P L D 1999 Karachi 366 (PLP)

JUDGMENT ?? - Applicant Muhammad Bux, by way of this application under section 561-A, Cr.P.C., has sought quashment of the proceedings "Criminal Application No. Nil of 1999 Nazar Muhammad v. Muhammad Bux, under section 145,. Cr.P.C.", wherein the learned Sub-Divisional Magistrate, Badin, passed orders under sections 145(1) and 145(4), Cr.P.C. on 2-3-1999, summoning the parties namely Nazar Muhammad the complainant (respondent No.2) and Muhammad Bux the opponent (applicant herein) to appear and put in written statements of their respective. claims, and simultaneously appointing Tapedar of Tapo Fateh Baig as official receiver on the land in dispute i.e. Serial Nos.918, 925; 926, 927 and 928 (15-16 acres) situated in Deh Fateh Baig, Taluka Matli, District Badin. . Briefly, the background of the case as gathered from the application is that applicant Muhammad Bux claims to be exclusive owner of the land in dispute on the basis of Registered sale-deed and also oral sale. According to him, he purchased the land in the year 1991-92 from the owners Misri, Muhammad alias Mamooro and other sons and daughters of one Nim Mall4h and consequently mutation was effected in the relevant Revenue Record on 1710-1992 and 5-5-1993, and since then he continues to be in physical possession, and pass book has also been issued in his favour. Originally, as stated in the application, the land was transferred to Nim Mallah father of Misri by the Revenue Officer, Kotri Barrage after completing all formalities and on his .death the Foti Khata was mutated in the name of Misri and others holding them in capacity of legal heirs of Nim, who sold the land to applicant when it became Qabooli land, but later on Mst. ,Hajiran and Mst. Mehr daughters of Misr; instituted proceedings before Revenue Authorities challenging the said transfer, eventuallv without success. However. Member Board of Revenue issued suo motu notice to Misri and others, therefore, the applicant filed F.C. Suit No.54 of 1993 but since the notice was vacated at a later stage, he withdrew the suit. It is alleged by the applicant that subsequently heirs of Nim and late Misri filed Suits Nos.47 and 48 of 1994 in the Court of Senior Civil, Judge Tando Muhammad Khan for declaration and permanent injunction with regard to the title of the land in dispute which are continuing and the, applicant is contesting the same as defendant in both the suits. According to the applicant the learned S.D.M. all of a sudden initiated proceedings under section 145, Cr.P.C. and passed orders as mentioned above.

3. On 19-3-1999 pre-admission notice was ordered to be issued to respondents whereupon the respondent No.l namely S.D.M., Math filed his comments and Nazar Muhammad the respondent No.2 filed his counter-affidavit supported by a number of documents. In his counter-affidavit Nazar Muhammad the respondent No.2 stated that the applicant is neither exclusive owner of the disputed land nor he has any right or title to the same. He stated that the registered sale-deed, on which the applicant based his claim,, was fraudulent and fabricated and that the applicant was not in physical cultivating possession of the land in dispute. He mentioned in his affidavit that he is husband of Mst. Mehr, the daughter of original grantee Misri and that his wife and her sister remained in possession of land in dispute but during the month of November, 1998, the applicant trespassed into their land and with the collusion of police dispossessed them. He added that, the Assistant Commissioner, Matli had cancelled the illegal entries made in the record of rights in favour of the applicant on 15-12-1998. He questioned the maintainability of proceedings under section 561-A, Cr.P.C. However, he submitted that there was a dispute between the parties likely to cause breach of peace, therefore, after recording the statement of concerned persons the impugned orders were passed. 4.???????????? 1 have heard learned counsel for the parties and learned A.A.-G. 5.????????????? During the arguments learned counsel for the parties invariably ventured to establish, in the first instance, the title in favour of either of them and referred to a number of documents annexed to the main application and the counter-affidavit. In addition, they also referred to case-law with regard to the maintainability of the proceedings under section 145, Cr.P.C. and the jurisdiction of the learned S.D.M. exercising the powers under the aforesaid provision of law. On being questioned whether a right forum was opted by the applicant to agitate his case and challenge the proceedings initiated in exercise of powers under section 145, Cr.P.C. by invoking the inherent jurisdiction of this Court under section 561-A, Cr.P.C. skipping over the normal remedy of P revision in the Court of Sessions Judge available under section 435 read with section 439-A, CrY.C., the learned counsel for the applicant submitted that when there is material on record to satisfy the Court that abuse of process of Court has taken place in the shape of impugned proceedings, the remedy lies under section 561-A, Cr.P.C. This was not a direct answer to the question yet in support of his answer he placed reliance on Hussain Ahmed v. Mst. Irshad Bibi and others 1997 SCMR 1503; Muhammad Sharif and 8 others v. The State 1997 SCMR 304 and Muhammad Rehan v. The State 1997 PCr.LJ 578.

6. In the first- mentioned case 1997 SCMR 1503 the procedure adopted by M.I.C., Noshera was deprecated and the concluding observations were made as under:- "

4. The procedure adopted by the M.I.C. in the present case, namely, that he examined four witnesses under section 164, Cr.P.C. after about 16 days from the date of the F.I.R. who were not named in the F.I.R., and on the basis of their statements, he concurred with the above request of the Investigating Officer, amounts to pre-empting the trial by a competent Court. A Magistrate has no power to hold a trial in a murder ease for the purpose of deciding the question of innocence of the accused involved. Once an F.I.R., is registered in a murder case and the witnesses mentioned therein support the allegations contained in the F.I.R. the Magistrate has no power to hold a trial and to conclude that the accused is innocent. The question of guilt or innocence can be decided by a Sessions Court. We depreciate the procedure adopted by the M.I.C., in the instant case. The High Court, in our view, has rightly invokes! its ,jurisdiction under section 561-A, Cr.P.C. There is no merits in the above petition!. Leave is refused."

7. From the above observation it is quite evident that question whether revisional jurisdiction to be exercised by Sessions Judge under section 435!439-A, Cr.P.C. could be overlooked and straightaway the inherent jurisdiction of High Court was to be invoked was not under exam'_nation before their Lordships in that case. I would, however, agree with the learned counsel for the applicant that observations in para. No.3 of the above-cited judgment based on para.6 of the judgment in Muhammad Sharif's case 1997 SCMR 304 are to the effect that it will be in the interest of justice that when the order passed by subordinate criminal Court clearly amounts to an abuse of process of the Court, the High Court remains empowered to rectify the injustice. With due respects, the subject-matter of these cases ~ before the Hon'ble Supreme Court related to the procedural error occurring during investigation with regard to the cancellation of the case upon report of police. In fact, in the latest, cited case, referred to above 1997 SCMR 1503 the revision was filed before the Sessions Court who dismissed the same on the ground that it was an executive order and then the inherent power of the High Court was invoked under section 561-A, Cr.P.C. but the question involved in the instant matter is whether the remedy under section 435!439-A, Cr.P.C. which could effectively be, sought, was justifiably ignored by the applicant while invoking the inherent powers of this Court.

8. The learned counsel could not cite case-law directly touching the issue in question. Even, the Division Bench decision of this Court cited by the learned counsel, 1997 PCr.LJ 578, is confined to the point that section 561-A, Cr.P.C. is available to High Court to prevent the abuse of the process of any Court including misuse and colourable use of the powers or usurpation of the jurisdiction not vested in the Court. The question still remains to be answered whether the applicant could not be granted the relief of setting aside the impugned orders which in consequence would entail termination of the entire proceedings based on the order under section 145(1), CrY.C., under the revisional jurisdiction to be exercised by the Sessions Court under section 435 read with section 439-A, Cr.P.C. . ,..

9. No doubt, the relief sought in the instant application is by way of quashment of the proceedings but, it may be appreciated, the, nature of proceedings under section 145, Cr.P.C. is such that its entire superstructure is based on the order under subsection (1) thereof which' is passed by the Magistrate upon his satisfaction from the police report or other information that a dispute likely to cause breach of the peace exists concerning land etc. within local limits of his jurisdiction. Practically, under this subsection the learned Magistrate calls upon the parties to attend his Court in person or by pleader and to put in written statements of their respective claims as respects the fact of kactual possession of the subject of dispute. Eventually, when the order under subsection t 1) is set aside the proceedings stand wiped off completely. It is quite evident that in his revisional jurisdiction under section 435 read with section 439-A, Cr.P.C., the Sessions Judge, after observing due procedure can set aside such an order passed under section 145, Cr.P.C. after satisfying himself as to the correctness, legality or propriety thereof and to the regularity of the proceedings of the Court of Sub-Divisional Magistrate. In consequence of an order passed as aforesaid, the relief sought for by the applicant through the instant proceedings can efficaciously be granted' by the Sessions Court to the applicant if his case merits one: In my humble view, there is no legal justification' to permit the applicant, with regard to the proceedings of this nature, to invoke the inherent powers of the High Court as an alternative or additional jurisdiction. The following observations made by the Hon'ble Supreme Court in case of Ghulam Muhammad v. Muzammal Khan and 4 others PI .D 1967 SC 317. laving direct bearing on the point under discussion, provide the essential guideline: - "The inherent jurisdiction given by section 561-A is not an alternative jurisdiction or an additional jurisdiction but it is a jurisdiction preserved I in the interest of justice to redress grievances for which no other procedure is available or has been provided by the Code itself. The power given by this section can certainly not be so utilised as to interrupt or divert the ordinary course of criminal procedure as laid down in the procedural statute," The above principle was followed by the Hon'ble Supreme Court in the case A. Habib Ahmed v. M.K.G. Scott Charistian and 5 others PLD 1992 SC

352. Relying on the afore-cited decisions of the Hon'ble Supreme Court, this Court declined quashment in the case Muzaffar lqbal v. The State 1993 PCr.LJ

125. Quasltment was also declined by this Court. taking the same view in, the cases Ashiq Hussain v. The State and 2 others 1999 MLD 535 and Moinuddin v. Punoo 1993 PCr. LJ 215.

10. Moreover, in a more or less similar situation when application under section 561-A, Cr.P.C. was made without availing the revisional jurisdiction under section 561-A, Cr.P.C., this Court in the case Moinuddin v. Punoo 1993 PCr.I..J 215 dismissed the application in limine following the principle laid down in the case of Allied Bank of Pakistan Limited v. Khalid Farooq 1991 SCMR

599. The relevant observations leading to dismissal of the application are reproduced below;?? _ ' ??? "Present application appears to have been moved under section 561-A???? of Cr.P.C. but it is directed against an order which could be challenged before the proper forum under section 439 of Cr.P.C. Since an application under section 439 of Cr.P.C. could be filed only in the Federal Shariat Court hence learned counsel has chosen to move present application under section 561-A of Cr.P.C. to achieve the result, which he could have achieved by moving an application under section 439 of Cr.P.C. The provisions contained in section 561-A of Cr.P.C. cannot be invoked to bring about a result in respect of which there is an express prohibition or express provision provided in the Code or in any observed in the case of Allied Bank of Pakistan Ltd. v. Khalid Farooq 1991 SCMR

599. In the same case it was held that power under section 561-A of the Criminal Procedure Code can only be invoked in extraordinary cases where no other procedure or remedy is available or is provided by Criminal Procedure Code." Following the rule laid down by the Hon'ble Supreme Court coupled with the view taken by this Court as above, I am of the considered opinion that the instant quashment proceedings by way of application under section 561-A, I [ Cr.P.C. cannot.be entertained. The application being not competent is hereby) dismissed in limine. M.B.A./M-458/K??????????? Application dismissed.