1. ' This application under section 561-A, Cr.P.C. Has been preferred against the order dated 15-7-1980 of the learned Sessions Judge, Nawabshah, who dismissed the revision application of the applicants which was directed against the order dated 13-4-1980 of the learned Civil Judge and F.C.M., Nawabshah whereby the issued process against the applicants under section 447/149/506, P.P.C.
2. ' The brief facts of the prosecution case are that survey Nos. 552, 553 and 554 measuring 44 acres of land in Deh 65, Nasrat, District Nawabshsh were leased out to the applicant Abdullah since last about 12 years and the lease in question was to continue till 1983-84. The dispute on the lease led to filing of a civil suit No, 96 of 1978, dated 2-5-1978 by one All Muhammad Daheri Advocate against the applicant and others, in the civil Court Nawabshah. Since, the above-said Ali Muhammad Daheri wanted to grab the land he therefore set up Ghulam Rasool Opponent No,1. Ghulam Rasool prepared a false lease agreement in his favour against the applicant Abdullah and he filed a Civil Suit No, 14 of 1978 dated 17-8-1978 for injunction, falsely representing his possession of the said land on the basis of a false agreement, as stated above, and got the order of status quo from the Civil Court. Ghulam Rasool, Muhammad Yousuf who is brother of the above-said Advocate Ali Muhammad Daheri and about 100 other persons armed with hatchets and guns took forcible possession of the land on the night between 22nd and 23rd of August, 1978 by taking advantage of the status quo order of the Court. The applicant who was not present at Nawabshah lodged such F.I.R., against Ghulam Rasool, Muhammad Yousuf and others. Ghulam Rasool also filed F.I.R. For the above-said incident at P.S. Nawabshah.
3. ' The learned Senior Civil Judge after some time set aside the order of the status quo. Ghulam Rasool preferred an appeal against this order before the learned District Judge, Nawabshah who dismissed it. Ghulam Rasool challenged this order in this Court but his appeal was again dismissed. He therefore, went in revision before the Supreme Court where the judgment to the effect that the civil suits be decided within a period of three months and surety in an amount of Rs, 75,000 be furnished by Ghulam Rasool and his possession should not be disturbed. The photostat copies of the orders referred to above have been placed on record of this Court from pages 111 to
140. The applicant Abdullah also filed a Civil Suit No, 25 of 1979 for possession before the Senior Civil Judge, Nawabshah. The Court consolidated both the suits.
4. ' The police after usual investigation of the incident for which both the F.I.Rs, were filed challaned Ghulam Rasool, Muhammad Yousuf to stand trial under sections 447/147/149/506, P.P.C., before the joint Sub-Judge and F.C.M., Nawabshah.
5. ' Ghulam Rasool opponent No,1 after about a year and a half filed a direct complaint against Abdullah and 14 others before the learned joint Sub-Judge and F.C.M., Nawabshah, who without notice to the applicants and also without perusal of the police papers issued bailable warrants against the applicants by his order dated 12-2-1980 and fixed up the case on 16-2-1980. He after report from the police that the applicants were avoiding service issued non-bailable warrants against the applicants. On 16-2-1980 these orders of issuing process and non-bailable warrants against the applicants were. Challenged by filing a revision application which was rejected hence this application.
6. ' The learned counsel for the applicants pointed out that the revision application filed before the learned Sesions Judge was made over to the learned 1st Additional Sessions Judge, Nawabshah in the first instance but the record and proceedings were sent for from the Court of the learned Additional Sessions Judge by the learned Sessions Judge and the revision application was dismissed by him. The power of the learned Sessions Judge to call for the R & P from the Court of Additional Sessions Judge has been challenged and his further orders have been agitated to be without jurisdiction.
7. ' It has also been contended that the direct complaint of the opponent Ghulam Rasool has been filed with a view to harass the applicants otherwise no offence whatsoever was committed by the applicants. The allegations that the applicant alongwith 14 persons armed with deadly weapons went to attack Ghulam Rasool and others but no one has even received scratch on their person leads to conclusion that it was a false case. There is a delay of about a year and a half in filing the complaint. The issuing of process against the applicants was therefore, abuse of the process of the Court. The only purpose of filing the direct complaint is to harass the applicants, and thereby retain the illegal possession of the property of the applicant which is subject-matter of civil suits. The Senior civil Judge, Nawabshah dismissed the suit filed by the opponent No,1 and decreed the suit of the applicant Abdullah arid the appeal, and revision filed by the opponent Ghulam Rasool have been dismissed by the District Judge, Nawabshah on 10-5-1981. The judgments of both the Courts are on pages 141 to 161 of this Court. Therefore, the order of the issue of process and subsequent issue of non-bailable warrants against the applicants, are not warranted by law. He has placed his reliance on (i) 1980 P Cr. L J 818, (ii) 1981 P Cr. L J 614, (iii) 1984 P Cr. L J 193 and (iv) 1982 P Cr. L J 1039.
8. ' The learned counsel for the opponent No,1 on the other hand has contended that the F.I.R. Was lodged by the complainant on the same day but because the police did not challan any of the applicants and instead challaned him which left no alternative with him except to file a direct complaint. As far as the Civil Suits are concerned all other 14 persons except the applicant Abdullah are not party in the Civil litigation therefore commission of offence by them cannot be ignored only on account of civil suits between the applicant and respondent No,1. It has also been contended by him that the findings of the Civil Court regarding entitlement of a party for possession of the disputed property would not debar the proceedings against the applicants for a criminal charge and the best forum for the purposes of criminal charges would be a trial Court. Moreover, the powers of this Court can only be envoked when there is no other alternative remedy available to a person. The applicants have another remedy of approaching the trial Court under section 249-A, Cr.P.C. Therefore, this application under the circumstances is not maintainable according to law.
9. The contention that the learned Sessions Judge has no powers to recall the case from the Court of the learned Additional Sessions Judge, is without any force as he is empowered to pass such orders A under section 528 (IA), Cr. P.C. He has placed his reliance on (i) PLD 1967 SC 317, (ii) PLD 1978 Lah.
10. 287.
11. ' Mr. G. R. Warsi, the learned counsel appearing for the State is also of the view that the Judgments of the civil Court have nothing to do with the trial of a criminal charge. The applicants being fugitive before the trial Court are not entitled to any relief.
12. ' I have carefully considered the contentions of the learned counsel for the applicants, respondents, and State. I have also gone through the citations referred to by the learned counsel for the applicants as well as respondent No,1. There is no doubt that the alternative remedy under section 249-A, Cr.P.C. Is available to the applicants who in ordinary course are required to seek their redress from the trial Court. The jurisdiction of this Court under section 561-A, Cr.P.C. Is neither alternative nor additional jurisdiction but is a jurisdiction preserved 'in the interest of justice', to redress grievances in extraordinary cases where the High Court will make any order which is considered to be in the interest of justice.
13. There is no doubt that the parties were agitating their title before the civil Courts and the possibility of falsely implicating each other could not be ruled out, in such cases. It is a fact that respondent No,1 had filed a civil suit in respect of the land in which the present incident is alleged to have occurred and got the order of status quo. In the situation like this if the applicants would take the law into their hands and proceed to snatch the possession forcibly and attack armed with deadly weapons. They would not behave in a manner that every one on the side of the respondent No,1 would escape without any scratch on their person and also without taking possession of the disputed land. This does not fit in the circumstnaces and it is very difficult to accept it. Moreover, there was no cause for the learned Magistrate to issue process without examining the police papers which he had sent for in respect of this case. Such an action on the part of the learned Magistrate undoubtedly leads to conclusion that the order of process which was required to be passed after due care so as to serve the ends of justice has been passed without applying mind to it. Nevertheless the issue of non-bailable warrants against the applicant within a week's time after the issue of process particularly when the incident was one and a half years old cannot be considered to be an act in the interests of justice. What relief or redress could be expected by the applicants from the Court under section 249-A, Cr.P.C. In the above circumstances. It is not the intention of law that the accused should necessarily be subjected to approach the trial Court in a case where there is a clear cut abuse of process of the Court. If a case of flagrant injustice which has been committed at the level of subordinate Court is brought to the notice of this Court it cannot refuse to exercise its extraordinary jurisdiction conferred by section 561-A, Cr.P.C. Merely because the aggrieved party has alternative remedy. This can be exercised by the High Court in very exceptional circumstances. Moreover the powers of this Court under section 561-A, Cr.P.C. In view of the enactment of section 249-A, Cr.P.C. Are not barred as section 561-A, Cr. P.C. Is larger in scope and intent than section 249-A, Cr.P.C. Section 561-A, Cr. P.C. Recognises the inherent powers of the High Court both as a Court of record, and also in view of its general jurisdiction over all the criminal Courts subordinate to it and to compel the compliance to it of the code or to give effect to any order thereunder or to prevent the abuse of process of any Court or otherwise to secure the ends of justice. The power therefore to free an accused from a groundless charge in criminal proceedings faced by him is therefore, co-extensive both with the trial Court and the High Court.
14. Therefore, the power of the High Court under section 561-A, Cr.P.C. To quash the proceedings is not at all affected by enactment of section 249-A, Cr.P.C. I am fortified in my above views by the observations in the above-said cases.
15. ' It has also been established that the order of the status quo granted to the respondent No,1 by the civil Court, Nawabshah was vacated on the ground that the applicant No,1 who is defendant in the civil suit filed by the respondent No,1 was ousted from the land in question and crops on it afer the order of the status quo. Moreover the civil suits filed by the applicant No,1 and the respondent No,1 agitating their entitlement to possess the land in dispute were consolidated and the suit of the respondent No,1 was dismissed whereas that of the applicant No,1 decreed and District Court, Nawabshah also maintained the judgments of the civil Court. I have gone through the judgments of both the Courts which have been placed on the record of this Court and am of the firm view that the applicants have been dragged in a criminal case with a view to pressurize them in a matter for which civil litigation was going on between the parties. Therefore, the case filed against them is clear cut abuse of process of the Court and no result in furtherance of justice will be accrued if the proceedings are allowed to be continued in the trial Court. I, therefore, allow this revision application as this is a fit case for exercise of powers under section 561-A, Cr.P.C. In the result the proceedings pending against the applicants under section 447/147/149/506, P.P.C. In the Court of joint Sub-Judge and F.C.M., Nawabshah, stand quashed.