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Criminal Revision No. 4 of 1984, decided on 19th October, 1985.
‑‑‑Ss. 435, 369 & 561‑A‑‑Reference‑‑Accused who was a party to reference and could have availed opportunity to urge his point of view failed to appear despite service of notice on him‑‑Reference, held, could not be said to have been decided without notice to accused.
‑‑‑Ss. 369, 435 & 561‑A‑‑Review‑‑inherent power‑‑Express prohibition contained in S. 369, Cr. P.C. on review of a judgment in a criminal matter by High Court‑‑Inherent power of High Court contained in 5.561‑A, Criminal Procedure Code, held, could not be pressed into service.
Juan Sullivan v. The State 1971 S C M R 618 and Muhammad Khan v. Muhammad Aslam and 3 others 1971 S C M R 789 rel.
‑‑‑Ss. 369, 435 & 561‑A‑‑Review‑‑Remedy of review is like a remedy of appeal and same cannot be claimed in absence of an express conferment of such remedy by a Statute.‑‑[Review].
Hussain Bakahsh v. Settlement Commissioner, Rawalpindi and others P L D 1970 S C 1 and Muzaffar Ali v. Muhammad Shafi P L D 1981 S C 94. rel.
Mir Muhammad Nawaz Marri for Petitioner.
Khalid Malik for Respondent No. 1.
Malik Sultan Mehmood for the State.
Dates of hearing: 12th and 19th October, 1985.
This is a review petition filed under section 561‑A, Cr.P.C. against the order, dated 23rd May, 1984 passed by a learned Single Judge of this Court in Criminal Reference No. 1 of 1984. The brief facts leading to the filing of the above review application are that the respondent No. 1 Ahmed Jan son of Malik Mir Khan filed a complaint before the Assistant Commissioner, Baseema alleging therein, that the petitioner had fraudulently taken away the tractor to Washak/Panjgoor, which was purchased in partnership and that no accounts were rendered by him. After recording certain evidence the Assistant Commissioner took cognizance of the matter under section 420, P.P.C. and thereafter ordered the arrest of the petitioner. After that, an application was allegedly submitted by the petitioner and respondent No. 1 in which it was prayed that the tractor be handed over to the respondent No. 1. The learned Assistant Commissioner handed over the tractor accordingly to the respondent No. 1. After, that the petitioner filed revision petition No. 2 of 1983, against the above order of handing over of the tractor. It was alleged that the petitioner's signatures were obtained fraudulently on a plain paper by the Assistant Commissioner/ Magistrate First Class. The learned Sessions Judge, Kalat at Mastung after hearing the parties concluded as follows:‑
"In the light of foregoing discussion the only point which needs consideration and determination is whether the signatures of the petitioner were obtained fraudulently by Assistant Commissioner and Magistrate First Class in order to favour the respondent. As I mentioned earlier the said point cannot be determined without impleading the Assistant Commissioner and Magistrate First Class as a party. Now, in my view, there are only two options, (i) the petitioner may be directed to make necessary amendment in his revision petition and the Assistant Commissioner/ Magistrate First Class should be made a party, or (ii) the petitioner be directed to approach the appropriate and proper civil forum to get redress his grievances, if desired."
It appears that after concluding this, the learned Sessions Judge forwarded the case file through his letter, dated 10th January, 1984.
The above letter reads as follows:‑
"From:‑
The Sessions Judge,
Kalat Division at Mastung.
To :‑
The Registrar,
High Court of Baluchistan,
Quetta.
No. 38, dated Mastung the 10th January, 1984.
Subject:‑‑ REVISION PETITION RAHIM JAN V. AHMED JAN ETC. UNDER SECTION 435, Cr.P.C. AGAINST THE ORDER, DATED 15‑5‑1983 PASSED BY THE ASSISTANT COMMISSIONER, REKHSHAN BASEEMA PROCEEDINGS UNDER SECTION 420, P. P. C.
The record of the revision petition alongwith the record of lower Court is sent herewith for further necessary action please.
(1) Record of Revision Petition containing (A) portion 20 (twenty leaves) (B) Portion 37 (thirty‑seven leaves).
(2) Record of lower Court containing 27 (twenty‑seven leaves).
Sd/‑(JAVED IQBAL)
Sessions Judge Kalat Div:
at Mastung"
Upon receipt of the above letter, the case was registered as reference and a learned Single Judge of this Court after hearing the parties passed the order, the operative portion of which, reads as follows: ‑
"It is also admitted by the counsel of the State that in spite of the fact that the final report was submitted by Naib‑Tehsildar on 12th May, 1983 the Assistant Commissioner has not taken cognizance of the offence so far. The proceedings conducted by the Magistrate were surprisingly very quick till a particular stage and then he slowed down and has not referred the case to the tribunal for one year. The petitioner filed a revision before Sessions Judge, Khuzdar who has referred the, case to this Court. The proceedings of the case in respect of delivery of tractor to the respondent No. 1 is illegal. As regards the main case the forum for trial would be the tribunal under Ordinance 11 of 1968. The order of the Magistrate directing delivery of tractor to the respondent No. 1 and order to furnish surety are both illegal. Both these orders are set aside. The proceedings regarding the trial of the case will be continued before the Assistant Commissioner if he choses to take cognizance under Ordinance 11 of 1968. The petitioner may proceed to recover the tractor from the respondent, according to law."
The petitioner has filed the above review petition on 19th June, 1984 praying for the following relief:‑
"It is prayed, therefore, that in view of the above‑mentioned submissions the order of this Hon'ble Court, dated 23‑‑5‑1984 may kindly be reviewed and be set aside and the parties be granted proper opportunity to put forth their case and thereafter the case be decided on merits in the interest of justice, fairplay and equity.
It is also prayed that till then the operation of the impugned order be stayed in the interest of justice, (airplay and equity. Any other order deemed fit and proper in view of the above mentioned submissions may also be passed."
2. In support of the above review petition, Mr. Khalid Malik, learned counsel for the petitioner has vehemently urged that on the basis of the conclusion of the learned Sessions Judge reached in the aforesaid Criminal Revision No. 2 of 1983, reproduced hereinabove in para. 1, no reference could have been entertained by the High Court in terms of original section 438 Cr.P.C. and, therefore, the order under review is without jurisdiction.
On the other hand, Messrs Mir Muhammad Nawaz Marri and Mr. Sultan Mehmood, Advocates for the private respondent and the State, respectively, have contended that in view of the express bar provided in section 369, Cr.P.C., the above review is not competent.
3. Adverting to the above submission, it may be observed that Mr. Khalid Malik in furtherance of his above submission has referred to the original section 438, Cr.P.C. which provides that "the Sessions Judge or District Magistrate may, if he thinks fit, on examining under section 435 or otherwise the record of any proceeding, report for the orders of the High Court, result of such examination and, when such report contains a recommendation that a sentence be reversed or altered, may order that the execution of such sentence be suspended and, if the accused is in confinement, that he be released on bail or on his own bond." He has also referred to section 561‑A, Cr.P.C., which provides that "nothing in this Code shall be deemed to limit or affect the inherent power of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice."
4. In furtherance of the above submission, he has referred to an unreported judgment of a learned Single Judge of this Court, dated 21st December, 1978 given in the case of Masood Ali Khan v. Muhammad Aslam and State (Criminal Revision No. 25 of 1977), in which, the learned Single Judge after reviewing the case‑law on the above sections 369 and 561‑A, Cr.P.C. concluded as follows:‑
"In the light of the above discussion, I am of the opinion that it is necessary to prevent the abuse process of the Court and to secure the ends of justice that the order passed in revision be recalled. However the learned Sessions Judge is directed to hold the inquiry after giving both the parties an opportunity to prove their respective contentions on the basis of the maps and certificates furnished by both the parties. If as a result of inquiry it is found that the occurrence had taken place within the limits of Quetta Municipality or Cantonment, he should proceed with the case; but if he finds otherwise, then the case be sent to the proper forum. With this observation and direction the present petition is accepted and the order, dated 22‑2‑1977 is recalled. "
5. On the other hand, learned counsel for the private respondent as well as tile learned counsel appearing for the State have referred to the above provision of section 369, Cr.P.C. which provides that "save as otherwise provided by this Code or by any other law for the time being in force or, in the ease 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 furtherance of the above submission, they have referred to the following judgments:‑
(i) Rehmat Ali alias Lunda v. The State, reported in 1971 S C M R 513, in which, the Honourable Supreme Court while declining leave against the order of the High Court dismissing review petition observed that review is not admissible in criminal proceedings under the Code of Criminal Procedure.
(ii) Juan Sullivan v. The State, reported in 1971 S C M R 618. In the above case, the Honourable Supreme Court while allowing the appeal partly, observed as follows as to the question of review:.‑
"we have heard Mr. Riaz Hashmi for the appellant and the learned Additional Advocate‑General for the State. Mr. Hashmi attempted to argue that the High Court could have revised its own order under section 439 of the Code of Criminal Procedure. This contention is without force as that section clearly applies only when orders passed by Courts subordinate to the High Court, call for consideration. The High Court were apparently right in holding that section 369 of the Code of Criminal Procedure precluded them from reviewing the order."
(iii) Muhammad Khan v. Muhammad Aslam and 3 others, reported in 1971 S C M R 789, in which, the Honourable Supreme Court observed as under:‑
"Since leave was granted this Court has in more than one case pointed out that as a judgment delivered in a criminal case is not open to review under the Code, 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 High 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."
6. Before touching upon the ratio decidendi of the above cases, it may be observed that in the instant case, the petitioner was party to the above reference and was served with a notice according to the learned counsel for the petitioner, but no one had represented the petitioner at the time of passing of the order. Be that as it may, since the petitioner was a party to the reference and could have availed of the opportunity to urge the above point, it cannot be said that the above reference was decided without notice to the petitioner. In the case relied upon by Mr. Khalid Malik, learned counsel for the petitioner, the petitioner who sought review, was not a party to the order passed by the High Court earlier. In this view of the matter, the case relied upon by Mr. Khalid Malik is distinguishable from the present case.
7. 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. Furthermore, even the ratio decidendi of the case relied upon by Mr. Khalid Malik, learned counsel for the petitioner, is not attracted to the present case, inasmuch as, it cannot be said that the order ' of the learned Single Judge was without jurisdiction. Though the learned Sessions Judge had not made a reference in terms of section 438, Cr.P.C. but the High Court had seized of the matter and could have passed the order under section 435, Cr.P.C.
Even otherwise, it has been held by the Hon'ble Supreme Court that a remedy of review is like a remedy of appeal and that the same cannot be claimed in the absence of an express conferment of such remedy by a statute. Reference in this behalf may be made to the cases of (i) Hussain Bakhsh v. Settlement Commissioner, Rawalpindi and others, reported in P L D 1970 S C 1 and (11) Muzaffar Ali v. Muhammad Shafi, reported in P L D 1981 S C 94.
8. For the aforesaid reasons, this review petition is dismissed.
The above are my reasons in pursuance of short order of even date.
M.Y.H. Petition dismissed.
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