439, Cr.P.C.; to my mind it also applies to the writ petition wherein the matter involved is of criminal nature and is covered by the Code of Criminal Procedure. The High Court is precluded to review its own order for the yeasons (i) such a procedure is likely to lead to confusion, multiplicity of litigation and conflicting judgments and (ii) it will amount to an application to review or alter a judgment of the High Court against the express provisions of section 369 of the Code.
12. The question whether the Court is competent to recall its own order and revise the same has been dealt with even by this Court in case Muhammad Ilyas v. S.H.O. C.M. No,2 of 1995 in Writ Petition No,201 of 1995 and the answer was in negative.
13. In view of the formidable objection, no relief can be granted to the F petitioner in this petition by the Court. The petition is hereby dismissed accordingly.