P L D 2013 Lahore 123 (PLP)

ABDUS SATTAR ASGHAR, J.

This review petition under section 561-A, Cr.P.C. is lodged to recall the order dated 24-7-2012 passed by this Court whereby petitioner's Intra Court Appeal No.127 of 2012 was dismissed in limine.

2. Succinctly, the facts leading to this petition are that F.I.R. No.429 of 2011 dated 6-9-2011 under sections 489-F, P.P.C., Police Station Chowk Azam was got registered by complainant Muhammad Nawaz/respondent No.1 against Naseer Ahmad. Conversely, Manzoor Ahmad/petitioner No.1, real brother of the above said Naseer Ahmad, lodged case F.I.R. No. 531 of 2011 dated 14-12-2011 under sections 420, 468, 471, 419, 406 P.P.C., Police Station Chobara, District Layyah against Muhammad Nawaz and others. Muhammad Nawaz/respondent No.1 invoked the constitutional jurisdiction of this Court under Article 199 through Writ Petition No.16187 of 2011 for quashing of F.I.R. No.531 of 2011. After hearing the parties the said writ petition was allowed vide judgment dated 7-6-2012 and the F.I.R. was quashed having been registered with mala fide intention and ulterior motive just to abuse process of law. Petitioner/respondent No.2 as in the said writ petition was duly represented through his counsel namely Mehr Muhammad Saleem Akhtar, Advocate. Later on, petitioner filed C.M. No.4952 of 2012 under section 12(2) of C.P.C. in Writ Petition No.16187 of 2011 against the order dated 7-6-2012 on the ground that the same was procured by practicing fraud and misrepresentation. The said petition under section 12(2) of C.P.C. was dismissed by the learned Single Judge of this Court in Chambers vide order dated 16-7-2012. Being aggrieved of the said ,order, petitioner preferred Intra Court Appeal No.127 of 2012 which was also dismissed by this Court through the impugned order dated 24-7-2012.

3. Learned counsel for the petitioner has vehemently argued that the impugned order under review is passed without referring the judgment of the superior court and without appreciating that order dated 7-6-2012 passed in Writ Petition No. 16187 of 2011 is contradictory to the order dated 11-4-2012 passed in Criminal Miscellaneous No.38-CB/2012; that the impugned order is against law and facts, untenable in law and liable to set aside.

4. Arguments heard. Record perused.

5. At the outset, it is pertinent to mention that vide Criminal Miscellaneous No.38-CB of 2012 Manzoor Ahmad petitioner had sought cancellation of post arrest bail granted to respondents Nos.1 to 3 in case F.I.R. No.531 of 2011 which was disposed of vide order dated 11-4-2012. After having argued at some length, learned counsel for the petitioner did not press the said Criminal Miscellaneous provided a direction be issued to the learned trial court to conclude the trial expeditiously. In the light of his statement, the said Criminal Miscellaneous was disposed of vide order dated 11-4-2012 with a direction to the trial court to accelerate the trial and conclude the same as early as possible preferably within the period of 4 months.

6. In this regard, suffice to say that order dated 11-4-2012 was passed in presence of petitioner's counsel namely Mehr Muhammad Saleem Akhtar, Advocate. Similarly, order dated 7-6-2012 passed in Writ Petition No.16187 of 2011 was also passed in presence of the petitioner's same counsel namely Mehr Muhammad Saleem Akhtar, Advocate. Record reveals that the learned counsel for the petitioner did not bother to point out to the learned Single Judge that any order dated 11-4-2012 had already been passed, therefore, petitioner's subsequent plea raised in the application under section 12(2), of C.P.C. that order dated 7-6-2012 was obtained through fraud or misrepresentation, is devoid of any force. Petitioner's application under section 12(2) of C.P.C.; therefore, was rightly dismissed by the learned Single Judge in Chambers vide order dated 16-7-2012. Keeping in view the above state of affairs, this Court had dismissed petitioner's Intra Court Appeal in limine through the impugned order dated 24-7-2012.

7. It is pertinent to mention that order dated 7-6-2012 recorded in W.P. 16187 of 2011 quashing F.I.R. No.531 of 2011 was passed in exercise of constitutional jurisdiction. It is an established principle that Intra Court Appeal against the order of Single Judge of the High Court passed in constitutional jurisdiction under Article 199 of the Constitution quashing the F.I.R. was not maintainable. It is so held by the Hon'ble apex Court in the case of Nawaz-ul-Haq Chowhan v. The State (2003 SCMR 1597). Perhaps for this reason petitioner did not challenge the order dated 7-6-2012 passed by learned Single Judge through an Intra Court Appeal. However, he adopted a device to challenge the said order dated 16-7-2012 through an application under section 12(2), C.P.C. alleging that the same was obtained through fraud and misrepresentation, whereas he was duly represented by his counsel before learned Single Judge. His application under section 12(2), C.P.C. was accordingly dismissed by learned Single Judge vide order dated 16-7-2012. The said order was assailed by the petitioner through I.-C.A. No.127 of 2012 which was also dismissed vide impugned order dated 24-7-2012. It is called in question through this review petition. It is pertinent to mention that the impugned order was passed taking into consideration the material fact that counsel for the petitioner Mehr Muhammad Saleem Akhtar, Advocate was present before the court in proceedings of both the petitions, therefore, petitioner's plea that order 7-6-2012 passed by learned Single Judge in Chambers obtained through fraud and misrepresentation was devoid of any force.

8. It is established principle of law that like an appeal and revision, power to review is a statutory power and no court or authority can exercise power of review unless it is expressly conferred by law. It may be expedient to refer to the provisions of sections 369 and 561-A of the Code of Criminal Procedure, which read as under:-- Section 369: "Save as otherwise provided by this Code or by any other law for the time being in force, or in the case 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." Section 561-A: "Saving of inherent power of High Court:

Nothing in this Code shall be deemed to limit or affect the inherent power of the High Court to make such order as may be deemed 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" Bare reading of afore-quoted provisions makes it crystal clear that irrespective of the stipulation made therein, High Court in exercise of criminal jurisdiction is competent to exercise power of review conferred upon it by the Letters Patent besides its inherent power. The expression of inherent jurisdiction is also expounded in the case of: Sardar Ali v. State (PLD 1987 Lah. 633), an extract whereof reads below:-- "The concept of inherent jurisdiction is a concept of the law of England, where there is no written Constitution. There, most of the jurisdiction which the courts exercise, including the supervisory jurisdiction of the High Court to issue writs is inherent jurisdiction. It appears therefore that section 561-A was enacted under the influence of the English (common) law."

9. Besides above, this Court may exercise the powers of review with reference to Order XLVII and section 114 of the Civil Procedure Code. The general rule that power to review does not exist unless it is expressly conferred by law, however has got two well-established exceptions namely: (i) a court has inherent jurisdiction to set aside judgment or order which it had delivered without jurisdiction; (ii) a court or authority has the power to review an order or judgment obtained by fraud. Reliance be made upon: Chief Election Commissioner v. Muhammad Fazil (PLD 1975 SC 331). It is, therefore, obvious that apart from its power to correct error apparent on the face of record in exercise of its inherent jurisdiction, the High Court has power under Civil Procedure Code to review its order in exercise of its writ jurisdiction. Reliance be made upon: Hussain Bakhsh v. Settlement Commissioner, Rawalpindi and others (PLD 1970 SC 1). In the light of afore-quoted principles of law, there is no cavil to the proposition that this Court has got ample power to review its order in the light of Letters Patent, inherent jurisdiction and the power conferred upon it in terms of sections 369 and 561-A of Cr.P.C, section 114 and Order XLVII of C.P.C.

10. In this case, it is pertinent to mention that the impugned order does not suffer from any ambiguity or legal error. In the absence of any ambiguity or legal error petitioner has no case to seek review of the impugned order dated 24-7-2012. This petition, therefore, having no merit is dismissed in limine. MWA/M-301/L Petition dismissed.