Mr. Justice Shahid Anwar Bajwa
Mr. Justice Muhammad Ali Mazhar
Date of hearing : 04.08.2011
Applicant/Accused : Ali Zahir Jafari
Respondent : The State
Mr.Ali Bin Adam Jaferi, advocate
Ms.Sheeraz Iqbal, Standing Counsel
O R D E R
Muhammad Ali Mazhar-J. This application was brought by the applicant under Section 561-A Cr.P.C. with the prayer that the proceedings pending before the trial court be quashed. Earlier to this, an application under Section 249-A Cr.P.C. was moved but the same was dismissed by the trial court vide order dated 20.8.2001.
1. The brief facts of the case as alleged are that the co-accused Sadruddin Ganji and Hasham Ganji being Directors of M/s.West Pakistan Tank Terminal (Pvt.) Ltd. and M/s.Pakistan Tankage Co. (Pvt) Ltd. had imported palm oil and stored the same in the Customs Bounded Ware-House. The said oil was unlawfully removed by the said accused without payment of custom duty in collusion with the applicant, who was the Principal Appraiser at the relevant time along with other Custom Officials. The oil was illegally removed without payment of leviable custom duty and taxes. It was further revealed that accused with the manipulation of accused Custom Officials deleted the computer record from the Computer Section of the Custom House, Karachi.
2. In the quashment petition, various grounds were raised but the main ground was that no sanction was obtained from the appropriate authority before setting the law into motion against the applicant. This matter was decided by the learned single judge of this Court on 11.4.2003 and the proceedings were quashed in the following terms:
"However, having said as much, it would also be seen that admittedly no permission/sanction has been taken from the concerned authority for the prosecution of the Applicant who is admittedly a civil servant. In this connection it may be observed that under the Sindh Enquires and Anti Corruption Act, 1991, the Anti Corruption Establishment has been constituted for investigation/enquiry into offences relating to misconduct of civil servants. Per the Rules made under the said Act neither a preliminary enquiry nor any registration of a case under the Prevention of Corruption Act against a public servant can be undertaken without the approval of the competent authority (Rule 9 and 11). Consequently, in the absence of such an approval as far as the Applicant is concerned, this is a defect which goes to the very root of the matter. Hence the proceedings against the Applicant before the Learned Trial Court are quashed. The Prosecution however would be free to initiate fresh proceedings once the permission has been obtained from the competent authority under the law."
3. After quashment of proceedings against the applicant in the above case, the then Collector (Preventive), Hassan Imam had also moved Criminal Misc. Application No.74 of 2003 in this court for the quashment of the same FIR and proceedings against him. The petition was heard by the same learned single judge of this Court and vide order dated 29.10.2007, the application was dismissed. It is worthwhile to mention that in the same judgment, the earlier order passed by the learned Judge in Criminal Misc. No.318 of 2002 was also discussed with the following observations:-
"For all the foregoing facts and reasons, in my opinion, this Cr.Misc. Application has no merits and hence is dismissed. The R&Ps are returned with the direction to the learned Trial Court to immediately write to the Federal Government for the necessary permission to proceed with the case against the official accused in terms of Section 6(5) of the Criminal Laws Amendment Act, 1958 and where this is not forthcoming within a period of sixty days to proceed with the trial. Insofar as Cr.Misc. 318/2002 entitled Ali Zahir Jaffery vs. the State, filed by the Co-Accused, the same was allowed by myself erroneously as the provisions of Section 6(5) ibid. were not brought to my attention. Hence, the office shall put up this case before myself for further consideration after notice to the Parties."
4. In the above case not only the quashment petition was dismissed but the learned Single Judge further observed that the quashment in Criminal Misc. No.318/2002 was allowed erroneously as the provisions of sub-section (5) of section 6 of the Criminal Laws Amendment Act, 1958 were not brought into the notice, therefore, the office was directed to put up the case before his lordship for further consideration after notice to the parties.
5. Record shows that on 23.1.2009, office had put up a note to the hon’ble Chief Justice and sought direction that owing to elevation of the learned Single Judge to the hon’ble Supreme Court he is no more available to decide the matter, therefore, the then hon’ble Chief Justice at that relevant time passed an order dated 23.9.2009 to fix the matter before a division bench. However in pursuance of the judgment delivered by the hon’ble Supreme Court in the judges case, the learned single judge who had passed the order came back to this court as Chief Justice and the office had put up another note before him on 19.5.2010 on which the hon’ble Chief Justice was pleased to pass an order that the above matter may be fixed for consideration in single bench on any Monday. It appears from the court file that due to various reasons the matter could not be heard and decided, and the learned author of the judgment once again elevated to the Supreme Court, therefore, vide order dated 11.4.2011, the present hon’ble Chief Justice of this Court passed an order whereby directions were issued to the office that let this matter be fixed before a division bench for resolution of controversy.
6. We have carefully examined the previous orders and also examined the judgment authored by the learned Single Judge of this Court in Criminal Misc. Application No.318 of 2003. The main reason of conflicting judgment is only not inviting the attention of learned Single Judge to the proviso attached to sub-section (5) of section 6 of Pakistan Criminal Laws Amendment Act, 1958 which provides that in the cases where the complaint or report referred to in subsection (1) of section 4 is not accompanied by such sanction, the Special Judge shall, immediately on receipt of the complaint or report, address, by letter, the appropriate Government in the matter and if the required sanction is neither received nor refused within sixty days of the receipt of the letter by the appropriate Government, such sanction shall be deemed to have been duly accorded. Keeping in view the same proviso, the Criminal Misc. No.74 of 2003 was dismissed with the direction to the trial court to immediately write to the Federal Government for necessary permission to proceed with the case against official accused, but this particular proviso had escaped attention of the learned single Judge while allowing the Criminal Misc. No.318 of 2002, therefore, while dismissing the Criminal Misc. Application No.74 of 2003, the learned Single Judge held that the order in Criminal Misc. No.318 of 2002 was erroneously passed. In order to resolve this controversy, the matter was fixed today in view of the order passed by hon’ble Chief Justice of this Court on 11.4.2011 whether the matter may be heard by a single Judge or the division bench of this court.
7. We are also fully cognizant of the fact that any departure or deviation from the earlier order which has attained finality will amount to review and or recalling the earlier order. Under Criminal Procedure Code, there is no provision for review. In fact Section 369 of Cr.P.C. laid much emphasis that no Court when it has singed its judgment, shall alter or review the same, except to correct a clerical error. So far as the office reference placed in pursuance of Rule 5 of Chapter III-B, Volume V of High Court Rules and Orders is concerned, we have no hesitation in our mind to observe that this Rule is not applicable to resolve the present controversy as this rule only pertains to hearing of review application, which provides that in cases not provided for by Order 47 Rule 5, an application for review of decree or order would be heard (a) If the decree or order, review of which is applied for, was passed by a Judge sitting alone, by a Bench of two or more Judges, (b) If the said decree or order was passed by a Bench of two or more Judges, by a Bench consisting of at least as many Judges as the Bench review of whose decree or order is applied for.
8. The above rule only applies when a review application is filed in cases not provided for by Order 47 Rule 5 but in the present case no review application has been moved by the parties, but the learned Single Judge suo motu observed that the earlier order was passed erroneously. This is also not a case of review of a decree or order provision of which has been provided under Order 47 Rule 5 C.P.C. (wrongly typed order 48 in High Court Manual 1988 by Mr. M. Farani).
9. However, we are fully conscientious and mindful that in appropriate cases, this 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 specific provision in this regard. Reference can be made to 1999 SCMR 2765, (Gul Muhammad & others vs. State). In this case, an application under Section 561-A CR.P.C was moved in the high court for recalling the order, meanwhile the learned judge who passed the order was ceased to be a judge of the high court, therefore, another judge had recalled the order which was challenged in the honorable supreme court but the leave was refused.
10. The Sanctity of finality is attached to judgment passed by criminal Court by virtue of Section 369 Cr.P.C. but there are conditions whereby the courts have reviewed or recalled their judgments and orders without jurisdiction or passed without adjudication on merits and if the judgment or order was passed in violation of any law, the same can be recalled or reviewed under the inherent powers of this court. In the judgment reported in 2000 MLD 1932 (Akllah Rakha vs State), the learned division bench of Lahore High Court has held that high court in exercise of its inherent jurisdiction under 561-A CR.P.C has power even to correct its own order or to recall an erroneous order in an appropriate case. In another judgment reported in PLD 2004 Karachi 652, (Mohammad Ayaz vs. State), the learned division bench of this court held as under:-
“Although the normal rule of the criminal administration of justice is that an order or judgment once delivered attains finality and is not to be altered, reviewed, changed or recalled. However, under exceptional circumstances in rare cases, where there is no specific provision of law and this Court is satisfied that the earlier order / judgment is either without jurisdiction or against the mandatory provisions of law and has been delivered inadvertently and out of oblivion of the provision of law and if such order/judgment is left intact it would result in perpetration of manifest injustice, this Court may exercise its inherent jurisdiction under Section 561-A, Cr.P.C. to correct the manifest error floating on the record without involving long drawn process of arguments or re-interpretation or re-examination of facts, without any attempt to arrive at any other conclusion which is also possible in the facts and circumstances of the case. "
11. Under the Stare Decisis rule, a principle of law which has been settled by a series of decisions generally is binding on the Courts and should be followed in similar cases but this Rule is not so imperative or inflexible preclude a departure therefrom in any case. Its application must be determined in each case by the discretion of the Court and previous decisions should not be followed to the extent that error may be perpetuated and grievous wrong may result. Reference may be made to AIR 1958 SC 918 (Maktul vs Mst.Manbhari).
12. For the foregoing reasons, we are of the considered view that in the present circumstances, the proprietary demands that the order passed by the learned single judge may be reviewed or revisited by a divisional bench of this court under Section 561-A Cr.P.C. keeping in view the exigency and valid reason that the learned author of the judgment has been elevated to the hon'ble Supreme Court, therefore, he could not review or revisit his own order in spite of his clear observation that the order was erroneously passed, therefore, let this be examined by a division bench of this Court on the next date of hearing. Parties are directed to argue the case on merits and satisfy this court as to why the order dated 11.4.2003 may not be reviewed or revisited keeping in view the proviso attached to sub-section (5) of section 6 of Pakistan Criminal Laws Amendment Act, 1958. Office is directed to fix this matter immediately after summer vacations according to roster.