' This is an application under section 561-A, Cr.P.C. Made on behalf of the petitioners praying therein that the order, dated 9-6-1988 passed by this Court dismissing the main application, in absence of the petitioners, their attorney and their Advocate, may be recalled and the matter may be decided on merits, on the grounds that their Advocate on 4-6-1988 left for Karachi and on 5-6-1988 he went to Islamabad from Karachi, in connection with his Hajj Application and from Islamabad he came back on 9-6-1988 at night time. The above matter was fixed in Court on 5-6-1988 when Mr. Faiz Muhammad Soomro, Advocate holding brief for the petitioners' Advocate, who had gone to Islamabad, requested for adjournment and the case was adjourned to 9-6-1988, when Mr. Ghulam Moinuddin, Advocate holding brief for the petitioners' Advocate who was still at Islamabad, requested for the adjournment; but after hearing the Advocates for the other side dismissed the main application. It is also asserted in affidavit in support of the instant application that the main application was made on two grounds i,e, (i) that the respondents/condemners have raised the compound walls by dispossessing the petitioners from their plot in dispute and included the same in hostel area in violation of the lawful orders passed by the learned IInd Additional District Judge, Hyderabad; and (ii) the respondents/condemners uttered derogatory remarks reproduced in para. 18 of the main application; but this Court while passing the order, dated 9-6-1988 only considered the second ground and dismissed the same, by accepting the denial of the 'respondents Nos.2 to 6, to the extent of using abusive language in respect of process of the Court. The learned Advocate for the petitioners, to support his proceeding to and stay in Islamabad from 5th to 9th June, 1988 has filed following documents with his statement:--
(1) Original Boarding Card of P.I.A., dated 5-6-1988 from Karachi in Flight No,PK-308 in the name of Mr. Kamaluddin.
(2) Original P.I.A. Ticket from Karachi to Islamabad for 5-6-1988 by Flight No,PK-308 in the name of Mr. Kamaluddin.
(3) Original Reception Slip No,210401, dated 6-6-1988 of Ministry of Interior, Government of Pakistan in the name of Mr. Kamaluddin.
(4) Original Payment Receipt No,25, dated 9-6-1988 for stay in Sindh House, Islamabad in the name of Mr. Kamaluddin.
(5) Original Boarding Card of P.I.A., dated 9-6-1988 from Islamabad in Flight No,PK-309, in the name of Kamaluddin.
(6) Original P.I.A. Ticket from Islamabad to Karachi for 9-6-1988 by Flight No,PK-309, in the name of Mr. Kamaluddin.
2. Only respondent No,2 filed his counter-affidavit to the instant application asserting therein that the application under reply is not maintainable and is incompetent. The order, dated 9-6-1988 is neither ex parte order nor the petitioners are condemned unheard, but it is a detailed, self- speaking and order on merit. The petitioners and their attorney have not assigned any reason for their absence on 9-6-1988.
3. That the Attorney of the petitioners filed his affidavit-in-rejoinder, stating therein that he used to know about the dates of hearing from their Advocate, who used to inform him on telephone or otherwise, upon which he used to attend the Court; but since their Advocate was out of Hyderabad he could not be able to know about the dates of hearing viz. 5th and 9th June, 1988, when the above matter was fixed and decided, as such the absence of the petitioners, his own and so also of their Advocate was neither willful nor deliberate.
4. At the very outset Mr. Saif-ul-Haq Hashmi, Advocate for respondent No,2 and Mr. Muhammad Ibrahim Soomro, Advocate for respondents Nos.3 to 5 raised objection that in view of the order, dated 20-1-1994, this matter is firstly, to he placed before the Honourable Chief Justice, for his orders, as to whether the order dismissing contempt application can at all be recalled or reviewed; and secondly, whether the present application can be decided by a S.B. Or a D.B. To this objection Mr. Kamaluddin, Advocate for the petitioners submitted that regarding the competency and maintainability of this application, he has yet to submit his arguments and burden heavily rests upon him,' to discharge. In case he fails, the present application shall result in dismissal. .In reply to the other objection as to whether this application is to be heard by S.B. Or a D.B. And referring the case to the Honorable Chief Justice for his decision, he submitted same order was passed by the same Honourable Judge on 18-11-1990, and in compliance of the said order, the matter was placed before the then Honourable Chief Justice, who on 4-12-1990 resolved that the matter may be placed before the S.B. At Hyderabad. The order, dated 18-11-1990 passed by my brother Mr. Justice Mukhtiar Ahmed Junejo (as then he was) and the order, dated 4-12-1990 passed by the then Chief Justice, support the contentions of Mr. Kamaluddin, Advocate. Hence on 14-12-1994, I passed such order and this matter was adjourned to 21-12-1994 as part heard.
5. On 21-12-1994 Mr. Kamaluddin, Advocate for the petitioners argued that his absence on 5th and 9th June, 1988 due to his pre-occupation at Islamabad in connection with his Hajj Application, is not disputed by the other side. The other side has advanced the plea that the absence of the petitioners and their attorney is not explained, to which he replied that in para.7 of his affidavitin- rejoinder, the attorney of the petitioners has reasonably and plausibly explained his absence from this Court on 5th and 9th June, 1988, which appeals to a man of common prudence. He further submitted that the clients always know the dates of hearing in matters in High Court through their Advocates, as in cases in which the parties are represented through their Advocates, they are not issued Court notices for the dates of hearing.
(v) On the point of competency and maintainability of the instant application Mr. Kamaluddin submitted that the general principles of finality of judgment attaches to the decision or order, of this Court passed in a criminal case, will not apply to cases where an order is passed without jurisdiction or without giving any opportunities 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. The High Court has inherent power to revoke, review or alter its own earlier decisions. He also contended that the provisions of section 369, Cr.P.C. Did not apply in the instant case and there is no bar to recalling the previous order. He further contended that when the matter is dismissed for default or where an order is passed to the prejudice of any party without allowing such party an opportunity for being heard in support of his case, the provisions of section 369, Cr.P.C. Shall not apply at all. He also submitted that under section 561-A, Cr.P.C. The inherent powers of this Honorable Court are very wide and indefinable and it can make all such orders which may do real and substantial justice. In support of his contentions, he cited (i) PLD 1970 SC 335, (ii) PLD 1974 Kar. 22, (iii) PLD 1976 Kar. 1184,
(iv) 1969 SCMR 325, PLD 1975 SC 300 and (vi) 1994 MLD 1.
7. (i) In case Gulzar Hassan Shah v. Ghulam Murtaza and others PLD 1970 SC 335 the Honourable Supreme Court held:- "General principle 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 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 cases 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 circumstances in which this provision can be invoked."
(ii) In case Muhammad Hanif v. The State PLD 1974 Kar. 22, this Court held:-- "I have, therefore, come to the conclusion that it is both permissible and proper that I should re- consider the case of the accused."
(iii) In case Abdullah v. Din Muhammad Shah and others PLD 1976 Kar. 1184 this Court again held:-- "Section 369 of the Cr.P.C. Provides that no Court after it has signed the judgment shall alter or review the case except to correct a clerical error.
' The case is different, however, when the. High Court dismisses a criminal revision application for default or where an order is passed to the prejudice of any party without allowing such party an opportunity for being heard in support of his case."
(iv) In case Shoukat Bus Service v. The State 1969 SCMB 325 it is held:- "It is, no doubt, true that where express provision is made in the Code itself for a particular purpose, recourse cannot be had to the inherent jurisdiction to achieve the same purpose, but at the same time it has to be pointed out that the inherent power of the High Court is of a very wide and indefinable nature and in exercise of this power the High Court can make all such orders which may be necessary to do real and substantial justice and prevent abuse of the process of the Court, subject only to the limitation that it cannot override an express provision of the Code."
(v) In case Muhammad Zafarullah Khan v. Muhammad Khan and others PLD 1975 SC 300 it is held:- - "It is no doubt correct that a decision based on an erroneous assumption of fact is liable to be reviewed but even in this connection, it has to be pointed out that the granting of a review is still in the discretion of the Court, it is not bound to grant a review even when adequate ground exists but the discretion must, as in the case of all judicial discretions, be exercised upon sound judicial principles."
(vi) In case Razia Bibi v. Muhammad Arshad reported in 1994 MLD 1 it is held:-- "Ordinarily review of orders and judgment in criminal jurisdiction is not possible by this Court except in rare and exceptional cases in which the orders and judgments passed do not either fall within the ambit of section 369, Cr.P.C. Or have been passed without jurisdiction or in violation of mandatory provisions of law. The jurisdiction under section 561-A, Cr.P.C. No doubt, can be invoked in special circumstances when order passed is in violation of mandatory provision of law; or without jurisdiction or it was passed without affording an opportunity of hearing to the parties, but to reopen the case on merits or on the ground that earlier a point could not be argued on the point of sentence etc. As the case may be, is not permissible."
8. As a last submission Mr. Kamaluddin, Advocate submitted that vide order, dated 9-6-1988, the main application was dismissed, accepting the denial of the respondents to the extent of using of abusive language, and not on the other ground i,e, dispossessing the petitioners from their plot in dispute and raising walls around it by including it with hostel plot by the respondents in violation of the lawful orders of the learned 2nd Additional District Judge, Hyderabad. He, therefore, prays that, without prejudice to the petitioners' case already submitted, the petitioners can also be permitted to press their main application, on this ground alone, which was neither considered nor examined nor determined by this Court in its order, dated 9-6-1988.
9. On 22-12-1994 Mr. Muhammad Ibrahim Soomro, Advocate argued only on the maintainability and competency of the instant application. He contended that in view of the bar contained in section 369, Cr.P.C. The application in hand is incompetent and not maintainable, as such it merits dismissal. He referred section 369, Cr.P.C., which reads as under:-- "Section 369, Cr.P.C.--- 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."
' In support of his contentions, he sought time to submit citations of the cases decided by the superior Courts, but till this day did not submit the same.
10. Mr. Muhammad Ashraf Leghari, Advocate appearing for the State opposed the grant of application on the ground of the bar contained in section 369, Cr.P.C.
11. After hearing the arguments of the learned Advocates Mr. Kamaluddin, Mr. Muhammad Ibrahim Soomro and Mr. Muhammad Ashraf Leghari, the orders were reserved. But in the late hours of the day Mr. Saiful Hague Hashmi, Advocate for the respondent No,2 appeared and by adopting the arguments of Mr. Muhammad Ibrahim Soomro, he cited following case-law, in support of his case:- -
(i) Darya Khan v. The State PLD 1989 Kar. 115,
(ii) Muhammad Khan v. Muhammad Aslam and others 1971 SCMR 789,
(iii) Juan Sullivan v. The State 1971 SCMR 618,
(iv) Rehmat Ali v. The State 1971 SCMR 513,
(v) Abdul Haleem v. Raja Qurban and others PLD 1965 Lah. 570,
(vi) Soomar v. The State 1978 PCr.LJ 678,
(vii) Rahim Jan v. Ahmed Jan and others 1986 PCr.LJ 122, (viii)Nazir Maseh v. The State 1986 PCr.LJ 1224.
' In case shown at Serial No,(i), the point involved was as to whether the earlier order passed in revision could be reviewed in second revision, on the same facts; the answer was in negative.
' In case at Serial No,(ii), the bail was refused by one Judge of High Court on merit, but was subsequently granted by another Judge of same Court, on the similar ground, which was considered to be a review of the earlier order, which practice was not appreciated by the Honorable Supreme Court, but allowed the accused to remain on bail.
' In case at Serial No,(iii), it was held that High Court is not competent to revise its own order under section 439, Cr.P.C.
' In case at Serial No,(iv), the revision filed in High Court against conviction and sentences under sections 458 and 307, P.P.C., resulted in dismissal. The application for review of the said judgment was made but was not pressed being not maintainable. Thereafter, petition for leave to appeal was filed in Supreme Court, in which exclusion of time spent on review application was claimed but was refused.
' In case at Serial No, (v), the Magistrate once decided to take cognizance of a direct complaint and ordered enquiry under section 202, Cr.P.C., he can no longer avail himself of the alternate procedure laid down in section 156, Cr.P.C.
' In case at Serial No, (vi), it was decided that jurisdiction under section 561-A, Cr.P.C. Exerciseable to review an earlier order which was passed without jurisdiction or in violation of mandatory provision of law or principles of natural justice. It was also held that the default of a party is not equivalent of denial of opportunity of appearing and being heard. In this case, after withdrawal of power by petitioner's Advocate, the Court notice was issued to petitioner, who appeared and got the matter adjourned to another date, when he chose to remain absent.
' In case at Serial No, (vii), the accused who was party to the reference and could have availed opportunity to urge his point of view failed to appear despite service of notice on him, as such reference could not be said to have been decided without notice to accused. Hence review of the judgment was refused.
' In case at Serial No, (viii), it was held that High Court is not bound to hear all parties in criminal revision but notice to parties is necessary.
12. None of the above authorities apply in the circumstances of the case in hand, for the simple reason that in the abovesaid cases the aggrieved party was either heard or afforded chance for being heard; but in this case no effective chance of hearing was afforded to the petitioners, their attorney or their Advocate, as their Advocate was admittedly out of Hyderabad on 5th and 9th June, 1988 and the petitioners and their attorney did not know about the said dates of hearings. So, it was impossible for the Advocate for the petitioners to inform his clients or to put his appearance in Court on the said dates of hearing; but on his behalf the request for adjournment was made.
Hence I am of the considered view that none of the cases cited by learned Advocate for respondent No,2, are of any help to the respondents.
13. I have given my anxious thoughts to the valuable arguments of the learned Advocates of both sides and considered the law cited by them in support of their contentions and have also gone through the record, which persuaded me to the conclusion that the High Court having wide powers under section 561-A, Cr.P.C. And by exercising the said powers can revoke, alter, review or modify its earlier order in a criminal case, where aggrieved party is neither heard nor afforded a chance of hearing, with the sole object to do real and substantial justice between the parties.
14. Under the above circumstances, I have no option but to allow the Miscellaneous Application No,453 of 1988 as prayed. Let fresh notices of the main application be issued to the respondents except respondent No,6 who is reported to be dead, as such his name may be struck out. Since it is a very old matter, I direct the office to fix it for regular hearing, just after service of notice on the respondents.