1985 P Cr (PLP)

(i) Muhammad Sadiq v. The Crown A I R 1925 Lah. 355. (ii) Khalil and another v. The Crown P L D 1953 E C 133. (iii) Gulzar Hussain v. Ghulam Murtaza arid 4 others P L D 1970 S C 335. (iv) Masood Ali Khan v. Muhammad Aslam and another P L D 1979 Quetta

84. In the first case viz. Muhammad Sadiq v. The Crown A I R 1925 Lah. 355 it was held that dismissal of appeal under section 421(1), CV.P.C. Without affording reasonable opportunity of hearing to the appellant or his Advocate was without jurisdiction and could be recalled by the Court in the circumstances of the case. However, observation was made that the view adopted, as aforesaid, would not be construed to have been held that the Court had inherent power under section 561‑A, Cr. P. C. to review its own order. It would be pertinent to mention that section 421 provides for summary dismissal of an appeal presented under the provisions of sections 419 and 420, Cr.P.C. But the dismissal of the appeal in the instant cases was under the provisions of section 423, Cr.P.C. There is marked distinction between the provisions of section 421 and section 423, Cr.P.C. It is laid down under section 421, Cr.P.C. that no appeal presented under section 419 shall be dismissed unless tire appellant or his pleader has had a reason able opportunity of being heard in support of the game. It may be mentioned that section 421 relates to tire stage of the admission of an appeal. Section 423, Cr.P.C. provides that the Appellate Court has to decide art appeal after perusing the record of the case and hearing the appellant or his pleader, if he appears, and the Public Prosecutor, if he appears. In the instant case, the record of the case was perused and the Advocate appearing for the State was heard while the Advocate for the appellant did not appear at the time the matter was taken up for hearing, although he was fully aware that the appeal was fixed in the Court on that day. Obviously, the disposal of appeal was made in accordance with tire provisions of section 423, Cr.P.C. In the case at S.No. (if), it was held that summary disposal of an appeal under section 421, Cr. P. C. must indicate brief reason for its dismissal. As pointed out above, tire order of dismissal passed in this Court was not made under section 421, Cr.P.C. but it is an order under section 423, Cr.P.C. and the case relied upon does not apply to the facts of this case. In the case at Serial No.(iii), it was held that section 369,Cr.P.C. does not control section 498 Cr.P.C. and section 561‑A, Cr.P.C. can be invoked for recalling an order under section 498, Cr.P.C., which is not a judgment. The instant case is altogether different and the case cited above is riot applicable. In the last case, it was observed that a High Court should not reverse, alter or amend its own order unless the order has been passed without jurisdiction or patent injustice has been done arid in that case resort may ire had to the provisions of section 561‑A, Cr. P. C. in exceptional cases for doing proper justice. No such circumstances referred to in that ease for invoking the powers of the High Court under section

561. A . Cr. P. C. exit in the instant case. The learned Advocate for the State has cited following cases:‑ (a) Malik Feroz Khan Noon v. The State P L D 1958 S C 333. (b) Amin Sharif v. Syeda Khatun and another P L D 1962 S C 97. (c) R.H. Brightling Manager American Express v. Saeed Ahmad Chaudhry 1968 P Cr.

1. J 1818. (d) Asif Ali v. The State P L D 1971 S C 223. (e)State Bank of Pakistan v. Wasiuddin Ahmed 1975 P Cr. L J

707. In the first case, it was held that by reason of section 369 of the Code of Criminal Procedure, a High Court has no inherent jurisdiction to amend its judgment. In the second case, it was held that judgment envisaged under sections 366, 367 and 369 of the Criminal Procedure Code is that which is duly written and finally signed and pronounced in the open Court, and if that is not done there is no proper judgment and section 369 of Criminal Procedure Code does not bar further action thereon. In the third case, it was held by a Single Judge of the Lahore High Court by a brief order that High Court cannot review its own order passed in Criminal jurisdiction. In the fourth case, it was held that dismissal of a criminal appeal by the High Court after hearing the counsel for the Stale and on refusal by the counsel for the appellant to argue the appeal on rejection of his adjournment application was in accordance with law. In the last case, it was held that provisions of section 369 of the Criminal Procedure Code also extend to the judgment of the appellate Court. Reference may also be made to some other cases in which the scope and extent of sections 369 and 561‑A, Cr.P.C. were considered. In a case Soomar v. The State etc. P L D 1974 Kar. 535, it was observed that order and decision of High Court in Criminal cases, which are not judgment within the meaning of section 369, are reviewable only in rare or exceptional cases. It was further held that the provisions of section 561‑A are invocable for review of an order which has been passed without jurisdiction or in violation of mandatory provisions of law or principles of natural justice. It was even held that an order passed in default did not qualify for review under section 561‑A, Cr. P. C. unless it was without jurisdiction. In a case Abdullah v. Din Muhammad Shah and 4 others P L D 1976 Kar. 1184, it was held by a Single Judge of the High Court of Sind that order passed on merits In a Revision Application falls within the purview of section 369 of the Criminal Procedure Code. In a case Anwar Ahmad v. Abdullah Ahmed and others P L D 1962 Kar. 282, it was held that High Court cannot review its own order passed in Revision Application in view of the provisions of section 369 of the Cr. P.C. In a case Juan Sullivan v. The State 1971 S C M R 618, it was held by the Supreme Court that the provisions of section 369 preclude High Court from reviewing its own order. It would appear from the review of the preceding cases in the preceding paragraphs that an order passed on merits by the High Court in its criminal jurisdiction is not reviewable. This is legal aspect of the case. On facts also, there is no merit in the application for recalling the order of dismissal of appeal on considering merits. The application was dismissed by short order on 3‑10‑1984 and the aforesaid are the reasons therefor. M. A. K. Application dismissed.