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Criminal Miscellaneous Application No. 359 of 1986, decided on 28th June, 1986.

‑‑‑S. 561‑A‑‑Inherent jurisdiction of High Court‑‑Powers of High Court under S. 561‑A, Cr.P.C. are of very wide nature and could always be pressed into service in an appropriate case.

‑‑‑Ss. 561‑A, 439 &439‑A‑‑Powers conferred on High Court under S.439, Cr.P.C. and those conferred on Court of Session by S.439‑A, Cr.P.C. although concurrent and a party which has its remedy under S.439‑A, Cr.P.C. cannot invoke jurisdiction of High Court under S. 439, Cr.P.C., yet in an exceptional case where it appeared to High Court that Court of Session had failed to exercise jurisdiction under S.439‑A, Cr.P.C. with reasonable propriety, High Court, held, could interfere to correct errors of law under 5.561‑A, CrY.C. which were patently manifest and where ends of justice so demanded.

Prof. A. Hameed Kausar v. The Sate and others P L D 1979 Lah. 727 and Pervaiz‑ur‑Rahman v. Muhammad Hussain etc. 1980 P Cr. L J 3 rel.

Abdul Aziz v. The State and another 1985 P Cr. L J 1615 and Mst. Syeda Banoo v. Muhammad Saleem etc, 1983 PCr.LJ 2349 ref.

‑‑Ss. 561‑A & 145‑‑Attachment of property‑‑Order passed by S.D.M. not showing whether there was an emergency requiring him to pass order of attachment of property‑‑Circumstances stated by S.D.M. in the order also not warranting passing of such order‑‑Even otherwise order was passed after three years of initiation of proceedings under S. 145, Cr.P.C.‑ Held, procedure followed by S.D.M. was not in accordance with law and case was fit for exercising inherent powers by High Court under S. 561‑A, Cr.P.C.‑‑Order of attachment set aside and case remanded for final disposal strictly in accordance with law.

‑‑‑Ss. 561‑A, 145 &439‑‑Attachment of property‑Sessions Judge deciding revision, against order of attachment of property passed by S.D.M., without addressing himself to issue actually involved in case and going into question of limitation which was not involved and allowing order of S.D.M. to continue to operate‑‑Sessions Judge, held, committed an obvious error.

Abbas Ali for Applicant.

Makhdoom Abdul Wali for Respondent No.2.

A.A. Muhammadally, A.A.‑ G. for the State.

Date of hearing: 16th June, 1986.

This application was allowed today by a short order, the reasons for which are now to be recorded. The following are the reasons therefor.

The facts forming the background of this case are that on 29‑11‑1981 by an order passed by S.D.M., Liaquatabad, Karachi, proceedings under section 145, Cr.P.C. were initiated against the applicant and the respondent No.1. Such proceedings were initiated on the bass of a report submitted to the S.D.M. by one A.S.I. of Police Station New Karachi which showed that some dispute had arisen between the applicant and the respondent No. 1 over Shop No. 11‑A/11, Sector 11‑F, New Karachi which was likely to cause breach of peace. Thereafter both parties were summoned to appear before the learned S.D.M. and file their statements in respect of their respective claims, which, as it appears, was done by them. However, at a later stage of the proceedings the applicant failed to appear before the learned S.D.M. with the result that on 1‑12‑1984 the learned S.D.M. passed an order under section 145(4), Cr.P.C. ordering attachment of the shop in question.

Aggrieved by this order, the applicant challenged the same in revision before the Sessions Court under section 439‑A, Cr.P.C. and by order, dated 22‑12‑1985, the revision application was dismissed by the Third Additional Sessions Judge, Karachi (West). The applicant has now invoked the jurisdiction of this Court under section 561‑A, Cr.P.C.

I have heard Mr. Abbas Ali, learned counsel for the applicant, and Mr. Makhdoom Abdul Wali learned counsel appearing on behalf of the respondent No. 1 and Mr. A.A. Muhammadally, learned A.A.‑G. on behalf of the State.

The contention of Mr. Abbas Ali has been that both, the order, dated 1‑12‑1984, passed by the learned S.D.M. and the judgment, dated 22‑12‑1985, passed by the learned Additional Sessions Judge are erroneous as the order passed by the S.D.M., which was under the provisions of subsection (4) of section 145, Cr.P.C. could not have been passed after more than three years having elapsed after initiation of proceedings against the applicant and the respondent No.1. It has been further contended that in any case, the order was passed without jurisdiction. The contention raised by Mr. Abbas Ali has also found support from Mr. A.A. Muhammadally, the learned A.A.‑G. appearing on behalf of the State. Mr. Makhdoon Abdul Wali, the learned counsel appearing on behalf of respondent No. 1, although, has not contested the contentions raised by Mr. Abbas Ali bn merits, but the objection of the learned counsel was that the powers of the Sessions Court under section 439‑A, Cr.P.C. and this Court under section 439, Cr.P.C. are concurrent and since the applicant has already exhausted his remedy under the law, he cannot now invoke the jurisdiction of this Court under section 561‑A, Cr.P.C.

Before adverting to the contentions raised by Mr. Abbas Ali, I would first like to deal with the preliminary objection of Mr. Makhdoon Abdul Wali. Section 561‑A, Cr.P.C. inter alia, empowers this Court to correct errors of law under its inherent jurisdiction or to prevent abuse of process of the Court to secure ends of justice. Such powers conferred on this Court are of very wide nature and can always be pressed into service in an appropriate case. No doubt, the powers conferred on this Court by section 439, Cr.P.C. and those on the Court of Sessions by section 439‑A, Cr.P.C. are concurrent and a party which has already exhausted its remedy under section 439‑A of the Cr.P.C. cannot invoke the jurisdiction of this Court under section 439, Cr.P.C. however, in an exceptional case, if it appears to the High Court, that the Sessions Court has failed to exercise jurisdiction under section 439‑A with reasonable propriety, this Court, in my opinion, can interfere to correct errors of law which may appear to be patently manifest. Mr. Makhdoom Abdul Wali has however, relied on the case of Prof. A. Hameed Kausar v. The State etc. P L D 1979 Lah. 727 decided by the Lahore High Court wherein it was held that inherent jurisdiction under section 561‑A could not be used as an additional or alternative jurisdiction as such jurisdiction was preserved 'in interest of justice' to redress grievances for which no other procedure was available m the Code of Criminal Procedure. But, in another case decided later by the same Court and reported as Pervaiz‑ur‑Rahman v. Muhammad Hussain etc. 1980 P Cr. L J 3, it was held that inherent jurisdiction under section 561‑A could be invoked to correct an error, although a second revision in the High Court was not competent. The same view was reaffirmed in yet two other cases decided by this Court and reported as Abdul Aziz v. The State and another 1985 P Cr. L J 1615 and Mst. Syeda Banoo v. Muhammad Saleem and another 1983 P Cr. L J 2349. The facts of the case reported in P L D 1979 Lah. 727 are however, distinguishable as on merits no such error was found by the High Court which could have pursuaded it to exercise its extraordinary jurisdiction under section 561 A, Cr.P.C.

It is thus clear that although a second revision application is not maintainable, but the High Court can still correct errors of law in exceptional cases by calling upon its inherent powers under section 561‑A, Cr.P.C., if in its opinion, the ends of justice so demand.

Turning to the merits of the case, the same can be better appreciated after reproducing the relevant provisions of section 145, Cr.P.C. which provide as follows:‑

"145.‑‑(1) 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 fact of actual possession of the subject of dispute.

(2). ............................................................................................................................. (3). .............................................................................................................................

(4) The Magistrate shall then, without reference to the merits or the claims of any of such parties to a right to possess the subject of dispute, peruse the statements so put in, hear the parties, receive all such evidence as may be produced by them respectively, consider the effect of such evidence, take such further evidence (if any) as he thinks necessary, and, if possible decide whether any and which of the parties was at the date of the order before mentioned in such possession of the said subject:

Provided that, if it appears to the Magistrate that any party has within two months next before the date of such order been forcibly and wrongfully dispossessed, he may treat the party so dispossessed as if he had been in possession at such date:

Provided also, that if the Magistrate considers the case one of emergency, he may at any time attach the subject of dispute, pending his decision under this section:"

The second proviso to subsection (4) of section 145 makes it abundantly clear that the Magistrate can attach the subject‑matter of dispute pending his decision in the case if he considers the case to be of emergency. The order, dated 1‑12‑1984, passed by the learned S.D.M. in the first instance, fails to show that there was any emergency requiring the learned S.D.M. to pass the said order as the reasons given by the learned Magistrate for passing order under subsection (4) simply are, that the applicant in the case had failed to appear in spite of the issuance of non- bailable warrant of arrest against him and on such account the respondent No. 1 had suffered by failing to get justice from the Court. The circumstances as stated by the learned S.D.M. did not warrant passing of the impugned order, directing attachment of the shop premises in question, if the provisions of section 145, Cr.P.C. were to be strictly followed. The procedure followed by the learned S.D.M., therefore, without doubt was not in accordance with the law. Furthermore, the order was passed after three years after initiation of proceedings under section 145, Cr.P.C. against the applicant and the respondent No.1 which by itself indicates that there was no emergency or immediate apprehension of breach of peace requiring passing of an order under subsection (4) of section 145.

The judgment of the learned Sessions Court shows that the learned Third Additional Sessions Judge instead of addressing himself to the issue actually involved in the case went into the question of limitation which was not involved at all. Therefore, the learned Additional Sessions Judge also committed an obvious error, thus allowing the erroneous order, passed by the learned S.D.M. to continue to operate.

In view of the aforesaid circumstances, I find this a fit case for exercise of inherent jurisdiction by this Court under section 561‑A, Cr.P.C. to quash the order and the judgment respectively passed by the learned S.D.M. and the Third Additional Sessions Judge (West), Karachi.

For the reasons stated above, this revision application is allowed and the order of the learned S.D.M., dated 1‑12‑1984 and the judgment of the learned Sessions Court, dated 22‑12‑1985 are set aside. The case is remanded to the learned S.D.M. for final disposal strictly in accordance with law which should not take more than a month after this judgment has been brought to his notice and the parties in the case appear before him.

M.Y.H./M‑3/K Case remanded.

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