1. ' The present M.A. No,1354 of 1997 under section 561-A, Cr.P.C. Has been filed by the complainant Zawar Hussain through Syed Nasir Ali Shah learned counsel praying therein to recall the order, dated 28-5-1998 passed by my Lord Zakir Hussain Mirza, J. (as he then was) allowing the Criminal Revision No,21 of 1997 filed by the applicants/accused Gul Muhammad and others whereby it was ordered that three prosecution witnesses namely Ghulam Mustafa, Syed Muhammad Ali Shah and Ghulam Hussain who had already been examined by the trial Court be recalled and re-examined for the purpose of further cross-examination by the counsel for the accused.
2. ' The accused Gul Muhammad, Javed Abbas, Qamar Abbas, Ghulam Ahmed and Muhammad Aamir, who are facing trial in the Sessions Court, ;Nawabshah in Sessions Case No,58 of 1993 under sections 302, 307, 148 and 149, P.P.C. As a result of F.I.R. No,8 of 1993 lodged by the complainant Zawar Hussain son of Ahmed Yar (present applicant) on 21-3-1993 at Police Station Puja, moved application under section 540, Cr.P.C. On or about 11-4-1997 praying therein for recalling P.Ws. So far examined by the prosecution, particularly P.Ws. Syed Muhammad Ali Shah, Ghulam Mustafa and Ghulam Hussain.
3. ' The learned trial Court by the order, dated 20-5-1998 rejected the application under section 540, Cr.P.C.
4. ' The accused aggrieved by the order, dated 20-5-1998 filed revision application under section 439, Cr.P.C. Through Mr. Qurban Ali H. Chohan learned counsel challenging the said order with prayer to this Court to recall the prosecution witnesses, particularly the three witnesses named above.
5. ' Mr. Qurban Ali Chohan, learned counsel for the applicants/accused had raised number of pleas in the memo. Of revision for recalling the P.Ws. But most important facts agitated by the learned counsel in the memo. Of revision were as -follows: -- "The charge was framed on 23-11-1993 and some evidence was recorded on 8-12-1993, and ultimately case came up for hearing before the learned II-Additional Sessions Judge, Nawabshah, and nine witnesses by that Court were examined viz. P.W.1 Zawar Hussain (complainant), P.W.2 Ghulam Mustafa P.W.3 Ghulam Shabbir, P.W.4 Muhammad Ali Shah, P.W.5 Syed Hyder. Jaferi, P.W.6 Ghulam Abbas Tapedar, P.W.7 Ghulam Hussain (Mashir), P.W.8 Dr. Abdul Majeed and P.W.9 Shamsuddin. Thereafter, no progress has been made and it appears from the perusal of record that no other P.Ws. Has been examined and case has not been concluded mainly due to the failure on the part of prosecution side."
6. ' A bare perusal of the order of this Court, dated 28-5-1997 shows that Mr. Qurban Ali H. Chohan, learned counsel for the applicants in support of his revision application raised the following contentions before his Lordship Zakir Hussain Mirza, J. (as he then was). For ready reference the same are reproduced herein below:-- "Mr. Qurban Ali Chohan, learned counsel for the applicant has argued that the witnesses were not properly examined by the Additional Sessions Judge and it was because of his attitude case was got transferred from him. The accused was not given proper opportunity to cross-examine the witnesses and so much so that the applicant got transferred the case from that Court.
7. ' Mr. Qurban Ali Chohan further pointed out that the very fact, that the case was got transferred from the Court of learned IInd Additional Sessions Judge by itself shows that the accused was not satisfied with the way the evidence was being recorded. According to him the abovesaid witnesses who are important witnesses may be allowed to be re-examined by the trial Court as the plain reading of their evidence shows that the accused/applicants were not given fair chance."
8. The averments made in the memo. Of revision application as well as the arguments advanced by learned counsel Mr. Qurban Ali H. Chohan reproduced hereinabove are not borne out from the record. The order of recalling P.Ws. On 28-5-1997 was obtained by misrepresentation of the facts and rather suppression of material facts for the reasons that nine P. Ws. Were never examined by the learned lInd Additional Sessions Judge, Nawabshah against whom they had grievance but all the nine' P.Ws. Referred to above and in the memo. Of revision application were examined by Mr. Muhammad Sadiq Leghari the then Sessions Judge, Nawabshah.
9. The certified true copies of all the depositions of all P.Ws. Have been placed on the record by Mr. Shah learned counsel which reveal that P.Ws. i,e, Zawar Hussain (complainant), Ghulam Mustafa, Muhammad Ali Shah, Ghulam - Hussain, Ghulam Shabbir, Syed Hyder Jafri, Ghulam Abbas, Dr. Abdul Majeed Shaikh and Shamsuddin were examined by the said learned Sessions Judge, Nawabshah on different dates of hearing and only two prosecution witnesses Tayab Din (P.W.10) and Niaz Hussain (P.W.11) had been examined by Mr. Anwar A. Khan, learned IInd Additional Sessions Judge, Nawabshah.
10. ' The perusal of all the above depositions also reveal that all the P.Ws. Were cross-examined fully and at length.
11. ' Thus, it is crystal clear that on both the aspects of the case correct facts were not placed before the Court, rather those were suppressed.
12. ' It is also regrettable that the learned State council did not assist the Court properly and he failed to point out the correct factual aspect of the matter. Had he pointed out the above facts to the Court, possibly the order, dated 28-5-1997 would have been otherwise.
13. ' Under the above circumstances, on 1-7-1997 complainant Zawar Hussain has filed the present application under sections 369 and 561-A, Cr.P.C.
14. ' The above application (M.A. No,1354 of 1997) was placed before my Lord Zakir Hussain Mirza, J., (as he then was) on 3-11-1997 when notices were ordered to be issued to the accused as well as Advocate-General, Sindh.
15. ' Since, my Lord Zakir Hussain Mirza, J., (as he then was) was not confirmed, the above application came up before me on 9-2-1998. It was being adjourned from time to time for one and the other reason and ultimately on 20-4-1998 arguments of Syed Nasir Ali Shah, learned counsel for the applicant/complainant and Mr. Qurban Ali Chohan, learned counsel for the accused and Mr. Ashique Hussain Mehar, learned counsel for the State, were heard and order was reserved. Notice for rehearing the matter on 28-9-1998 was issued. In pursuance of such notice on 28-9-1998 Mr. Qurban Ali Chohan, learned counsel for the applicants/accused appeared whereas learned counsel for the complainant sent an application for adjournment, which was dismissed on the very day. Mr. Qurban Ali B. Chohan, learned counsel for the applicants/accused reiterated the same arguments which he advanced on 20-4-1998.
16. ' Syed Nasir Ali Shah, learned counsel for the applicant/complainant contended that the order, dated 28-5-1997 was obtained by fraud, misrepresentation and suppression of true facts; that there was no substance in application under section 540, Cr.P.C. To recall the prosecution witnesses, who were fully cross-examined by the defence in trial Court through most senior lawyers; that the complainant was a necessary party, who was not joined in the revision, and order, dated 28-5-1997 was passed without affording any chance of hearing to the complainant, as such, the order was against the principles of natural justice. It is urged that in view of the, above facts and circumstances order, dated 2-8-1997 may be recalled. The learned counsel has placed reliance on the case of Gulzar Hassan Shah v. Ghulam Murtaz and 4 others 1970 SCMR 335, Rashid Ahmed v. Ibrahim and others 1996 PCr.LJ 1439.
17. ' Mr. Qurban Ali H. Chohan, learned counsel argued that the application in hand is not maintainable as there is no provision of Review in criminal matters and this Court is not competent to hear the same or set aside the order, dated 28-5-1997. The learned counsel stressed that he had placed correct facts on the record and has not suppressed any fact and that this is not the case of concealment or misrepresentation of facts or any fraud practiced upon the Court. The learned counsel for the accused has relied upon the following decisions in support of his arguments that High Court cannot review its own order/judgment.
(1) Rehmat Ali alias Lunda v. The State 1971 SCM R 513,
(2) Juan Sullivan v. The State 1971, SCMR 618,
(3) Muhammad Khan v. Muhammad Aslam and another 1971 SCM R 789,
(4) Sheikh Liaquat Hussain v. The State 1997 PCr.LJ 61,
(5) Mst. Shabana Niazi v. Muhammad Khalilur Rehman and others 1997 PCr.LJ 746,
(6) Yousaf Khan v. The State 1995 PCr.LJ 1355 and . (7) State v. Abbas and 3 others PLD 1991 FSC 135.
18. ' Mr. Ashique Hussain Mehar, learned counsel for the State, has fully supported the arguments of Mr. Nasir Ali Shah, learned counsel for the complainant. He has further contended that this Court in its inherent powers under section 561-A, Cr.P.C. Can alter or vary the order, which has been obtained by fraud or suppressing the true facts.
19. ' I have heard the arguments of learned counsel for the parties and have perused the order of this Court dated 28-5-1997 as well as material placed on the record.
20. ' I will first deal with the contention of Mr. Qurban Ali Chohan, learned counsel regarding the maintainability of the application and power of review etc. There is no cavil that there is no specific provision for review in Criminal Procedure Code. I have gone through the case-law, cited by Mr. Qurban Ali H. Chohan, which lays down that no power exists to review the judgment passed by High Court or any other criminal Court, but there is a difference between judgment and an order. The order sought to be revised or recalled is not a judgment within the meaning of section 367 or 369, Cr . P. C .
21. ' Now the question is whether an order, obtained by fraud, suppressing the true facts, by misrepresentation of facts or concealment of necessary facts, is sustainable and to be allowed to exist despite the fact that it is pointed out to the Court that the same has been obtained for the reasons stated above.
22. ' In the case of Lal Din and another v. Muhammad Ibrahim 1993 SCM R 710, it was held by Honorable Supreme Court that every representation made to a Court, which is deliberate false amounts to fraud and would vitiate a decree. The grievance of the learned counsel for the applicant/complainant is that neither the complainant was made party in the main revision nor he was afforded any opportunity of being heard before passing the order, dated 28-5-1997 seems to be correct and has ample force. The complainant opposed the application under section 540, Cr.P.C. In the Trial Court and it is surprising that he has not been made party, which means that the order, dated 28-5-1997 has been passed without hearing him and it has caused serious prejudice to him. As such, this Court is otherwise competent to recall its order, which is against the principles of natural justice.
23. ' In the case of Mst. Mumtaz Begum and others v. Shakil Hyder and others 1997 PCr.LJ 776 a Division Bench of this Court has held that High Court has wide powers under section 561-A, Cr.P.C. And by exercising such powers could revoke, alter, review or modify its earlier order, where aggrieved party was neither heard nor afforded a chance of hearing, with sole object to do real and substantial justice between the parties, and in the reported case the impugned order was recalled.
24. ' In the case of Muhammad Shareef v. The State 1997 PCr.LJ 1195 a Division Bench of Quetta High Court held that when a new material comes to the notice of the Court or on the basis of the available record if it is observed that an important aspect either has not been pointed out during arguments of the case or it has skipped from the notice of the Court, then in the interest of justice decision already recorded can be altered in order to secure the ends of justice under the inherent jurisdiction of High Court.
25. ' In the case of Fateh Ali v. The State 1997 M LD 2235, it was held by Peshawar High Court that pronouncement made in a bail matter is always an order and not a judgment and hence can be modified or amended. It was further held that Criminal Courts though under section 369, Cr.P.C.
26. Cannot review its judgment yet can review its order.
27. ' In the case of Gulzar Hussain Shah v. Ghulam Murtaza and others PLD 1970 SC 335 it was observed by the Honourable Supreme Court as under:-- ' 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.
28. Can be invoked for the purpose of doing justice between the parties and for seeing that the act of the Court does not cause injury to any of the parties. This is an inherent power of the Court and has been preserved by the above provision of law."
29. ' In Ejaz Qadir v. The State 1975 PCr.LJ 471, it was held by Lahore High Court that order passed under section 497(5), Cr.P.C. Is not a judgment and can be reviewed under section 561-A, Cr.P.C.
30. ' Thus, from the case-law discussed above, it is clear that this Court in exercise of its inherent powers under section 561-A, Cr.P.C. Is fully competent to recall the order.
31. ' I have discussed above that the learned counsel for the accused made his submissions contrary to the record. The witnesses were examined by the learned Sessions Judge, Nawabshah and not by IInd Additional Sessions Judge, Nawabshah. The prosecution witnesses were fully cross-examined by the defense counsel as is evident from the deposition placed on record. The case was transferred from the Court of IInd Additional Sessions Judge, Nawabshah, to the Court of Sessions Judge on different grounds and not on the ground that the learned IInd Additional Sessions Judge did not afford proper chance to cross-examine prosecution witnesses. The learned IInd Additional Sessions Judge had examined only two prosecution witnesses and rest of the prosecution witnesses were examined by the learned Session's Judge, Nawabshah.
32. ' Even on merits, the accused had no case for recalling the prosecution witnesses and the learned trial Court had rightly rejected the application considering all the aspects of the case.
33. ' The case-law cited by the learned counsel for the applicants/accused is of no avail to him and it is distinguishable.
34. ' In the case of State v. Ghulam Abbas and others PLD 1991 FSC 135 a Criminal reference was made by Sessions Judge, Bahawal Nagar to Federal Shariat Court whereby he sought an order for the retrial of the accused persons from the stage of after framing of the charge, and again recording the statements of the prosecution witnesses including complainant to do the needful for the administration of Lian between the complainant husband and wife. Honorable Federal Shariat Court held that reference was misconceived as Federal Shariat Court has no power to review its own judgment under Rule 31-A of Federal Shariat Court (Procedure) Rules, except in the case of a clerical error. The reference was rejected. (Underlining is mine).
35. ' In the case of Mst. Shabana Niazi v. Muhammad Khalilur Rehman 1997 PCr.LJ 746, in the proceedings under section 491, Cr.P.C. Court directed that custody of minor be handed over to mother. Review of judgment was sought and it was held by my Lord Mukhtar Ahmed Junejo, J., (as he then was) while dismissing the review application as under:-- "In the present case, the matter has been dealt with at length by my learned brother Syed Haider Ali Prizada, J. (as he then was). He has simply passed an order directing father of the minor to hand over custody of the minor to her mother. Admittedly such an order passed in the proceedings under section 491, Cr.P.C. Is always subject to the decision given under the Guardians and Wards Act by the competent Court."
36. ' In the case of Yousuf Khan v. The State 1995 PCr.LJ 1355, IN charge Sessions Judge had directed the release of the vehicle involved in the accident to the applicant on Super digamma subsequently Sessions Judge in the purported exercise of his jurisdiction under section 21 of the General Clauses Act, 1897 recalled the said order and dismissed the application for restoration of the vehicle to the owner. It was held that Sessions Judge was not competent to review the order of the in charge Sessions Judge under section 21 of the General Clauses Act, 1897.
37. ' In the case of Rehmat Ali alias Lunda v. The State 1971 SCM R 513, the petitioner filed his revision in the High Court against the judgment of his conviction and sentences under sections 458 and 307, P.P.C. Which was dismissed. He then applied for a review of the High Court's judgment. The review application was not pressed as it was not maintainable; therefore, the same was dismissed.
38. Petitioner filed time-barred petition before the Honorable Supreme Court and it was dismissed with the observations that petitioner in order to create a fresh starting point for himself for coming to Supreme Court and such exercise is condemned.
39. ' In the case of Juan Sullivan v. The State 1971 SCM R 618, Juan a foreigner, and his wife convicted under section 167(8)(a), Sea Customs Act, 1878, and a fine of Rs,3,00,000 was imposed by the trial Court. On appeal, High Court maintained conviction but remitted fine to the extent of eleven hundred dollars recovered from Juan at the time of his arrest. The wife of Juan, who had already been released by authorities, was returned the eleven hundred dollars as passage money for journey to home. Juan after announcement of judgment revealed this fact before High Court and applied for remission of fine. High Court turned down his request on the ground that judgment attained finality and review was barred under section 369, Cr.P.C. On appeal Honorable Supreme Court held that review of judgment is barred under section 369, Cr.P.C.
40. ' In the case of Muhammad Khan v. Muhammad Aslam and another 1971 SCM R 789 a learned Single Judge of erstwhile High Court of West Pakistan granted bail to the respondents and another learned Judge refused bail. The Honourable Supreme Court while allowing the respondents to remain on bail till the conclusion of commitment proceedings observed as under:-- "... It is not proper for a learned Judge of the High Court to allow bail to an accused person who has been earlier refused bail by another Judge of the same Court. It does not mean that once bail is refused by the nigh Court no fresh application for bail will lie. If fresh grounds have come into existence bail may be allowed, but in such a case the rule of propriety and harmony of the Court requires that the case be referred to the same learned Judge who had earlier refused bail."
41. ' In the case of Sheikh Liaquat Hussain v. The State 1997 PCr.LJ 61 applicant made application under section 523(2), Cr.P.C. Before the Magistrate for return of hides and skins, which was dismissed with a direction to D.H.O. For removal/disposal of the said hides and skins as there was fear of epidemic disease. Applicant challenged the order in revision. Sessions Court dismissed the revision for want of jurisdiction with an observation that trial Court may be moved. Applicant preferred application before the trial Court but the same was dismissed. He again filed the revision and during the pendency of this revision before learned Additional Sessions Judge the learned Magistrate recalled the previous order directing the D.1-1,0. To dispose of the hides and skins. Learned Additional Sessions Judge, dismissed the revision on the ground that Magistrate has recalled his order of the destruction of the hides skins in exercise of powers under section 21 of the General Clauses Act, 1897, hence revision has become infructuous. This order was challenged before this Court and my learned brother Dr. Ghous Muhammad,'J. While allowing the revision hold that Magistrate was not empowered under section 21 of General Clauses Act, 1897 to review the order and remanded the matter to Additional Sessions Judge for disposal according to law.
42. ' Considering the above case-law and all the relevant facts and circumstances of the case, I am of the considered view that the order, dated 28-5-1997 merits to be recalled and set aside.
43. I, therefore, in exercise of inherent jurisdiction under section 561-A, Cr.P.C. Allow the application and recall and vacate the order, dated 28-5-1997, E with the result that Criminal Revision Application No,21 of 1997, filed by the accused Gull Muhammad and others stands dismissed.