P L D 1988 Karachi 85 (PLP)

This criminal miscellaneous application under Section 561‑A,. Cr.P.C. is filed by three applicants namely Mst. Khalida Rehman, Mst. Humera Rehman and Mst. Azra Rehman against respondents Mohammad Aqil and State with prayer that order passed by learned IIIrd Additional Sessions Judge, Karachi in Criminal Revision No.33/85 directing desealing of disputed plot and handing over its possession to respondent No.1 Muhammad AqiI be quashed and further order dated 21‑3‑1985 passed by learned S.D.M. Liaquatabad u/s 145 (4), Cr.P.C. be restored, whereby the plot in dispute was sealed. Briefly stated the relevant facts are that on 13‑3‑1985 three applicants before me addressed an application to D.S.P. Liaquatabad Division in Karachi stating therein that they were lawful owners in possession of vacant plot No.l/C/10, Federal 1131 Area, Karachi and they were forcibly and unlawfully dispossessed by respondent Mohammad Aq1I on that day at 5 p.m .who had beaten up and turned away Chowkidar posted at the disputed plot by them. It was further stated therein that Mohammad Aqil has filed suit No.4070/1984, which was dismissed by First Senior Civil Judge, Karachi (plaint was rejected under Order VI I, rule 11, C. P. C) hence Mohammad Aqil took possession of the disputed plot forcibly on account of which there was imminent breach of peace and danger to their lives. D.S.P. marked this application to S.H.O. Gulberg Police Station, who sent challan/report in the Court of S.D.M. Liaquatabad on 21‑3‑1985 after making necessary inquiry from both the parties. It was stated in the report that ladies claimed ownership of the plot on the ground that they had purchased it from Mst. Mazhar Bano W/o Abdul Haleem Siddiqui and according to them the plot was transferred by K.D.A. and authority letter was also issued by K.D.A. on 31‑1‑1985. Suit filed by Mohammad Aqil was dismissed by the Civil Court. Spot‑inspection indicated that Mohammad Aqil had taken over the possession and posted his men to guard the plot. He claimed title but could not produce any documents. It was further stated in the report that on the disputed plot there was a compound wall and gate, Bequest was made for attachment of the plot‑in the report. On 21‑3‑1985 after receipt of report from S.H.O., S.D.M. Liaquatabad after being satisfied that there was apprehension of breach of peace, ordered that disputed plot be sealed u/s 145 (4) Cr.P.C. and directed S.H.O. to inform the parties to appear in the Court on 25‑3‑1985 to file written statement and attend hearing. Record of the Court of S.D.M. shows that on 25‑3‑1985 both parties had appeared and matter was adjourned to 2‑4‑1985 for further hearing. Record also shows that applicants had produced transfer letters issued by K.D.A. in their favour and order of the Civil Court rejecting plaint in Suit No.4070/84 filed by Mohammad Aqil. Record also shows that on 25‑3‑1985 Mohammad AqiI second party to the proceedings in the Court of S.D.M. filed an application u/s 145 (5), Cr.P.C in which prayer was made for cancellation of order passed on 21‑3‑1985 u/s 145 (4), Cr.P.C. and consequential restoration o possession to Mohammad AqiI. Main ground urged in this application was that possession of disputed plot was regulated by Civil Suit N6; 4070/84 in which there was order of status quo and further that actual physical possession remained with second party (Mohammad Aqil) hence order u/s 145 (4) Cr.P.C was without jurisdiction and reliance was placed on PLD 1970 S.C.

470. It was also averred in the application that possession of the second party was beyond two months from the date of the preliminary order as such attachment was illegal and reliance was placed on 1970 P Cr. L J.

693. Subsequently respondent Mohammad AqiI took no steps to press this application u/s 145 (5), Cr.P.C. in the Court of S.D.M. and on 4‑4‑1985 filed revision application in the Court of Sessions Judge u/s 435 r/w 439‑A, Cr.P.C. in which order passed u/s 145(4), Cr. P.C. was challenged. Memorandum of revision filed in the Sessions Court makes very interesting reading. This memo was presented on 4‑4‑1985, draft was prepared on 2‑4‑1985 and Oath Commissioner attested it on 26‑3‑1985. All these dates as stated' above in the record of learned Sessions Judge have been encircled in red and signed by me. It is very strange that on 25‑3‑1985 application u/s 145 (5), Cr.P.C. was filed in the Court of S.D.M. and on 26‑3‑1985 revision memo was verified and attested by Oath Commissioner to be filed in the Sessions Court. I have described in detail above as to what were the documents available in the record of the S.D.M. and what were contents of application filed by respondent Mohammad Aqil u/s 145 (5), Cr.P.C. with case‑law cited in it to show that case was proceeding there according to law and it was for learned S.D.M. to dispose of the proceedings after determining the question of possession as per requirements of section 145, Cr.P.C. There is no cavil about the proposition that under Section 145, Cr.P.C Magistrate so defined there in is competent to decide question of possession of land between the parties, when it is likely to cause breach of peace. The Magistrate can taken cognizance if he is satisfied from the police report of any, other information that dispute is likely to cause breach of peace. in such circumstances subsection (1) of section 145, Cr.P.C. empowers the Magistrate to inform the parties and fix a date of hearing to? decide the question of claims of the parties with regard to actual possession of the land. Subsection (4) of section 145, Cr.P.C. empowers the Magistrate to give proper hearing to the parties to, conclude as to which party was in actual possession when first order I was passed under subsections (1), Now first proviso to subsection, (4) authorises the Magistrate to hold that party is entitled to possession who had been dispossessed forcibly and wrongfully within two month next before the date of such order. Second proviso to subsection (4), empowers the Magistrate to attach subject of dispute if he considers the case to be one of emergency. Subsection (5) of Section 145, Cr.P. C. provides that any party so required to attend or any other person interested can show that no such dispute exists‑ or existed then the Magistrate shall cancel his order and stay further proceedings subject to the order passed under subsection (1) for proper hearing. Now in the instant case learned S.D.M. on 21‑3‑85 took cognizance of police report of S.H.O. of Police Station Gulberg and after he was satisfied that there was apprehension of breach of peace between the parties, he passed common order, which purports to be order under subsection (1) and (4) of Section 145, Cr.P.C. whereby he gave notice to the parties for hearing on 25‑3‑1985 and also attached subject‑matter of dispute. Requirement of second proviso to subsection (4) stood complied with to the extent that Magistrate considered the case to be one of emergency. Parties appeared on the next date of hearing and respondent Mohammad Aqil applied for cancellation. (if order of sealing under subsection (5) and this was proper remedy provided u/s 145, Cr.P.C. He should have pursued it further and placed before that Court his plea and material in support thereof. This is where respondent Mohammad Akil has faltered. Instead of pressing this application which he had filed under subsection (5) of Section 145, Cr.P.C. , he voluntarily chose forum of Revision before Sessions Court.. Respondent Mohammad Aqil has not given one good reason as to why he had abandoned this remedy u/s 145 (5), Cr.P.C. and filed Revision. If he had no faith in the impartiality of learned S.D.M. he could have applied for the transfer of the case to the Court of another Magistrate. Interference in Revision was premature for two reasons. Firstly proper remedy was available u/s 145 (5), Cr.P.C. and respondent Mohammad Akil had filed application under that provision, which he should have followed. Secondly that learned S.D.M. had acted within the bounds of law and had not committed any illegality. Section 435 Cr‑P.C. authorises High Court or Sessions Court to interfere in Revision for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order and so to the regularity or any proceedings. section 439, Cr.P.C. empowers, High D Court in the Revision jurisdiction to exercise powers conferred on Court of appeal u/ss 423, 426, 427, 428, 429 and 338, Cr.P.C. Further section 439‑A, Cr.P.C_ confers on Sessions and Additional Sessions Judges same revisional jurisdiction as is exercised by the High Court. Now it is to be seen whether interference in revision by learned A.S.J. was justified. In the memorandum of revision application order of attachment passed u/s 145 (4), Cr.P.C. is assailed mainly on the ion has been regulated is Suit ground that question of possession No.4070/84 it, which plaint was rejected, same case‑law was cited as was cited in the? application filed u/s 145 (5), Cr.P.C. I had made comparative study of Memo of revision and application u/s 145 (5), Cr ‑ P. C ' Contents?? both are same except in memo of revision history of claim with regard to the acquisition of title of disputed plot is detailed, which is not done in application u/s 145, Cr.P.C. Now the question arises for consideration us to why learned S.D.M, was not E allowed to dispose of application u/s 145 (5), Cr.P.C., which he was? competent under the law to do.? Learned S.D.M should not have been deprived of opportunity to dispose of application u/s 145 (5), Cr.P.C. strictly according to law and merits. He could have opined he facts of, whether case‑law cited in the said application applied to the case under consideration or not. If any additional documents were filed in the revisional Court ‑ then why they were riot produced, before the Court of first instance. Learned Additional Sessions Judge, should not have considered the documents and facts which were not before the ‑Court of first instance. Law empowers the Magistrate to decide question of possession between the parties and if there is Case‑law on the point and cases of parties, are pending in civil as well as Criminal Courts then the Magistrate has to decide the question of possession in view of that case‑law and in no case that function of the Magistrate prescribed under law is to be taken away from him by way of usurpation. Revision is competent when it is not filed prematurely but after the decision of the Magistrate u/s,145 (5),IF Cr.P.C.,,if that decision is liable to be called in question on any ground allowed under the law, The decision can be called in question on the ground that it is inconsistent with case law pronounced by superior Courts on the subject. It therefore follows that Magistrate must be allowed to perform his duty 'enjoined upon him by the law and in no circumstances field' to stopped in that function to be told what decision he should make. ??????????????????????????????????????????????????????????????????????????????????????????? In the instant case in the memorandum of Revision application, order of attachment passed by the Magistrate is impugned, which is set aside in the judgment and further learned Additional Sessions Judge has held that learned S.D.M. had no jurisdiction to entertain proceedings u/s 145, Cr.P.C. and had no jurisdiction to attach the disputed plot and seal it. Even this objection could have been taken u/s 145 (5), Cr.P.C. before the Magistrate to show that no such 'dispute exists or has existed and in fact such objection was taken in 'the application filed by respondent Mohammad Aqil before the Magistrate u/s 145 (5), Cr.P.C. but the learned Magistrate was not allowed an opportunity to decide this application and respondent Muha 'ad Aqil? instead of waiting for disposal of this application filed revision which was allowed pre‑empting the decision on the Magistrate on the same point. Secondly question with regard to possession between parties, when different claims are Laid, is essentially a question of fact as contemplated u/s 145, Cr.P.C and can be determined after evidence is produced by the parties and evaluated by the Court. This question should have been allowed to be properly agitated before the Magistrate and looked into on the basis of evidence to be produced by the parties. Thirdly in the judgment learned Additional Sessions Judge has held that learned S.D.M. has not passed any preliminary order requiring the parties to file their claims in writing. This is factually incorrect and against the record. ‑On the contrary, record shows that such order was passed on 21‑3‑1985 and next date of 25‑3‑1985 was fixed for that purpose. This is so clearly stated in the order‑sheet H of 21‑3‑1985 and also in the order passed u/s 145 (4), Cr.P.C. In fact respondent Mohammad AqiI appeared on 25‑3‑'1985 and filed application u/s 145 (5), Cr.P.C. with prayer for cancellation of order of attachment. It is for the reasons stated above, I am of the considered view that revision was premature, and interference in it was unwarranted and the learned Magistrate should have been allowed to dispose of application u/s 145 (5), Cr.P.C. filed by respondent Monammad Aqil on merits and his decision should not have been pre‑empted in Revision. In any case order of sealing was interim in nature and was to be confirmed or not after hear in a both the parties but this was not allowed to be done. During the course of arguments before me, it was contended by the learned counsel on behalf of respondent Mohammad AqiI that he had availed the remedy of revision to which finality is attached for the reason that under Section 439‑A, Cr.P.C., High Court and Sessions Court have concurrent jurisdiction in the field of revision and since revision stands disposed of by learned Additional Sessions Judge, no further proceedings can be entertained by the High Court under Section 561‑A, Cr.P.C. for quashment of proceedings. It was further submitted that inherent jurisdiction of the High Court cannot be invoked as an additional or alternative jurisdiction under Section 561‑A Cr.P.C. after revisional jurisdiction is exhausted. In support of the proposition mentioned above reliance has been placed on my judgment in the case of Attaullah Khan vs. Muhammad Akram and others (1985 P.Cr.L.J. 2409). Proposition so advanced in my judgment in the case reported as stated above is correct for the reason that revision being the final remedy as specified in the Code of Criminal Procedure, recourse cannot be had under Section 561‑A Cr.P.C. to use it as additional or alternative jurisdiction to challenge the decision made in the revision. In order to arrive at that conclusion, reliance had been placed inter alia on two Supreme Court Judgments reported in PLD 1967 S.C. 317 and PLD 1981 S.C.

522. This is the normal rule and holds field. Additionally, it can be stated that in appropriate cases, High Court is competent under Section 561‑A, Cr.P.C. to make such orders as may be necessary to prevent abuse of process of any Court or otherwise to secure the ends of justice. On the grounds mentioned above in the inherent jurisdiction, High 'Court has very wide and indefinable powers enabling it to pass any orders to do real and substantial justice and to rectify errors committed in the revisional proceedings. In support of the proposition stated above, reliance is placed on the cases of Shahkot Bus Service vs. The State and another (1969 SCMR 325) and Muhammad Shafique and others v. Abdul Hayee and others (1987 SCMR 1871). ??????????????????????????????????????????????????????????????? In the instant case, main grievance of the applicants is that on 13‑3‑1985 in the suit filed by the respondent Mohammad AqiI plaint was rejected after which on the same day he forcibly‑took over possession of the disputed plot from them and they made an application to DSP for restoration of plot which after on the spot enquiry was sent to the learned S.D. M. for proceedings under Section 145, Cr.P.C. Now under Section 145, Cr.P.C. it is for the learned S.D.M. to determine the question as to which of the two parties was in possession on 13‑3‑1985 and whether applicants were dispossessed .1 by the respondent Mohammad Aqil as claimed by them within two months next before the date of passing of preliminary order. Since respondent Mohammad Aqjl had appeared before the Magistrate in response of preliminary order of hearing and filed application under Section 145 (5), Cr.P.C. for cancellation of order of sealing, the Magistrate was competent to conduct further proceedings as are, contemplated under subsection 4 of Section 145, Cr.P.C. and conclude the proceedings strictly according to merits as is contemplated under the law. It may be mentioned here that when revision was allowed by the impugned judgment and in consequence. order of sealing was set aside, subsequently applicants filed application under Section 561‑A Cr.P.C. in the High Court on 18‑11‑1985, application for stay of execution of the order of desealing the disputed plot by the revision‑al Court was filed 'which was allowed vide order dated 21‑1‑1986. Meanwhile applicants had filed Suit No.877/85 in the High Court against respondent Mohammad Aqil for declaration, possession, injunction and mesne profit ii, which order of stay was passed on 12‑12‑1985 to the extent that respondent was restrained from transferring or dealing with case property or 'raising any construction to the prejudice of applicants/plaintiffs. It is stated that respondent Muhammad Aqil has filed Suit No.774/86, for specific performance and damages against owners from whom he alleges to have purchased the plot and also the three applicants. Learned counsel present in proceedings before me have stated that in the civil proceedings, there is no order of stay in connection with proceedings pending in the High Court on the 'Criminal side under Section 561‑A, Cr.P.C. In these circumstances, question of possession can be decided by the criminal Court under Section 145, Cr.P.C.? in the absence of any stay order from the Civil Court and question of title between the parties can be decided in the civil proceedings. For the facts and reasons stated above, impugned judgment passed in the revision is hereby set aside and application under Section 561‑A, Cr.P.C. is allowed,. in consequence whereof orders passed by learned S.D.M. In proceedings under section 145 Cr.P.C.", are restored including the order of sealing of the plot in dispute. Case is remanded to the learned S.D.M. for disposing of application of filed under Section 145 (5) Cr.P,C. 'strictly according to law. merits after hearing both the parties. M.Y.H/K‑51/K??????????????????????????????????????????????????????????????????????????????????? Case remanded.