GUL MUHAMMAD and others vs THE STATE

ORDER

1. ' MAMOON KAZI, J.---Brief facts of the case are that the petitioners are being tried on charges under sections 302,307,148 and 149, P.P.C. 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 lmdad Hussain. Both sons of Zawar Hussain. They were further alleged to have caused injuries to one Ghulam Shabbir son of Sher Ahmad Bajwa.

2. ' 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 petitioners.

3. ' 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.PC before the learned Sessions Judge seeking recall of the said prosecution witnesses for further cross-examination.

4. ' 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 counsel 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 to recall the said witnesses for re-examination.

5. ' 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 conceded the case in favour of the petitioners. Consequently, the order passed by Mr. Zakir Hussain Mirza was recalled, vide judgment dated 29-9-1998.

6. ' Sardar Asmatullah Khan, learned counsel for the petitioner has strenuously argued that the learned Judge in the High Court was not empowered to invoke section 561-A, Cr.P.0 and review the order passed earlier by another learned Judge in the said Court under section 435/439, Cr.P.C.

7. Reliance has been placed by him on Nazir Hussain v. The State (1983 SCM R 36), Muhammad Samiullah Khan v. The State (PLD 1963 SC 237) and Pervaiz Ahmad v. Munir Ahmad (1998 SCM R 326). In these cases it was held that the nature of the provisions contained in section 435 or 439 was different from those contained in section 561-A of the Criminal Procedure Code an 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.

8. ' 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 convicted 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.

9. ' In the result, the petition is dismissed and leave is reused.