ORDER SHEET
IN THE HIGH COURT OF SINDH, CIRCUIT COURT, HYDERABAD
Criminal Revision Application No.S-18 of 2018
Date of hearing: 12.11.2018
Date of Decision: 12.11.2018
Applicants: Aijaz Ali, Mazar Ali and Muhammad Laiq alias Shadan through Mr. Muhammad Arshad S. Pathan, Advocate.
Respondent No.1: Muhammad Hashim through Mr. Irfan Ahmed Qureshi, advocate.
Respondent No.2to4: The State through Miss. Sana Memon, Assistant Prosecutor General Sindh.
O R D E R
Fahim Ahmed Siddiqui,J-. The applicants have challenged the order dated 06-01-2018 passed by learned Additional Sessions Judge-II, Tando Muhammad Khan, passed in I.D. Complaint No.05/2015. The said I.D. Complaint was already dismissed as withdrawn vide order dated 21-12-2015 but through the impugned Order, it was directed to revive again to its original position on an application filed on behalf of respondent No. 1 under Section 248 Cr.P.C read with Section 21 of General Clauses Act.
2. The factual matrix of the case is that certain agriculture lands belongs to the predecessor of the applicants namely Ghulam Muhammad. Said lands comprising over several survey numbers and measuring in total 6-09 acres situated in Shaikh Bhirkio, taluka and District Tando Muhammad Khan. It is claimed by the applicants that the said Ghulam Muhammad had three sons namely Ghulam Hyder, Muhammad Laiq and Ehsan Ali and three daughters namely Mst. Sibihandi, Mst. Phaphu and Mst. Allah Bachai. Ghulam Hyder died unmarried while the three daughters of Ghulam Muhammad have surrendered their shares in favour of their brothers namely Muhammad Laiq and Ehsan Ali from whom they claim the ownership and possession of the said lands through their ancestors while respondent No. 1 also claims over the said land as purchaser of the said lands through a sale deed. Nevertheless, applicants denied such claim of respondent No. 1 and disputed the alleged sale deed by alleging that the respondent No. 1 in collusion with respondent No. 3 by suppressing material facts got Foti khata mutated inserting the name Mst. Bachlan wife of Bachal Khan falsely showing her widow of Ghulam Hyder. The respondent No. 1 then claimed himself also as owner of the property by claiming that Mst. Bachlan being legal heir of deceased Ghulam Hyder had executed a sale deed in his favour. Subsequently, he filed a complaint under Illegal Dispossession Act, in which bailable warrants were issued against the applicant. However, on 21-12-2015, respondent No. 1 filed an application in the said complaint which was allowed by the trial Court and the said I.D. complaint was dismissed as withdrawn.
3. Successively, the respondent No. 1 filed an application under Section 248 CrPC read with Section 21 of the General Clauses Act on which the learned trial Court passed an order "advocate to be heard'. The said application remained pending for quite some time and thereafter notices were communicated to the other side. The applicants filed objections and then the matter was heard in the said application was allowed vide order dated 06.01.2018, which is impugned in the instant criminal revision application.
4. The learned counsel for the applicants referred your arguments at length. Briefly the arguments are that the withdrawal application was presented and signed by the complainant (respondent No. 1) and his advocate. The application filed by the respondent No. 1 neither covers Section 248 of Code of Criminal Procedure (hereinafter Cr.P.C) nor Section 21 of the General Clauses Act. After passing the order of 'dismissal as withdrawn', the trial Court becomes functus officio and it cannot sit over its own order.
5. Conversely, the learned counsel for respondent No. 1 supports the impugned order. The gist of his arguments is that under Section 9 of Illegal Dispossession Act, 2005, the provisions of Cr.P.C are applicable in a proceeding in an I.D. complaint. Under Section 248 Cr.P.C, a criminal complaint can be withdrawn when sufficient ground exists for such withdrawal, as till then no charge was framed. Since, no sufficient ground was existing at the time of withdrawal of the criminal complaint; therefore, the order for allowing withdrawal is not proper and the same can be recalled as per provision under Section 21 of the General Clauses Act. The said application was filed for withdrawal under the ill advice of previous counsel, as such, said order is to be recalled.
6. I have heard the arguments advanced and have gone through the impugned order as well as other available material. As far as, Section 248 Cr.P.C is concerned, the same pertains to withdrawal of a complaint. I would like to reproduce Section 248 Cr.P.C, which reads as;
248. Withdrawal of complaint: If a complainant, at any time before a final order is passed -in any case under this Chapter satisfies the Magistrate that there are sufficient grounds for permitting him to withdraw his complaint the Magistrate may permit him to withdraw the same, and shall thereupon acquit the accused.
The learned counsel for the respondent No. 1 emphasised upon the phrase 'sufficient grounds' and his contention is that no sufficient ground was in existence at the time of withdrawal; therefore, the order for withdrawal of the complaint was not proper. I am of the view that the phrase 'sufficient grounds' is actually a directive provision and the purpose of the same is to seek satisfaction that application for such withdrawal is made without any durance and coercion. The application for withdrawal was moved by the complainant duly signed by himself as well as his advocate. It is no ground that the previous counsel has given an ill-advised to the respondent No. 1.
7. It is useful to mention that there is no provisions available under Cr.P.C to enable a complainant to get restore a criminal complaint, which was withdrawn. I am of the view that Parliament consciously had not chosen to confer any power on a Criminal Court to rescind its order passed which is final in nature. It is well settled law that after passing a final order, and in criminal cases the power of review is almost negated save to typographical mistake a Criminal Court cannot even alter its order. The question which arises for consideration is whether in the absence of any express or implied power, a Criminal Court, after passing an order of 'dismissed as withdrawn' can recall the said order, which is technically final in nature. The learned counsel for respondent No.1 on the strength of the provisions of Section 21 of the General Clauses Act seeks revival of his criminal complaint. Section 21 of the General Clauses Act runs as under:-
21: Power to make, to include power to add to, amend, vary or rescind orders, rules or bye-laws:-- Where by any Central Act or Regulation, a power to issue notifications, orders, rules, or bye-laws is conferred, then that power includes a power, exercisable in the like manner and subject to the like sanction and conditions (if any), to add to, amend, vary or rescind any notifications, orders, rules or bye-laws so issued.
8. On the bare perusal of Section 21 of the General Clauses Act, it appears that the expression 'order' employed in Section 21 shows that such order must be in the nature of notification, rules and bye-laws etc. it is clear that the order which can be modified or rescinded on the application of Section 21 has to be either executive or legislative in nature. It is very much clear from the wordings of Section 21 of the General Clauses Act that the same is not meant for the Judicial or Quasi-Judicial orders. After extensive discussion above, it is held that by applying Section 21 of the General Clause Act, only the executive and legislative authorities are entitled to vary, amend, add or rescind an order earlier passed by them while a final judicial order can only be amended by specific provision provided under the law or by invoking the hierarchy of appellate jurisdiction. Resultantly, the instant criminal revision is allowed and the impugned order dated 06-01-2018 passed by the land Additional Sessions Judge-II, Tando Muhammad Khan is set-aside. These are the reason for my short order dated 12-11-2018.
JUDGE
*Abdullah Channa/PS*
Dated: 23.11.201