' JAVED IQBAL, J.---This petition for leave to appeal is directed against the order dated 25-7-2005 whereby an application preferred under section 561-A, Cr.P.C. Has been rejected and the order dated 13-3-2001 passed by learned Additional Sessions judge in Criminal Revision Application bearing No,69 of 2002 whereby the order of learned S.D.M., Preedy Street, Karachi dated 26-8-2000 was set aside, has been kept intact.
2. Precisely stated the facts of the case are that "in January, 2000 the respondents Nos. 2 to 7, who are related to the applicant handed over possession of Shops Nos. 8, 8-A and 8-13- on Plot No,265 A.M. Iqbal Road, Saddar Karachi, upon receiving adequate compensation and undertook to get the tenancy transferred in the name of the applicant. The applicant started running his business in the name of Prince Electronics. According to the applicant he was forcibly dispossessed on 3-5-2000 by the respondent No,2, who came to the shop with 10 to 15 armed persons. The applicant approached Artillery Maidan Police Station but with no success. Thereupon he moved the S.D.M.
Who issued order in terms of section 145(1), Cr.P.C. On the same day and the property was subsequently sealed in terms of section 145(4). Eventually by order dated 26-8-2000 it was held that the applicant had been in possession within two months of the order under section 145(1) and directed that he be put in possession until evicted in due course of law. The aforesaid order was questioned by the respondents Nos.2 to 7 in revision and the learned Additional Sessions Judge allowed the revision application directing that possession be handed over to the respondents Nos.2 to 7."
3. Being aggrieved an application under section 561-A, Cr.P.C. Assailing the judgment of learned Additional Sessions Judge, dated 13-3-2001 which met the same fate and dismissed, hence this petition.
4. Mr. Wasim Sajjad, learned Senior Advocate Supreme Court appeared on behalf of petitioner 'and contended strenuously that the evidence which has come on record has not been appreciated in its true perspective which resulted in serious miscarriage of justice and the learned High Court while. Upholding the order of learned Additional Sessions Judge dated 13-3-2001 has misinterpreted and misconstrued the provisions as contained in section 145, Cr.P.C. Causing serious prejudice against the petitioner. It is next contended that the learned Additional Sessions Judge had no jurisdiction to set aside the well-based order of learned Magistrate passed on 26-8- 2000 by ignoring the agreement dated 14-1-2000 on the extraneous consideration that it was not got signed by Mst. Surriya Perveen and the factum of possession at the relevant time was never considered properly. It is also argued that the non-signing of the agreement by Mst. Surriya Pervecn having 1/8th share in the property would have no substantial bearing on merits of the case and as such the physical possession of the shop in question could not have been handed over to the respondent. It is also contended emphatically that once the revision court had exercised its powers, the application under section 561-A,. Cr.P.C. In the same case would have not been maintainable which aspect of the matter has been ignored by the learned High Court causing .Serious miscarriage of justice. In order to substantiate his esteemed views Mr. Wasim Sajjad, learned Senior Advocate Supreme Court on behalf of petitioner has referred the following authorities:-- "Mahadeo Prasad v. Rain Saran AIR (3-2) 1945 Oudh 12; Muhammad Arif v. Satramdas Sakhimal AIR 1936 Sind 143; Wazir Chand v.Rawel Chand AIR (34) 1947 Lahore 227; Gurditta v. Taja (AIR 1939 Lahore 108) and Saudi Mahto v. Sukhlal Mahto (AIR 1934 Pat.33)".
5. Mr. S.M. Zafar, learned Senior Advocate Supreme Court appeared on behalf of respondents and supported the order impugned for the reasons enumerated therein with the further submission that the question of title could not have been decided in criminal proceedings and prior to initiation of the same a suit was filed on 12-1-1999 by the petitioner with the following prayer:-- "It is, therefore, prayed that this Honourable Court may be pleased to pass a judgment and Decree in favour of the plaintiff and against the defendants above-named as under:--
(i) A decree of Rs,54,00,000 (Rupees Fifty Four Lacs only ) with interest at the rate of 14 % per annum from the institution of above suit till the realization of decretal amount against the defendants above named to pay jointly and severally the decretal amount to the plaintiff, as agreed by them.
(ii) Or in the alternative to pass order for the possession of Shop No,8 `NAYYAR ELECTRONICS, Saddar, Karachi to the plaintiff as per agreement dated 23-5-1998.
(iii) To grant injunction against the defendants above-named, their persons, assignees and nominees whosoever restraining them from giving and passing on illegally the possession of Shop No,8 `Nayyer Electronics' Saddar, Karachi or its portion to any other person/persons or body in any manner whatsoever.
(iv) Any other relief/reliefs this Honourable Court deem fit, just and proper may be allowed in favour of the plaintiff in the special circumstances of the case.
(v) Cost of the suit."
6. The learned Advocate Supreme Court on behalf of respondents while referring the above reproduced prayer in the suit preferred on behalf of respondents has contended that the question of possession was involved and the date of possession was 26-11-1998 and subsequently fake proceedings were got initiated under section 145, Cr.P.C. It is also pointed out that the learned trial court had not appreciated the controversy in its true perspective and ignored the evidence led on behalf of respondents and derived a wrong conclusion which was subsequently rectified by the learned Additional Sessions Judge by examining the evidence in depth and determination whereof has been upheld by the learned High Court and hence the controversy being factual does not warrant interference by this Court. In order to substantiate his view point Mr. S. M. Zafar, learned Senior Advocate Supreme Court has referred case Jawaid Iqbal v. Muhammad Din (1990 SCMR 1309).
7. We have carefully examined the respective contentions as agitated on behalf of the parties, scanned the entire evidence with their eminent assistance and perused the judgment impugned as well as the, judgment of learned Additional Sessions Judge dated 13-3-2001 and the judgment of learned S.D.M. Dated 26-8-2000. The basic question which needs determination would be as to whether the jurisdiction as conferred upon the High Court under section 561-A, Cr.P.C. Could have been invoked in view of the prevalent circumstances of the case when the revisional court had already exercised its powers under sections 439 and 439-A, Cr.P.C. There is no hesitation in our mind that "the object of section 561-A, Cr.P.C. Whereby inherent powers are conferred on High Court, is to do real and substantial justice and to prevent abuse of process of Court. To secure ends of justice, powers of High Court are very wide. Power of High Court to prevent abuse of the process of any Court or to secure the ends of justice is undoubtedly very wide and unlimited, but such power certainly cannot be exercised as to interrupt or divert the ordinary course of criminal procedure. Inherent power of High Court can be invoked where it is established that the proceedings against a person seeking quashment of his case are either mala fide, coram non judice or a clear violation of the procedure or such proceedings amount to abuse of process of Court." (Muhammad Hanif Pathan v. State PLD 1999 Kar. -121, Shoaib Ahmed l3okhari v. The State PLD 2001 Kar. 279).
8. The above proposition remained the subject of deliberation in various cases and judicial consensus seems to be that irrespective of the fact whether the revisional court has exercised its authority or otherwise, the powers as conferred upon the High Court under section 561-A Cr.P.C.
Can be exercised. The above proposition was discussed in case Muhammad Samiullah Khan v.
State (PLD 1963 SC 237), relevant portion whereof is reproduced herein below for ready reference:-- "The jurisdiction under section 561-A of the Criminal Procedure Code is, in our opinion, of an extraordinary nature intended to be used only in extraordinary cases where there is no other remedy available. It is of a limited scope and cannot be utilized where there is other express remedy provided by the Code of Criminal Procedure. In the exercise of the inherent jurisdiction under this section the High Court can neither exercise the powers of a Court of appeal nor can it enhance a sentence nor can it even re-consider the question of sentence. It is designed to prevent an abuse of the process of Court and cannot be regarded as being wide enough to give to the High. Court the same power that it has under section 435 read with section 439 of the Code of Criminal Procedure to examine the correctness, legality or propriety of any finding, sentence or order passed by an inferior Court. Such wide powers can only be exercised under section 439 of the said Code. We think, therefore, that there is a great deal of force in this contention. The scope of the jurisdictions exercised under these two provisions is not similar. The revisional jurisdiction of the High Court under section 439 is indeed wide and is not confined merely to errors of law. In the exercise of its revisional jurisdiction the High Court can even, in appropriate cases, disturb findings of fact, as, for example, where there subordinate Court has wrongly placed the onus of proof or not applied the correct principles relating to the appraisement of evidence or an important piece of evidence has been ignored. These things the High Court cannot do under section 561-A. The two jurisdictions are thus fundamentally different. Indeed, as a rule, the inherent jurisdiction of the Court to correct an abuse of process of 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."
9. The provisions as contained in section 561-A Cr. P.C. Were also examined in case Ghulam Muhammad v. Muzanunal Khan (PLD 1967 SC 317) wherein it was observed that "it is generally accepted that the inherent jurisdiction should not normally be invoked where another remedy is available. Inherent powers are preserved to meet a lacuna in the Criminal Procedure Code in extraordinary cases and are not intended for vesting the High Courts with powers to make any order which they are pleased to consider to be in the interests of justice. These powers are as much controlled by principles and precedents, as are its express statutory powers." It was further observed that "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 utilized as to interrupt or divert the ordinary course of criminal procedure as laid down in the procedural statute."
10. The provisions as enumerated in section 561-A Cr. P.C. Were also examined in case Javaid Iqbal v. Muhammad Din (1990 SCMR 1309) and it was observed as follows:-- "A learned Magistrate held in favour of the petitioner that he had been dispossessed within two months of the relevant date. The learned Sessions Court reversed this finding in its revisional jurisdiction. The petitioner then finding no other remedy sought interference under section 561-A Cr.
P.C. By the High Court. In such case where a matter stands concluded by the exercise of criminal revisional jurisdiction at the Sessions Court level, it would be very difficult to make out a case for further interference by the High Court under section 561-A Cr. P.C.
' The strict conditions laid down therein are not satisfied in this case. Accordingly on this ground alone this petition merits to be dismissed. However, as the High Court did not dismiss the petitioner's application under section 561-A, Cr.P.C. On the said ground and dealt with the merits, we heard the learned counsel on that aspect of the case. It has been found as a fact by the learned Judge in the High Court that the decision on factual aspects rendered by the Sessions Court was unexceptionable. It was also held that the dispute between the parties in reality was the subject-matter of civil litigation and that the same was pending before the Civil Court. Further it was held that important condition; namely, that there should be likelihood of breach of peace which should pre-exist for taking action under the said provision, did not exist in this case."
11. It is well-settled by now that "inherent powers of High Court under S. 561-A, Cr.P.C. Are not impinged, curtailed or limited by the powers possessed by the Courts under S.435/439, Cr.P.C. But jurisdiction under S. 561-A, Cr.P.C, is not available to a party by way of additional or alternative jurisdiction after exhausting revisional jurisdiction. Powers exercisable by the High Court under section 561-A of Cr.P.C. Are independent of the fact whether any inferior Court has exercised the revisional powers under section 439-A, Cr.P.C. Therefore it cannot be said that after decision of a revision application, an application under section 561-A, of Cr.P.C. Is not maintainable." (Niaz Ahmad v. Nisar Ahmad 1997 PCr.LJ 1588, Habibullah Qureshi v. Farooque 1996 MLD 92, Sher Hassan Khan v. Hidayatullah 1996 SCMR 1476.
12. There is no cavil with the proposition that "High Court in exercise of its inherent jurisdiction under S.561-A can strike down revisional order of Additional Sessions Judge passed under S.439-A.
Inherent powers under S.561-A, Cr.P.C. Are as much available qua a revisional order passed under section 439-A, Cr.P.C. As against any other order. High Court, in view of facts and circumstances of each case would determine whether petition under section 561-A seeking quashment of revisional jurisdiction order called for exercise of its inherent powers. The fact that a petition under section 561-A, Cr.P.C. Was directed against a revisional order, by itself, was not a valid ground for dismissing it. High Court has very wide and indefinable powers enabling it to pass any order to do real and substantial justice and to rectify error committed in revisional proceedings. Where High Court feels that a glaring miscarriage of justice has been committed by trial Court which revisional Court failed to rectify, it could invoke S.561-A, Cr.P.C. Which empowered High Court inter alia to prevent abuse of process of Court or otherwise to secure ends of justice." (Muhammad Anwar v.
Addl. Sessions Judge Okara 2002 YLR 43, Atta Muhammad v. Aziz Gul PLD 1990 Kar. 236, Khalida Rehman v. Muhammad Aqil PLD 1988 Kar. 85, Muhammad Ahsan v. State 1987 PCr.LJ 2434.
13. It may, however, not be out of place to mention here that no yardstick can be fixed that in what circumstances the High Court can exercise its powers as conferred upon it in section 561-A, Cr.P.C.
Where the revisional court had dealt with the same issue while exercising revisional jurisdiction but there is no cavil with the proposition that "the source of the inherent jurisdiction of the Court is derived from its nature as a Court of law. What is inherent is an inseparable incident of a thing or an institution in which it inheres. 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 statute. Every Court, whether civil or criminal must, in the absence of express provision in the Code be deemed to possess, as inherent in its very constitution, all such powers as are necessary to do right and to undo a wrong in the course of the administration of justice. 'This is based on the principle, "when the law gives a person anything, it gives him that, without which, it cannot exist". The above principle will apply to all Courts in respect of proceedings before them. The High Court, has, in view of its general jurisdiction over all the criminal Courts subordinate to it, inherent power to give effect to any order of any such Court under the Code, and to prevent the abuse of process of any such Court, or otherwise to secure the ends of justice. The powers possessed by High Court under S.561- A, Cr.P.C carom be curtailed or limited in any manner by any jurisdictional requirement as the jurisdictional requirements of the exercise of such powers are to give effect to any order under the Code of Criminal Procedure, to prevent abuse of process of any Court and to secure the ends of justice, or where the order of the Sessions Judge is contrary to the law laid down by the Superior Courts, or where the Court erroneously fails to exercise jurisdiction vested in it under S. 439-A."
(Sardar Ali v. State PLD 1987 Lah. 633, Maqbool Rehman v. State 2002 SCMR 1076, Din Muhammad v.
Muhammad Sharif PLD 1979 BJ 12, Raju v Emperor AIR 1928 Lah. 462, Emperor v. Sukh Dev AIR 1930 Lah. 465, Liaquat Ali v. Muhammad Aslam 1996 PCr.LJ 2036, Shamsul Qamar alias Sepoy v. State 1984 PCr.LJ 504.
14. We are, however, of the considered view formed after having gone through almost the entire case-law on the subject that the power as conferred upon the High Court under section 561-A, Cr.P.C. Are required to be exercised in exceptional cases where it is satisfied that continuation of proceedings complained of would amount to gross abuse of process of Court or that it is absolutely necessary to exercise inherent powers to secure the ends of justice. The powers as conferred upon High Court in section 561-A, Cr.P.C. Being extraordinary in nature must be exercised sparingly with utmost care and caution and it should not be exercised in a casual and cursory manner because inherent jurisdiction as conferred upon the High Court pursuant to the provisions as enumerated in section 561-A, Cr.P.0 are neither "alternative" nor "additional" in its character and is to be rarely invoked only in the interest of justice so as to seek redress of grievances for which no other procedure is available and that the provisions should not be used to obstruct or divert the ordinary course of criminal procedure." (Maqbool Rehman v. State 2002 SCMR 1076, Mahmood Saeed v. Amir Nawaz Khan 1996 SCMR 839, Fazal Karim v. State 1986 SCMR 483, Muhammad Sharif v. Muhammad Javed PLD 1976 SC 461.
15. In the light of what has been discussed hereinabove the learned High Court has rightly exercised the powers conferred upon it under section 561-A Cr. P.C. And no illegality has been done.
16. We have also adverted to the proceedings got initiated under section 145, Cr.P.C. By the petitioner. There is no cavil with the proposition that the prime object of the proceedings under section 145, Cr.P.C. Is to prevent a breach of peace and to maintain status quo till the controversy is decided by the civil Court of competent jurisdiction. The purpose of proceedings under section 145, Cr.P.C. Is to meet an emergent situation in order to maintain peace and further to enable the parties to set the controversy at naught through civil court qua the title or claim of the property in dispute. It is mandatory requirement of section 145, Cr.P.C. That there must not only a dispute but it is essential that a dispute is likely to cause breach of peace (Fazal Haq v. Muhammad Latif PLD 1985 SC 294), and in case the dispossession of property is not coupled with apprehension of breach of peace then the parties concerned should approach the civil court for the redressal of their grievances.
17. This petition has been examined in the light of criterion as mentioned hereinabove and we are of the considered view that there was no immediate apprehension of breach of peace. Had it been so no civil suit would have been filed a decade ago which is indicative of the fact that the question of title was involved and there was no possibility of apprehension of breach of peace as no untoward incidents had taken place between the parties. We are, therefore, of the view that proceedings got initiated under section 145, Cr. P.C. Were to pressurize the respondents to hand over the possession of the premises in question to the petitioner.
18. We have also dilated upon the question whether non-passing of preliminary order under section 145(1), Cr.P.C. Would vitiate the entire proceedings or otherwise? Ordinarily the provisions as contained in section 145, Cr.P.C. Must be followed in letter and spirit, (Dhaniram v. Kaliram AIR 1927 Lah. 805, Emperor v. Hira Lal AIR 1935 All. 96, Emperor v. Sis Ratn AIR 1930 Lah. 895), but the entire proceedings cannot be vitiated merely on the ground that there was some deviation from the procedure. While discussing a similar proposition it was observed by this Court in case Muhammad Ishaq v. Nur Mahal Begum (PLD 1961 SC 426) as follows:-- "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 he 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 Magistrates 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 exists,
(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.
' 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 grounds 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.
' In our opinion, when a Court exercises a jurisdiction not strictly in accordance with the mode prescribed by the statute, the question must necessarily arise as to whether the defect amounts merely to an irregularity or an illegality and the answer to this question must necessarily depend upon the character and the object of the rule which has been contravened. In a case failing under this section it is patent that the object of the rule requiring the Court to state the grounds of its satisfaction in the initial order is merely to inform the parties against whom proceedings are sought to be initiated of the reasons which have induced the Court to take action and thus to enable them to put up a proper defence. If the initial order recorded does not state these reasons and the party against whom it is directed finds it difficult to prepare his defence by reason of the vagueness of the order, he can always apply to the Court for the statement of the grounds. On the other hand, if the parties do not feel any difficulty owing to the omission of the grounds and adduce evidence in support of their respective cases, it is difficult to appreciate upon what principle it can be said that the defect in the order amounts to an illegality vitiating the entire proceedings.
' In our opinion, in such cases the important thing is to see whether there were materials on the record upon which the satisfaction of the Magistrate could be at all grounded. If there exist such materials, then the mere omission to state the grounds of satisfaction will not vitiate the order. In such a case it must be held that there has been substantial compliance with the requirements of the said subsection and that the defect is merely a technical defect.
' This view also finds support from the Full Bench decision of the Calcutta High Court in the case of Khosh Muhammad Sarkar v. Nazir Muhammad (ILR 33 Cal. 352), upon which reliance was sought to be placed by the learned counsel appearing for the appellants to show that this principle is applicable only in cases where proceedings have in fact been taken and concluded by a final order. According to him when a party challenges such a defective order at the initial stage the considerations which normally deter a superior Court from setting and the entire proceedings should not be given the same weight.' We are, however, unable to see any distinction in principle.
There is no valid reason as to why the legal consequence of such a defect should be different at different stages of the same proceedings."
19. In the light of above mentioned observations it can be concluded safely that deviation from procedure can at the most be declared as an irregularity but it would not vitiate the entire proceedings as the nature of the controversy was within the knowledge of both the parties. The evidence which has come on record has been examined with diligent application of mind by the learned High Court in the judgment impugned, relevant portion whereof is reproduced herein below for ready reference:-- "8.Indeed some witnesses produced by the applicant deposed that they saw him doing business at the disputed shop between January to May, 2000, apart from doing his independent business in the adjacent shop, called Prince Electronics, but none of them has deposed in what capacity the applicant was doing such business or whether the shop was in his possession to the exclusion of the respondents Nos.2 to 7. It could not be overlooked that the parties were closely related to each other, the applicant being the son-in-law of the respondent No,2 and brother-in-law of respondents Nos.3 to 7. It is also relevant to mention that apart from the fact that transfer of tenancy rights had not formally taken place, the applicant had filed Suit No,33 of 1999 in this Court for recovery of Rs,5,400,000 or in the alternative possession of the disputed shop. According to the plaint the applicant had paid off certain debts of the respondents and the respondents had agreed to pay off the debts of Rs,2,700,000 within three months of the agreement dated 23-5-1998.
It was further stipulated that in the event of their inability they would either pay the applicant an amount of Rs,5,400,000 or transfer tenancy rights and put the applicant in possession upon receiving a further amount of Rs,5,600,000. Incidentally the suit is still pending and it is a little difficult to believe that the applicant was put in possession without a settlement in the above suit and without transfer of tenancy rights. Therefore, the conclusion arrived at by the revisional Court cannot be deemed to be perverse. The applicant may indeed be entitled to possession of the disputed shop in law or equity but that is not a question with which this Court is concerned in the present proceedings. All that has to see is a factum of physical possession at the relevant date and once a finding of fact has been recorded by a revisional Court the principle laid down in Jawaid Iqbal's case cited above, become squarely applicable."
20. We have also examined the case-law cited by Mr. Wasim Sajjad, learned Senior Advocate Supreme Court on behalf of petitioner which being distinguishable is not applicable.
21. As mentioned in the preceding paragraphs, the civil litigation is also pending and the dispute relates to title of the property in question as such the conclusion arrived at by the learned High Court being well based does not warrant interference. The petition being meritless is dismissed and leave refused.