1997 P Cr (PLP)

"(1) Declare that the opponents have illegally and collusively trespassed into the ground floor and committed act, criminal acts of criminal trespass, breach of trust punishable under P.P.C. which was otherwise locked and in joint possession of all brothers. (2) Order the competent Authority to take legal action against the opponents. (3) Any other order as deemed proper and just." Learned Sub-Divisional Magistrate, City Hyderabad issued notices to the respondents and after hearing the parties dropped the proceedings and directed the parties to seek redress of their grievances from the Civil Court as by that time parties have already approached the Civil Court for adjudication of their dispute. This is an admitted fact, which is also apparent from the Memo. Of petition that a suit was filed for partition of the property by the petitioner wherein learned Civil Judge has passed order, by consent of the parties, directing them to maintain status quo, Against the order of learned S.D.M. the petitioner filed revision under section 435/439-A, Cr.P.C. which was again dismissed by the learned IVth Additional Sessions Judge, Hyderabad, through the impugned judgment against which petitioner has filed instant petition under section 561-A, Cr.P.C. with the following reliefs:-- "(a) set aside, reverse the orders of the two Courts below. (b) order the Sub-Divisional Magistrate City, Hyderabad, to proceed with the case and record the evidence of the parties and pass the necessary legal orders. (c) any other order as deemed proper and just. " Mr. Noor Nabi G. Memon, who has appeared on preadmission notice, raised objection to maintainability of the present petition on the ground that once revisional jurisdiction of Sessions Court is invoked then petitioner is not entitled to invoke provisions of section 561-A, Cr.P.C. for quashment of proceedings in respect of which revisional jurisdiction is already exercised. Reliance was placed on the two reported judgments of this Court Zafar Hussain v. Muhammad Amin and others 1989 PCr.LJ 1928 and Attaullah Khan v. Muhammad Akram and 5 others 1985 PCr.LJ 2409. Mr. Ghulam Muhammad Mughal, learned counsel for the petitioner in reply to the objection of Mr. Noor Nabi Memon has invited my attention to the case of Muhammad Shafique and others v. Abdul Hayee 1987 SCMR 1371 where same objections as of present case were raised which were not approved and it was held inter alia, that the powers possessed by the Courts under section 435/439, Cr.P.C. do not impinge,- curtail, or limit, in any manner whatsoever the powers under section 561-A, Cr.P.C. In that reported case Magistrate has passed order for sealing of the property (shop) against which a revision was filed] under section 435/439, Cr.P.C. before the Sessions Judge, Rawalpindi, which was allowed and the order of Magistrate was set aside. The aggrieved party went before the Lahore High Court under section 561-A, Cr.P.C. which set aside the order of Sessions Judge and the order of Magistrate was restored. The Honourable Full Bench of the Supreme Court held that the High Court was justified under section 561-A, Cr.P.C. to correct the obvious legal error committed by the Additional Sessions Judge while interfering in revision with the order of learned Magistrate. In the above-referred case of Supreme Court reference was made to the cases of Muhammad Samiullah Khan v. The State PLD 1963 SC 237, Ghulam Muhammad v. Muzammal Khan PLD 1967 SC

317. The case of Attaullah Khan (supra) was discussed and the view was reiterated by the same learned Judge in the case of Mst. Khalida Rehman and 2 others v. Muhammad Aqil and another PLD 1988 Kar.

85. It would not be out of place to reproduce the view which was held by this Court in the case of Mst. Khalida Rehmtan (ibid):-- "

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 v. Muhammad Akram and others 1985 PCr.LJ 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 SC 317 and PLD 1981 SC

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 v. The State and another 1969 SCMR 325 and Muhammad Shafique and others v. Abdul Hayee and others 1987 SCMR 1371. " In view of the law laid down by the Honourable Supreme Court in the case of Muhammad Shafique (supra), I have examined merits of the case in order to ascertain what error, if any was committed by the Courts below. I have heard Mr. Ghulam Muhammad Mughal, for the applicant, Mr. Noor Nabi G. Memon, for respondent and Mr. Amanullah Qureshi, Assistant Advocate-General, Sindh. Mr. Ghulam Muhammad Mughal has repeatedly argued that since the subject-matter of the suit do not involve title of the property, as such, reference made to the reported cases by the learned Sessions Judge in the impugned judgment was not relevant and that the petition under section 145, Cr.P.C. was maintainable. On the other hand, Mr. Noor Nabi G. Memon has whole-heartedly supported the impugned judgment. The learned Sessions Judge has referred to the case of Shah Muhammad v. Haq Nawaz PLD 1970 SC 470 where it was held that the jurisdiction of a criminal Court to attach immovable property under section 145(4), Cr.P.C. is subject to the order of Civil Court regulating its possession. It was further held that section 145, Cr.P.C. proceeds on the premises that the Magistrate seized to deal with the possession of land or water in dispute before him as soon as the Civil Court is seized with the dispute and has passed a decree declaring the rights of the parties. In the case of Khalid Waheed Khowja v. District and Sessions Judge, Karachi South and another 1992 PCr.LJ 2158 a learned Division Bench of this Court, after referring to the case of Shah Muhammad v. The State and 5 others 1983 SCMR 1173 and the case of Syed Ghulam Murtaza v. Baber Akbar 1991 PCr.LJ 720 held inter alia, that a criminal Court is not permitted to change the status quo under the garb of supposed existence of a dispute likely to cause breach of the peace, when property in question is subject-matter of civil litigation. In Mehr Muhammad Sarwar and others v. The State and others PLD 1985 SC 240 it was held by Full Bench of Honourable Supreme Court that for an enquiry under section 145, Cr.P.C. what a Magistrate is required to do is to ultimately regulate the possession of the property in dispute for the time being so that the apprehended breach of peace is averted. It is an admitted position that a civil suit has been filed by the petitioner for partition of the disputed corridor in which a learned Civil Judge, by consent of the parties, has passed order of maintaining status quo and that order is still in force. In presence of such order. I am afraid a criminal Court cannot continue proceedings under section 145, Cr.P.C. as the possession is now regulated by the order of Civil Court. There were other pre-requisite for invoking section 145, Cr.P.C. by the petitioner, which was not addressed by the learned S.D.M. which involves question of breach of peace. The entire petition under section 145, Cr.P.C. is silent on this question, which is one of the most important pre condition for invoking jurisdiction of a criminal Court under section 145, Cr.P.C. Even on this score, the petition before the learned S.D.M. was not competent. Reference is made to the case of Muhammad Shafique (supra) where Honourable Supreme Court held the following view, while interpreting section 145, Cr.P.C.:-- "As regards the legality of the order passed under section 145, Cr.P.C. it is to be noted that the jurisdiction of the Magistrate under that section is dependent not on an application by a party or a report by police or information received from any quarter but it is dependent on his being satisfied that a dispute likely to cause breach of the peace exists. How he comes to know of it, is not at all material for the purposes of assuming jurisdiction. It is only when that satisfaction is there that an order can be passed .... It is by reference to this satisfaction and the order passed thereafter that further proceedings or the nature of the orders to be passed are conditioned. The first proviso refers to the date of such order as is passed on being satisfied that a dispute likely to cause breach of the peace exists. In such a situation where the satisfaction of the Magistrate is the jurisdictional ground and that has no reference to any application or to a particular source of information no party laying such an information can claim a right in the proceedings as such of which a grievance can be made that the Magistrate by delaying the order had prejudiced its cause .... " As a result of the above discussion, I am of the view that no error, illegality or any irregularity appears in the orders of both the Courts below which warrants interference, as held in the case of Muhammad Shafique (above). This petition is, therefore, dismissed in limine. N.H.Q./N-40/K Petition dismissed.