' These are two applications; one filed by respondent No,1 under section 561-A, Cr.P.0 (Miscellaneous Application No,115 of 1999) seeking recall of the order, dated 15-1-1999 passed by this Court and second application is under Article 204 of the Constitution of Pakistan, 1973 (Miscellaneous Application No,411 of 1999) filed by the petitioner seeking action against respondent No,1 for deliberately violating this Court's order, dated 15-1-1999. I intend to dispose of both these applications by this common order.
2. This was a petition under section 491, Cr.P.C. Filed by a father in respect of seeking custody of minor namely Muiz Suleman Sani who was under the custody of his mother namely respondent No, 1 . There were several allegations of serious nature levelled by the petitioner and respondent No,1 against each other. However, on 15-1-1999, this petition was disposed of in the following circumstances:-- "Both the parties have filed their joint statement regulating the temporary custody of the minor involved in this petition. Both the parents state that such arrangement may be made without prejudice to their respective rights and without prejudice to their case, if any, before the Court of Guardian and Ward. Let this statement be kept on record which reads as follows:-- ... It is submitted by the petitioner No,1 above named that they have agreed as under:--
(1) That the custody of the minor Muiz shall remain with the respondent No,1 as his mother, subject to the decision of the Court of Guardian and Ward.
(2) That the respondent No,1 as agreed to allow the petitioner as father of the minor Muiz to visit and/or see him every Sunday from 3 p.m. To 5-30 p.m. Commencing from 17th January, 1999 at the residence of respondent No,1 or the residence of Mr. Aijaz Kazi at 163, 28th Street, Khayaban-e- Muhafiz, Phase-VI, Defence Housing Authority, Karachi.
(3) That for the visits petitioner and the respondent No,1 may be accompanied with their respective mothers, if they so desire.
' The above agreement shall remain in force till the legal custody of minor Muiz is decided mutually between the parties or through a Court of Law..."
' In view of the above joint statement proposing interim arrangement for the custody of the minor, this petition stands disposed of with the following further directions that on the days of Eidul Fitar, Eidul Azha and on 23-11-1999, the petitioner will be entitled to visit and meet his son in-between 11- 00 a.m. To 12-00 Noon. It is further clarified that in case the petitioner is out of station, the respondent No,1 will leave the custody of the minor namely Muiz Suleman Sani with the mother of petitioner at her house on all Sundays from 3-00 to 5-00 p.m. During this period she will be entitled to accompany the said minor."
3. Miscellaneous Application No,115 of 1999 has been filed under section 561-A, Cr.P.C. By respondent No,1 seeking review/recall of the last portion of the order, dated 15-1-1999 on the grounds, inter alia, that such concession was misused by the petitioner and his family members. It is alleged by the respondent No,1 that the conduct of the petitioner on 20th January, 1999 was highly objectionable and provocative. All other allegations levelled by the respondent No,1 against the petitioner pertain to the period prior to 15th January, 1999. It would be pertinent to reproduce the alleged incident of 20th January, 1999 on the basis of which respondent No,1 is seeking review of the abovesaid order.
Such incident was incorporated in para. 8 of her supporting affidavit of which the relevant portion reads as follows:-- "...I say that on the next day of Eid i,e, 20-1-1999 petitioner phoned me that he wants to send Pizza for the child. When I agreed to this, without Court's order petitioner personally with his nephew came to my house and remained with the child for hours. Since my parents had gone to see one of our relatives at hospital, I was alone at the house. Petitioner took undue advantage of this and he teased and molested me in spite of my insistence to him to go away. I say that in fact the petitioner has no love or affection for the child but in the guise of seeing the child he intends to torture and annoy me as I have filed suit for Khula' against him..."
(Note.-- Remaining contents of para. 8 are not reproduced being irrelevant.)
4. The petitioner has vehemently denied the incident of 20th January, 1999 through counter- affidavit of his brother/attorney Abdur Rehman Asif Sani. He has also raised several allegations which pertain to the dates prior to 15th January, 1999 and would not be relevant for the disposal of this application. However, it is not denied that the petitioner visited respondent No,l's house on 20th January 1999 to deliver Pizza to minor Muiz Suleman Sani. The remaining incident as alleged by respondent No,1 was denied. The question which arises is whether under such circumstances the last portion of the order, dated 15th January, 1999 which was not by consent of the parties could be reviewed/recalled. At the very outset, Mr. Khwaja Shamsul Islam learned counsel for the petitioner has raised a legal objection that since the order of this Court, dated 15th January, 1999 was a final order, it cannot be reviewed in view of the provisions of section 369, Cr.P.C. Before proceeding further, it would be relevant to quote section 369, Cr.P.C. Which reads as follows:-- "369. Court not to alter judgment.--- 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."
5. I have heard Mr. Abdul Latif A. Shakoor, Advocate in support of review application and Mr. Khwaja Shamsul Islam who has opposed the same. On two different dates of hearing Messrs Ali Nawaz Dahraj and Habib Ahmed, A.A.-Gs. Appeared on behalf of the State who were also heard at length.
It was argued by Mr. Abdul Latif A. Shakoor that in the special and peculiar circumstances of this case, the order, dated 15-1-1999 could be partly reviewed and that section 369, Cr.P.C. Will not come into play as the order, dated 15-1-1999 is not a judgment. It was further argued that since the petitioner has abused the process of the Court and misused the facility extended by the Court by molesting and harassing respondent No,1 such circumstances give jurisdiction to the Court to partly modify/recall the said order. He has placed reliance on the following cases:--
(i) Shahkot Bus Service, Shahkot v. The State and another 1969 SCMR 325;
(ii) Gul Muhammad etc. v. The State NLR 1999 Criminal 291;
(iii) Sajjad Amjad v. Abdul Hameed and 3 others PLD 1998 Lah. 474;
(iv) Gulzar Hassan Shah v. Ghulam Murtaza and 4 others PLD 1970 SC 335;
(v) Muhammad__________ Hand v The State PLD 1974 Kar. 22;
(vi) Zulfiqar All v.' The Sate PLD 1984 Lah. 461;
(vii) Riaz and others v. Razi Muhammad 1982 SCMR 741; and (viii)Abdullah v. Din Muhammad Shah and 4 others PLD 1976 Kar.
1184.
6. In support of his contention that once a final order is passed, it cannot be reviewed or recalled in line with section 369, Cr.P.C., Mr. Khwaja Shamsul Islam has referred to a Division Bench decision of this Court in Ghulam Hussain v. The State PLD 1981 Kar.
711. He has placed reliance on the cases Rahim Jan v. Ahmad Jan and another 1986 PCr.LJ 122, Niazi and 3 others v. Ghulam Dastgir and another 1987 PCr.LJ 1432, Ghulam Raza and 2 others v. The State 1974 PCr.LJ 95, Ahmed Jawwad Sarwar v. Mst. Zenia 1996 SCMR 1907 and the case of Malik Feroz Khan Noon v. The State PLD 1958 SC 333.7. It is to be seen that the right of review, though different in scope from the right of appeal, is a substantive right and it is not available unless it has been conferred by law, as held by a Full Bench of Honourable Supreme Court in the case of Hussain Bakhsh v. Settlement Commissioner, Rawalpindi and others PLD 1970 SC 1. This view was reiterated by another Full Bench of Supreme Court in the case of Muzaffar Ali v. Muhammad Shafi PLD 1981 SC
94. This view was followed by the former Chief Justice of Balochistan High Court, Ajmal Mian, J. (as his Lordship then was) in the case of Rahim Jan where review of an order passed earlier in a criminal appeal was being sought which was denied with the observation that "In presence of an express prohibition on reviewing of a judgment in a criminal matter by the High Court contained in section 369, Cr.P.C., the inherent powers of the High Court contained in section 561-A, Cr.P.C., in my view cannot be pressed into service". However, the case-law cited at the bar indicates that on different occasions, Courts have resorted to section 561-A, Cr.P.C. For recalling an order earlier passed. This leads me to examine the cases cited by both the learned counsel.
8. The cases of Shahkot Bus Service and Sajjad Ahmed relate to the inherent powers of the High Court and are not relevant for the purpose of discussing review jurisdiction of the High Court in criminal matters. In the case of Gulzar Hussain Shah, it was held that section 369, Cr.P.0 does not control section 498, Cr.P.0 and in suitable cases section 561-A, Cr.P.0 can be invoked. It was further held that 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. This view was followed by the former Chief Justice of this Court late Mr. Tufail Ali, Abdul Rehman (as he then was) in the case of Muhammad Hanif v. The State PLD 1974 Karachi 322 and by another Judge of this Court in the case of Abdullah (supra). All these cases were referred in a Full Bench decision of Lahore High Court in the case of Zulfiqar Ali v. The State PLD 1984 Lah.
461. It would be advantageous if the relevant para. Of the Full Bench decision of Lahore High Court is reproduced which reads as follows:-- "32. The above discussion leaves no manner of doubt that section 369, read with section 424, Cr.P.C. Does not concern the appellate power of the High Court. The other restriction, in the light of the dicta of the Supreme Court, may be there either in section 430, Cr.P.C. Or any other express provision of law. We have also found that even section 430, Cr.P.C does not absolutely and unequivocally oust the inherent power of the High Court to alter, review or vary its orders, if it is so needed to give effect to the orders made under the Code, to prevent abuse of the process of the Court or to meet the ends of justice, though this power is to be exercised in rare and exceptional cases. The proposition to meet now is to know what are those situations. We have already enumerated a number of them in paras.23--31 where the Courts interfered. An important feature in most of them is that the Court would recall or alter the order if any mandatory provision of law had been violated."
9. Mr. Abdul Latif Shakoor has also placed reliance on a recent decision of a learned Single Judge of this Court, Muhammad Roshan Essani, J, in the case of Gul Muhammad, etc. v. The State NLR 1999 Criminal 291. In that case criminal revision was allowed vide order, dated 28-5-1998 against which the complainant of the case filed a review application under section 561-A, Cr.P.C. With the prayers to recall the same. Several case-law was referred in support and against the proposition that High Court has no inherent power to recall an order. It was held, inter alia, that there is no specific provision for review In the Code of Criminal Procedure and that there being a difference in judgment and order, the order could be recalled under section 561-A, Cr.P.0 as it is not covered by section 369, Cr.P.0 Reference was made to the cases Mst. Mumtaz Begum and 8 others v. Shakil Hyder and 12 others 1997 PCr.LJ. 776, Gulzar Hussain Shah (supra), Rehmat Ali alias Lunda v. The State 1971 SCMR 513, Juan Sullivan v. The State 1971 SCMR 618 and Muhammad Khan v. Muhammad Aslam and 3 others 1971 SCMR 789. With most respect and deference to the learned Judge, the term "judgment" was defined by a Full Bench of Honourable Supreme Court in Mumtaz Khan v.
Chief Settlement Commissioner and Rehabilitation Commissioner and another PLD 1966 SC 276 at 283 as "a judicial determination or a decision of a Court and it could be interlocutory or final".
Reference was made to the Warton's Law Lexicon. The Black's Law Dictionary (VIth Edition 1990, West Publication, USA) has defined the term "judgment" as "The official and authentic decision of a Court of justice upon the respective rights and claims of the parties to an action or suit therein litigated and submitted to its determination. The official decision of the Court resolving the dispute and determining the rights and obligations of the parties". It is further stated that the terms "decision" and "judgment" are, inter alia, used interchangeably. However, it was observed by the former Chief Justice of Pakistan, Abdul. Rasheed, J. (as his lordship then was) in the, case of Hamidul Huq Chowdhury v. His Excellency the Governor-General of Pakistan PLD 1953 FC 279 at 286 that "Every judgment of a Court in exercise of its original criminal jurisdiction must contain an order of some sort or another, either in favour or against the accused". 'There being no definition in Criminal Procedure Code, 1898, this has given opportunity to the superior Courts, from time to time, to define the term "judgment" used in section 396, Cr.P.0 particularly for the purpose of reviewing an order.
Mr. Khwaja Shamsul Islam has relied upon the case Malik Firoz Khan Noon v. The State PLD 1958 SC 333 at 353 where it was observed by the former Chief Justice of Pakistan, Muhammad Munir, C.J.
(as his lordship then was), "that by reason of section 369, Cr.P.0 a High Court has no inherent jurisdiction to amend its judgment by deleting passage from it". In the case of Ghulam Hussain (supra), a Division Bench of this Court treated short order passed by an earlier Division Bench covered by section 369, Cr.P.0 and declined to rehear the same. A close examination of the above case-law clearly reflects that sanctity of finality is attached to a judgment passed by a Criminal Court by virtue of section 369, Cr.P.C. But there are conditions where the Courts have reviewed/recalled their judgment and order if it was found to have been passed without jurisdiction; an order passed without adjudication on merits; if the judgment/order was passed in violation of any law and/or such judgment or order was obtained by playing fraud upon the Courts.
Thus there is an inherent power in Court to recall or review such orders. In the case, The Chief Settlement Commissioner, Lahore v. Raj Muhammad Fazil Khan and others PLD 1975 Supreme Court 331 at 345, it was observed that "Even a Tribunal of a limited or special jurisdiction has the power to suo motu recall or review an order obtained from it by fraud".
10. Reverting back to the order of this Court for which respondent No,1 is seeking review, there is no allegation that such order was obtained by misrepresentation or fraud. No question has been raised on the competence of the jurisdiction of this Court to pass such order nor any violation of law has been pointed out. It was a consent order except the last condition which was added by the Court in the interest of minor that when father of the minor is out of country the mother will take the child/minor to the house of his father in order that the child may meet his grandmother. It is a settled law that a consent order can only be modified or altered with the consent of the other party.
Mere consent of the other party is missing and, therefore, the same could not be touched by this Court whatever the allegations may be. However the additional conditions imposed in the order, dated 15-1-1999 could be considered particularly in view of the allegations and counter-allegations levelled by the parties subsequent to passage of the above order. It is clear from the allegations and counter-allegations as incorporated in the affidavits of the parties that they are at daggers drawn. In the circumstances as alleged by the parties it would not be advisable, just and proper to ask the mother to take the minor to the house of his father. To that extent, I am inclined to modify the order, dated 15-1-1999. Therefore, the last portion of the said order will now read as follows:-- "It is further clarified that in case the petitioner is out of station, respondent No,1 will produce the minor namely Muiz Suleman Sani every last Saturday of the month between 11-00 a.m. To 1-00 p.m.
In the office of Deputy Registrar, (Judicial) of this Court."
11. With the aforesaid modification Miscellaneous Application No,115 of 1999 stands disposed of Civil Miscellaneous Application No,411 of 1999
12. The petitioner is seeking institution of criminal action for contempt of Court against respondent No,1 as she failed to bring the minor Muiz Su'email to the residence of the petitioner on 7-2-1999.
The reason given in the counter-affidavit by the respondent No,1 is that the said child was sick and developed some allergic eruption which was diagnosed by the family doctor as measles. It is claimed by her that on such advice of the physician the child was not brought to the house of the petitioner on 7-2-1999. It is further claimed by her that on 14-2-1999 she took the child to the mother of the petitioner where the said child spent some time with his grandmother. These allegations have not been denied by the petitioner through any rejoinder affidavit. Respondent No,1 has also filed Medical Certificate from the office of Naval Staff Surgeon, Brunton Road, Karachi and I have no reason to doubt its authenticity.
13. I have heard both the learned counsel. From the contents of the affidavits and counter- affidavits, it prima facie appears that there was no deliberation on the part of respondent No,1 to violate or to show disrespect towards order of this Court, dated 15th January, 1999. An explanation has been given for not producing the minor on 7th February, 1999 while at the same time, it is not disputed that on the subsequent Sunday, i,e, 14th February, 1999 the child was produced by the mother. All these facts convince me that the non-compliance of this Court direction for 7th February, 1999 was neither deliberate nor wilful. However, respondent No,1 is directed to remain careful and vigilant in future about the compliance of this Court order, dated 15-1-1999 as modified by the instant order.
14. With the above direction, Miscellaneous Application No,411 of IF 1999 stands dismissed. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.