PLJ 2000 SC 300

[Appellate Jurisdiction]

Present: muhammad bashir jehangiri and mamoon kazi, JJ. GUL MUHAMMAD and others-Petitioners

versus

STATE--Respondent Cr. Petition No. 156 of 1998, dismissed on 23.12.1998.

(On appeal from the judgment of the High Court of Sindh dated 29.9.1998 passed in M.A. No. 1354/1997)

(e) Criminal Procedure Code, 1898 (V of 1898)—

—S. 561-A~Inherent powers of High Court-High Court in an appropriate cases has power even to correct its own order or to recall an erroneous order in exercise of inherent jurisdiction U/S. 561-A--This power is inherent in Court and one does not have to search for a specific provision in this regard. [P. 302] A

(ii) Criminal Procedure Code, 1898 (V of 1898)--

—Ss. 435/439/561-A--Single Judge of High Court exercising revisional jurisdiction and allowing recall of PWs for re-examination--Subsequently, another Judge of High Court recalling earlier order of Single Judge on ground that there was no justification to call witnesses for re- examination-Order of subsequent Judge challenged in Supreme Court with contention that he was not empowered to invoke S. 561-A and review earlier order passed by Single Judge-Held: There was no scope for interference as discretion exercised by subsequent Single Judge was not improper exercise of discretion vested in him. [P. 302] B

Sardar Asmatullah Khan, ASC for Petitioners. Mr. Muhammad Munir Peracha, ASC for Complainant. Date of hearing: 23.12.1998,

order

Mamoon Kazi, J.-Brief facts of the case are that the petitioners are being tried on charges under Sections 302, 307, 148 and 149 PPC and Section 13 of the Arms Ordinance by the learned Sessions Judge, Nawabshah. It was alleged that the petitioners were involved in the murder of one Gulzar Hussain and causing injuries to Imdad Hussain, both sons of Zawar Hussain, They were further alleged to have caused injuries to one Ghulam Shabbir son of Sher Ahmad Bajwa.

During the pendency of the trial, the case was transferred from the Court of the Second Additional Sessions Judge, Nawabshah to that of the Sessions Judge, Nawabshah at the instance of the petitioner.

Before the Additional Sessions Judge, three prosecution witnesses were examined, but it appears that the petitioners were not satisfied with the manner in which the trial proceeded before the learned Additional Sessions Judge. Consequently, they filed an application under Section 540 Cr.P.C. before the learned Sessions Judge seeking recall of the said prosecution witnesses for further cross-examination.

The said application was rejected vide order dated 20.5.1997 passed by the learned Sessions Judge. Consequently, a revision was filed before the High Court of Sindh which was allowed by Mr. Zakir Hussain Mirza, who was then a learned Judge in the High Court The order passed by Mr. Zakir Hussain Mirza indicates that the said revision was not opposed by the cov.:-«wl then appearing on behalf of the State and therefore, the revision was allowed vide order dated 28.5.1997 and the learned trial Court was directed t j recall the said witnesses for re-examination.

It appears that the complainant in the case, Zawar Hussain, felt aggrieved by the said order, therefore, he filed an application under Section 561-A Cr.P.C. before the High Court, invoking its inherent jurisdiction. As Mr. Zakir Hussain Mirza in the meanwhile had been dropped and he ceased to be a learned Judge of the High Court, the said application was placed before Mr. Justice Muhammad Roshan Essani for disposal. The learned Judge found that Mr. Zakir Hussain Mirza had been given a distorted version of facts by the counsel appearing on behalf of the petitioners and the counsel then appearing for the State had also erroneously conceeded the case in favour of the petitioners. Consequently, the order passed by Mr. Zakir Hussain Mirza was recalled, vide judgment dated 29.9.1998.

Saidar Asmatullah Khan, learned counsel for the petitioners has strenuously argued that the learned Judge in the High Court was not empowered to invoke Section 561-A, Cr.P.C. and review the order passed earlier by another learned Judge in the said Court under Sections 435/439 Cr.P.C. Reliance has been placed by him on Nazir Hussain v. The State (NLR 1982 Cr. 409), Muhammad Samiullah Khan v. The State (PLD 1963 SC 237) and Pervaiz Ahmad v. Munir Ahmad (1998 SCMR 326). In these cases it was held that the nature of the provisions contained in Sections 435 or 439 was different from those contained in Section 561-A of the Criminal Procedure Code and inherent jurisdiction of the High Court to correct an abuse of process of the Court or a patent injustice cannot be invoked where there is an express provision in the Code under which the case can be adequately dealt with.

In our view there is no force in the said contentions and reliance by the learned counsel on the said judgments is clearly misplaced. It may be pointed out that in an appropriate case, the Court has power even to correct its own orders or to recall an erroneous order. This power is inherent in the Court and one does not have to search for a specific provision in this regard. The learned Judge in the High Court, while recalling the order passed by his predecessor, appears to have concurred with the view earlier taken by the trial Court that sufficient opportunity had already been provided to the petitioners to cross-examine the prosecution witnesses and therefore, there was no justification to call the witness for re-examination. Barring the technical flaw pointed out by the learned counsel in the impugned judgment,

which we have just dealt with, we are not convinced that discretion has been improperly exercised by the learned Single Judge in this case. Therefore, we are not inclined to interfere with the discretion exercised by him for which power vested in him, as was pointed out earlier.

In the result, the petition is dismissed and leave is refused.
(T.A.F.) Leave refused.