1984 P Cr (PLP)

3. On the other hand the learned counsel for the petitioner has drawn my attention to the case reported as Muhammad Bakhsh v. Iqbal alias Ahmad and another (1980 P Cr. L J 191), wherein the operative part of the judgment is couched in the following words:- "In view of the above, exercising my powers under section 561-A of the Criminal Procedure Code, I hereby set aside the Order of the learned Additional Sessions Judge, dated 7th June, 1979 passed in Criminal Revision No. 68 of 1979 and remand the case back to the learned Additional Sessions Judge with the direction that he should hear and finally decide the said revision petition on merits, after notice to the parties. This petition is accordingly accepted."

4. Reference may also be made to Peshawar case of Musa Khan v. The State (P L D 1983 Pesh. 76), wherein it was held: - "There is no denying the fact that after addition of section 439-A and clause (b) of subsection (4) of section 439 to the Code of Criminal Procedure, no remedy is left to an accused whose appeal is rejected by the Sessions Court and the sentence awarded to him by the lower Court enhanced in exercise of revisional jurisdiction under section 439-A. The question arises whether in such circumstances would the High Court sit as an idle spectator even in. cases in which patent injustice may have been done by the inferior Courts. In my humble view, in such cases High Court has the power to intervene under its inherent jurisdiction to correct the patent injustice done by the inferior Courts." I am in respectful agreement with the view taken in the latter two authorities. If a case of flagrant injustice which has been committed at the level of inferior Court is brought to the notice of this Court it cannot refuse to exercise its extraordinary jurisdiction conferred by section 561-A, Cr. P. C. merely because the aggrieved party has already exhausted the alternate remedy by filing revision petition before the Sessions Judge under section 439-A, Cr. P. C. and the same has failed. Under the new arrange ment following the introduction of law reforms, no doubt Sessions Court and High Court enjoy concurrent jurisdiction of revision but once the Sessions Court has exercised its revisional jurisdiction the same matter cannot be agitated in the second revision application before the High Court. Although the power of High Court entertaining second revision application after first revision application has been heard and decided by the Sessions Court has been expressly barred, the extraordinary power vested in the High Court under section 561-A, Cr. P. C. has been left in tact and can, therefore, be invoked in appropriate case notwithstanding the exercise of revisional power by the Sessions Court. Accordingly the objection with regard to competence of this application is without any force.

5. On merits of the case the learned counsel for the petitioners first contended that proceedings under section 145, Cr. P. C. are of emergent nature and are invariably taken out to meet a grave emergency. He argued that the way in which the present case has been handled does not disclose the existence of any such emergency justifying the action under section 145, Cr. P. C. The learned counsel while illustrating his view point, pointed out that the petitioners are alleged to have taken over possession of the disputed land forcibly on 18th December, 1981 where as the respondent Mian Najamuddin filed application under section 145, Cr. P. C. a week later i.e. on 25th December, 1981. Even the learned Mukhtiarkar and F. C. M. waited for nearly two months before calling upon the parties to file their written statement as he passed such order on 23rd February, 1982. In support of his contention he has referred to the case reported as Mrs. Sahira Almas and another v. Gulbaz Khan and others (P L D 1974 Lah. 289). 1n this case Magistrate concerned abstained, rather avoided to initiate the proceedings for full one week after submission of the police report in spite of persistent request of the counsel of the petitioners who had on each date pressed him for passing the initial order under section 145, Cr. P. C. It was held: - "To my mind his hesitation was certainly a negation of his satisfaction about the existence of any apprehension of breach of peace which is one of the three essential prerequisites forming the founda tion of the jurisdiction of a Magistrate to proceed under section 145, Cr. P. C. as laid down by their Lordships of the Supreme Court in Muhammad Ishaque's case (P L D 1961 S C 426) and followed by Dorab Patel, J. in Mir Jafar Khan Jamali's case (P L D 1971 Quetta 84). A similar view had been taken earlier in Khanger v. Jhamman (A I R 1950 All. 734) and The State v. Abdus Sattar (P L D 1965 Kar. 305)."

6. If the case is examined in the light of above authorities it would be noticed that no urgency has been displayed even in the instant case. Both the respondent on whose application the impugned proceedings were initiated and the Court before whom the said proceedings are pending, have rather acted at ease. If the petitioners had really occupied the land by sheer force, the respondents would not have waited for full one week before approaching the Court for exercise of its jurisdiction under section 145, Cr. P. C. From their apathy, I am inclined to the view that as if no emergency or urgency was involved in the case. The Court too seems to have taken the dispute lightly. This is clear from the fact that it took nearly two months to pass the initial order calling upon the opposite-party to put in their defence or file their written statement.

7. The learned counsel for the respondent attempted to explain the delay in passing the said order by submitting that the intervening period was spent on service of notice on the petitioner's party. In fact it was not necessary to secure the attendance of the opposite party for passing the initial order. It would be noticed that initial order is passed under subsection (1) of section 145, Cr. P. C. which is reproduced as under: - "Whenever a District Magistrate, Sub-Divisional Magistrate or Magistrate of the first class is satisfied from a police report or other information that a dispute likely to cause breach of the peace exists concerning any land or water or the boundaries thereof within the local limits of his jurisdiction he shall make an order in writing, stating the grounds of being so satisfied and requiring the parties concerned in such dispute to attend his Court in person or by pleader, within a time to be fixed by such Magistrate, and to put in written statements of their respective claims as respects the facts of actual possession of the subject of dispute."

8. It is clear from the above provision of law that the notice issued to the opposite party prior to passing of initial order was not a legal requirement. Accordingly the explanation advanced by the learned counsel is not legally acceptable. Moreover the preliminary order by which the parties are called upon to put in their case by filing written statement is in the nature of show-cause notice. Surely for giving show-cause notice no other notice is required to be served on the opposite party. By adopting such course, there would be unnecessary duplication, which would frustrate the very purpose of obtaining quick relief, which is the prime need of the proceedings under section 145, Cr. P. C.

9. The other objection raised by the learned counsel for the petitioner was that civil litigation has been filed in respect of the disputed land and therefore, there is no justification to continue the proceedings under section 145, Cr. P. C. which are of temporary nature and are designed to have stopgap arrangement until final adjudication of the dispute between the parties by civil Court of competent jurisdiction.

10. To reinforce his argument he has placed reliance on Aijaz Hussain v. Qaisar and another (1983 P Cr. L J 129), wherein it was held: - "Moreover proceedings under section 145, Cr. P. C. are no doubt in nature of stopgap arrangement and must in disputes as to immov able property yield to order of the civil Courts, which alone are competent to determine questions of title and right of possession to immovable property. It does not make any difference if the civil suit was filed before or after the proceedings under section 145, Cr. P. C. were initiated. As soon as the civil Court has passed the order in respect of the said property, any orders passed by the Magistrate regarding it have to be subservient thereto."

11. The other authority relied upon on this point is the case of Mrs. Sahira Almas and another referred above. In the said case following observations are significant: - "It was, therefore, not a fit case for proceedings under section 145, Cr. P. C. especially after it had been brought to the notice of the learned Magistrate that the civil Court was already seized of the matter and had regulated the possession of the shop by declining interim injunction as prayed for by the respondent (No. 1) in the matter.

12. In the instant case it is not denied that civil suit has been filed by the respondent against the petitioners in respect of the disputed land and the said suit is pending if the Court of Senior Civil Judge, Gambat. In view of the above authorities with which I am in full agreement the pro ceedings under section 145, Cr. P. C. must yield to the said civil litigation and could not be continued any longer.

13. For the foregoing reasons, the petition is accepted and the pro ceedings referred to above are quashed. S. Q. Petition accented.