Criminal Miscellaneous No.26/M of 2001 ' This petition has been filed for recalling order, dated 12-12-2000 passed in Criminal Miscellaneous No.262/T of 2000 transferring the case titled State v. Shaukat Hayat etc. For trial alongwith the case registered vide F.I.R. No.105 of 1993.
2. The petitioners' learned counsel submit that order, dated 12-12-2000 is not a final judgment and can be recalled or modified under the provisions of section 561-A, Cr.P.C., that in Writ Petition No.24263 of 2000 another Bench of this Court had directed that challan of the case be submitted before the Anti-Terrorism Court in accordance with the law, that accordingly the police prepared challan of the case and submitted it before the Anti-Terrorism Court on 23-1-2001; that on the same date this Court had passed an order for transferring the case for trial alongwith six other cases between the parties to the Court of the learned Additional Sessions Judge, Jhang, that both the orders are contradictory and cannot be implemented at the same time, that six other connected cases have since been decided; that the interest of justice demands that order dated 12-12-2000 passed by this Court be recalled. In support of his contentions, the petitioner's learned counsel relies on the judgment in the case of Gular Hassan Shah v. Ghulam Murtaza and others PLD 1970 SC 335.
3. On the other hand learned counsel for Aslam Khan respondent submits that a judgment or order passed in criminal proceedings cannot be reviewed as held in the following judgments:-- ' Lala Ghansham Das Birla and others v. Suraj Bhan AIR 1940 Lah. 192, R.H. Brightling Manager, American Express Co. (Inc.), Lahore v. Saeed Ahmad Chaudhary 1968 PCr.LJ 1818, Juan Sullivan v.
The State 1971 SCM R 618, Maulana Muhammad Azam Tariq, M.N.A. v. Khurshid Ali and another 1996 PCr.LJ 119, Mst. Shabana Niazi v. Muhammad Khalil 1997 PCr.LJ 746 and Iqtidar Shah Jafri and others v. The State 2001 PCr.LJ 222.
4. There is considerable weight in the arguments raised by the petitioner's learned counsel. Order, dated 12-12-2000 is not a judgment on merits and was passed in the light of an administrative order whereby the case registered vide F.I.R. No.105 of 1993 and others were ordered to be tried in the premises of the District Jail, Jhang by the learned Additional Sessions Judge, Jhang. At the time when I passed the order transferring thecase to the Court of learned Additional Sessions Judge, Jhang, the order passed by my learned brother Mr. Riaz Kayani, J. In Writ Petition No.24263 of 2000 directing the police to submit challan of the case before the Anti-Terrorism Court was not brought to my notice. Obviously both the orders are contradictory and cannot be implemented at the same time. I am informed that the other cases which were sent for trial to the Court of the learned Additional Sessions Judge, Jhang for trial in the premises of District Jail have since been decided.
Be that as it may, the fact remains that a conscious order was passed in Writ Petition No.24263 of 2000 for trial of the case registered vide F.I.R. No.125 of 2000 in Anti-Terrorism Court whereas order in T.A. No.262/T of 2000 was passed in the light of an administrative order.
4. The argument raised by the respondent's learned counsel that order, dated 12-12-2000 having been passed in criminal proceedings cannot be recalled/reviewed, has no force. Section 369 of the Cr.P.C. Bars review of a final judgment passed on merits in a criminal case. The order under consideration is not a final judgment or order on merits but is a transfer order primarily passed on the basis of another administrative order passed by learned Sessions Judge for trial of six other cases in the premises of District Jail, Jhang. The said case included F.I.R. No.105 of 2000 which was referred to in the case registered vide F.I.R. No.125 of 2000. Therefore, the subsequent case was ordered to be heard alongwith the other connected matters. The order under consideration cannot be equated with a judgment or order on merits of the case so as to attract the bar contained in section 369 of the Cr.P.C. The judgments cited by the respondents' learned counsel proceed on their distinguishable facts and ate not applicable in the present case. In the case of Lala Ghansham Das Birla and others, the High Court has passed a consent order for de novo trial.
Subsequently an application was filed on the ground that the order was obscure and that it should be made clear. The application was rejected on the ground that the High Court had no power to amend order by way of explanation or otherwise. It has no bearing to the facts of the present case.
Even otherwise, I do not subscribe to the view that the High Court does not possess powers to clarify its own order, in a suitable case. The case of R.H. Brightling pertains to amendment or alteration of a judgment. It was held that the Court was not competent to review its own order in view of the bar contained in section 369 of the Cr.P.C. In the case of Juan Sullivan, it was held that the High Court could not review its own order under the provisions of section 439 of the Cr.P.C.
Which apply to orders passed by the subordinate Court. The case pertains to conviction of a foreigner for offence under section 167(8)(a) of the Sea Customs Act, 1878, read with Ordinance 58 of 1962. The accused was convicted and awarded a sentence of R.I. For 2 years with a fine of Rs.3 lacs or in default to undergo R.I. For 12 months. On an appeal the High Court of West Pakistan Karachi upheld the conviction and reduced the sentence of imprisonment to the term already undergone. The fine was reduced to the extent of 1100 US Dollars recovered from the convict. Later the convict applied for remission of the sentence of fine on the ground that the amount of 1100 Dollars recovered from him was already released in favour of his wife for her passage money with the permission of the State Bank. This application was turned down on the ground that judgment in a criminal case could not be reviewed in the face of provisions of section 369 of the Cr.P.C. In the case of Maulana Muhammad Azam Tariq, it was held that the expression "judgment" used in section 369 of the Cr.P.C. Included an order passed in criminal matters on the merits of the case. A similar view was expressed in the cases of Mst. Shabana Niazi and Iqtidar Shah Jafri. The case of Iqtidar Shah Jafri pertains to quashment of criminal proceedings initiated on a private complaint.
The order was sought to be clarified/corrected as Court had not allowed the complainant to file a fresh complaint. The application was rejected keeping in view the bar contained in section 369 of the Cr.P.C. In a number of situations, orders passed in criminal cases/proceedings can be reviewed. One such situation is where bail of an accused is cancelled without hearing him. It was held in the case of Ijaz Qadeer v. The State and another 1975 PCr.LJ 471 that order passed under section 497(5) of the Cr.P.C. Is not a judgment and could be reviewed on the ground that bail was cancelled without hearing the accused persons. In the case of Amir-ud-Din v. State PLD 1977 SC 602 it was held that the word 'judgment' used in section 369 of the Cr.P.C. Did not cover an order granting or cancelling bail. It was also held that in view of the dictum laid down in the case of Muhammad Aslam and others v. The State (1967) 19 DLR (SC) 445 that in case an order granting bail was not properly made then the same Judge was not debarred for cancelling the bail even on the same material before him. The same view was expressed in the cases of Amir-ud-Din PLD 1977 SC 602 equal to PU 1977 SC 466. In the case of Abdullah v. Din Muhammad Shah and others PLD 1976 Kar. 1184, it was held that a revision petition dismissed in default in appearance could be restored by the High Court in exercise of inherent jurisdiction under section 561-A of the Cr.P.C.
Respectfully following the rule laid down by the Honourable Supreme Court of Pakistan in Amir- udDin's case, I hold that objection raised by the respondent's learned counsel to the maintainability of the present petition has no force because order, dated 12-12-2000 is not a final judgment or an order on merits of the case and can be reviewed/recalled, in the circumstances of the case.
5. For the foregoing discussion, the petition is accepted and order, dated 12-12-2000 is recalled. The challan in the case registered vide F.I.R. No.125 of 2000 has rightly been submitted before the Anti- Terrorism Court in compliance with order, dated 12-12-2000 passed in Writ Petition No.24263 of 2000 by my learned brother Mr. Justice Riaz Kayani.