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Criminal Miscellaneous Application No. 19 of 1986, decided on 29th June, 1987.

‑‑Ss. 561‑A & 439‑A‑‑Order passed by Sessions Judge under S. 439‑A, Cr.P.C. attains finality and resort cannot be had to impugn such order under S. 561‑A, Cr.P.C. as it would tantamount to entertain second revision against judgment of Sessions Court passed under S. 439‑A, Cr.P.C.

Rajo v. Mohammad Qassim 1978 P Cr. L J 706 and Burewala Textile Mills Ltd. v. The State P L D 1978 Lah. 287 ref.

Shamsul Qamar v. The State 1984 P Cr. L J 504 distinguished.

Karamatullah for Applicant.

Khan Sanaullah for the State.

Syed Naqi Mirza for Respondent No. 2.

Date of hearing: 29th. June, 1987.

This application under section 561‑A, Cr.P.C. has been filed by the applicant to impugn the judgment passed by the learned Additional Sessions Judge, Karachi. dated 4‑2‑1984, dismissing the applicant's application under section 439‑A, Cr.P.C. and upholding the order passed by S.D.M. Bin Qasim Karachi, dated 7‑5‑1983. In the same application proceedings pending before S.D.M. Bin Qasim under section 145, Cr.P.C, have also been challenged.

The facts of the case, briefly stated, are that on the report submitted by A.S.I., Korangi Police Station, proceedings under section 145, Cr.P.C were instituted by the learned S.D.M. against the applicant and the respondent No. 2. According to the report, a dispute existed in respect of quarter No. C/327 situated in Korangi which was respectively claimed by them as ancestral property. A suit before the Civil Court had also been filed by respondent Mujeebur Rehman in respect of the quarter and stay order had been obtained by him in his favour. However, after an order under 145(1) had been passed and the applicant and the respondent No. 2 had submitted their respective statements before the learned S.D.M.; he passed an order under section 145(4), Cr.P.C. directing sealing of the disputed premises in question. Aggrieved by the order and the proceedings before the learned S.D.M., the applicant filed a revision before the learned Court of Sessions under section 439‑A, Cr.P.C. which was however, dismissed by the learned Additional Sessions Judge, Karachi vide his judgment, dated 4‑2‑1984 and the proceedings before the learned S.D.M. were found to be competent and hence the present application.

I have heard Mr. Karamatullah, learned counsel for the applicant and Mr. Syed Naqi Mirza, learned counsel for the respondent No. 2.

It may be pointed out at the very outset that the present application is not maintainable under the law. The Law Reforms Ordinance, 1972 has introduced various amendments in the Code of Criminal Procedure and one such amendment was introduced in the shape of section 439‑A whereby the Sessions Judge or as the case may be an Additional Sessions Judge has been empowered to exercise any of the powers conferred on the High Court by section 439, Cr.P.C. When this amendment was introduced in the Cr.P.C., at the same time subsection (4) of section 439, Cr.P.C. was substituted for the original subsection and clause (b) thereof now bars the jurisdiction of this Court to entertain any proceedings in revision with respect to an order made by the Sessions Judge under section 439‑A, Cr.P.C. The same now reads as under:‑

"(4) Nothing in this section shall be deemed to authorise a High Court‑

(a) ..........................................

(b) to entertain any proceedings in revision with respect to an order made by the Sessions Judge under section 439‑A:"

As is clear from the above subsection, the bar provided thereby is complete. It appears that the applicant was already conscious of it and in order to circumvent such difficulty, he has invoked the jurisdiction of this Court under section 561‑A, Cr.P.C. it may be pointed out that section 561‑A cannot be invoked to circumvent or bypass any express provision of the Code. No doubt, the powers conferred by the Code of Criminal Procedure on this Court under section 561‑A are far and wide, but resort to this section can be had in exceptional cases, when it is necessary to prevent abuse of the process of the Court, or to secure ends of justice. If this revision application is allowed the same would clearly tantamount to entertaining a second revision against the judgment of the Sessions Court passed under section 439‑A, Cr.P.C. from which the Court has been barred by subsection (4) of section 439 as indicated above. I am fortified in my view at least by two judgments, one of which is by this Court. The judgments have been reported as Rajo v. Mohammad Qassim 1978 P Cr. L J 706 and Burewala Textile Mills Ltd. v. The State P L D 1978 Lah. 287. In both the cases the High Court declined to give relief in view of the provisions of section 439(4), Cr.P.C. No doubt, in another case reported as Shamsul Qamar v. The State 1984 P Cr. L J 504, decided by a learned single Judge of the Peshawar High Court, the Court interfered with the judgment of the Sessions Court passed under section 439‑A, but the same was in view of the extraordinary circumstances of that case as the Court found that conviction of the applicant had been based on no evidence at all. The present case is distinguishable; more so, as stay has admittedly been granted by the learned Civil Court in favour of the respondent No.2, Therefore, even if the order passed by the learned S.D.M. under section 145(4), Cr.P.C. is set aside or the proceedings before him are quashed the same would not benefit the applicant in any manner as the possession of the quarter in dispute would still be with the respondent No. 2. I am therefore, clearly of the view that this application is not competent.

For the aforesaid reasons, I find no force in this criminal miscellaneous application and the same is dismissed.

K.B.A./N‑42/K Application dismissed.

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