1985 P Cr (PLP)

(b) Criminal Procedure Code (V of 1898)‑‑ ‑‑‑Ss. 133 & 561‑A‑‑Magistrate passing final order in proceedings under S. 133, Cr. P. C.‑‑Proceedings coming to an end and there being no pending proceedings‑‑Remedy of revision resorted in Court of Session on same grounds‑‑Section 561‑A, Cr. P. C., held, would apply to proceedings which were pending‑‑There being no pending proceedings, remedy under S. 561‑A, Cr. P. C. not available‑‑Quashment petition being not maintainable dismissed in circumstances. Ziaul Hassan for Petitioner. Javid Hyder Kazmi for Respondents Nos. 1 to

6. A. Wali Makhdqom for the State. Date of hearing: 22nd May, 1985. This is an application under section 561‑A, Cr. P. C. for quashment of proceedings under section 133, Cr. P. C. in the Court of S.D.M. Nazimabad Sub‑Division, Karachi. Impugned order in the proceeding is dated 1‑11‑1984 and the grievance of the petitioner is that this order has been passed by the learned Magistrate in violation of the provision of section 133 of the Criminal Procedure Code which relates to removal of nuisance. According to the petitioner section 133, Cr. P. C. contemplates a conditional order for removal of nuisance which is to be passed first and then it is open to the Court to set it aside or modify at the instance of the other party. Perusal of the impugned order clearly shows that it is final in nature and the petitioner has been directed not to install the power‑looms in the new sheds as it would create great nuisance to Mohalla people. Further, it has been left open to the petitioner in the impugned order that he is at liberty to use the new shed for any other purpose which may not cause any nuisance to the area people. Short question involved in disposal of this main petition is whether application under section 561‑A, Cr. P. C. is competent in spite of the fact that revisional jurisdiction has been invoked and the petitioner had filed revision application in the Court of Sessions Judge, Karachi and this revision application has been finally dismissed vide judgment, dated 11‑4‑1985 by VIth Additional Sessions Judge, Karachi. There is no dispute about the proposition of law that revisional jurisdictional of the High Court is concurrent with that of Sessions Judge as contemplated under section 439‑A, Cr. P. C. It is also settled law that if Jurisdiction is concurrent then the normally aggrieved party is advised to resort to the remedy available in the lower Court. In the instant case revision application was filed in the Sessions Court and that has been dismissed and second revision application cannot be filed in the High Court. Section 561‑A, Cr. P. C. contemplates inherent jurisdiction of the High Court, which provides that 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 A Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice. It is submitted on behalf of the respondents that this inherent jurisdiction of the High Court under section 561‑A, Cr. P. C. cannot be invoked as an additional or alternative jurisdiction after exhausting revisional jurisdiction. Reliance has been placed on the case of Prof. A. Hameed Kausar v. The State P L D 1979 Lah. 7'27 in which it is held that by promulgating section 439‑A, Cr. P. C. the intention of the law maker is to make revisional jurisdiction exerciseable by either of two Court (Sessions Court or the High Court) and jurisdiction under section 561‑A, Cr. P. C. cannot be used as an additional or alternative jurisdiction. In the reported decision reliance was placed on P L D 1967 S C

317. Learned counsel for the respondents has also cited the case of Abdul Rehman Bajwa v. Sultan and 9 others P L D 1981 S C 522 in which it is held that Legislature has enacted section 439‑A to curtail jurisdiction of the High Court in order to relieve it of burden of deciding thousands of revisions against orders of hundreds of Magistrates and filing of petitions for writ against judgments and final orders. It is further held that such resort would amount to circumventing law and defeating obvious intention of Legislature. Another point worth consideration is that section 561‑A, Cr. P. C. would apply to proceedings which are pending and in the instant case as is obvious from the final order which is impugned that proceedings have come to an end and there are no pending proceedings that is why remedy of revision was resorted by the petitioner in the Court of Sessions Judge. On that ground`‑also section 561‑A, Cr. P. C. will not be attracted. For the facts and reasons stated above, this petition is dismissed as it is not maintainable. H.A.K.???????????????????????????????????????????????????????????????????????????????????????????????? Quashment declined.