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Criminal Appeal No.21 of 1986, decided on 15th March, 1988.

(On appeal from the judgment and order of the Shariat Court dated 15-7-1986 in Criminal Miscellaneous No.9 of 1986).

---Ss.439, 561-A & 537--Azad Jammu and Kashmir Islamic Penal Laws Enforcement Act (IX of 1974), S.14--Penal Code (XLV of 1860), Ss.147 & 149--Revision can be entertained where appeal is provided for and. in appropriate cases even in presence of remedy by way of appeal, revisional jurisdiction can be invoked to rectify manifest illegality-Powers of Shariat Court under S.561-A are wide and are inherent but are to be used sparingly Order passed by trial Court in violation of the order of Shariat Court rested on misconstruing the order of the Shariat Court--Such order, held, was rightly quashed in the interest of justice--Omission to sign process order by one of the members of Court, Additional Tehsil Criminal Court specially when such member was present, not- an illegality but such an omission could be rectified under, S.537, Cr.P.C.

Revision can be entertained where appeal is provided for. In appropriate cases even in presence of remedy by way of appeal revisional jurisdiction can be invoked- to rectify a manifest illegality.

The members of the Additional Tehsil Criminal Court had not minutely considered the judgment of the, Shariat Court and thus fell in error in misconstruing the same. The members had not taken the least trouble to consider and look deeply into the judgment of the Shariat Court in pursuance of which they erroneously proceeded to dismiss the complaint of the respondent. The judgment clearly stated that "the order of issuing process being illegal, the proceedings subsequent to this order cannot sustain". It was clear that the order of the Shariat Court only recalled the order issuing process to the appellants and did not quash the entire proceedings, as held by the Additional Tehsil Criminal Court. Thus, the order of the Additional Tehsil Criminal Court was a nullity and the interest of justice required interference for the correction of this manifest illegality which can rightly be construed as a gross miscarriage of justice.

In the ends of justice the proceedings taken by the Additional Tehsil Criminal Court needed quashment. Therefore, the Shariat Court was competent to vacate the relevant order of the Additional Tehsil Criminal Court which was passed not in accordance with but in violation the order of the Shariat Court. The order of Additional Tehsil Criminal Court rested on misconstruing the order of the Shariat Court.

The powers of the Shariat Court to make use of section 561-A, Code of Criminal Procedure, to secure the ends of justice, though very wide, will normally be sparingly used. These powers are, however, inherent and where circumstances indicate that there was a patent case of injustice, the Shariat Court will undoubtedly interfere at any stage at which the case in question had reached.

Omission of the second member of the Additional Tehsil Criminal Court to sign the process order: especially when he was present, was not an illegality. Such an omission may be rectified under section 537 of the Cr.P.C. which is meant to overlook the errors of procedure arising out of the mere inadvertence which can be differentiated from substantial errors of law.

Deputy Commissioner, Quetta-Pishin v. Syed Muhammad Hasan P L D 1952 Bal. 22 ref.

The State v. Abrar Hussain Shah and another P L D 1962 (W.P.) Kar. 753 and Khair Shah and others v. Hyder Shah and another P: L D 1982 Kar. 128 distinguished.

Ch. Muhammad Riaz Akhtar for Appellants.

Nemo for Respondent.

.--This appeal is directed against the order dated 15-7-1986 of the Shariat Court of Azad Jammu and Kashmir. The order is recorded by a learned ingle Judge of the Court. By this order the Judgment of the Additional Tehsil Criminal Court, Mirpur, dated April 19, 1986, whereby a private complaint filed by the respondent (complainant) against the appellants herein, was dismissed on the basis of the-judgment of the Shariat Court passed earlier on April 2, 1986, was recalled.

2. The controversial issue has arisen in the following way:-

Muhammad Ayub, respondent, filed a private complaint against Muhammad Shabbir and others, appellants herein, under section 147/149, Penal Code, read with section 14 of the Islamic Penal Laws Enforcement Act, 1974. The Additional Tehsil Criminal Court, after recording the evidence at the preliminary stage, issued process against the accused under the aforesaid sections.

3. This order was assailed in the Shariat Court under the provisions of section 561-A, Cr.P.C., mainly on the ground that since the order was signed by a single member of the Additional Tehsil Criminal Court, the process issued against the appellants under this order is a nullity.

4. The learned Shariat Court found that since the order of issuing process was signed by only one member of the Court (A.D.M.), and since the law provides that the cognizance of the case is to be taken by the Court consisting of a Magistrate and Tehsil Qazi, the order cannot sustain proceedings, therefore, subsequent to this order were quashed and the case was sent back to the trial Court for its disposal under law.

5. After receipt of the file, the members of the Additional Tehsil Criminal Court construing the aforesaid order as to be an order for dismissal of the private complaint, dismissed the complaint vide order dated 19-4-1986. The order of the Additional Tehsil Criminal Court was set aside by the Shariat Court vide order dated 15-7-1987 in exercise of its revisional jurisdiction. Hence this appeal to assail the said judgment of the Shariat Court.

6. We have heard the learned counsel, Mr. Riaz Akhtar, in support of the appeal. It has been contended by the learned counsel that:-

(i) the revision petition before the Shariat Court to impugn the order of the Additional Tehsil Criminal Court in acquitting the appellants was not competent. Since the appellants, while dismissing the complaint, were acquitted by the Additional Tehsil Criminal Court, only an appeal under the provisions of section 439(5) of the Code of Criminal Procedure was competent. Since the respondent has failed to avail the remedy by way of appeal, the Shariat Court was not competent to entertain the revision petition; and

(ii) the Additional Tehsil Criminal Court has rightly acquitted the accused in pursuance of the order of the Shariat Court dated 2-4-1986.

7. In support of his contention that "the revision is not competent, the learned counsel has invited our attention to Deputy Commissioner, Quetta-Pishin v. Syed Muhammad Hasan. P L D 1952 Baluchistan 22; The State v. Abrar Hussain Shah and another P L D 1962 (W.P.) Kar. 753 and Khair Shah and others v. Hyder Shah and another PLD 1982 Kar. 128. "

In Deputy Commissioner, Quetta-Pishin v. Syed Muhammad Hasan P L D 1952 Baluchistan 22, following Assudomal Ramunmal v. Isardas Kishnomal and another A I R 1934 Sind 78 (1) it was observed that ordinarily no petition for revision will be entertained if another remedy is open to a petitioner but at the same time it was observed that it would be dangerous to lay down a rigorous rule which permits of no exception. It was, therefore, found that an order can be set aside in revision where the decision is clearly ultra vires of the powers of a Magistrate. In this case a dispute under the British Baluchistan Bazar Regulations was referred by a Magistrate to a civil Court. British Baluchistan Regulations contained no provision to make such a reference. In this background it was observed that "while this Court does not enjoy revisional jurisdiction in cases under the British Baluchistan Bazar Regulations, the revisional powers of this Court will be attracted if the Magistrate acts in excess of the powers conferred on him." It was further observed that the order of the Magistrate complained of was ultra vires of the powers conferred on him by section 97f of the British Baluchistan Bazar Regulations. The order was set aside while accepting the revision petition. It is, thus, manifest that this case is of no avail to the appellant; rather the law is enunciated to the effect that in a case of glaring illegality revisional powers can be attracted even where an appeal was the legal remedy.

In The State v. Abrar Hussain Shah and another P L D 1962 (W.P.) Kar. 753, due to the absence of the complainant, the accused for an offence under section 247, Cr.P.C. were acquitted. The complainant approached the District Magistrate with the request that the services of the Assistant Public Prosecutor to draft the appeal under section 417, Cr.P.C. may be availed; of, yet the District Magistrate failed to move the Assistant Public Prosecutor to file an appeal and chose to address a reference to the High Court for the purpose of bringing into operation the revisional jurisdiction of the High Court. In these circumstances, it was held that the High Court would not call into service its revisional jurisdiction in order to assist such a party. Obviously this case is distinguishable and has very little bearing on the features of the case before us. In the above case it was also observed that revisional jurisdiction is to be exercised sparingly and only in exceptional cases where the interest of public justice requires interference for the correction of a manifest illegality or for the prevention of the gross miscarriage ok" justice. This observation also suggests that remedy by way of appeal cannot be construed to be a complete bar for the Courts to rectify an illegality by way of a revision.

In the third case, Khair Shah and others v. Hyder Shah and another P L D 1982 Kar. 128, the preliminary objection that the revision was not maintainable was overruled and the revision was accepted with the observation:-

"If this preliminary objection is accepted, the result would be that an order passed by the learned Additional Sessions Judge without jurisdiction will remain in the field. In the circumstances, I treat this criminal revision application as an application under section 561-A, Cr.P.C. and allow the same and set aside the impugned judgment dated 24-6-1979 of the learned Additional Sessions Judge, Sukkur passed in Criminal Revision No.138 of 1979."

Thus, this case also aids the, proposition that an illegality can be rectified by a Court in exercise of its revisional jurisdiction.

In view of the above we overrule tote contention of the learned counsel that the revision can never-be entertained where appeal is provided for. In appropriate cases even in presence of remedy by way of appeal revisional jurisdiction can be invoked to rectify a" manifest illegality.

8. Whether the learned Judge in the Shariat Court has rightly invoked his revisional jurisdiction to set aside the order of the Additional Tehsil Criminal Court is the next question to be answered.

The perusal of the impugned judgment of the Additional Tehsil Criminal Court makes it abundantly clear that the learned members of the Additional Tehsil Criminal Court have not minutely considered the judgment of the Shariat Court and thus, fell in error in misconstruing the same. It is regretted that they have not taken the least trouble to consider and look deeply into the judgment of the Shariat Court dated 2-4-1986 in pursuance of which they erroneously proceeded to dismiss the complaint of the respondent The judgment clearly says that "the order of issuing process being illegal, the proceedings subsequent to this order cannot sustain". It is clear that the order of the Shariat Court only recalled the order issuing process to the appellants and did not quash the entire proceedings, as held by the Additional Tehsil Criminal Court. Thus, the order of the Additional Tehsil Criminal Court is a nullity and the interest of justice requires interference for the correction of this manifest illegality which can rightly be construed as a gross miscarriage of justice.

9. In the above circumstances we cannot but come to irresistible conclusion that in the ends of justice the proceedings taken by the Additional Tehsil Criminal Court needed quashment. Therefore, the Shariat Court was competent to vacate the relevant order of the Additional Tehsil Criminal Court which was passed not in accordance with but in violation of the order of the Shariat Court dated April 2, 1986. The order of Additional Tehsil Criminal Court rests on misconstruing the order of the Shariat Court.

Section 561-A of the Code of Criminal Procedure deals with the cases of the nature. A process of the Court means anything which is done by a Court and abuse of that process is committed by an order which is wanting in bona fides and appears to be frivolous, vexatious or oppressive.

10. However, it may be observed that the powers of the Shariat Court to make use of section 561-A, Code of Criminal Procedure, to secure the ends of justice, though very wide, will normally-be sparingly used. These powers are, however, inherent and where circumstances indicate that there is a patent case of injustice, the High Court will undoubtedly interfere at any stage at which the case in question has reached.

11. If the preliminary objection is accepted the result would be that an order passed by the Additional Tehsil Criminal Court without jurisdiction will remain in the field. In the circumstances, we would treat the order passed by the Shariat Court as to have been passed under section 561-A, Cr.P.C. The preliminary as well as the other objections, therefore, stand overruled.

12. Whether the omission of the second member of the Additional Tehsil Criminal Court to sign the process order; especially when he was present is an illegality, we doubt. Such an omission may be rectified under section 537 of the Cr.P.C. which is meant to overlook the errors of procedure arising out of the mere inadvertence which can be differentiated from substantial errors of law.

In the circumstances, both the objections, raised by the learned counsel for the appellants, have no merit to be accepted. For the above-stated reasons we would dismiss this appeal. Thus we order accordingly.

M.B.A./218/S.C.A. Appeal dismissed.

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