P L D 2006 Lahore 717 (PLP)

MUHAMMAD JEHANGIR ARSHAD, J.

The petitioner who is respondent before the learned Addl. Sessions Judge Mian Channu in a petition filed by Muhammad Sardar respondent No.2 herein in terms of section 3 of the Illegal Dispossession Act, is aggrieved of the very assumption of the jurisdiction by the said learned Addl. Sessions Judge on the ground that from the contents of the application moved by the respondent no case for assumption of jurisdiction by the learned Addl. Sessions Judge is made out. It is argued by the learned counsel that admittedly a civil suit titled Muhammad Sardar v. Haq Nawaz etc. regarding the property in dispute is pending before the learned civil Court at Khanewal for specific performance of agreement to sell filed by respondent No.2 and thus during the pendency of the said suit the learned Addl. Sessions Judge had no jurisdiction even to entertain the application filed by the respondent and especially when the learned civil Court had issued order regarding maintenance of status quo. It is further agued that there is chain of judgments of the Hon'ble Supreme Court that the possession is to be regulated by the civil Court and even through an interim order the criminal Courts had no jurisdiction to entertain any proceeding with regard to the same. It is further submitted that the complainant-respondent has already moved an application complaining disregard of the status quo order by the respondent. In support of his contention the learned counsel has relied on Mehr Muhammad Sarwar and others v. The State and others PLD 1985 SC 240, Muhammad Nazir Khan and 6 others v. Saltanat Khan and 5 others 1997 MLD 2055 and Shah Nawaz and 3 others v. Sub-Divisional Magistrate, Naushero Feroze and 6 others PLD 1974 Kar.

124. Placing reliance on Muhammad Younis v. Shahid Cheema and 2 others 2006 PCr.LJ 636 it is further submitted by the learned counsel for the petitioner that despite the expressed requirement of the Illegal Dispossession Act the matter was not probed or inquired into by an Officer Incharge of the Police Station of the area and thus all the proceedings conducted by the learned Addl. Sessions Judge in exercise of the powers under the said Act are coram non judice and lastly it has been argued by the learned counsel that the manner in which the petitioner's attendance through warrant of arrest has been procured is not only violative of the principle of natural justice but also shows unnecessary haste on the part of the learned Additional Sessions Judge which cannot be condoned by this Court in view of the dictum laid down by this Court in Muhammad Ijaz v. Nadeem and 3 others PLD 2006 Lah.

227. The argument is that after entertaining the application the learned Additional Sessions Judge was obliged to require the petitioner to submit bonds for appearance under section 91, Cr.P.C. but in the present case the learned Additional Sessions Judge did not issue summon and directly issued warrant arrest and sent the petitioner behind the bars.

3. I have considered the arguments of the learned counsel for the petitioner. All the above questions now being agitated before this Court can be raised before the learned Additional Sessions Judge by way of making an application under section 265-K, Cr.P.C. and if such an application is made the learned Additional Sessions Judge is under legal obligation to decide the same before proceeding in the matter on merits. Even otherwise if the legislature did not think it proper to provide a remedy of appeal or revision against an interim order, it is not proper to entertain the same in the writ jurisdiction as the same would amount to circumventing the very intention of the legislature. It has been held by the Hon'ble Supreme Court in Syed Saghir Ahmad Naqvi v. Province of Sindh through Chief Secretary, S&GAD, Karachi and another 1996 SC 1165 that Statutes excluding a right of appeal from an interim order cannot be by-passed by bringing under attack such interim orders in constitutional jurisdiction. The party affected has to wait till it matures into a final order and, then to attack it in the proper exclusive forum created for the purpose of examining such orders. It has also been held by the Hon'ble Supreme Court in Bashir Ahmad v. Zafar ul Islam and others PLD 2004 SC 298 that in such eventuality the only remedy available to an aggrieved person in criminal proceeding is to move an application under section 24-A or 265-K, Cr.P.C. as the case may be and no criminal proceeding can be allowed to be challenged through constitutional petition or by moving application under section 561-A, Cr.P.C. Even the material placed on the file reveals that the petitioners never appeared before the learned trial Court or raised such an application Therefore in the light of the law declared by the Hon'ble Supreme Court this petition is not maintainable and is accordingly dismissed. However, the petitioner, if so advised, may move the learned trial Court for redressal of his grievance and in case such an application is made the same shall be decided before proceeding in the matter on merits. F. B. /Z-32/L Petition dismissed.