1996 PLP 886 (MLD)

(iii) the recovery of crime empties is not credible; (iv) the discrepancies in the ocular account and the site plan make the prosecution story further doubtful; (v) that the non‑appearance of injured Asghar Ali, Mst. Anwar Bibi, Muhammad Arif, Muhammad Qasim and Ghulam would throw an adverse presumption against the complainant party; and (vi) the defence plea taken by Sabir Hussain accused in his statement under section 342, Cr.P.C. is plausible and worthy of credit.

5. Before we could ask the learned counsel for the petitioner/complainant to address arguments on the merits of the main appeal, we were faced with a rather unusual situation. This P.S.L.A. was filed on 12‑4‑1993 and on 12‑5‑1993 this Court was pleased to summon the record. Meanwhile, the State also filed an appeal against the acquittal of respondents on 9‑8‑1993 in which record was called on 19‑10‑1993. On 21‑11‑1993 this Court, after hearing the learned Assistant Advocate‑General, dismissed the State appeal in limine. The instant P.S.L.A. should have been heard and disposed of together as they had assailed the same judgment. However, owing to an office mistake this appeal was not listed with the State appeal. Hence the anamolous situations. Now if the P.S.L.A. is heard it would apparently amount to a review of this Court's order dated 21‑11‑1993 whereby the State appeal was dismissed and on a superficial view that course may be violative of section 369, Cr.P.C. in terms of which having once signed a judgment, the same cannot be altered or reviewed "except to correct a clerical error". At the same time the question of the dismissal of the State appeal against the impugned judgment without ' hearing the petitioner/complainant and the effect of the said dismissal on the instant appeal weighed very heavy on our minds.

6. The learned counsel for the complainant as well as the learned counsel for the respondents (Mr. Muhammad Afzal Wattoo, Advocate who has entered appearance on behalf of the respondents on pre‑admissions notice) and the learned Assistant Advocate‑General were asked to address arguments on the aforementioned point. Mr. A.R, Tayyab, Advocate, was also called upon to address the Court as an amicus curiae. The learned counsel for the petitioner has submitted that the complainant has been condemned unheard and that this Court has ample powers under section 561‑A, Cr.P.C. to recall the order passed in State appeal and to rehear the appeals together. Conversely, the learned Assistant Advocate‑General as also the learned counsel for the respondents made submissions which are as follows:‑‑ (i) that the private complainant has no right of being heard in the State appeal; (ii) merits that this Court has become functus officio and cannot reopen and review its own judgment in view of section 369, Cr.P.C.: and (iii) that even on merit it was a fit case of acquittal and the learned trial Court has given cogent reasons in its finding which, is neither perverse nor illegal.

7. Mr. A.R. Tayyab, Advocate, appeared as amicus curiae has more or less supported the stand taken by the law officer and the learned counsel for the respondents.

8. Having heard the learned counsel for the parties as also the learned amicus curiae we are of the view that it is a fit case in which this Court may exercise its powers under section 561‑A, Cr.P.C. and recall its earlier order, dated 21‑11‑1993, whereby, the State appeal was dismissed. The admitted position in this case is that the judgment under appeal was announced in a private complaint case. During trial the case was not conducted by the Public Prosecutor but by the counsel for the complainant. The complainant filed the instant appeal on 12‑4‑1993 which was prior in time than the State appeal. We think that judicial propriety required that both the appeals should have been heard together so that the complainant had an opportunity of being heard and represented. Rather the instant appeal should have been first. The dismissal of the State appeal against a judgment passed in private complaint case without hearing the petitioner/complainant is unjust and violative of the principles of natural justice.

9. The inherent powers of this Court are to be exercised where there is no express remedy "to secure the ends of justice". The bar contained in section 369, Cr.P.C. would not be applicable in the facts and the circumstances of this case. Section 369, Cr.P.C. reads as under:‑‑ "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, not Court, when it has signed its judgment, shall alter or review the same, except to correct a clerical error."

10. The expression "save as otherwise provided by this Code" is significant and would lead to the irresistible conclusion that the inherent powers of this Court conferred under section 561‑A, Cr.P.C. are intact and can be exercised to secure the ends of justice and to prevent the abuse of the process of the Court It is well‑established principle of justice that an act of the Court shall not prejudice any party. It is not denied that on account of a serious lapse on the part .of the office of this Court, the instant appeal was not fixed along with the State appeal. In case the order of dismissal passed in State appeal is not recalled the petitioner/complainant would be condemned unheard. The right to file an appeal is a statutory right guaranteed under the Criminal Procedure Code the right to file an appeal includes the right to be heard in person or through representation. Nothing could be a greater abuse of the process of the Court than a denial pf such a right. We are fortified in our view by the following judgments:‑‑ (i) AIR 1959 All. 152; (ii) AIR 1951 All. 441; (iii) AIR 1927 Cal. 702; (iv) AIR 1948 All. 106; (v) AIR 1949 All. 176; (vi) PLD 1974 Kar. 22; and (vii) AIR 1959 All. 315.,

11. Corning to the merits of the appeal we are of the view that the learned trial Court has disbelieved five injured witnesses on reasons which are not tenable in law and has occasioned a serious miscarriage of justice. While disbelieving the aforementioned witnesses, the Court has drawn an adverse presumption for the non‑appearance of the remaining injured witnesses which presumption is conjectural and amounts to non‑reading of the material evidence on record. In a case of broad daylight occurrence where the F.I.R. was lodged promptly and the accused were assigned specific roles. Recoveries effected in time and the case being supported by the injured eye‑witnesses who stood test of cross‑examination, the ‑ acquittal of the respondents is perverse and not sustainable in law.

12. In view of the above, the order dated 21‑11‑1993 passed in Criminal Appeal No.68 of 1993 (The State v. Sabir Hussain etc.) is hereby recalled and his petition is admitted to regular hearing Bailable warrants of the respondents G shall be issued in the sum of Rs.20,000 each with two sureties each in the like amount returnable to the District Magistrate, Bahawalpur. Fi.B.T./A‑936/L Order accordingly.