MATLOOB KHAWAR And Others vs Malik KARAM ILAHI And Other
This matter concerns a petition for leave to appeal against a judgment of the Lahore High Court, which had remanded a criminal case to the trial court following an application under Section 561-A of the Code of Criminal Procedure 1898. The petitioners, initially acquitted by the trial court under Section 249-A, had their acquittal set aside by the Sessions Court in revision. Subsequently, the petitioners invoked the High Court's inherent jurisdiction under Section 561-A to challenge the Sessions Court's order. The High Court, treating the matter as a challenge to the acquittal, remanded the case for further proceedings. The core legal question was whether the High Court could exercise such powers of remand under Section 561-A. The Supreme Court refused leave to appeal, holding that because the petitioners themselves invoked the High Court's jurisdiction under Section 561-A, they were estopped from challenging the High Court's authority to pass necessary orders to secure the ends of justice. The Court declined to decide the broader question regarding the scope of Section 561-A in correcting revisional orders, emphasizing the principle that a party cannot approbate and reprobate.
- Can a party who invokes the inherent jurisdiction of the High Court under Section 561-A of the Code of Criminal Procedure 1898 subsequently challenge the court's authority to pass orders necessary to secure the ends of justice?
- Does the principle of approbate and reprobate prevent a petitioner from challenging a High Court order passed in proceedings they themselves initiated?
- Section 561-A, Code of Criminal Procedure 1898
- Section 420, Pakistan Penal Code 1860
- Section 468, Pakistan Penal Code 1860
- Section 471, Pakistan Penal Code 1860
- Section 477-A, Pakistan Penal Code 1860
- Section 249-A, Code of Criminal Procedure 1898
- Section 417(2), Code of Criminal Procedure 1898
ORDER
1. MUHAMMAD AFZAL ZULLAH, J.--Leave to appeal has been sought from judgment, dated 3-2-1986 of the Lahore High Court; whereby the petitioners' application under section 561-A, Cr.P.C., was disposed of to their disadvantage.
2. The brief facts relevant for this stage given by the learned counsel are that the petitioners were sought to be prosecuted for various offences including 420, 468, 471, 477-A, P.P.C. They made an application before the learned trial Court under section 249-A, Cr.P.C. Which was allowed and they were acquitted. The respondent side filed an appeal before the Sessions Judge which was treated as revision and was allowed with the result that the order of the learned trial Court was set aside.
3. The petitioners then moved a quashment application under section 561-A, Cr.P.C. In effect seeking the setting aside of the order passed by the Sessions Court. A learned Single Judge in the High Court treated the case as one under section 561-A, Cr.P.C. Read with section 417(2) and treating it as a challenge before the High Court to the acquittal order passed by the trial Court, remanded the case to the trial Court for further proceedings. Aggrieved by the order of the High Court the petitioners have sought leave to appeal.
4. Learned counsel has contended that without a formal appeal under section 417(2), the High Court could not have exercised appellate jurisdiction against acquittal, and further that the High Court had also no power under section 561-A, Cr.P.C. To remand the case to the trial Court for further proceedings.
5. It may be mentioned that the High Court has made use of both the provisions, namely, 417(2) and 561-A, Cr.P.C., we are not inclined to comment on the use of section 417(2) because this case can be concluded on the consideration of the power exercised under section 561-A, Cr.P.C. This provision reads as follows: "561-A . Saving of inherent power of Hi h Court.-- Nothing in this Code shall be deemed to limit or affect the inherent -'power of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse -of the process of any Court or otherwise to secure the ends of justice."
6. Learned counsel was unable to meet the point that once jurisdiction under section 561-A, Cr.P.C. Is conceded in a case like the present one then the High Court is competent to make "such orders as may be necessary" provided the other conditions including the securing of the ends of justice and prevention of abuse of process of Court are satisfied. In this case we do not propose deciding the bigger question as to whether jurisdiction under section 561-A would be available to correct revisional orders passed by the Sessions Court. But needless to say that the petitioners in this case having themselves invoked the jurisdiction of the High Court under section 561-A, Cr.P.C. Cannot be allowed to blow hot and cold and say that the High Court should not have passed the order it deemed necessary in the circumstances of the present p case. We, therefore, on account of the conduct of the petitioners themselves do not consider it a fit case for grant of leave to appeal. The questions of law arising herein, however, would be dealt with in a proper case.
7. With these observations leave to appeal is refused.
Cited by 1 case
- Muhammad Mateen Khan vs Federation of Pakistan and others 2020 PLC (C.S.) 1, 2018 SHC 580