1997 P Cr (PLP)

Mr. Gharibnawaz, learned counsel for respondents Nos. l and 2 argued that there was mistake on face of the record and as such the judgment, dated 21-11-1993 can be reviewed. The learned counsel referred to contents of page 8 of the said judgment and argued that the order, dated 10-5-1993 was wrongly mentioned to have not been set aside. That the matter was referred to the Guardian Judge, who was directed to decide the matter and the matter has actually been decided on 30-1-1994, but again an appeal has been filed. In support learned counsel for respondents Nos. l and 2 cited the case of (i) Kaura v. State and others 1983 SCMR 436, (ii) Muhammad Samiullah Khan and another v. State PLD 1963 SC 237, (iii) Shahkot Bus Service, Shahkot v. The State and another 1969 SCMR 315, (iv) Ghulam Muhammad v. Muzammal Khan and others PLD 1967 SC 317, (v) Juan Sullivan v. State 1971 SCMR 618, (vi) Gulzar Hassan Shah v. Ghulam Murtaza and others PLD 1970 SC 335, (vii) Imdad Hussain v. Noor Hassan and others PLD 1974 Kar. 485, (viii) Din Muhammad v. Muhammad Sharif and another 1979 PCr.LJ 59, (ix) Muhammad Sharif and others v. Muhammad Munshi and another PLD 1987 Azad J&K 127, (x) Masood Ali Khan v. Muhammad Aslam and another PLD 1979 Quetta 84, (xi) Mian Muhammad Anwar and others v. Mian Muhammad Waqar Monoo 1990 PCr.LJ 353, (xii) Mst. Maria Khan v. Muhammad Zubair Khan 1993 PCr.LJ 1097 and (xiii) Hafiz Abdul Khaliq Rehmani v. Abdul Ghani and another PLD 1970 Kar.

446. Mr. Zaheer Qureshi, Advocate for Advocate-General, Sindh for State argued that the judgment, dated 21-11-1993 can be reviewed, but contended that an order about custody of a minor passed under section 491, Cr. P. C., is an interlocutory order. Learned counsel for State went on to argue that Baby Ayesha Rehman was with her father and that the mother had come for her custody after 10 years. Mr. Ghulam Rabbani, (earned counsel for the applicant referred to observations made at page 7 of the judgment, dated 21-11-1993, where right of a mother to have custody of a minor child has been recognized. It was argued that the custody of a minor child can be, only with the mother and that the guardianship matter was pending between the parties at appeal stage and till appeal is decided, the custody of the disputed child should remain with the applicant, who was in a better position to look after the minor child than the respondent No.

1. In support of learned counsel for the applicant cited the cases of:-- (i) Muhammad Rafique v. Muhammad Ghafoor PLD 1972 SC 6, (ii) Muhammad Javed Umrao v. Miss Uzma Vahid 1988 SCMR 1891, (iii) Shagufta Andleep v. Abdul Razzaq and another 1992 PCr.LJ 2168 and (iv) Mst. Dilbar Jan v. Khan Muhammad 1992 PCr.LJ 683 Learned counsel for the respondents Nos. l and 2 cited a number of cases mentioned earlier and they require' to be discussed. In the case of Juan Sullivan v. The State 1971 SCMR 618, it was held that section 369 of Cr.P.C., precludes the High Court from reviewing its own order in a criminal matter. In the case of Kaura 1983 SCMR 436, the Supreme Court of Pakistan observed that an-order passed by the Lahore High Court directing registration of a fresh F.I.R. against another set of accused in respect of murder of a person regarding which a case had already been registered, seemed to be the result of some confusion or accidental slip. In the circumstances the person against whom the fresh F.I.R. was ordered to be registered, was called upon to approach the High Court for rectification of the situation. In the cited case the impugned order was determined by the Supreme Court of Pakistan to be result of confusion or accidental slip. Judgment, dated 21-11-1993 given in the instant case, does not appear to be result of confusion or accidental slip. In the case of Muhammad Samiullah Khan PLD 1963 SC 237 it was held that jurisdiction under section 561-A of Cr.P.C. is of an extraordinary nature intended to be used only in extraordinary cases where there is no other remedy available. In the same case it was held that in the exercise of the inherent jurisdiction under section 561-A, Cr.P.C., the High Court cannot exercise the powers of Court of appeal or enhance sentence or reconsider a sentence. This authority does not show if under section 561-A, Cr.P.C., the High Court can review its judgment. In the case of Shahkot Bus Service 1969 SCMR 325, it was held that where express provision is made in the Cr.P.C., itself for a particular purpose, recourse cannot be had to the inherent jurisdiction to achieve the same purpose, but at the same time it has to be pointed out that the inherent power of the High Court is of a very wide and indefinable nature and in exercise of this power the High Court can make all such orders, which may be necessary to do real and substantial justice and prevent abuse of the process of the Court, but it cannot override and express provision of the Code. This shows that the limitation put by section 369 of Cr.P.C., cannot be relaxed by exercise of the powers under section 561-A of Cr.P.C. Case of Ghulam Muhammad PLD 1967 SC 317 deals with quashment of the proceedings. It was held in said case that inherent jurisdiction should not normally be invoked where another remedy is available. In the case of Gulzar Hassan Shah PLD 1970 SC 335, it was held that section 369 of Cr.P.C. does not control section 498 of Cr.P.C., and in suitable cases section 561-A of Cr.P.C., can be invoked because an order under section 49, Cr.P.C., is not a judgment. This was the matter about cancellation of bail. Here again it was observed that in rare and exceptional cases the High Court has inherent power to revoke, review or alter its own earlier decisions in cases not governed by sections 369, 424 and 430 of Cr.P.C. In the present case, under the judgment, dated 21-11-1993 entire matter was disposed of and it was not an interlocutory order except that it was subject to any order which can be passed under the Guardians and Wards Act, by a Family Court or its Appellate Authority. In the case of Imdad Hussain Shah PLD 1974 Kar. 485, the view taken was that the remedies under section 491, Cr.P.C. or through Constitutional means pertain to jurisdictions that are essentially discretionary in nature, and may not in a fit case be exercised. That an alternate relief available in any other quarter, if considered adequate, would normally be treated as a sufficient bar to an attempt under section 491, Cr.P.C. or through a Constitutional petition. In the case of Din Muhammad. 1979 PCr.LJ 59, a learned Single Judge of Lahore High Court took view that section 561-A of Cr.P.C. recognizes the inherent powers of the High Court both as a Court of record and also in view of its general jurisdiction over all the Criminal Courts subordinate to it, to compel the compliance of the Criminal Procedure Code, or to give effect to any order thereunder or to prevent abuse of the process of any Court or otherwise to secure the ends of justice. It was observed that the matters other than quashment but otherwise falling within the jurisdiction of section 561-A of Cr.P.C., can be brought to the notice of the High Court straightaway for necessary redress under section 561-A of Cr.P.C. In the case of Muhammad Sharif and others PLD 1987 Azad J&K 127 the view taken was that section 561-A of Cr.P.C. is introduced to attain the object of ends of justice when in view of the High Court, no other adequate remedy is available to prevent abuse of the process of any Court. It was also observed that as a rule, the inherent jurisdiction of the Court to correct an abuse of the process of Court or a 'patent justice cannot be invoked where there is an express provision in the Criminal Procedure Code under which the case can be adequately dealt with. In the case of Masood Ali Khan PLD 1979 Quetta 84 it was held that special jurisdiction recognized by section 561-A of Cr.P.C. can be invoked only in exceptional cases, for which there is no express provision in the Code of Criminal Procedure. When there is specific provision in the Code, then the aid of section 561-A of Cr.P.C. may be avoided except that in some circumstances departure can be made from the general principle, in the interest of justice, for example when the order is passed without jurisdiction or patent injustice has been done and that order cannot be revised except under section 561-A of Cr.P.C. or when the party aggrieved by an order passed in revision had no notice of that petition, or the matter has not been adjudicated on merits, as further held. This authority does not authorise review of an order. In the case of Mian Muhammad Anwar and others 1990 PCr.LJ 353, the view taken .was that powers under section 561 of Cr.P.C. are to be sparingly exercised, but if the Court is satisfied that the proceedings are abuse of the process of Court, the powers should be exercised with a view to protect innocent persons from undue harassment. In the case of Mst. Maria Khan 1993 PCr.LJ 1097, the view taken was that any order disturbing the custody of the minors will effect the proceedings pending before the Guardian Judge and will further complicate the matter, and such order should not be passed by exercising the powers under section 491 of Cr.P.C. This authority leans towards the applicant rather than towards the respondent. The case of Hafiz Abdul Khaliq Rehmani PLD 1970 Kar. 446 deals with quashment of criminal case. The authorities, cited on behalf of applicant require to be referred. In the case of Muhammad Rafique v. Muhammad Ghafoor PLD 1972 SC 6, it was held that under section 491, Cr.P.C., the High Court has two-fold jurisdiction viz. (i) to deal with a person within its appellate criminal jurisdiction according to law; and (ii) to set him at liberty if he is illegally or improperly detained. It was further held that if the alleged detenu brought before the Court is a minor the Court may make over his custody to the guardian, but in other case the only jurisdiction which the Court can exercise is to set him at liberty. This authority was followed in the case of Shagufta Andleep v. Abdul Razzaq and another 1992 PCr.LJ 2168, where similar observations were repeated. In the case of Dilbar Jan v. Khan Muhammad 1992 PCr.LJ 683, the father received custody of a minor under a decision of Jirga, but custody was ordered to be handed over to the mother because she was legal guardian of the minor and was entitled to custody of the minor. In the case of Muhammad Javed Umrao v. Miss Uzma Vahid 1988 SCMR 1891, a comparison was made between the provisions contained in section 491, Cr.P.C. and the provisions contained in Guardians and Wards Act and it was held that there was no repugnancy between the provisions contained in section 491, Cr.P.C. and the provisions under the Guardians and Wards Act. It was also held that section 491, Cr.P.C. not available for declaring a guardian or for determining for all time the question of custody of a minor. Consequently the judgment of the High Court directing that the minors should remain with their mother till they attain puberty, was set aside on the ground that it was over-stepping confines of section 491, Cr.P.C. In the present case, the matter has been dealt with at length by my learned brother Syed Haider Ali Prizada, J. (as he then was). He has simply passed an order directing father of the minor to hand over custody of the minor to her mother. Admittedly such an order passed in the proceedings under section 491, Cr.P.C. is always subject to the decision given under the Guardians and Wards Act by the competent Court. In the circumstances even if I had powers of review, the judgment in question did not require being reviewed on merits. In view of the case of Juan Sullivan 1971 SCMR 618, I am clear in my mind that this Court cannot review its order disposing of a criminal matter finally. For the foregoing reasons I dismiss review application (Miscellaneous Application No. 1859 of 1993). N.H. Q./S-1154/K Petition dismissed.