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Criminal Petition for Special Leave to Appeal No.83 of 1986, decided on 7th April, 1986.
(From the judgment of the Lahore High Court, Lahore, dated 3‑2‑1986 icy Criminal Miscellaneous No.319‑Q of 1981).
Constitution of Pakistan (1973)‑‑
‑‑‑Art. 185(3)‑‑Criminal Procedure Code (V of 1898), 5.561‑A read with S.417(2)‑‑Accused themselves invoking jurisdiction of High Court under 5.561‑A, Criminal Procedure Code and challenging order of High Court passed under 5.561‑A, Cr.P.C. remanding case to Trial‑ Court for further proceedings‑‑Accused, held, could not be allowed to blow hot and cold and say that High Court should not have passed order it deemed necessary in circumstances of case‑‑Case not considered fit for grant of leave by Court in view of conduct of accused‑‑Leave refused.
A.W.Butt, Advocate Supreme Court and Mian Attaur Rehman, Advocate‑on‑Record (absent) for Petitioners.
Date of hearing: 7th April, 1986.
MUHAMMAD AFZAL ZULLAH,
J.‑‑Leave to appeal has been sought from judgment, dated 3‑2‑1986 of the Lahore High Court; whereby the petitioners' application under section 561‑A, Cr.P.C., was disposed of to their disadvantage.
The brief facts relevant for this stage given by the learned counsel are that the petitioners were sought to be prosecuted for various offences including 420, 468, 471, 477‑A, P.P.C. They made an application before the learned trial Court under section 249‑A, Cr.P.C. which was allowed and they were acquitted. The respondent side filed an appeal before the Sessions Judge which was treated as revision and was allowed with the result that the order of the learned trial Court was set aside. The petitioners then moved a quashment application under section 561‑A, Cr.P.C. in effect seeking the setting aside of the order passed by the Sessions Court. A learned Single Judge in the High Court treated the case as one under section 561‑A, Cr.P.C. read with section 417(2) and treating it as a challenge before the High Court to the acquittal order passed by the trial Court, remanded the case to the trial Court for further proceedings. Aggrieved by the order of the High Court the petitioners have sought leave to appeal.
Learned counsel has contended that without a formal appeal under section 417(2), the High Court could not have exercised appellate jurisdiction against acquittal, and further that the High Court had also no power under section 561‑A, Cr.P.C. to remand the case to the trial Court for further proceedings.
It may be mentioned that the High Court has made use of both the provisions, namely, 417(2) and 561‑A, Cr.P.C., we are not inclined to comment on the use of section 417(2) because this case can be concluded on the consideration of the power exercised under section 561‑A, Cr.P.C. This provision reads as follows:
"561‑A . Saving of inherent power of Hi h Court.‑‑ 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."
Learned counsel was unable to meet the point that once jurisdiction under section 561‑A, Cr.P.C. is conceded in a case like the present one then the High Court is competent to make "such orders as may be necessary" provided the other conditions including the securing of the ends of justice and prevention of abuse of process of Court are satisfied. In this case we do not propose deciding the bigger question as to whether jurisdiction under section 561‑A would be available to correct revisional orders passed by the Sessions Court. But needless to say that the petitioners in this case having themselves invoked the jurisdiction of the High Court under section 561‑A, Cr.P.C. cannot be allowed to blow hot and cold and say that the High Court should not have passed the order it deemed necessary in the circumstances of the present p case. We, therefore, on account of the conduct of the petitioners themselves do not consider it a fit case for grant of leave to appeal. The questions of law arising herein, however, would be dealt with in a proper case.
With these observations leave to appeal is refused.
M.Y.H. Leave refused.
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