1. This is an application moved by respondent No,2 for recalling the order dated 13-12-2000 passed in the present revision application.
2. The revision application was fixed for Katcha Peshi on 14-11-2000 when following order was passed by my learned brother Muhammad Mujeebullah Siddiqui, J:-
1. Granted subject to all just exceptions.
2. Mr. Muhammad Shafi Advocate has no objection to the admission of this criminal miscellaneous application to regular hearing. The criminal miscellaneous application pertains to the custody of a bus which is lying with the police.
3. The criminal miscellaneous application is therefore admitted to regular hearing. Issue notice to A.A.-G.
3. By consent it is directed that the bus which is at present lying at police station should not be removed from the police station and the custody thereof should not be handed over to any party till further orders.
4. To be taken up on 28-11-2000 for regular hearing."
5. On 28-11-2000 when the matter was placed before me, by consent it was adjourned to 30-11-2000.
6. Again by consent it was adjourned to 6-12-2000. On 6-12-2000 learned Advocate for the applicant filed certified copies of certain documents, which were placed on record, and copies were supplied to the other side. The matter came to be adjourned to 13-12-2000.
7. On 13-12-2000 the following consent order was passed.
8. "By consent this criminal miscellaneous application is allowed the orders passed by the Courts below are hereby set aside. By consent it is further ordered that the custody of the vehicle be given to the petitioner Abdul Kaleem on submitting a surety in the sum of Rs,25,00,000 before the trial Court after completion of all the required formalities."
9. However on 25-1-2001 instant application was moved under section 561-A, Cr.P.C. for recalling the above-noted consent order, mainly on the grounds that the counsel for the respondent No,2 was in collusion with the applicant, and the order was obtained by playing a fraud. The counsel was neither authorized nor did seek instructions from the applicant.
10. Arguments were heard and the record was perused with the assistance of learned counsel.
11. The main thrust of the arguments rendered by Mr. Narain Das Motiani, learned counsel for respondent No,2 is that the impugned order was obtained by fraud that the consent extended by the counsel was his individual act and due to the collusion, the applicant was deprived of a valuable property.
12. Conversely learned counsel for the applicant inter alia challenged the maintainability of the application. He alleged that the respondent No,2 has not approached the Court with clean hands.
13. I have carefully considered the arguments.
14. Admittedly the main revision application was admitted to regular hearing with the consent of the counsel for the respondent. At the time of regular hearing the orders passed by the two Courts below were set aside and custody of the vehicle was directed to be handed over to petitioner Abdul Kaleem on his furnishing a surety in the sum of. Rs,25,00,000 (Rupees twenty five lacs only).
15. Above mentioned order was passed on 13-12-2000, and the applicant/respondent No,2 kept quiet up to 25-1-2001 when the instant application was filed. Interim orders were passed on the said application. In pursuance of the notice of this Court the applicant filed counter-affidavit on 9-2- 2002. It was pointed out that the respondent No,2 has challenged the order dated 13-12-2000 before the Honourable Supreme Court of Pakistan. Alongwith the counter-affidavit a Photostat copy of the Criminal Petition No,2-K of 2001 was annexed, and it was asserted that the respondent No,2 had suppressed this fact with ulterior motives. Respondent No,2 has no explanation to offer for this intentional concealment, as he did not disclose this fact at the time of moving the instant application. However, the perusal of record reveals, that the respondent No,2 retraced his steps, and withdrew his petition from the Honourable Supreme Court, which was disposed of having been withdrawn vide order dated 20-2-2001. Strangely enough respondent No,2 at no point of time made any complaint against Mr. Muhammad Shafi, for playing fraud, who had remained his Advocate throughout the proceedings, which were initiated by moving an application before the learned Joint Civil Judge and F.C.M. Mirpur Khas on 9-8-2000 and till the passing of the crucial order by this Court. Though subsequently Syed Maddad Ally Shah appeared for him who moved the present application on 25-1-2001. But again Syed Maddad Ally Shah appears to have been superceded by Mr. Narain Das C. Motiani, who argued this matter.
16. Be that as it may from the above facts one thing is glaringly evident, that there was something behind they curtain, and that the hands of respondent No,2 were not clean. He who seeks equity must come with clean hands. The jurisdiction under section 561-A, Cr.P.C., is to be rarely exercised in most exceptional cases to do- real justice. Certainly the inherent jurisdiction of this Court is neither meant for nor should be exercised to disturb the orders passed by consent of the parties.
17. More particularly when the party, himself had remained passive and did not initiate any action whatsoever against the Advocate, against whom fraud has been alleged. Learned counsel has affirmed this fact in clear terms during arguments, that the respondent No,2 has not complained anywhere about the alleged act of fraud committed by Mr. Muhammad Shall, Advocate. The application being without substance is dismissed.
2. In view of the order passed on C.M.A. No,121 of 2001, the C.M.A. No,122 of 2001 has become infructuous, and consequently stands dismissed.
18. The conduct of Mr. Narain Das C. Motiani. Advocate during the hearing was noticed to be quite disharmonious and below the required level of decency.