P L D 1975 Karachi 80 (PLP)

Muhammad Hayat Junejo for Respondents Nos. 2 to

4. Date of hearing : 15th February 1974. This revision application was directed against the acquittal of respon dents 2, 3 and 4 by the learned Sessions Judge, Nawabshah for the murder of one Jio. The Revision Application was admitted to regular hearing but when it came up for such hearing on the 12th February 1973 Mr. Mohammad Yousaf withdrew his power and there after notice was sent to the petitioner who appeared on the 5th Septem ber 1973 and requested that he be given time to engage a counsel. He was given such time but despite that fact he failed to appear on the 7th Novem ber 1973 when the matter was fixed for hearing although he had notice of that date Counsel for the respondents opposed the main application which was in these circumstances dismissed for default. Subsequently Mr. Mohammad Yousuf Memon, who had originally appeared for the applicant, filed an application under section 561‑A, Cr. P. C. praying that the application be restored to hearing and notice was issued upon this applica tion. On the 21st December 1973 the case : came up before me when Mr. Hayat Junejo, appearing for respondents 2 and 4 argued that the applica tion for restoration was not maintainable. With consent of all the counsel in the case, the matter was then fixed for 11th January 1974 It being clearly ordered that upon that date the application for restoration would be heard and, if it was allowed, the main matter would also be heard. Accordingly the case again came up before me upon the 15th February 1974 when after hearing arguments on the question I decided that the application for restoration must be dismissed and announced my decision to that effect with the result that I also dismissed the main petition without hearing argu ments on merits. I now proceed to record my reasons for coming to this conclusion.

2. It was argued by learned counsel for the petitioner that the order dismissing the revision petition in default is not a judgment within the meaning of section 369 of the Criminal Procedure Code and that, therefore, it may, if sufficient reason is made out, be reviewed in the exercise of the inherent jurisdiction of this Court and reliance was placed in this connection upon a case which I decided and which is reported in Muhammad Hanif v. The State (P L D 1974 Kar. 22). Learned counsel for the respondent did not challenge the correct ness of the view which I took in that case but argued that, even upon the reasoning which I adopted, the present was not a case in which I had any jurisdiction to review the earlier order of dismissal. Since after hearing arguments from both sides and from learned counsel for the State, whose view also was that I had no jurisdiction to review the earlier order of dismissal, I am still of the same view that I held while deciding Mohammad Hanif's case, it would be appropriate to consider precisely what I did decide in that case. The facts of that case were somewhat peculiar and both on the language of the Criminal Procedure Code and upon high authority, I think the facts of any case, in which the High Court comes to the conclusion that it has jurisdiction to review such earlier orders and proceeds so to do must, of necessity, be unusual. The petitioner in that case had been convicted by a Magistrate under section 326 of the P. P. Code and a learned Additional Sessions Judge dismissed the appeal and made a reference to the High Court for enhancement of the sentence. Before the reference was heard however, the applicant filed an application in revision, challenging the appellate judgment and bail was allowed to the applicant so that when the notice of the reference was sent to jail, he had already been released and the notice was, therefore, not served upon him. By some mistake when the reference came up for hearing, the application for revision, although ordered by a learned Judge of this Court to be heard with the reference, was not put up. The result was that the appli cant was not represented when the reference was heard and I, without con sidering the merits of the applicant's conviction but upon the assumption that the conviction was not only proper but final, enhanced toke sentence. The revision application of the applicant then came up before another learned Judge of this Court whose attention was then drawn to the fact that I had already enhanced the sentence. In the meantime the applicant had become aware that his sentence had been enhanced and had already made an applica tion, stating the circumstances why he was absent and praying that the order of enhancement be recalled. The learned Judge, therefore, ordered that since I bad passed the order of enhancement, both matters should be placed before me for hearing.

3. I did come to the conclusion that the order in question was not a judgment and did not come within the scope of section 369 of the Criminal. Procedure Code, which provision therefore, did not bar its review. I did not, however, mean that merely because section 369 did not apply, it followed that there was jurisdiction to set aside such an order, quite apart of course from the question whether in a given case, the order deserves to be set. aside. In reaching the conclusion that I did, I had considered a number of cases including one which was binding upon me, namely the Supreme Court decision in the case of Gulzar Hussain Shah v. Ghulam Murtaza (P L D 1973 S C 335). Indeed, before stating my conclusion that section 369 was not applicable, I quoted the following passage from that judgment "I am conscious of the fact that general principle of finality of judgment attaches to the decision or order of the High Court passed in criminal. cases. But it will not apply to cases where an order is passed without jurisdiction or without giving any opportunity to the parties of being, heard. In such cases section 561‑A, Cr. P. C. can be invoked for the purpose of doing justice between the parties and for seeing that the. act of the Court does no injury to any of the parties. This is an inherent power of the Court and has been preserved by the above provision of law. In my opinion in rare and exceptional cases the High Court has inherent power to revoke, review or alter its own earlier decision in cases which are not governed by section 369, 424 and 430, Cr. P. C. with a view to give effect to any order under the Code or to prevent abuse of the process of any Court or otherwise to secure the ends of justice. It is, however, not possible to enumerate the circum stances in which this provision can be invoked. It may, however, "he mentioned that the learned counsel for the appellant has conceded that application for bail can be made from time to time on fresh material. There is thus no difficulty in such cases."

4. Clearly, their Lordships were saying that even apart from section 369, the general principle of finality of judgments attached to decisions arid orders, of the High Court passed in criminal cases. It is after quoting this passage that I went on to say: "I have, therefore, come to the conclusion that section 369 does not apply in the present case and there is no legal bar to my recalling my earlier orders. Having said this, however, I should like to guard my self against being understood to mean that merely because section 369 does not apply, orders of this kind are not final. It does not follow by any means that whenever an application is made for reconsidering a case the Court is bound or even in propriety may, re‑examine the earlier case and come to a different conclusion. To do so would mean that there will be no end to any case which can be constantly re‑opened. and such a practice in my view would be contrary to all well established judicial principles."

5. Mohammad Hanif's case therefore, is no authority for the proposition that there is jurisdiction to review an order or decision of the High Court in criminal cases, which are not judgments within the meaning of section 369, Criminal Procedure Code, but only for the more limited proposition that in rare and exceptional cases, there is such power. Such exceptional circum stances, must be of the nature indicated in the judgment of the Supreme Court to which I made reference or closely analogous thereto. The mere, fact that the earlier order does not on the merits appears to be just would not, in my view, constitute such an exceptional case. If, however, the earlier order was passed without jurisdiction or in violation of mandatory provisions of the law or the principles of natural justice, section 561‑.A of the Criminal Procedure Code would, I think, confer the necessary power.

6. This construction of section 561‑A, Criminal Procedure Code is based not merely upon this case of Mohammad Hanif but flows directly from at least one other case of the Supreme Court, that is Shehnaz Begum v. Honourable Judges of the High Court of Sind & Baluchistan (P L D 1971 S C 677) in which at page 693 his Lordship the Chief Justice observed after quoting section 561‑A:‑ "It will be observed that the power given thereby can be invoked to give effect to any order under the Code to prevent an abuse of the process of any Court or otherwise to secure the ends of justice. The ends of justice necessarily means justice as administered by the Courts and not justice in the abstract sense or justice administered by agencies other than Courts. The words "otherwise to secure the ends of justice'", have to be read along with the earlier objects mentioned in this section and must have some co‑relation with them."

7. Learned counsel for the respondent stressed the fact that the order sought to be reviewed was one which was passed in default but, for the purpose of deciding whether I have jurisdiction to interfere with that order, that distinction is not material at all. An order does not cease to be one without jurisdiction merely because it was passed in default unless of course it can be claimed that no proper opportunity was given to the person whose default was the basis of the order. In the present case, all that the respondent is asserting is that he was prevented for no fault of his own from attending the Court on the date appointed: If there was jurisdiction to interfere with the former order, then on merits it could be worth examining this plea. The fact, however, that a party, whose default is in question had some good excuse for the default is not the same thing as saying that the Court did not give him opportunity for appearing and being heard. If indeed he had been given no such opportunity then it might with justice be claimed that the order was passed in violation, if not of mandatory provisions of law, at any rate of the principles of natural justice. But that the absence was occasion ed for no fault of his own is not the equivalent of the denial of such an opportunity.

8. I do not, therefore, think that I had any jurisdiction to review the former order and I therefore dismissed the application for restoration. I should like to make it clear that not only have I not heard the petitioner on the merits of the main petition but not even upon the merits of his application for restoration having taken the view that I have, namely that I could not in law restore the main petition to hearing. S. A. H. Application dismissed.