P L D 1969 Karachi 22 (PLP)

(a) Criminal Procedure Code (V of 1898), S. 145 (1)‑Breach of peace‑Satisfaction of Magistrate of an apprehension of breach of peace‑Condition precedent for jurisdiction‑Omission to comply with a condition of jurisdiction‑Not merely an irregularity but an illegality which renders subsequent order illegal‑Magistrate being aware that dispute regarding title and possession between parties was pending in civil Court, passing order of notice under S. 145 stating merely "there appears to be dispute over possession" ‑ Nothing either on record or in circumstances of case leading to inference of satisfaction of Magistrate that breach of peace was likely‑Orders of notice, in circumstances, held, illegal‑[State v. Muhammad Azam P L D 1960 Pesh. 47; State v. Abdul Sattar P L D 1965 Kar. 305; Karam Bibi v. Rabia Bibi P L D 1961 Lah. 500; A. Q. Shaukat and another v. S. M. War P L D 1966 Lab. 809 and Gujarkhan‑Rawalpindi Muslim Transport v. Seth Asghar Ali P L D 1966 Lah. 435 dissented from]. Muhammad Ishaque v. Nur Mahal Begum P L D 1961 S C 426; Gul Muhammad v. Mst. Kubra Begum P L D 1961 Pesh. 76 and Mahmood v. Akhtar Ali P L D 1963 B J 27 ref. State v. Muhammad Azam P L D 1960 Pesh. 47; State v. Abdul Sattar P L D 1965 Kar. 305; Karam Bibi v. Rabla Bibi P L D 1961 Lab. 500; A. Q. Shaukat and another v. S. M. Jafar P L D 1966 Lab. 809 and Gujarkhan‑Rawalpindi Muslim Transport v. Seth Asghar Ali P L D 1966 Lah. 435 dissented from. (b) Criminal Procedure Code (V of 1898), Sr. 439 & 561‑A Application filed both under Ss. 439 & 561‑A‑Inelegant and defective‑Illegal orders, held, cannot however be upheld merely because of such inelegant pleadings. Shaukat Ali v. State P L D 1965 Lab. 312 ref. Abdul Shakoor Munshey for Applicants. S. Murtaza Husain for the State. This is an application under section 439 read with section 561‑A of Cr. P. C. against the order dated 26th March 1968 of the Civil Judge and section 30 Magistrate, Tando 4lubammad Khan, District Hyderabad on the application filed by .the first respondent under section 145, Cr. P. C.

2. According to the applicants, the dispute in this case relates to 61 acres of land in Police Station Kario Janwhar. Muhammad Bukhsh and Allah Khan, the first two applicants, .claim to be the owners of the said land. This claim is contested by one Haji Muhammad, the first respondent who claims to have purchased the said land from Nawaz Ali who in turn claims to have purchased it from Muhammad Bakhsh, the first applicant. As the first respondent was disputing the claim of Allah Khan and Muhammad Bakhsh, they filed a suit in the Court of the Civil Judge Hyderabad, being Suit No. 126 of 1967, in which they prayed for a declaration that they were the owners ‑of the said land and for a permanent injunction restraining 'Haji Muhammad, the first respondent, from interfering with ‑their rights. They also prayed for an interim injunction which was granted but vacated subsequently. According to the first respondent, after the said interim injunction was vacated, the applicants started threatening him and his Haris with the object of taking possession forcibly of the said land. Accordingly the first respondent filed an application under section 145, Cr. P. C. in which he prayed "that this Hon'ble Court may be pleased to declare that the applicant (the respondent No. I in this revision application) is in physical possession of the land ‑in dispute and any one else of the opponents . . . . . be restrained and prohibited from interfering with the possession :of the applicant". This application was supported by an affidavit of Haji Muhammad, the first respondent. Haji Muhammad also ‑filed a separate application that a receiver be appointed to take possession of the crops on the said land. On 26th March 1968 the learned Magistrate passed the following order on the said application under section 145, Cr. P. C. "There appears to be dispute over possession Notice to the opponents. Costs Hg: 9‑4‑1968." He also passed a second order on the same day, by which he allowed the receivership application of the respondent and appointed the Tapedar of the Court as the receiver who was to take possession of the standing crops.

3. On 30th March 1968 the applicants filed an application under section 145 (5), Cr. P. C. praying that the said orders of 26th March 1968 be cancelled and also prayed that the Magistrate should inspect the said land in order to examine who was in possession of the said land. I have pointed out that a civil suit was pending between the parties. In that suit, the civil Judge had appointed the Official Receiver of the Court to inspect the said land and prepare a report to show who was in possession of the said land. The applicants had filed a copy of the said report of the Official Receiver of the Civil Court in support of their application dated 30 March 1968 to set aside the said orders of 26th March 1968 which has been passed against them. Although in his own application under section 145, Cr. P. C. the first respondent has prayed that it should be declared that he was in possession of the said land, he filed objections to the prayer of the applicants for a site inspection of the said land by the Court. The hearing of this application was much delayed. The learned Magistrate first fixed it for hearing on 2‑4‑1968 then adjourned it to the 7th April 1968, then to the 8th April 1968 then to 9th April 1968 and finally on 9th April 1968 he adjourned it to 15th April 1968. Aggrieved by these delays, the applicants filed this revision application in this Court which was admitted by the order of my learned brother Abdul Kadir Shaikh, J. on 12th. April 1968.

4. Counsel for the applicants has contended that the orders of the learned Magistrate dated 26th March 1968 are illegal, because they are contrary to the mandatory provisions of section 145, Cr. P. C. According to counsel, before a Magistrate can exercise jurisdiction under this section, he should state his satisfaction that there was a likelihood of a breach of the peace and secondly he should state the grounds for such satisfaction. In the instant case, the orders of the Magistrate do not contain, any statement by the Magistrate from which it could even be inferred that there was, in his opinion, any likelihood of a breach of the peace, nor any statement of the grounds for the opinion that a breach of the peace was likely. Counsel therefore argued, that the orders were illegal and should be set aside in revision He also argued that under the provisions of section 145, Cr. P. C the Magistrate had no power to appoint a receiver. Lastly he argued that the said orders were illegal, because the learned Magistrate did not have the territorial jurisdiction to pass the said orders.

5. On the other hand according to counsel for the first respondent, in view of the Supreme Court's judgment in P L D 1961 S C 425, and other judgments relied upon by him, although the order of notice passed by the Magistrate was, defective, because it neither stated his satisfaction that a breach of the peace was likely nor contained any grounds for such satisfaction, yet these defects were only irregularities. Secondly,, he contended that as to the second order under section 145,. Cr. P. C., a Magistrate could appoint a Receiver under section 145, Cr. P. C. Thirdly, he contended that the revision application was premature, because the application of the applicants dated 30th March 1968 was still pending before the, Magistrate. Lastly, he contended that the learned Magistrate had the territorial jurisdiction to pass orders against the applicants. Mr. Murtaza Hussain, who appeared on behalf of the Advocate‑General supported all the arguments of counsel: for the first respondent. He further argued that the proceedings under section 561‑A, Cr. P. C. were not maintainable and that the applicants could not file a single application under section 439 and section 561‑A of Cr. g. C.

6. I shall first consider counsel's objection that an order under section 145, Cr. P. C. is illegal unless it states the grounds in support of the opinion of the Magistrate that the breach of peace was likely. In order to appreciate counsel's arguments, it is necessary to set out the provisions of section 145 (1) of the Cr. P. C. Section 145 (1) states as follows :‑ "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 a 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 his 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." Now I shall examine the judgment of the Supreme Court in Muhammad Ishaque v. Nur Mahal Begum (P L D 1961 S C 426), on which counsel for the respondent based his case. The facts of that case were that the respondent had filed an application under section 145, Cr. P. C. which was granted by the Magistrate in the following words :‑ "Seen petitions and reports. I am satisfied that there is serious apprehension of breach of peace and immediate measures are necessary. Start proceedings under section 145, Cr. P. C." It appeared that the police reports, on which the Magistrate relied in this order quoted above, stated that the Deputy Superintendent Police had made a thorough inquiry into the relevant facts and had come to the conclusion that "these is every possibility of the breach of the peace". The order passed by the learned Magistrate was challenged before the Supreme Court on the ground that it did not state the grounds upon which the Magistrate claimed to have been satisfied that there was an apprehension of a breach of the peace, although such a statement was mandatory under section 145, Cr. P. C. This argument was rejected by the Supreme Court. After analysing the elements essential for the foundation of the jurisdiction of a Magistrate under section 145, Cr. P. C., Mr. Justice Hamoodur Rehman, who delivered the judgment of the Court, stated at page 429 of the judgment as follows :‑ "If these elements exist, they are sufficient to vest the Magistrate with the jurisdiction to make the preliminary order in the mode prescribed therein. If the Magistrate after having acquired jurisdiction does not strictly comply with the other requirements of the section as to the form of the order and does not state the ground of his being so satisfied, the order is no doubt defective, but this does not mean that the order is also without jurisdiction. The jurisdiction to make the order depends upon the existence of the elements necessary for founding the jurisdiction. Once the Court has validly acquired that jurisdiction it cannot be said that it has only the jurisdiction to make a correct order in the prescribed form and that whenever the order is incorrect or defective, the order must also be held to be without jurisdiction. We are unable, therefore, to hold that the mere omission to state the grounds, upon which the Court is so satisfied in the initial order under section 145 of the Criminal Procedure Code necessarily makes the order also without jurisdiction. The most that can be said is that the failure to do so is a non-compliance with a rule of procedure and mere non‑compliance with a rule of procedure generally is not an illegality vitiating the entire proceedings." This judgment supports the contention of the respondent that the failure of the Magistrate to disclose in his order of 26th March 1968 any grounds for taking action against the applicants before me was an irregularity, not an illegality. Therefore although it is to be regretted that the Magistrate passed an order in disregard of the provisions of section 145, Cr. P. C. the order is not illegal on that ground and the contention of the appellant that it should be set aside on this ground has to be rejected.

8. However, the first order of the Magistrate only states that there was a dispute and does not contain any statement that the Magistrate was satisfied on the material before him of any apprehension of a breach of the peace. Even the second order does not mention any such apprehension. A Magistrate is presumed to know, when passing orders on an application under section 145, Cr. P. C. the importance of the distinction between a dispute and a dispute likely to lead to a breach of the peace. In this connection, the Magistrate was aware from the application before him that a dispute between the parties, namely, Suit No. 126/1967 in the Court of Civil Judge, was pending. The opponents (who are the applicants before me) had earlier filed an application under section 145, Cr. P. C. which had been dismissed. Thereafter they had filed an application to vacate his orders of 25th March 1958 which he kept on adjourning. If there had been any apprehension of a breach of the peace, it would have been his duty to dispose of that application without delay. The fact that he kept on adjourning that application, and the fact that there was no police report, nor any independent evidence to support the application of the first respondent under section 145, Cr. P. C. are circumstances which go against the contention of the respondent that, at the relevant time the Magistrate was satisfied that a breach of the peace was likely. On the whole, in the circumstances discussed, the use of the word 'dispute' by the Magistrate in the impugned order appears to be deliberate. The order means what it says, namely, that there was a dispute only, and it cannot therefore be inferred' either from the record or from the circumstances of the case that the Magistrate was satisfied that a breach of the peace was likely. Counsel contended that the order of notice and the second order for the appointment of a Receiver must be deemed to be an acceptance by the Magistrate of all the allegations of the first respondent, so that it should be implied that the Magistrate was satisfied that a breach of the peace was likely. If counsel's interpretation of the impugned orders is accepted, it would not only nullify the provisions of section 145, Cr. P. C. but it would encourage the use of the Criminal Courts for settling civil disputes, an unfortunate practice which is becoming common. However counsel contended that this plea advanced by him was supported by the aforesaid judgment of the Supreme Court. Counsel was not able to refer me to any observations in support ‑of his submission. I have carefully examined the said judgment and I find that their Lordships have drawn a distinction between defects in the jurisdiction of a Magistrate and defects in the exercise of the jurisdiction by a Magistrate who has acquired ,jurisdiction under section 145(1), Cr. P. C, Thus at page 428 of the judgment, after setting out the provisions of section 145(1) of ,Cr. P. C. Mr. Justice Hamoodur Rehman states :‑ "It is necessary, according to the tenor of the section that before an order thereunder can be issued the Magistrate must first be satisfied with regard to the matters therein specified and then after being so satisfied, be shall make an order in writing "stating the grounds of his being so satisfied". This statutory provision, therefore, does prescribe the mode for the exercise .of the jurisdiction conferred by it and there can be no doubt that the Magistrate exercising the said jurisdiction are expected to comply strictly with the said provisions of law. But to say that a failure to follow the prescribed mode must in every case render the exercise of the jurisdiction invalid and illegal is, in .our opinion, too wide a proposition. In our view, there is a distinction between the elements, which are essential for the foundation of jurisdiction, and the mode in which such jurisdiction has to .be exercised. The elements, necessary for the foundation of jurisdiction under section 145 of the Criminal Procedure Code are that the Magistrate must be satisfied: (a) that a dispute likely to cause a breach of the peace, (b) that the dispute refers to land or water or the boundaries thereof, and (c) that such land or water is situated within the limits of his territorial jurisdiction." It was after drawing this distinction that their Lordships held that when a Magistrate has acquired jurisdiction under section 145, Cr. P. C. his subsequent failure to record the reasons for exercising that jurisdiction, as required by that section was only an irregularity. It appears to me that this distinction between the elements constituting the jurisdiction of the Magistrate and .the exercise of that jurisdiction, defects in which were mere irregularities, would not have been drawn, unless their Lordships had been of the view that unlike defect; in the exercise of jurisdiction non‑compliance with the elements of jurisdiction was fatal to an order under section 145, Criminal Procedure Code. Therefore, in my humble opinion, this judgment supports the contention of the applicants; in any case it does not support the plea of the respondent. Counsel for the respondent also relied on other single bench judgments of this Court, but before I consider these judgments, I have to refer to a judgment, cited by counsel for the appellant of a Division Bench of this Court reported in Gul Muhammad v. Mst. Kubra Begum (P L D 1961 Penh. 76).

9. In Gut Muhammad v. Mst. Kubra Begum, the respondent had filed an application against the appellant, and as in the case before me, the Magistrate had merely ordered notice on the said application without recording his satisfaction that there was likelihood of any breach of the peace. Thereafter he heard the parties and after recording evidence passed an order against Gul Muhammad, the appellant in the High Court. It was contended in the High Court that as the Magistrate had taken action under section 145, Cr. P. C. without stating that he was satisfied of the likelihood of a breach of the peace, the entire proceedings were illegal and should be quashed. On the other hand, the respondent contended that the failure of the Magistrate to record his satisfaction of the likelihood of a breach of the peace was a mere irregularity, and reliance was placed on an earlier judgment of the Court reported in P L D 1960 Pesh. 47 and other judgments. In repelling the contention of the respon dent Mr. Justice Ortcheson, who delivered the judgment of the Court, stated as follows :‑ "The above remarks, in my opinion, clearly imply that it is not sufficient that a Magistrate should have received information that a breach of the peace is apprehended, it being further imperative that he should be satisfied that the informa tion is true. If it can be ascertained from the material on tie record that the Magistrate was so satisfied, the mere absence of a preliminary order would, no doubt not render his subsequent proceedings illegal, but the difficulty is that unless a preliminary order is recorded stating that the Magistrate is satisfied of the existence of an apprehension of a breach of the peace and giving his reasons for being so satisfied, it is not easy for a superior Court to discover whether this essential condition for the assumption of jurisdiction has been fulfilled. The mere fact that a Magistrate issues notice to the parties to attend his Court and put in written statement. by no means necessarily implies recognition on his part that his jurisdiction depends on the existence of a danger of a breach of the peace. In the case now before us there is nothing to indicate clearl that when the Ilaqa Magistrate served notice on the parties on the 12th of March 1958 he apprehended a breach of the peace, and I am consequently inclined to the view that the whole of the subsequent proceedings are without jurisdiction." I have explained that, in the instant case, there is nothing to show expressly or even by necessary implication that the Magistrate had been satisfied that a breach of the peace was likely, therefore these observations support the case of the applicants.

10. I have pointed out that the practice of using the criminal Courts in the settlement of civil disputes is to be deprecated. On this aspect of the case, counsel for applicants cited the judgment of this Court reported in State v. Abdul Sattar (P L D 1965 Kar. 305), which has been of great assistance to me, as the facts of this case are identical to those of the case before me. In P L D 1965 Kar. 305 there was a dispute about the possession of a flat in Karachi. The respondent in that case claimed that the applicant .had been his servant and was only a licensee, therefore he made an application under section 145, Cr. P. C. and also asked that the premises be sealed. As in the case before me, the Magistrate passed an order for notice on the respondent and another order that the premises be sealed. The contention in the High Court was that the proceedings shall be quashed, because there was no preliminary order by the Magistrate that he was satisfied of the likelihood of a breach of the peace. In accepting this contention, Farooqui, J., stated at page 308 of the judgment as follows :‑ "Mr. Abdul Kadir Shaikh, the learned Additional Advocate General, did not support this reference and he pointed out that there are decided cases in which it hits been held that even if the Magistrate passing an order under section 145 (1), Cr. P. C. does not expressly state the ground of satisfaction as to the apprehension of breach of the peace the order can still be supported if there are other materials which would show that the Magistrate in fact was satisfied as regards such a danger. It is, however, quite clear to me the section 145(1), Cr. P. C. makes an imperative provision requiring the Magistrate to state the grounds of his being satisfied that a dispute likely to cause a breach of the peace exists. The reason for this is obvious. The criminal Courts are not expected to decide disputes of civil nature relating to possession over immovable property. That is the function of the Civil Court. They acquire jurisdiction only when there is apprehension of breach of peace. That being so it must appear from the order of the Magistrate that he had applied his mind to the question as regards the breach of peace because it is the existence of such a dispute which gives hire jurisdiction to entertain the matter. This element is completely absent from the order dated the 22nd July 1960 passed by the learned Magistrate. That order must therefore a set aside." I am in respectful agreement with these observations. Counsel for the appellant also referred to a judgment of this Court in P L D 1963 B J 27 in which it was held that the satisfaction of the Magistrate was a pre‑requisite of any order under section 145, Cr. P. C.

11. I shall now consider the judgments of this Court cited by counsel for the respondent on the construction of subsection (1) of section 145, Cr. P. C. These cases are reported in Karam Bibi v. Rahia Bibi (P L D 1961 Lah. 500), Gujarkhan‑Rawalplndi Muslim Transport v. Seth Asghar Ali (P L D 1966 Lah. 435) and A. Q. Shaukar and another v. S. M. Jafar (P L D 1966 Lah. 809). The case of Karam Bibi v. Rabia Bibi, decided that a Magistrate has the power to appoint a Receiver when he takes action under section 145, Cr. P. C. Therefore this judgment supports the second argument of counsel for the respondent that the second order of the Magistrate appointing a Receiver of the crops of the disputed property was in accordance with the law. I shall now consider the judgment of this Court in Shaukat v. Jafar. The facts of that case were that a Magistrate had passed an order under subsection (4) of section 145, Cr. P. C. attaching the property in dispute without giving any reasons for his order. This order was challenged in the High Court by the applicant on the ground that it did not contain any reasons. The provisions of subsection (1) of section 145, Cr. P. C. which I have quoted, require the Magistrate to state the grounds for taking action if he exercises jurisdiction under that subsection,, but the provisions of subsection (4), which confer a power on, the Magistrate to attach property in dispute, do not contain, any provisions requiring the Magistrate to state the reasons for passing an order of attachment, if such an order is passed. The contention of the applicant was repelled by the Court on the basis of this difference between the provisions of subsection (0 and of subsection (4) of section 145, Cr. P. C. At page 812 Mr. Justice Cheema stated as follows "Taking the last point first, it may be stated that the argument has nothing to commend itself, as unlike sub section (1) of section 145, which makes it obligatory on the Magistrate to make an order in writing stating the grounds. 'of his being satisfied about the breach of peace, there is no such obligation attached in the second proviso. Once, the Magistrate is satisfied regarding the existence of a dispute likely to cause a breach of peace concerning any land or water or boundaries thereof within the local limits of the jurisdiction he can move in the matter in the manner provided in sub section (1) of course, stating the grounds of his being so satisfied. It might be a case of emergency at the very outset, or might subsequently . develop into one. If it had been the intention of the Legislature to make obligatory on the Magistrate the Statement of grounds regarding existence of emergency, there was nothing to prevent it from saying so, as. was done in subsection (1.)" These observations do not help the case of the respondent in. any way, because the question for determination in the application before me is whether the Magistrate has complied with the provisions of section 145(1), Cr. P. C. However, the judgment of this Court in P L D 1966 Lab. 435 supports the case of the respondent, although the facts of that case were rather peculiar. The material facts in that case were that on an application under section 145(1), Cr. P. C. the Magistrate had passed an order of notice, thereafter he had recorded the evidence of the complainant and three witnesses, and fixed the case for the evidence of the other side. On 20th July 1963 he passed an order attaching the property in dispute. In this order the Magistrate stated that there was apprehension of the breach of the peace. This second order of 20th July 1963, which referred to the apprehension of a breach of peace, was challenged in the High Court on the ground that a preliminary order under subsection (1) of section 145, Cc. P. C. had not been passed, therefore, all subsequent proceedings, including the order of 20th July 1963, should be quashed. This contention was repelled by Mr. Justice Khattak, who observed at page 439, in reference to the provisions of subsection (1) of section 145, Cr. P. C. as follows "The section further provides `he shall make an order in writing, stating the grounds of his being so satisfied.' What is satisfaction, is a question of fact to be decided by him. No form for stating the grounds is laid down in law, therefore, proceeding on the information received or merely repeating the same in his order means the same. From no source other than the material before him he is likely to get information and be satisfied to take action. It, therefore, follows that the omission of the repetition is a mere formality and no departure from the procedure." Although the facts of this judgment are distinguishable, because, unlike the instant case, there was independent evidence to justify the impugned order of the Magistrate, yet the observations quoted are very wide and support the case of the respondent. As pointed out by the Supreme Court in Muhammad Ishaque v. Noor Mahal Begum the satisfaction of the Magistrate of an apprehension of a breach of the peace, is a condition of his jurisdiction. I agree with the observations of Mr. Justice Khattak that no particular form of words is required to indicate the satisfaction of the Magistrate of an apprehension of a breach of the peace. But how can that satisfaction be proved unless the Magistrate has recorded that satisfaction in his order? As that satisfaction is a condition of the Magistrate's jurisdiction, with respect, I am not able to agree with the view of my learned brother that the omission of a Magistrate to record his satisfaction is a "mere Irregularity" In my opinion, an omission to comply with a condition of jurisdiction in a criminal statute is not a mere irregularity but an illegality which renders subsequent orders illegal. 1 am also not able to agree with the observation of my learned brother that if a Magistrate takes action on an application under section 145, Cr. P. C. by "proceedings on the information received", such action by the Magistrate must be treated as an indication of his satisfaction that a breach of the peace was likely. The view of my learned brother is inconsistent with the judgment of a Division Bench of this Court reported in Gut Muhammad v. Mst. Kubra Begum, which unfortunately was not cited before my learned brother; therefore with great respect I cannot follow the judgment of this Court in P L D 1966 Lah.

435. In the result, in the instant case, the orders of the Magistrate are illegal and have to be set aside because the Magistrate has not passed any order showing that a breach of the peace was likely. It is therefore not necessary for me to consider the argument of the respondent that the Magistrate could appoint a Receiver of the disputed property under the provisions of section 145, Cr. P. C. Although this argument is clearly supported by the judgment of this Court In P L D 1961 Lab. 500, which counsel cited.

12. Counsel for the respondent further argued that the revision application for quashing the said orders was premature, because the application dated 30th March 1968 of the applicants under section 145(4) of the Cc. P. C. had not been disposed of by the Magistrate. This argument is not sound. If the applicants had waited for the disposal of their application under section 145(4), Cr. P. C. the respondents would have contended that the applicants had elected to accept the orders of the Magistrate. In any case, the objection of the applicants relates to the jurisdiction of the Magistrate, therefore they are entitled to raise it.

13. Finally Mr. Murtaza Hussain, who appeared for the State, supported the arguments of counsel for the first respondent, and advanced an additional argument that the application before me should be dismissed, because, in the circumstances of the ease, no application was maintainable under section 561‑A, Cr. P. C. In support of this argument, Mr. Murtaza Hussain referred me to the judgments of the Supreme Court in Ghulam Muhammad v. Muzammal Khan and others (P L D 1967 S C 317) and Raja Haq Nawaz v. Muhammad Afzal and others (P L D 1967 S C 354). In Ghulam Muhammad v. Muzammal Khan and others, the material facts were that the respondent before the Supreme Court had been challaned under sections 408/109 and 468/109, P. P. C. After considerable evidence had been recorded, charges were framed against the respondent by the Magistrate who had seisin of the case. The respondent filed a petition in the High Court under section 561‑A, Cr. P. C. praying that the proceedings against‑‑them be quashed. This application was allowed by the High Court. The appellant filed an appeal in the Supreme Court, which was allowed. Counsel referred me to the observations of the Supreme Court on the powers of this Court under section 561‑A, Cr. P. C. At page 325 of the judgment the Court stated:‑ The inherent jurisdiction given by section 561‑A is not an alternative jurisdiction or an additional jurisdiction but it is a jurisdiction preserved in the interest of justice to redress grievances for which no other procedure is available or has been provided by the Code itself. The power given by this section can certainly not be so utilised as to interrupt or divert the ordinary course of criminal procedure as laid down in the procedural statute. The High Court as has repeatedly been pointed out in a number of decisions, should be extremely reluctant to interfere in a case where a competent Court has, after examining the evidence adduced before it, comes to the view that a prima facie case is disclosed and has framed charges or summoned the accused to appear, unless it can be said that the charge on its face or the evidence, even if believed, does not disclose any offence. The same view was taken by the Supreme Court in Raja Haq Nawaz v. Muhammad Afzal, I am in respectful agreement with these judgments which are binding on me. But as I have pointed, the application before me is both under section 561‑A and section 439, Cr. P. C. There the judgments cited are distinguishable. Further in Ghulam Muhann2d v. Muzzamal Khan after the observations to which counsel referred me, the Supreme Court stated as follows: If the respondents were aggrieved by the charge they could well have invoked the revisional jurisdiction of the High Court, as, indeed they did after they filed in a similar application for the quashing of the proceedings under section 145, Cr. P. C. in one of the litigations started by the appellant herein against them. It is worth noting that in that case the petition under section 561‑A was first rejected by the same High Court, because a more specific remedy by way of a revision petition was available against the impugned order. This remedy was subsequently invoked under section 439 and relief was granted on the 9th of May 1960 by tile High Court. Therefore the judgments cited do not support the case of the respondent, as their Lordships have clearly laid down that the remedy of revision to this Court is available against illegal orders. Confronted with this difficulty, counsel cited authority to show that an application, which was filed both under section 561‑A and section 439, Cr. P. C. was inelegant and defective, and the practice of entertaining such applications should be deprecated. I agree with the view that such pleadings should be deprecated. Unfortunately such pleadings are not unusual in this Court (see P L D 1965 Lah. 312). The question therefore is whether the application should be dismissed merely because Inelegant pleadings are to be deprecated. In my opinion the practice of using the criminal Courts for settling civil disputes is to be depreciated much more. Further I have held that the orders of the Magistrate in the instant case are without jurisdiction, therefore these illegal orders cannot be upheld merely because of inelegant pleadings.

14. In the result, the application of the applicants is allowed and I quash both the orders of the Magistrate dated 26th March 1967. The Magistrate will now proceed to hear the application of the 1st respondent under section 145, Cr. P. C. according to law. A. B. Application accepted.