1994 P Cr (PLP)

Ss. 561-A & 145

Interlocutory application

Main police report under S.145, Cr.P.C. cannot be disposed of under an interlocutory application or under S.561-A, C;.P.C. M.M. Pirzada for Applicants. Sardar Muhammad Ishaq for Respondents Nos.2 and

3. Laeeq Jafri for A.-G. Sindh for the State. Applicants Mohan Moti Lai and Kishan Kumar have filed this application under section 561-A of Cr.P.C. for setting aside of the order, dated 27-6-1994 passed by 1st Additional Sessions Judge, Karachi South, in Criminal Revision No.15 of 1994, which was directed against an order, dated 7-2-1994 passed by the Assistant Commissioner and S.D.M. City Karachi in a Criminal Case of 1993 which was filed under section 145,Cr.P.C. The dispute between the parties relates to a property mentioned as Sri Guru Nanik Darbar (Mander) situated at Rupchand Belaram Road, Aram Bagh, Karachi. On 20-7-1993 S.H.O. Police Station Aram Bagh reported to the S.D.M. City that a dispute likely to result in breach of peace existed between Mohan Moti Lai and others and Sardar Hira Singh and others in respect of the disputed property. The S.D.M. recorded statement of the S.H.O. on 20-7-1993 and on 21-7-1993 he passed an order under subsection (1) and subsection (4) of section 145 of Cr.P.C. calling upon the parties to appear before him and file their written statements. On the same date, the S.D.M. considering the case to be of emergency nature, attached disputed property and sealed it pending enquiry. Thereafter both the rival parties filed their written statements. In their written statement, applicant No.l Mohal Mui f I.al and others contended that the disputed property was built by Hindus of Karachi during early 20th Century over a plot standing in names of Thadaram, Jethanand, Hethchand, Jhamandas and Harkrishindas bearing No.29/1 of Survey Sheet of K.M.C. It was also averred by applicant No.l and others that Hindus of Sindh Province believed in the teachings of Guru Nanak Sahib and during prepartition days they built Guru Nanak Darbars in every big town or city of Sindh where they had been performing all the rituals of Hinduism and Nannak Panthi and had been celebrating festivals. The other party viz. respondent No.2 Sardar Hira Singh and others in their written statement stated that they were preachers of Sikh religion and the disputed property was a Sikh Gurdawara belonging to Sikh community and that Roopchand was General Secretary of Sri Guru Nanik Shewa Mandli and he started preaching of Sikh religion in 1984. The S.D.M. recorded some evidence and thereafter he passed the order; dated 7-2-1994, the operative part of which reads as below:-- "In these circumstances, I feel it necessary in the best interest of justice that the premises in question should remain attached and sealed till the parties get their title decided from the Civil Court of competent jurisdiction. I accordingly order that the property should remain attached as provided under section 146, Cr.P.C. as I am not satisfied in the above circumstances of the case to deseal the property and to hand over the possession to either party." Said order was challenged by respondents 2 and 3 before 1st Additional Sessions Judge, Karachi South, in Criminal Revision No.15 of 1994. Learned 1st Additional Sessions Judge hearing the parties accepted the revision application under the impugned order, dated 27-6-1994, after taking the view that the respondents 2 and 3 were in possession of the disputed premises since 1992 and that it would be proper, accurate and justified to deseal the property and to permit the respondents 2 and 3 to perform their religious duties in accordance with their sect and religion. In this view of the matter, learned Additional Sessions Judge set aside the order of the S.D.M. Hence this application under section 561-A of Cr.P.C. which was admitted for hearing on 3-7-1994. In his application Miscellaneous 844 of 1994 the applicants prayed for suspension of the order passed by the Additional Sessions. Judge on 27-6-1994 in Criminal Revision Application No.15 of 1994 on the ground that the respondents 2 and 3 were residents of Yousuf Street Gari Khata, Karachi and they were recently converted to Sikhism and that they had never remained in possession of the disputed property which was meant to be used for worship by people of Hindu religion with sect of Nanak Panthi. It was added that in case the disputed property was unsealed it would create further law and order problem and hurt the feelings of Hindu Community in the entire Province of Sindh. The application for stay was opposed by the respondents 2 and 3 who filed counter-affidavit. A preliminary legal objection was raised by Mr. Sardar Muhammad Ishaque learned counsel for the respondents 2 and 3 to the maintainability of the main application under section 561-A of Cr.P.C. on the ground that inherent powers cannot be exercised by the High Court under section 561-A of Cr.P.C. unless there was misreading of evidence or the impugned order was perverse or the impugned order was contrary to the provisions of law. In support of the legal objection, learned counsel cited the cases which require to be discussed. In the case of Abdul Rehman Bajwa v Sultan and others P L D 1989 SC 522 it was held that powers of revision under section 439, Cr.P.C. are much wider in scope than the powers of the High Court in writ petitions because a revisional Court can consider not only the legality but that of correctness and even of the propriety of any finding, sentence or order. In the instant case an application under section 561-A of Cr.P.C. is filed and not a writ petition. Hence cited case is inapplicable. In the case of Attaullah Khan v. Muhammad Akram and others 1985 P Cr. L J 2409 first revision application was filed in the Sessions Court and- after its dismissal second revision application was filed in the High Court. It was observed that section 561-A of Cr.P.C. contemplates inherent jurisdiction of the High Court, which provides that nothing in the 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 the Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice. It was also observed in the same case that inherent jurisdiction cannot be invoked as an additional or alternative jurisdiction after exhausting revisional jurisdiction. This authority does not say that after dismissal of revision application by a Sessions Court an application under section 561-A, Cr.P.C. cannot be filed. In the case of Saleh Muhammad v. Abdur Rehman and others 1985 P Cr. L J 1055 the view taken was that where once a revisional jurisdiction is exercised by a competent forum, unless it is clear on its very face that the exercise was either totally illegal or extravagantly fanciful or the order thus passed was irrational, invoking jurisdiction of the High Court under section 561-A would be an effort futile. Cases cited by learned counsel for the applicants require to be discussed. In the case of Habibullah v. Malik Muhammad Hashim and another P L D 1993 Quetta 113 the view taken that the High Court is competent to exercise inherent jurisdiction under section 561-A, Cr.P.C. to give effect to any order passed under the Criminal Procedure Code or to prevent abuse of process of the subordinate Court or to secure the ends of justice, irrespective of the fact that aggrieved party had already availed the remedy of filing a revision before the competent Court under section 435/439 of Cr.P.C. It was also observed that jurisdiction of the High Court cannot be curtailed because under the statute an alternative remedy was available which has been exhausted or should have been adhered to before approaching the High Court. In the case of Syed Munawar Ali Zaidi v. Mst. Qaisar Jahan and another P L D 1992 SC 406 it was observed that application under section 561-A, Cr.P.C. is maintainable in the High Court after remedy of revision is exhausted in the Sessions Court but the High Court would not interfere under section 561-A, Cr.P.C. after remedy of revision was exhausted just because High Court on appreciation of evidence comes to a different conclusion. It was added that High Court would interfere under section 561-A, Cr.P.C. only when it is satisfied that in the appreciation of evidence by the lower Courts gross miscarriage of justice has taken place amounting to abuse of the process of the Court or interference was necessary to secure the ends of justice. In the case of Syed Munawar Ali Zaidi v. Mst. Qaisar Jahan and another P L D 1992 Kar. 104 a learned Single Judge of this Court took view that High Court can entertain an application under section 561-A of Cr.P.C. in which the assessment of evidence is involved but as a matter of practice, it is done very sparingly when the finding recorded by the Court below is patently illegal resulting into miscarriage of justice. It may be appreciated that there is no bar for filing application under section 561-A of Cr.P.C. simply because the party moving such application had A earlier moved the lower forum under section 439-A or 435, Cr.P.C. as held in the case of Syed Munawar Ali Zaidi P L D 1992 SC

406. In the circumstances I would overrule the legal objection and hold the present application to be maintainable. In respect of the present proceedings under section 145, Cr.P.C. no illegality appears to have been committed by the learned Magistrate who has taken cognizance. Admittedly there is a dispute between the applicants and the respondents 2 and 3 in respect of the property in litigation. In the circumstances handing over of possession to any of the parties would have created annoyance in the mind of the other party and this could have resulted in breach of peace. The case of Muhammad Akbar v. Additional Sessions Judge, Lahore and others 1983 P Cr. L J 1355 cited on behalf of the respondents 2 and 3, would not apply to this case because in the cited case the proceedings under section 145, Cr.P.C. was held to have been rightly rejected as a complaint about illegal dispossession was filed three months before the proceedings. In the case of Mirza Abdul Razzaq v. Barkat Ali and others 1985 S C M R 1235 the Magistrate performed his duty completely, leaving no' grievance to any of the parties, but in executed proceedings the possession was given according to order of the Rent Controller. Even this case appears to be distinguishable. The documentary evidence brought on record supports the case that the disputed property was being governed by Sri Guru Nanik Shewa Mandli. Sri Guru Nanik Shewa Mandli has not been impleaded as a party. Respondents 2 and 3 may be'Sikh but they are not shown to be occupying any position in the Mandli. Moreover, restoration of possession to the resE- -,dents 2 and 3 would mean end of the matter. The main report under section 145, Cr.P.C. cannot be disposed of under an interlocutory application or under section 561-A of Cr.P.C. Furthermore prima facie the Additional Sessions Judge had no D justification to order possession to be given to any of the contesting parties, I when the dispute between the parties is- of a sensitive nature and both the parties require to be cooled down before ultimate decision is given. For the foregoing reasons, I would desire the disputed property to remain sealed till final disposal of this Criminal Miscellaneous No.410 of 1994. N.H.Q./M-1972/K Order accordingly.