1986 PLP 2613 (MLD)

Date of hearing: 17th June, 1986. The applicant has invoked the jurisdiction of this Court under section 561‑A, Cr.P.C. The facts of the case briefly are, that on a report submitted by S.H.O. Police Station Jauharabad to S.D.M. Liaquatabad, Karachi, which showed that there was dispute over possession of a shop situated in Block 7, Federal 'B' Area Karachi which could result in breach of peace, the learned S.D.M. passed an order, dated,9‑2‑1982, under the provisions of section 145(4), Cr.P.C. ordering sealing of the premises in question and preparation of inventory of articles lying therein etc. and also directing the parties to appear before the learned S.D.M.on 13‑2‑1982. Thereafter, it seems that the matter kept pending before We learned S.D.M. for further that proceedings till 7‑2‑1985, as on that date the learned S.D.M. finally disposed of the matter by ordering desealing of the premises in question and handing over their possession to the respondent No.2. The applicant was aggrieved by this order and he, therefore, filed a revision application under section 439‑A , Cr.P. C. before the Court of Sessions, which was heard by the learned Additional Sessions Judge, Karachi and dismissed by judgment, dated 12‑12‑1985. Aggrieved by the said judgment, the applicant has now invoked the jurisdiction of this Court under section 561‑A, Cr.P.C. The contention of Mr. Asad Ali Bilgrami, learned counsel for the applicant, is that in the order, dated 7‑2‑1985, a copy of which has been filed as Annexure 'J' to this Miscellaneous application, after the learned S. D . M . had clearly held that none of the parties to the dispute had been dispossessed of the premises in question at the time when the same were attached, the learned S.D.M. could not have directed the sealing of premises and restoration of their possession to respondent No.2. Reliance has been placed by the learned counsel on section 146(1), Cr.P . C . which inter alia, provides as follows:‑ ?146.‑‑(l) If the Magistrate decides that none of the parties was then in such possession, or is unable to satisfy himself as to which of them was then in such possession of the subject of dispute, he may attach it, until a competent Court has determined the rights of the parties thereto, or the person entitled to possession thereof: Provided that the District Magistrate or the Magistrate who has attached the subject of dispute may withdraw the attachment at any time if he is satisfied that there is no longer any likelihood of a breach of the peace in regard to the subject of dispute." Perusal of section 146(1), Cr.P.C. clearly shows that when the Magistrate decides that none of the parties was in possession of the disputed premises or the Magistrate is unable to satisfy himself as to which of the parties was in possession of the subject‑matter of dispute, may attach the same until a competent Court has determined the rights of the parties thereto or the person entitled to possession thereof. The order of the learned S. D.M. clearly shows that in his opinion, none of the parties was dispossessed of the premises at the time when the same were ordered to be attached by the learned S.D.M. Therefore, according ‑to section 146(1), Cr.P.C. what the learned S.D.M. was supposed to do under such circumstances was to direct the parties to approach a competent Court of law to determine their respective rights in respect of the property in question or possession thereof. It is therefore, clear that the learned S.D.M. by putting the respondent No.2 into possession of the premises, has made a definite error. M r. A . G . Mangi, the learned A . A . ‑G . appearing on behalf of the State has also conceded that the order passed by the learned S. D . M . could not be sustained, in view of the legal position discussed above. I have however, not had the advantage of hearing, the learned counsel appearing on behalf of the respondents Nos.2 to 4 as he has chosen to remain absent today. Even the respondents Nos.2 to 4 themselves have remained absent. The applicant, however, did not move this Court under section 439, Cr.P.C. but instead‑he filed revision before the Court of Sessions under section 439‑A, Cr.P.C. I have perused the judgment of the learned Sessions Court, and it appears, that the learned Sessions Court has missed the issues actually involved in the case and instead addressed itself to other issues which are not relevant to the case, since the real issue in the case was, whether the learned S.D.M. had power to pass the impugned order, dated 7‑2‑1985. Therefore, it is clear that even the learned Sessions Court was in error while dismissing the revision application filed by the applicant. The last question however, which requires determination is as to the maintainability of this Miscellaneous application under section 561‑A, Cr.P.C. since the same has been filed after the dismissal of revision application filed by the applicant before the Court of Sessions. There being no cavil against the proposition that the powers conferred on this Court under section 439 and on the Court of Sessions under section 439‑A, are concurrent and no second revision under section 439, under such circumstances, can be maintainable. before this Court. The question arises as to whether the jurisdiction of this Court under section 561‑A, Cr.P.C. can be invoked to redress the wrong or the same would amount to circumvention of the provisions of law. A similar question came for determination before the Lahore High Court in Parvaiz‑ur‑Rehman v. Muhammad Hussain 1980 P Cr. L J 3, and it was held therein that the High Court had inherent jurisdiction under section 561‑A, Cr.P. C. to correct any error and the same could be invoked even after dismissal of an application under section 439‑A, Cr.P.C. by the Sessions Court. The view taken by the Lahore High Court was further affirmed in two judgments of this Court reported as Mst.Syeda Banoo v. Muhammad Saleem and another 1983 P Cr. L J 2349 and Abdul , Aziz v. The State and another 1985 P Cr. L J 1615. These authorities make it abundantly clear that in appropriate cases where in the opinion of the High Court some error of law has been committed the High Court has inherent jurisdiction to correct such error. For the aforesaid reasons this revision application is allowed and impugned order, dated 7‑2‑1985, passed by the learned S . D . M . and the judgment, dated 12‑12‑1985, passed by the learned Additional Sessions Judge, Karachi are set aside. The case is however, remanded to the learned S.D.M. Liaquatabad for disposal strictly in accordance with the relevant provisions of Criminal Procedure Code, applicable in the case. In view above judgment Miscellaneous Application No.329 attachment of the disputed premises and property become infructuous and the same is, therefore, dismissed as such. 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