2017 P Cr (PLP)

SHAHNAWAZ TARIQ, J.

Through captioned review application under section 561-A, Cr.P.C., applicant has prayed to recall order dated 20.10.2015, passed by this Court and restored the same on its original position.

2. Necessary facts spelt out from instant criminal miscellaneous application are that applicant Barkat Ali filed application under section 491, Cr.P.C. against 11 respondents with prayer to issue Rule Nisi and direct respondent No.9 SHO Police Station, Moro, District Naushehro Feroze and respondent No.10 SHO Police Station B-Section, Nawabshah, to recover alleged detenues Ms. Popri and Ms. Ameena and produce them before this Court to be dealt with in accordance with law. It is further averred that applicant was married with respondent No.1 Mst. Daduli and out of their wedlock 4 daughters namely Ms. Sajida, Ms. Nazia alias Fiza, Ms. Poppri and Ms. Ameena were born. Subsequently, certain serious disputes arose between the parties and their marriage was dissolved and two daughters namely Ms. Sajida and Ms. Nazia alias Fiza have been residing with applicant, while two daughters namely Ms. Poppri and Ms. Ameena remained with the respondent No.1. Applicant approached family Judge, Moro and filed Guardianship application for custody of his daughters namely Ms. Popri and Ms. Ameena. Learned Family Judge, Moro vide order dated 16.04.2014, partly allowed the said application, whereby custody of both daughters was allowed to remain with respondent No.1, and applicant was permitted one day custody for every Sunday, but respondent No.1 did not act upon said directions. It is further averred that subsequently, Ms. Popri sworn her free will affidavit and contracted her marriage with respondent No.3 Sikandar, while Ms. Ameena also sworn her affidavit of free will and contracted her marriage with respondent No.4 Mukhtiar Ali, hence instant criminal misc. application.

3. Learned counsel for applicant contended that on 20.10.2015, when this matter was fixed before this Court and afterwards the board was discharged and subsequently police produced both detenues before this Court and their statements were recorded in absence of applicant as well as his Counsel, therefore, order dated 20.10.2015 may be recalled. Learned Counsel for applicant relied upon the case of Muhammad Rafique v. Muhammad Ghafoor (PLD 1972 Supreme Court 6), wherein the honourable Supreme Court has observed that the High Court has two-fold jurisdiction under this section (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. The question which falls for determination, however, is that if the court finds that the person brought before it was not being illegally or improperly confined or detained what order can be passed regarding the custody of that person.

4. While controverting the above submissions, learned APG vehemently contended that in compliance of directives of this Court both detenues along with their husbands, were produced before the Court at noon time due to the long distance and statements of both detenues were recorded in presence of APG; that applicant had also filed Constitution Petition No.D-4103 of 2015, before DB of this Court and after recording statements of both detenues, said petition was also dismissed vide order dated 10.11.2015. Learned APG relied on 1996 PCr.LJ 1022.

5. Heard learned Counsel for parties and perused the material available on record minutely.

6. Perusal of record emanates that applicant has filed instant criminal misc. application under section 491, Cr.P.C. with prayer to issue Rule Nisi through SHO concerned to recover and produce alleged detenues before the Court. Pursuant to notice issued by this Court, concerned police produced alleged detenues Ms. Popri and Ms. Amina along with their husbands before this Court through learned APG on 20.10.2015, immediately after discharge of the board, due to the long travelling distance. However, statements of alleged detenues were recorded by this Court, whereby both detenues had categorically stated that they being sui juris had sworn their free will affidavits and contracted their marriages with out any coercion and they are residing with their husbands happily and further prayed to permit them to reside with their husbands. After recording statements of both detenues, this Court being satisfied, permitted both alleged detenues to reside with their husbands and instant criminal misc. application was disposed of. 6(sic.) It is well settled proposition of law that review is not admissible in judgment or order passed in criminal proceedings except the rectification of error. Review has a very limited scope for recalling the earlier judgment or order passed by the Court in its criminal jurisdiction, and neither parties can be permitted for re-hearing of the whole case nor merits of the case cannot be discussed again. In the case of Muhammad Zafarullah Khan v. Muhammad Khan and another (PLD 1975 SC 300), the honourable Supreme Court has observed that review cannot be made a pretext for hearing the whole case nor merits of the case cannot be discussed and only error on the face of record can be pointed out. Review cannot be sought as a matter of right and it can be refused even though ground for such action exists. Albeit decision based assumption of fact is liable to be reviewed, nevertheless, matter is a discretion of the Court and not one of right. In case of Rehmat alias Lunda v. The State (1971 SCMR 513), the honourable Supreme Court has observed that review is not admissible in criminal proceedings and as such petitioner could not claim exclusion of time taken in disposal of application not maintainable in law. In case of Mohammad Khan v. Mohammad Aslam and 3 others (1971 SCMR 789), the honourable Supreme Court is not open to review under Criminal Procedure Code. In the case of Abdul Haleem v. Raja Qurban Hussain and others (PLD 1965 Lahore 570), it was held that High Court is not competent to review its order passed in criminal jurisdiction.

7. Adverting to the case in hands, applicant has failed to point any illegality or infirmity committed, while passing impugned order, hence same does not call for any interference. Moreover, the very purpose of filing of main criminal miscellaneous application had already been achieved on the production of both the alleged detenues and recording their statements by this Court, therefore, mere non-availability of applicant or his counsel at the time of hearing of application of detention filed under section 491, Cr.P.C. could not contemplate any valid ground for consideration of review application. Consequently, instant review application stands dismissed being devoid of any legal substance. In view of above, application stand disposed of in the above terms. SL/B-5/Sindh Review declined.