2015 PLP 685 (YLR)

MUHAMMAD IQBAL KALHORO, J.--By this order the Criminal Miscellaneous Application No.502 filed by the applicant Abid Ali under section 561-A, Cr.P.C. seeking following relief(s) is disposed of:-- (a) This honourable Court may graciously be pleased to direct the respondent No.2 to oust the respondent No.3 from the house of petitioner and hand over the custody of respondent No.3 to her brothers respondents Nos.4 and 5. (b) Any other order deemed fit and proper by this honourable Court.

2. The facts in nutshell are that the sisters of respondents Nos.3, 4 and 5 namely Mst.Shazia is married with the Muhammad Raza and Mst.Shahnaz is wife of Muhammad Hussain who both are the brothers of the petitioner. The petitioner after the marriage found the respondents to be a questionable character therefore he kept some distance from them. It is stated that Mst.Gulnaz married with some person at Rahimyar Khan Punjab obtained dissolution of her marriage, whereafter her proposal was sent to the family of the petitioner by the respondents but it was not accepted causing annoyance to them, who resultantly lodged an F.I.R. bearing Crime No.205/2012 of Police Station Naushahro Feroze under sections 452, 365-B against the petitioner and others for the abduction of respondent No.3. The said case however was disposed of when respondent No.3 got her statements recorded under section 161, Cr.P.C. before the police and her statement before the learned Judicial Magistrate Naushahro Feroze denying her abduction. Thereafter the respondents again offered the hand of respondent No.3 to the petitioner for marriage but again it was not accepted, consequent whereupon the threats were issued to the petitioner's family. Per contents of petition three months before its filing the respondent No.3 was left in the house of petitioner by the respondents Nos.4 and 5 on the pretext of her meeting with her sisters but then she refused to leave the house of petitioner and when he contacted the respondents Nos.4 and 5 to take her sister back, they did not oblige him and issued threats that in case respondent No.3 was not accepted as wife by any family member of the petitioner, they would involve him in false cases. All efforts made by the petitioner to evict the respondent No.3 from the house have borne no fruit and since the respondent No.3 is a woman; the petitioner cannot drag her out of the house apprehending implication in false cases. Hence the application.

3. That on 6-6-2014, in view of apparent family dispute between the parties, learned counsel was required to satisfy the Court as to what offence was committed wherein the police indulgence was required and meanwhile notice was also issued to the D.P.G. to assist this Court in respect.

4. Learned counsel for the applicant has contended that this Court under section 561-A, Cr.P.C. has got vast powers to issue any order in the interest of justice. According to him no remedy is available to the applicant under any other law to avail, therefore, the present application has been filed with the prayer to issue necessary directions to the police to evict the respondent No.3 from his house.

5. Learned A.P.G. for the State has however, refuted the arguments advanced by the learned counsel for the applicant on the ground that no any criminal offence has been pointed out by the applicant to have been committed against him. According to him the nature of dispute, on the face of it, appears to be of family-oriented as admittedly the sisters of respondent No.3 are married with the brothers of the applicant.

6. I have heard learned counsel and perused the material available on the record.

7. For the sake of convenience, Section 561-A is reproduced here:- 561-A. Saving of inherent power of High Court.

Nothing in this Code shall be deemed to limit or affect the inherent power to the High Court to make such orders as may be necessary to give effect to any order under this Code; or to prevent abuse of the process of any Court or otherwise to secure the ends of justice.

8. No doubt the powers under section 561-A, Cr.P.C. to this Court are vast and inherent in nature but those are meant to make such orders as may be necessary to give effect to any order under the Code or for the purpose of preventing abuse of the process of the Court or otherwise to secure the ends of justice. The litmus test applied for exercising such powers is that the wrong complained of by the applicant must be specific, serious in nature, tangible and justifiable under section 561-A, Cr.P.C. and if however, the remedy to the applicant is available under any other law then the contemplated inherent powers cannot be invoked in favour of the applicant. The same view was taken by this Court in a case of Mehboob Alam and 3 others v. The State (PLD 1996 Karachi 144). "The criteria for the exercise of the power under this section is that the injustice complained by the applicant shall be clear, grave in nature, and tangible. In case another remedy is available, normally inherent jurisdiction is not to be invoked."

9. Jurisdiction under section 561-A, Cr.P.C. could be invoked only in rare cases to secure the ends of justice, for which no other procedure is available for the redressal of grievances expounded by the applicant. Admittedly the jurisdiction under section 561-A, Cr.P.C. is extraordinary and is designed to do substantial justice and is primarily invoked for providing a quick and expeditious remedy in a case where the impugned illegality/action of an executive or other authority is established without undertaking an elaborate enquiry into the complicated question of facts because such disputed facts can only be adjudicated upon after recording evidence by a Court having jurisdiction.

10. In a case of Muhammad Saeed Khan v. The State (2012 PCr.LJ 1337), it is observed as under:-- "It is well settled by now that the superior courts should not involve themselves into investigation of disputed question of facts which necessitate taking of evidence. This can more appropriately be done in the ordinary by the trial court. This extraordinary jurisdiction is intended primarily, for proving an expeditious remedy in a case where the illegality of the impugned action of an executive or other authority can be established without any elaborate inquiry into complicated or disputed facts. Controverted question of facts, adjudication on which is possible only after obtaining all type of evidence empower and possession of the parties can be determined only by court having trial Court jurisdiction."

11. In the present case the learned counsel has failed to satisfy the Court regarding the above discussed criterion for invoking the inherent jurisdiction by this Court under section 561-A, Cr.P.C. The dispute apparently appears to be matrimonial between the parties which can only be adjudicated upon after the necessary evidence in this respect is recorded before the Court having jurisdiction to try such matter. The kind of directions, which the applicant is seeking through the instant application cannot be given, under such circumstances.

12. In view of above discussion the application having no merits for consideration is dismissed. MH/A-120/Sindh Application dismissed.