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Criminal Miscellaneous No.653‑M of 1984, heard on 2nd June, 1987.

(a) Criminal Procedure Code (V of 1898)‑‑

‑‑‑S. 561‑A‑‑Constitution of Pakistan (1973), Art.

175,(2)‑‑Provisions of 5.561‑A, Cr.P.C. examined in the light of Art. 175(2), Constitution of Pakistan (1973)‑‑Scope and application of 5.561‑A , Cr. P.. C . traced.

At the date of enactment of section 561‑A, Cr.P.C. the concept of "inherent jurisdiction" was well‑known. The concept of 'inherent jurisdiction' is a concept of the law of England, where there is no written Constitution. There, most of the. jurisdiction which the Courts exercise, including the supervisory jurisdiction of the High Court to issue writs, is inherent jurisdiction. It appears, therefore, that section 561‑A, Cr.P.C. was enacted under the influence of the English law.

Section 561‑A does not confer inherent jurisdiction upon the High Court. It merely assumes that there is something as "inherent jurisdiction" and then it saves and preserves it to enable the High Court to make such orders as may be necessary to give effect to an order under Criminal Procedure Code or to prevent the abuse of the process of any Court or otherwise to secure the ends of justice:.

The inherent jurisdiction given by section 561‑A, Cr.P.C. 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.

Whatever be the position in England, in a country governed by a written Constitution, as Pakistan is, a Court has only such jurisdiction as is conferred on it by the Constitution or statute law. This is so provided by Article 175, sub‑Article (2) of the Constitution.

The expression "law" in Article 175 of the Constitution means the statute law: The question is, that if the only source of jurisdiction be the Constitution and the statute law, and if no Court has any jurisdiction other than the jurisdiction expressly conferred on it by the Constitution or the law, then can a Court claim to have inherent jurisdiction. In other words, the question is whether the assumption which was the basis of section 561‑A, Cr.P.C. when it was enacted in the year 1923 is still valid in view of Article 175 of the Constitution.

The claim to inherent jurisdiction is no longer tenable in view of clause (2) of Article.175 of‑the Constitution.

So far as High Courts are concerned, they ‑have no other powers apart from those conferred upon them by the Constitution or by any law.

Ancillary and incidental power should not be confused with what is claimed as the inherent jurisdiction of the Court. Inherent jurisdiction and ancillary and incidental powers are sometimes confused the one .with the other. Where a statute grants a jurisdiction, it also implied grants powers which are reasonably incidental or ancillary to the main jurisdiction to enable the Court to exercise it more effectively and the fact that there, is no express provision in the statute enabling the Court to exercise such powers does not negative their existence. Where an Act. confers a jurisdiction, it impliedly also grants the power of doing all such acts or applying all such means as are essentially necessary for its execution.

This is. what is known as incidental or ancillary power the other hand, "inherent" means existing in or in something especially as permanent or characteristic attribute; vested in (person etc.) as right or privilege.

.What is inherent is an inseparable incident of a thing or an institution in which it inheres.

The source of the inherent jurisdiction of the Court is derived from its nature as a Court of law.

The expressions "inherent power" and "incidental and ancillary powers" are used interchangeably may be illustrated by section 5611LA, Cr.P.C. itself.

Section 561‑A speaks of the inherent power to make orders (i) as may be necessary to give effect to any order under the Code; and (ii) to prevent abuse of the process of the Court or otherwise to secure the orders of justice. Now, there is no question that the power to make such order as may be necessary to give effect to any order under the Code is an incidental or ancillary power but both this power and. the power to prevent abuse of the process of the Court are described in section 561‑A, Cr.P.C. as inherent powers.

The power to direct ad interim suspension of the licence of an advocate against whom an inquiry was pending was "really ancillary to the. power of punishment" and "therefore, the High Court should be deemed to have that inherent power". Thus, both the expressions 'ancillary' and 'inherent' were used interchangeably to describe a power, which was in fact as ancillary power flowing from the greater power of punishment after final adjudication.

While judging of the validity of the basis on which section 561‑A, Cr.P.C. was enacted with reference to Article 175(2) of the Constitution,. it may, therefore, be possible to read "inherent" in section 561‑A, Cr.P.C. in the sense of ancillary or incidental.

Mardan Shah v. Sattara P L D 1954 Lah. 87; Ghulam Muhammad v.‑ Muzammil Khan P L D 1967 S C 317; Sind Employees Social Security v. Adamjee Cotton Mills P L D 1975 S C 32; Shahnaz Begum's case PLD 1971 S C 677 pp.8, 9; Maxwell on the Interpretation of Statutes, 1962 Edition, p. 350; Commissioner, Khairpur Division, Khairpur v. Ali Sher Sarki P L D 1971 S C 242; Concise Oxford Dictionary; and Sardar Shah Bukhari's case ‑P L D 1965 S C 479 ref.

(b) Constitution of Pakistan (1973)‑‑

‑‑‑Arts. 198 & 201‑‑Categories of precedent cases which were binding on subordinate Courts illustrated.

Precedent cases fall in two. distinct categories. In the first category fall the decisions .which decide a question of law or are based upon or enunciate a principle of law within the meaning of Articles 198 and 201 of the Constitution and are, therefore, binding, if the decision be by the Supreme Court, on all Courts in Pakistan, and if the decision be by a High Court, on all Courts subordinate to it. In the second category fall the cases which are not so binding but are merely illustrations of the application of the principles of law enunciated in the first category of precedent cases.

(c) Criminal Procedure Code (V of 1898)‑‑

‑‑; S. 561‑A‑‑Powers .of High Court under 5.561‑A‑‑Extent‑‑Powers of Court under S.561‑A, Cr.P.C., not new powers but those which the Court already inherently possessed‑‑Jurisdiction exercisable under section 561‑A, Cr.P.C. being of an extra ordinary nature was intended to be used only in extraordinary cases where there was no other remedy available.

It has sometimes been thought that section 56‑1‑A, Cr.P.C. has given increased powers to the Court which it did not possess before that section was enacted. But this is not so. The section gives no new powers, it only provides that those which the Court already inherently possess shall be preserved and is inserted, lest it should be considered that the only‑ powers possessed by the Courts are those expressly conferred by the Criminal Procedure Code and that no inherent power had survived the passing of that Act.

The inherent jurisdiction given by section 561‑A, Cr.P. C. 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 jurisdiction exercisable under this section is of an extraordinary nature intended to be used only in extraordinary cases where there is no other remedy available.

It is preserved to meet a lacuna in the Criminal Procedure Code in extraordinary. cases and is not intended for vesting a High Court with powers to make any order which they are pleased to consider to be in the interest of ,justice. These powers are as much controlled by principles and precedents as are its express statutory powers.

The power given by section 561‑A, Cr.P.C. can certainly not be so utilized as to interrupt or divert the ordinary course of criminal procedure as laid down in the procedural statute; and it is generally accepted that the inherent jurisdiction should not normally be invoked where another remedy is available.

Emperor v. Nazir Ahmad A I R 1945 PC 18; Ghulam Muhammad v. Muzammil Khan P L D 1967 SC 317; Muhammad Samee Ullah Khan v. State P L D 1963 SC 237 and Khawaja Fazal Karim v. The State and another P L D 1976 SC 461 ref.

(d) Criminal Procedure Code (V of 1898)‑‑

‑‑‑Ss. 561‑A, 435 & 439‑‑Invocation of 5.561‑A, Cr.P.C. when possible‑---‑Revisional jurisdiction exerciseable by High Court under Ss. 435 & 439, Cr.P.C. and High Court's jurisdiction under 5.561‑A, Cr.P. C.‑‑Comparison‑‑Provisions of 5.561‑A, Cr.P. C. and 5.439‑A, Cr.P.C. could easily stand together if provisions of 5.561‑A, Cr.P.C. are so read as not to be applicable to matters which were "proceedings" in revision with respect to an order made by the Sessions Judge under S. 439‑A.

While the High, Court has, under Ss. 435 and 439 of the Criminal Procedure Code, the power to examine the correctness, legality or propriety of any finding, sentence or order passed by an inferior Court; that the revisional jurisdiction of the High ‑ Court is indeed wide and is not confined merely to errors of law; that in the exercise of its revisional jurisdiction the High Court can even in appropriate cases disturb findings of fact, as, for example, where the subordinate Court has wrongly placed the onus of proof or. has not applied the correct principle relating to the assessment of evidence or important piece of evidence has been ignored, yet these things the High Court cannot do under section 561‑A, Cr.P.C. The two jurisdictions, are fundamentally different; indeed, as a rule, the inherent jurisdiction of the Court to correct an abuse of the process of the Court or a patent injustice cannot be invoked where there is an express provision in the Code under which the case can be adequately dealt with.

Where the remedy of revision under section 439 of the Code of Criminal Procedure is available, the High Court would not interfere under section 561‑A, Cr.P.C. Where a person or authority has been vested with statutory powers, it would be "an unfortunate result if it should be possible to interfere with those ‑statutory rights by an exercise of the inherent jurisdiction of the Court". Where the actual dispute between the. parties can be settled only if the rights of the parties in the property are properly and finally adjudicated upon, the resort to the High Court with the view that it should exercise its inherent jurisdiction and quash the orders of the Sessions Court, so that an interim order regarding the custody of the property is revived, .is hardly justifiable, for, in such cases the appropriate remedy available to the parties is by way of proceedings in the Civil Court.

Turning to the language of section 561‑A, Cr.P.C. itself, the inherent power that it saves is the power to "make such orders as may be necessary to give effect to any order under this Code or to prevent abuse of process of any Court or otherwise to secure the ends of justice". The power to give effect to any order under this Code is in the nature of ancillary or incidental power. The power most frequently prayed in aid is the power "to prevent abuse of process of any Court or otherwise to secure the ends of justice". The word "abuse" is a strong word. It can only be in a very rare case that the superior Court acting under its inherent power to prevent the abuse of process of any Court or otherwise to secure the ends of justice would deem it appropriate to act so as to place an alleged offence outside the operation of the Criminal law, on incidental grounds, such as that of delay, or for any reasons other than "reasons going to the question whether the allegation is sufficient to constitute an accusation of an offence in law". Further, the ends of justice "to secure which the inherent power may be invoked, have reference to the purposes which the inherent powers is intended to secure. To quash a judicial proceeding in order to secure the ends of justice would involve a finding that if permitted to continue that proceeding would defeat the ends of justice or in other words would either operate or perpetuate an injustice. To find an "abuse" it would be necessary to see in the proceedings a perversion of the purpose of the law such as to cause harassment to an innocent party, to bring about the delay or where the machinery of justice is engaged in an operation from which no result in furtherance of justice can accrue and similar perverse results. The ends of justice, necessarily means justice as administered by the Courts and not justice in the abstract sense or justice administered by agencies other than Courts. It further appears that words "otherwise to secure the ends of justice", also have to be read subject to the well‑known noscitur a sociis rule namely that where two or more words which are susceptible of analogous meaning are coupled together, they are understood to be used in their cognate sense. They take, as it were, their colour from each other, the meaning of the more general being restricted to a sense analogous to that of the loss general. These words have to be read alongwith the earlier objects mentioned in this section and must have some co‑relation with them and it is in this sense that the ends of justice to secure which the inherent power may be invoked "have reference to the purposes which the judicial process is introduced to secure and it is difficult to include actions of the investigating agencies within the scope of judicial process.

The enactment of section 439(4)(b), Cr.P.C. was necessitated due to the vesting, by section 439‑A, of the revisional powers in the Sessions Court.

The plain meaning of the plain words used by the subsection is that when the Sessions Judge has made an order in the exercise of his revisional jurisdiction, it is not open to the High Court to entertain proceedings by way of revision against the order of the Sessions Judge. And as the power of the Sessions Judge in the exercise of the revisional jurisdiction is the same as that of. the High Court, it means that if the Sessions Judge has, after examining the correctness, legality or propriety of the 'order of the subordinate Court, altered or reversed it, the order of the Sessions Judge is final. To hold that no further revision lies to the High Court against the order of the Sessions Judge, yet, the High Court can, in the exercise of its inherent power, under section 561‑A, differ with the Sessions Judge on a finding of fact or law and cancel or quash his order or proceedings would amount to. defeating the legislative intent which is, that what the Sessions Judge is empowered to do with respect to an order of the Magistrate, the High Court is not empowered to do with respect to the order of the Sessions Judge competently made. The intention being clear, the residuary section 561‑A cannot be so invoked as to frustrate it.

If two sections of the same statute are repugnant the known rule. is that the last must prevail; and that one way in which repugnancy can be avoided is by regarding two apparently conflicting provisions as dealing with distinct matters or situations.

Section 561‑A, Cr.P.C. does not confer, but saves, inherent powers and if a subsequent enactment makes an express provision providing for a particular situation; the inherent power must give way to that express provision. Therefore, the two provisions can easily stand together if the provisions of section 561‑A are so read as not to be applicable to matters which are "proceeding., in revision with respect to an order made by the Sessions Judge under section 439‑A".

If there is inherent jurisdiction in the High Court to correct errors "to prevent abuse of process" of the subordinate Courts, then, one need not strain one's imagination to conjure up cases in which the High Court will do so.

Where the Court had the jurisdiction and had in making the order is in question, acted within its‑jurisdiction, can it be said that the order is an "abuse" of its process The answer plainly is in the negative. There is a trite saying that the power to decide includes the power to decide wrongly. A Court has jurisdiction to decide wrong as well as right; the fact that the Court may have come to a wrong decision does not make an excess of jurisdiction. It is a common mistake to suppose that it does; but when a Court has jurisdiction to entertain an application (or other proceedings), it does not lose its jurisdiction by coming to a wrong conclusion, whether it is wrong in point of law or fact. Secondly, the power which section 561‑A saves is not anything in the nature of the power of appeal or revision, indeed, it is not, as wide as the power of revision or for that matter, the power of appeal is.

Emperor v. Nazir Ahmad A I R 1945 P C 18; Ghulam Muhammad v. Muzammil Khan P L D 1967 S C 317; Muhammad Samee Ullah Khan v. State P L D 1963 S C 237 at 241; Ghulam Muhammad's case P L D 1967 S C 317; Khawaja Fazal Karim v. The State and another P L D 1976 S C 461; Shahoaz Begum's case P L D 1971. S C 677; Ghulam Sadiq v. Mukhtar Ahmad 1984 S C M R 1446; M.S. Khawaja v. State P L D 1965 S C 287; Maxwell on the Interpretation of Statutes, 12th Ed., at P. 289; Gulab Din v. Muhammad Salim 1985 P Cr. L J 721; Maxwell on the Interpretation of Statutes, 12th Edition at page 187; Gulzar Hasan v. Ghulam Murtaza P. L D 1970 S C 335 and Malkarjun v. Narhari (1900) 25 Bom. 337 P.C. ref.

(e) Interpretation of statutes‑‑

‑‑‑ Where two or more words in a provision which are susceptible of analogous meaning are coupled together, they are understood to be used in their cognate sense‑‑Such words take, as it . were, their colour from each other, the meaning of the more general being restricted to a sense analogous to that of the less general.

See Maxwell on the Interpretation of statutes, 12th Ed. at P 289 ref. '

(f) Interpretation of statutes‑‑

‑‑‑ When two sections of same statute are repugnant, the last must prevail and that one way in which repugnancy can be avoided is by regarding two apparently conflicting provisions as dealing with distinct matters or situations.

See Maxwell on the Interpretation of Statutes, 12th Edition at page 187 ref.

(g) Criminal Procedure Code (V of 1898)‑‑

‑‑‑Ss. 561‑A & 145‑‑Elements essential for foundation of jurisdiction under S. 145, Cr.P.C. and the mode in which such jurisdiction has to be exercised‑‑Distinction‑‑Where said elements exist, they are sufficient to ,vest the Magistrate with the jurisdiction to make the preliminary order in the mode prescribed therein‑‑Where the Magistrate, after acquiring jurisdiction

did not strictly comply with the other requirements of S. 145, Cr.P.C. as to the form of the order and did not state the ground of his being so satisfied, such order, no doubt, was defective but that did not mean that order was also without jurisdiction‑‑Mere omission to state ground upon which the Court was satisfied in the initial order under 5.145, Cr.P.C. would not necessarily make the order also without jurisdiction as failure to do so was a non‑compliance with a rule of procedure and mere non‑compliance with a rule of procedure generally was not am illegality vitiating entire proceedings‑‑Sessions Judge, therefore, was not deprived of his jurisdiction to make any order‑‑Sessions Judge's order directing Magistrate to take steps to restore possession of the disputed property to the respondent concerned, was not open to any valid exception and was not liable to be interfered with under 5.561‑A, Cr.P.C. in circumstances. ‑‑‑[Jurisdiction].

Mst Syeda Bano v Muhammad Salim 1987 P Cr. L J 2349 ref

(h) Criminal Procedure Code (V of 1898)‑‑

‑‑‑Ss. 561‑A & 145‑‑Jurisdiction of Court under S. 145, Cr.P.C.‑ Extent‑‑Expression "land"‑‑Definition‑‑Price of commodity lying in the house being not land or its produce, order of Sessions Judge directing restoration of commodity or its price to the respondent was set aside.‑‑[Words and phrases‑‑Jurisdiction].

The jurisdiction vesting in the Court under section 145, Cr.P.C. is in regard to a dispute likely to cause a breach of the peace "concerning any land or water or the boundaries thereof". The expression "land" is defined in subsection (2) of section 145 to include buildings, markets, fisheries, crops or other produce of land. The house is, therefore, land within the meaning of section 145, subsection (2). But as the land commodity in question was a house, the commodity lying therein could not be said to be its produce. It was contended that after the first order of the Magistrate, the commodity was disposed of; this was, it appears, the reason why the Sessions Judge had thought it fit to direct the restoration of the commodity or its price to the respondent. Indeed, the price of the commodity was, by no means, land or its produce. The order of Sessions Judge was set aside in so far as it directed the restoration of commodity or its price to the respondent.

Muhammad Bashir Khan for Petitioners.

Khan Ata Ullah Khan for the State.

S.M. Latif Khan Khosa for Respondent No. 2:

Dates of hearing: 28th April and 2nd June, 1987.

This petition under section 561‑A of the Code of Criminal Procedure has arisen out of proceedings under section 145 of that Code initiated on a petition of Muhammad Aslam, respondent, against Sheikh Sardar Ali, petitioner. By his order dated 3‑4‑1984, a learned Magistrate 1st Class, Sahiwal dismissed the petition but on a revision petition, the learned Sessions Judge, Sahiwal, set that order aside and directed that the Magistrate "would take steps to restore the possession of the disputed property to the petitioner, and also to restore the tobacco or its price to the petitioner".

2. The facts briefly stated are that on 1‑11‑1983, Muhammad Aslam, respondent, made an application under section 145 of the Code of Criminal Procedure before the Assistant Commissioner, Sahiwal, saying that he had purchased house No.630‑B‑IV for Rs.2,40,000 from Sheikh Sardar Ali, petitioner; that he had paid Rs.2,00,000 to him and the latter had executed a receipt and an agreement of sale in his favour. The petitioner had placed him in possession of three rooms on the ground‑floor of the house. It was agreed that the remaining sum of Rs.40,000 would be paid by the respondent to the petitioner at the time of the registration of the sale‑deed. The respondent had stored 300 maunds of tobacco in the rooms of the disputed property, the value of the tobacco being Rs.1,08,000 and had locked the doors. Later, he asked the petitioner to have the sale‑deed registered in his favour; he kept on putting him off. A day before the filing of the application, at about 10‑00 a.m., the respondent went to the store room and found that somebody had put his own locks on the locks of the respondent. He protested to the petitioner but he refused either to have the sale‑deed registered in his favour or to allow him access to the store rooms. Instead he threatened with dire consequences if he tried to open the locks. The respondent, therefore, apprehended danger to his life and also feared damage to the tobacco stored in the rooms.

3. The case was first dealt with by Mr. Iqbal Ahmad Bosan, A . C . / MIC , Sahiwal. He summoned the petitioner for 8‑11‑1983 and delivered the copy of the application and other relevant documents to him and adjourned the case to 16‑11‑1983 for arguments. Before summoning the petitioner, he had recorded the statement of the respondent in support of his‑ application. After hearing arguments, the learned Assistant Commissioner was of the view that "since the title of the disputed house as well as tobacco stored therein is disputed one, therefore, this Court is reluctant to pass any order regarding the disposal of tobacco. He, therefore, directed the parties to settle their dispute regarding sale of disputed property and disposal of tobacco "by knocking at the door of the competent Court which is the Civil Court". At the same time, he directed the SHO concerned "to be vigilant and take preventive measures under section 107/151, Cr.P.C. if he apprehends any breach of peace". Against this order dated 16‑11‑1983, the respondent went in revision to the Sessions Court and a learned Additional Sessions Judge, vide his order dated 10‑12‑1983, sent the case back to the learned Magistrate with a direction to decide the matter afresh in accordance with law after providing the parties with an opportunity to produce their evidence. When the case went back, it was dealt with by another Magistrate namely Mr. Imtiaz Ahmad, Magistrate Section 30, Sahiwal. He also vide his order dated 3‑4‑1984 rejected the respondent's application. In doing so, he posed the question whether the agreement to sell, basis of the respondent's claim "has been proved in accordance with the provisions of Law". In this connection, he referred to section 68 of the Evidence Act, which provided for the proof of a document required by law to be attested and being of the opinion that "in order to prove the execution of this agreement to sell, it was mandatory upon the petitioner to call at least one attesting witness for purpose of proving its execution but no attesting witness has been examined by the petitioner in the Court in order to prove the execution of that agreement to sell. As no attesting witness has been examined for the purpose of proving the execution of agreement to sell, so it shall not be used in evidence". The learned Magistrate, therefore, concluded that the respondent had failed to prove his possession of the property in dispute and held that the petitioner was in possession of the property at the relevant time. The learned Magistrate also found that there was no apprehension of the breach of the peace.

4. The respondent again went in revision before the Sessions Court and the learned Sessions Judge by his order in question dated 27‑6‑1984 accepted the revision petition, set aside the learned Magistrate's order dated 3‑4‑1984 and made the order in the terms noticed above.

5. Learned counsel for the respondent has two legal objections to raise to the maintainability of this petition, one general and the other specific. The general objection is that section 561‑A, Cr.P.C. cannot be utilized for the purpose of having an order of a competent Court set aside. The specific objection is founded upon section 439, subsection (4), clause (b), the contention being that this petition is, in fact, a proceeding in revision with respect to the order of the learned Sessions Judge made under section 439‑A, Cr.P.C.

6. Before considering these contentions, it is tempting to examine section 561‑A in the light of Article 175, sub‑Article (2) of the Constitution.

7. Section 561‑A occurs in the Miscellaneous Chapter XLVI of the Code. It was enacted in the year 1923. Its title is "Saving of Inherent Power of High Court"; it reads:‑

"Nothing in this Code shall be deemed to limit or affect the inherent power of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of process of any Court or otherwise to secure the ends of justice."

8. It is not necessary to go far back in history to trace the origin of "inherent jurisdiction". Suffice it to say that at the date of the enactment of section 561‑A, the concept of "inherent jurisdiction" was well‑known. The concept of "inherent jurisdiction" is a concept of the law of England, where there is no written Constitution. There, most of the jurisdiction which the Courts exercise, including the supervisory jurisdiction of the High Court to issue writs, is inherent jurisdiction. It . appears, therefore, that section 561‑A, was enacted under the influence. of the English law.

9. Section 561‑A does not confer inherent at jurisdiction upon the High Court. It merely assumes that there is something as "inherent jurisdiction" and then it saves and preserves it to enable the High Court to make such orders as may be necessary to give effect to any order under this Code or to prevent the abuse of the process of an Court or otherwise to secure the ends of justice. It was said in Mardan Shah v. Sattara P L D 1954 Lah. 87 while dealing with the corresponding section in the Code of Civil Procedure, namely, section 151, which like section 561‑A, Cr.P.C., also saves inherent jurisdiction of the Court for the purposes of civil matters: "It has been held on many occasions that section 151, C . P . C . does not confer any powers but only indicates that there is a power to make such orders, as may be necessary for the ends of justice or to prevent abuse of the process of the Court". This is also deducible from the observations of Hamoodur Rehman, J (as he then was) in Ghulam Muhammad v. Muzammil Khan P L D 1967 S C 317; "The inherent jurisdiction given by section 561‑A Cr.P.C. 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 B or has been provided by the Code itself".

10. Whatever be the position in England, in a country governed by a written constitution, as Pakistan is, a Court has only such jurisdiction as is conferred on it by the Constitution or statute law. This is so provided by Article 175, sub‑Article (2) of the Constitution, which reads:

"No Court shall have any jurisdiction save as is or may be conferred on it by the Constitution or by or under any law."

It is settled by authority that the expression "law" in this Article means the statute law. The question is, that if the only source of jurisdiction be the Constitution and the statute law, and if no Court l has any jurisdiction other than the jurisdiction expressly conferred on it by the Constitution or the law, then .can a Court claim to have inherent jurisdiction. In other words, the question is whether the assumption which .was the basis of section 561‑A when it was enacted in the year 1923 is still valid in view of Article 175 of the Constitution.

11. I am not aware of any judicial precedent directly on the point, yet, the matter is not wholly destitute of judicial authority. There are at least two cases in which the question of the High Court's jurisdiction in the light of Article 175(2) (or its predecessor provision) was dealt with. The first is Sind Employees Social Security v. Adamjee Cotton Mills P L D 1975 S C 32 at page 36 and the second is the case of Shahnaz Begum P L D 1971 S C 677 at page 687. In the first case, it was expressly ruled that the claim to inherent jurisdiction is no longer tenable in view of clause (2) of Article 175 of the D Constitution. In the second case, which was decided with reference to Article 130 of the 1962 Constitution (which was the same as Article 175(2) of the 1973 Constitution it was held that so far as High E Courts are concerned, they have no other powers apart from those conferred upon them by the

Constitution or by any law.

12. It is also well to bear in mind the warning given by the Supreme Court in the Adamjee Cotton Mills' case P L D 1975 S C 32 at 36, namely, that ancillary and incidental power should not be confused with what is claimed as ‑the inherent jurisdiction of the Court. Inherent jurisdiction and ancillary and incidental powers are sometimes confused the one with the other. Where a statute grants a g jurisdiction, it also implied grants powers which are reasonably incidental or ancillary to the main jurisdiction to enable the Court to exercise it more effectively and the fact that there is no express provision in the statute enabling the Court to exercise such powers does not negative their existence. "Where an Act confers a jurisdiction, it impliedly also grants the power of doing all such acts or applying all such means as are essentially necessary for its execution". Maxwell on the interpretation of Statutes, 1962 Edition, at page 350 cited with approval in Commissioner Khairpur Division Khairpur v. Ali Sher Sarki P L D 1971 S C 242. This is what is known as incidental or ancillary power. On the other hand, "inherent" means existing in or in something esp. as permanent or characteristic attribute; vested in (person etc.) as right or privilege. See the Concise Oxford Dictionary. What is inherent is an inseparable incident of a thing or an institution in which it inheres. Adamjee Cotton Mills' case P L D 1975 S, C 32 at 36. As was said by I. H . Jacob in his Article in Current Legal Problems 1970 at page 23, the source of the inherent jurisdiction of the Court is derived from its nature as a Court of law.

13. That both in the. enactments and in the precedent. cases, the expression "inherent power" and "incidental and ancillary powers" are used interchangeably may be illustrated by section 561‑A itself and the observations in Sardar Shah Bokhari's case P L D 1965 S C 479. It will be noticed that section 561‑A speaks of the inherent power to make orders (i) as may be necessary to give effect to any order under the Code; and (ii) to prevent abuse of the process of the Court or otherwise to 'secure the orders of justice. Now, there is no question. that the power to make such order as may be necessary to give effect to any order under the Code is an incidental or ancillary power but both this power and the power to prevent abuse of the process of the Court are described in section 561‑A as inherent powers. In Sardar Shah Bokhari's case P L D .1965 S C 479, it was observed that the power to direct ad interim suspension of the licence of an advocate against whom an inquiry was pending was "really ancillary to the power of punishment" and "therefore, the High Court should be deemed to have that inherent power". Thus, both the expressions 'ancillary' and 'inherent' were used interchangeably to describe a power, which was in fact as ancillary power following from the greater power of punishment after final adjudication.

14. While judging of the validity of the basis on which section 561‑A, Cr.P.C. was enacted with reference to Article 175(2) of the) Constitution, it may, therefore, be possible to read "inherent" in

section 561‑A, Cr.P.C. i n the sense of ancillary or incidental.

15. This, in my opinion, is a possible way of looking at section 561‑A. But as this argument was not raised at the bar and the question relates to the conflict of the section with Article 175(2) of the Constitution, I shall leave it open for further consideration when it is properly raised and fully argued.

16. Section 561‑A is one of the most frequently invoked as also one of the most debated provisions of the Code of Criminal Procedure. Therefore, since its enactment in the year 1923, there has naturally grown a large and respectable body of case‑law around it and a large number of them were cited at the Bar for and against, the propositions advanced by the learned counsel for the parties. It should, .however, be observed at the outset that precedent cases fall in two distinct categories. In the first category fall the decisions which decide a question of law or are based upon or enunciate a principle of law within the meaning of Articles 198 and 201 of the Constitution and are, therefore, binding, if the decision be by the Supreme Court, on all Courts in Pakistan, and if the decision be b a High Court, on all Courts subordinate to it. In the second category cases which are not so binding but are merely illustrations) fall the of the application of the principles of law enunciated in the first category of precedent cases.

17. It has sometimes been thought that Section 561‑A, Cr.P.C. has given increased powers .to the Court which it did not possess before that Section was enacted. But this is not so. The Section gives no new powers, it only provides that those which the Court o already inherently possess shall be preserved and is inserted, lest it should be considered that the only powers possessed by the Courts are those expressly conferred by the Criminal Procedure Code and that no inherent power had survived the passing of that Act. Emperor v. Nazir Ahmad A I R 1945 Privy Council 18 at page 22. As was said in Ghulam Muhammad v. Muzammil Khan P L D 1967 S C 317 at 325, the inherent jurisdiction given by section 561‑A Cr.P.C. is not an alternative jurisdiction or an additional jurisdiction but it is a jurisdiction preserved in the interest of justice to redress grievances r for which no other procedure is available or has been provided by the Code itself. Then, the jurisdiction exercisable under this section is of an extraordinary nature intended to be used only in extraordinary cases where there is no other remedy available. Muhammad Samee Ullah Khan v. State P L D 1963 S C 237 at 241; it is preserved to meet a lacuna in the Criminal Procedure Code in extraordinary cases and is not intended for vesting a High Court with powers to make any order which they are pleased to consider to be in the interest of Q justice. These powers are as much controlled by principles and precedents as are its express statutory powers. Ghulam Muhammad'sl case P L D 1967 S C 317 at 324.

18. It is also equally well settled by authority that the power given by section 561‑A Cr. P. C . can certainly not be so utilized as to interrupt or divert the ordinary course of criminal procedure as R laid down in the procedural statute; and it is generally accepted that the inherent jurisdiction should not normally be invoked where another remedy is available. See Ghularm Muhammad's case P L D 1967 S C 317 and Khawaja Fazal Karim v. The State and another P L D 1976 SC 461.

19. Comparing the revisional jurisdiction exercisable by the High Court under sections 435 and 439 of the Code of Criminal Procedure (now also exercisable by the Court of Sessions) with the High Court's jurisdiction under section 561‑A, Cr.P.C., it was observed in Muhammad Samee Ullah Khan's case P L D 1963 S C 237 that while the High Court has, under sections 435 and 439 of the Criminal Procedure Code, the power to examine the correctness, legality or propriety of any finding, sentence or order passed by an inferior Court; that the revisional jurisdiction of the High Court is indeed wide and is not confined merely to errors of law; that in the exercise S of its revisional jurisdiction the High Court can even in appropriate cases disturb findings of fact, as, for example, where the subordinate Court has wrongly placed the onus of proof or has. not applied the correct principle relating to the assessment of evidence or important piece of evidence has been ignored, yet these things the High Court cannot do under section 561‑A, Cr.P.C. The two jurisdictions, it was held, are fundamentally different; indeed, as a rule, the inherent

jurisdiction of the Court to correct an abuse of the process of the Court or a patent injustice cannot be invoked where there is an express provision in the Code under which the case can be adequately dealt with.

20. Thus, it has been held that where the remedy of revision under section 439 of the Code of Criminal Procedure is available, the High Court would not interfere under section 561‑A Cr.P.C. Ghulam Muhammad's case P L D 1967 S C 317 ; that where a person or authority has been vested with statutory powers, it would be "an unfortunate result if it should be possible to interfere with those statutory rights by an exercise of the inherent jurisdiction of the Court. Emperor v. Nazir Ahmed A I R 1945 P C 18 at page 22 cited with approval in Shahnaz Begum's case P L D 1971 S C 677 at page 691, and that where the actual dispute between the parties can be settled only if the rights of the parties in the property are properly and finally adjudicated upon, the resort to the High Court with the view that it should exercise its inherent jurisdiction and. quash the orders of the Sessions Court, so that an interim order regarding the custody of the property is revived, is hardly justifiable, for, in such cases the appropriate remedy available to the parties is by way, of proceedings' in the Civil Court Ghulam Sadiq v. Mukthar Ahmad 1984 S C M R 1446.

21. Turning to the language of section 561‑A, Cr.P.C. itself, the inherent power that it saves is the power to "make such orders as may be necessary to give effect to any order under this Code or to prevent abuse of process of any Court or otherwise to secure the ends of .justice". As has been observed above, the power to give effect to any order under this Code is in the nature of ancillary or. incidental power. The power most frequently prayed in aid is the power "to prevent abuse of process of any Court or otherwise to secure the ends of justice". The word 'abuse' is a strong word. As was held in M.S. Khawaja v. State P L D 1965 S C 287" it can only be in a very rare case that the superior Court acting under its inherent power to prevent the abuse of process of any Court or otherwise to secure the ends of justice would deem it appropriate to act so as to place an alleged offence outside the operation of the Criminal law, on incidental grounds, such as that of delay, or for T any reasons other than reasons going to the question whether the allegation is sufficient to constitute an accusation of an offence in law". Further, the ends of justice "to secure which the inherent power may be invoked, have reference to the purposes which the inherent powers is intended to secure ...." To quash a judicial proceeding, it was added, in order. to secure the ends of justice would involve a finding that if permitted to continue that proceeding would defeat the ends of justice or in other words would either operate or perpetuate an injustice. To find an "abuse" it would be necessary to see in the proceedings a perversion of the purpose of the law such as to cause harassment to an innocent party, to bring about the delay or where the machinery of justice is engaged in an operation from which no result in furtherance of justice can accrue and similar perverse results." The ends of justice, it was held in Shahnaz Begum's case, necessarily means justice as administered by, the Courts and not justice in the abstract sense or justice administered by agencies other than Courts. It further appears that words

"otherwise to secure the ends of justice", also have to be read subject to the well‑known noscitur a sociis rule namely that where two or more words which are susceptible of analogous meaning are coupled together, they are understood to be. used in their cognate sense. They take, as it were, their. colour from each other, the meaning of the more general being restricted to a sense analogous to that of the loss general. See Maxwell, on the Interpretation of Statutes, 12th Ed. , at P. 289. As was said in Shahnaz Begum's case at page 693, these words have to be read alongwith the earlier objects mentioned in this section and must have some co‑relation with them and it is in this sense that the Supreme Court in the case of M.S.Khawaja held that the ends of justice to secure which the inherent power may be invoked "have reference to the purposes which the judicial process is introduced to secure and it is difficult to include actions of the investigating agencies within the scope of judicial process".

22. That brings us to the second contention, which, as stated above, is based upon section 439, subsection (4), clause (b). The enactment of this clause was necessitated due to the vesting, by section 439‑A, of the revisional powers in the Sessions Court. Subsection (4) says: "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 . "

23. The plain meaning of the plain words used by the subsection is that when the Sessions Judge has made an order in the exercise of his revisional jurisdiction, it is not open to the High Court t

entertain proceedings by way of revision against the order of the Sessions Judge. And as the power of the Sessions Judge in the exercise of the revisional jurisdiction is the same as that 'of the High Court, it means that if the Sessions Judge has, after examining the correctness, legality of propriety of the order of the subordinate Court, altered or reversed it, the order of the Sessions Judge is V final. To hold that no further revision lies to the High Court against the order of the Sessions Judge, yet, the High Court can, in the exercise of its inherent power, under section 561‑A, differ with the Sessions Judge on a finding of fact or law and cancel or quash his order or proceedings would amount to defeating the legislative intent which is that, what the Sessions Judge is empowered to do with respect to an order of the Magistrate, the High Court is not empowered to do with respect to the order of the Sessions Judge competently made. The intention being clear, the residuary section 561‑A cannot be so invoked as to frustrate it.

24. For the petitioner, it was argued, and in this connection reliance was placed upon Gulab Din v. Muhammad Salim 1985 P Cr. L J 721, that if the intention was to deprive the High Court of its power under section 561‑A; then, this would have been, when clause (b) of subsection (4) was enacted, expressly provided. This, and I .say so with great respect, does not take note of the well‑known principle of interpretation that if two sections of the same statute are repugnant the known rule is that the last must prevail; and that one way in W which repugnancy can ‑be avoided is by regarding two apparently conflicting provisions as dealing with distinct matters or situations (see Maxwell on the Interpretation of Statutes, 12th Edition at page 187). Secondly, section 561‑A, as observed above, does not confer but saves, inherent powers and if a subsequent enactment makes an express provision providing for a particular situation, the inherent power must give way to that express provision. Therefore, the two provisions can easily stand together if the provisions of section 561‑A are so read as not to be applicable to matters which are "proceedings in revision with respect to an order made by the Sessions Judge under section 439‑A".

25. Now, if there is inherent jurisdiction in the High Court to correct error "to prevent abuse of process" of the subordinate Courts, then, one need, not strain one's imagination to conjure up cases in which the High Court will do so. Two such cases, which readily come to mind, are .the cases in which the subordinate Court has acted without jurisdiction, or has condemned a man without .hearing. (See Gulzar Hassan v. Ghulam Murtaza P L D 1970 S C 335). But where the Court had the jurisdiction and had .in making the order in question, acted within its jurisdiction, can it be said that the order is an "abuse" of its process The answer plainly is in the negative. There is a trite saying that the power to decide includes the power to decide wrongly. As Lord Hobson said in Malkarjun v. Narhari (1900) 25 Bom. 337 P.C. a Court has jurisdiction to decide wrong as well as right"; the fact that the Court may have come .to a wrong decision does not make an excess of jurisdiction. It is a common mistake to suppose that it does; but when a Court has jurisdiction to entertain an application (or other proceedings), it does not lose its jurisdiction by coming to a wrong conclusion, whether it is wrong in point of law or fact. Secondly, the power which section 561‑A saves is not anything in the nature of the power of appeal or revision; indeed, it is not, and this should be manifest from the above survey of the case‑law, as wide as the power of revision or for that matter, the power of appeal is.

25. Here, there is no question that the learned Sessions Judge had the jurisdiction to hear the revision petition and in the exercise of that jurisdiction, which as seen above is a very wide jurisdiction, he was competent to examine the correctness, legality and even the propriety of the learned Magistrate's order and this is precisely what he did, when he found that the respondent was in possession of the house in question at the relevant time and that there was an apprehension of the breach of peace between the parties. The learned Magistrate, it should be clear from his order dated 3‑4‑1984, went completely off the mark when instead of determining the question of possession, he proceeded to deal with the question of the execution of the agreement of sale and its proof, with reference to section 68 of the repealed Evidence Act, 1872. The learned Sessions Judge was, therefore, right in reappraising the evidence on the record and in recording the finding 'that the respondent had been in possession of the property in question at ' the relevant time and that the dispute between the parties created a reasonable apprehension of a breach of the peace.

26. Learned counsel for the petitioner pointed out that no order under section 145, subsection (1) was made; in his view, in the absence of such order, the learned Magistrate or for that matter, the learned Sessions Judge had no jurisdiction to proceed with the matter, for section 145, subsection (1) uses the word 'shall' and therefore, is mandatory in terms. To support this contention, learned

counsel relied upon Mst. Syeda Bano v. Muhammad Salim 1987 PCr.LJ 2349; that was, however, a case in which the order of the Magistrate was not only sketchy but did not give reasons for his satisfaction that a real apprehension of breach of peace existed. Indeed, it was

also held that it was mandatory for the Magistrate to state the reasons or grounds of his satisfaction regarding existence of breach of peace, and that as no grounds were stated or specified, interference by the Additional Sessions Judge in his revisional jurisdiction was justified.

Here, the learned Sessions Judge has given reasons for his conclusion that there existed an apprehension of the breach of the peace. In this connection, reference may with advantage be made to Muhammad Ishaque v. Noor Mahal Begum P L D 1961 S C 426, the question

there was whether the failure to follow the mode prescribed by section 145(1) must in every case render the exercise of the jurisdiction invalid and illegal. It was held that "there is 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, It was held, are that the Magistrate must be satisfied (a) that a dispute likely to cause a breach of peace exists (b) that the dispute refers to land or water and (c) that such land or water is situated within the limits of his territorial jurisdiction. 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". It was, therefore, held that the mere omission to state the ground upon which the Court is satisfied in the initial order under section 145 of the Code of Criminal Procedure does not necessarily make 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, in my view, applies with equal force to the facts of this case.. I am, therefore, unable to agree that as no formal order under section 145, subsection (1) was made the learned Sessions Judge was deprived of his jurisdiction to make the order in question..

27. For the above reasons, I would hold that so far as the learned Sessions Judge's order directing the Magistrate to take steps to restore the possession of the disputed property to the respondent is concerned, it is not open to any valid exception and it is, therefore, not liable to interference under section 561‑A of the Code of. Criminal .Procedure.

28. As regards the order of the learned Sessions Judge directing the restoration of "the tobacco or its price to the petitioner", it was, in my view, clearly in excess of jurisdiction and to that extent, therefore, the learned Sessions Judge's order was without jurisdiction. The jurisdiction vesting in the. Court under section 145, Cr.P.C. is in regard to a dispute likely to cause a breach of the peace "concerning any land or water or the boundaries thereof". The expression "land" is defined in subsection (2) of section 145, to include buildings, markets, fisheries, crops or other produce of land. The house in question was, therefore, land within the meaning of section 145.

subsection (2). But as the land here in question was a house, the tobacco lying therein could not be said to be its produce. It was stated before me that after the first order dated 16‑11‑1983 of Mr. Iqbal Ahmad Bosan, MIC, Sahiwal, the tobacco was disposed of; this was it appears, the reason why the learned Sessions Judge had thought it fit to direct the restoration of the tobacco or its price to the. respondent. Indeed, the price of the tobacco was, by no means, land or its produce. For these reasons, I would set aside the learned Sessions Judge's order in so far as it directed the restoration of tobacco or its price to the respondent.

29. The petition is disposed of accordingly.

M.B.A./S‑115/L Order accordingly.

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