' This petition under section 561-A, Cr. P. C. Has arisen out of an application under section 145, Cr. P.
C. The application was filed by respondent No, 1, Muhammad Shafiq, against the petitioners, Abdul Hayee and others. It was alleged by respondent No, 1 that the petitioners had illegally occupied his shop in Rawalpindi City, on 1st November, 1984 and that he had got registered a case against the petitioners under section 448/34, P. P. C. The said application was submitted before a Magistrate on 27th December, 1984 and it was on the same day that be asked for the report of S. H. O., Police Station Rawalpindi City. In the report submitted by the police, in the form of a calendar under section 145, Cr. P. C., it was pointed out that proceedings under sections 107 and 151, Cr. P. C. Had also been taken against the parties and that there was imminent danger of breach of peace. It appears that it was on the basis of police report that respondent No, 2, Mst. Riaz Begum, was also impleaded as a party to proceedings before the learned Magistrate. On 18th February, 19s5, the learned Magistrate directed that the shop be sealed and the petitioners summoned for 2nd March, 1985 to file their written statement. Thereupon, the petitioners entered appearance before the learned Magistrate and submitted their written statements. The learned Magistrate then recorded the parties' evidence. Matter was finally disposed of by his order dated the 20th July, 1985. It was held by the learned Magistrate that since the respondents were not dispossessed within two months next before the date when order for summoning the petitioners was passed they could not have the benefit of the first provision to subsection (4) of section 145, Cr. P. C. And as such possession of the disputed property could not be restored to them. Application under section 145, Cr. P. C. Was, accordingly, dismissed. Respondents Nos. 1 and 2, hereinafter referred to as the respondents, went in revision before an Additional Sessions Judge. View taken by the learned Additional Sessions Judge was that since the application was made within two months of the dispossession of the respondents, relief prayed for by them could be granted. He, therefore, accepted the revision well as the application. Feeling aggrieved by the order of the learned Additional Sessions Judge, the petitioners have filed the present petition.
2. It was contended by learned counsel for the petitioners that in the application submitted by respondent No, 1 there was no allegation to the effect that the dispute arising out of his dispossession was likely to cause breach of peace and, therefore, provisions of section 145, Cr. P. C.
Could not be invoked by him. It is true that in his application respondent No, I did not make such an averment but the police report did reveal that there was great tension and bickering between the parties and the same was likely to result in breach of peace. In this connection, reference was also made to case registered under sections 448/34, P. P. C. At the instance of the respondent and proceedings under sections 107 and 151, Cr. P. C. It was also held by the two Courts below that there existed a dispute which was likely to cause breach of peace. Before making order under subsection
(1) of section 145, Cr. P. C. The learned Magistrate could take into account the police report and other information received by him regarding the matter in dispute and he was not obliged to look into the contents of the application of respondent No, I only. As indicated above, in that application also there was reference to case registered under sections 448/34, P. P. C. In the circumstances, I am unable to agree with learned counsel for the petitioners that since in the said application there was no mention of apprehension of breach of peace, the impugned order could not be passed.##TE#
3. It was also urged by learned counsel for the petitioners that since, on their own showing, the respondents were not in possession of the disputed property within two months next before the date when order under subsection (1) of section 145, Cr. P. C. Was passed by the learned Magistrate, possession of the property in question could not be restored to them under subsection
(6) of section 145, Cr. P. C. In reply, it was submitted by learned counsel for the respondents that as the application under section 145, Cr. P. C. Was made within two months of the dispossession of the respondents, it was within time He cited Muhammad Akbar Muhammad etc. (1), to support his argument. He did not agree with learned counsel for the petitioners that order under subsection (1) of section 145, Cr. P. C. Hereinafter referred to as preliminary order, was passed by the learned Magistrate on 18th February.
1985. According to him, it was made on 27th December, 1984 when the police report was called for and since the respondents were dispossessed within two months next before 27th December 1984 they could not be non-suited on the ground of limitation. As indicated above, the respondents were dispossessed on 1st November, 1984.
4. A perusal of first proviso to subsection (4) of section 145, Cr. P. C. Would show that the period of two months mentioned therein is to be reckoned with reference to the date of preliminary order and not the date of submission of application under section 145, Cr. P. C.##TE# In the case of Muhammad Akbar, relied upon by learned counsel for the, respondents, proceedings under section 145, Cr. P. C. Were initiated by the police after one year and three months of the dispossession of the aggrieved party. Since the period of two months had run out long before the taking out of the said proceedings, there was no occasion to calculate the period with reference to date of preliminary order. It will be appreciated that if a party filing appeal against an order applies for copy of the order after the expiry of the period prescribed for filing the
(1) 1983 P Cr. L J. 1355 appeal, the appeal can straightaway be dismissed on the ground of limitation without adverting to the period taken by the Copying Agency for supplying copy of the order. In the case of Muhammad Akbar, it was 'riot held by this Court that a person who remains out of possession for a period exceeding two months next before the date of preliminary order is entitled to have an order under .Subsection (6) of section 145, Cr. P. C., hereinafter referred to as final order. The precedent case is, therefore, of no help to the respondents.
5. As indicated above, while examining the question of applicability of first proviso to subsection (4) of section 145, Cr. P. C., one has to ook to the period intervening the date of dispossession and the date of preliminary order. The date of filing of the application under section 145, Cr. P. C. Is immaterial. ##TE#Similar view was expressed in Ghulam Mustafa v. Abdul Karim and others (1), Mahmood Beg and another v. Ehsan Beg (2) and Muhammad Ali Yar Muhammad v. Shamsul Haq Zialdin Shah and others (3). Finding of the learned Additional Sessions Judge that since the respondents made application under section 145, Cr. P. C. Within two months of losing possession of the disputed shop they could be restored possession thereof is in complete disregard of the relevant provisions of law and, therefore, not sustainable.
6. This brings me to the argument of learned counsel for the respondents that order dated the 27th December, 1984 by which the learned Magistrate asked for the police report, is the preliminary order. According to subsection (1) of section 145, Cr. P. C. Police report can form basis of preliminary order and, therefore, the order 'Calling for that report cannot be treated as preliminary order.
Further, in the preliminary order the Magistrate has to state the grounds of being satisfied that there exists a dispute likely to cause breach of peace and also direct the parties D concerned to attend his Court in person or by pleader, within a time to be fixed by him, and to put in written statement of their respective claims as respects the actual possession of the subject of dispute but there is nothing of the sort in the order dated 27th December, 1984 by which the learned Magistrate directed the S. H.
0. Concerned to submit his report. The said order is, threfore, not the preliminary order in this case.##TE#
7. Order of the learned Magisrate which fans the requirements of subsection (1) of section 145, Cr. P.
C. Order dated the 15th February, 1985. That order is, therefore, the Preliminary order and the period of two months is to be computed with reference thereto It is respondent's own case that they were dispossessed on 1st November, 1984. This means that they were not dispossessed within two months next before the preliminary order. Learned Additional Sessions Judge had, therefore, no jurisdiction to order, under subsection (6) of section 145, Cr. P. C., that possession of the disputed property be restored to them.
8. Last and belated plea raised by learned counsel for the respondents was that this petition under section 561-A, Cr. P. C. Is not competent because it is in the nature of a second revision which is barred by clause (b) of subsection (4) of section 439, Cr. P. C: In this connection, reliance was placed by him on The State v. Ch. Altaf Hussain and 2 others (4), Muhammad Afzal v. Aminul Haq and another (5) and Samar
(1) PLD 1964 Lah. 9 - (2) AIR 1941 Oudh 515
(3) AIR 1940 Sind 33 (4) PLD 1978 Lah. 1259 15) 1982 P Cr. L J 340 Ali v. The State (1). In reply, it was Submitted by learned counsel for the petitioners that in suitable cases relief under section 561-A, Cr. P. C. Could be allowed to a party assailing a revisional brder. He cited Durraii v. Muhammad Jan etc. (2), Muhammad Bakhsh v. Labial Ahined and another (3) and Gulab Din v. Muhammad Salim (4), to support his arguments.
9. All the three cases relied upon by learned counsel for the respondents are distinguishable on facts. It was in view of the particular facts of the said cases that it was held that they did not attract the provisions of section 561-A, Cr. P. C. In the case of the State, it was felt that petition under section 561-A, Cr. P. C. Was, in reality, a petition seeking second revision and, therefore, barred.
Observations made in this regard read as follows :- "Thus, in this case, in so far as the merits are concerned, if the order of the learned Additional Sessions Judge is interfered with, it would amount. To exercise of revisional jurisdiction and as second revision has been barred, therefore, the petition moved by the State under section, 561-A; cr. P. C. Has no merit and the same is accordingly dismissed. *(Underlining is by me).
' In the case of Muhammad Afzal, petition under section 561-A, Cr. P. C. Was found to be .a revision petition in the garb of a petition under section' 561-A, Cr. P. C. Before filing petition under section 561-A, Cr. P. C. The petitioner had submitted a petition for revision before the High Court which was dismissed "as it was incompetent due to the provisions of section 439 (4)(b), Cr. P, C.". In the case of Sarwar Ali, it was observed that provisions of section 561-A, Cr. P. C. Could not be made use of for circumventing the provisions of clause (b) of subsection (4) of section 439, Cr. P. C.
10. Above observations were made after examining the cases on merits and holding that the revisional orders challenged therein were unexceptionable. None of the petitions, under section 561-A, Cr. P. C. Made in the said cases was dismissed in limine merely on the ground that provisions of section 561-A could not be pressed into service to assail a revisional order.
11. In the said cases although it was stated, and very rightly, that a second revision was not comptent yet it was not categorically ruled E that in no case a petition under section 561-A will be entenained against a revisional order. On the other hand, in the case of the State, it was clearly indicated that provisions of section 561-A can be invoked if exercise of jurisdiction under section 439-'amounts to abuse of process of Court or the other conditions of the said provisions are satisfied". The observations in point read as follows :- "As regards extraordinary jurisdiction under section 561-A, Cr. P. C. Suffice it to observe that unless the exercise of jurisdiction under section 439-A. Cr. P. C. Amounts to abuse of process of Court or the other conditions of the said provisions are satisfied, this Court would not interfere with the exercise of revisional jurisdiction by a Sessions Court. It may be observed here that the exercise of jurisdiction under section 561-A, Cr. P. C. By this Court with regard
(1) 1983 P Cr. L J 329 (2) P I. D 1979 Quetta 17
(3) 1980 PCrLJ 191 (4) 1985 P Cr. I. J 721 *Mee in natio] to orders passed under section 439 (439-A), Cr. P. C. Would not at all be exercised in such a rx*.Iiner as to give an impression as if a second revisional jurisdicVn is being assumed. Only rare case would really fall under section 561-A, Cr: P. C., where it would be possible to discern the exercise of inherent power clearly under section 561-A, Cr. P. C., and where it is impossible, to confuse it with revisional jurisdiction."
12. In the cases of Durrani, Muhammad Bakhsh and Gulab Din, cited by learned counsel for the petitioners, petitions under section 561-A, Cr. P. C. Were not only entertained but also allowed. In Durraai's case, it was noted that "within its inherent powers the High Court has jurisdiction to interfere with the orders of the Sessions Judge passed under section 439-A, Cr. P. C." The case of Gulab Din had also arisen out of an application under section 145, Cr. P. C. But the cases of Durrani and Muhammad Bakhsh were under other provisions of law. In Gulab Din's case it was held that a petition under section 561-A, Cr. P. C. Is competent notwithstanding the provisions of clause (b) of subsection (4) of section 439, Cr. P. C. Relevant observation occurring in the said case read as under :- "While dealing with the matter I am conscious that the impugned order had been passed by the learned Additional Sessions Judge in his revisional jurisdiction under section Cr. P. C. And clause (b) of subsection (4) of section 439, Cr. P. C., contains clear bar to the exercise of revisional powers by this Court. The Legislature in its wisdom has kept the inherent jurisdiction of the High Court under section 561-A, Cr. P. C., in tact despite recent amendments made in the Code of Criminal Procedure, so this Court in case of patent legal error and grave injustice committed by the lower forum can competently interfere for redressing the grievance of the party so affected."
13.
13. Having examined the case law cited before me I have come to the conclusion that inherent powers under section 561-A, Cr. P. C. Arc as much available qua a revisional order, passed under section 439-A,F Cr. P. C., as against any other order. If intention of the Legislature had been to exempt revisional orders from the operation of section 561-A, necessary amendment would have been made in section 561-A but that has not been done. There is nothing in the provisions of section 561-A to suggest that they cannot be invoked to assail a revisional order even if it amounts to abuse of the process of the Court or defeats the ends of justice. If an Additional Sessions Judge, while exercising powers under section 439-A, sets aside the order of a Magistrate just by saying that he does not like the face of the Magistrate, will the party aggrieved by the order of the Additional Sessions Judge be debarred from assailing the revisional order under section 561-A.
Answer to this question, for obvious reasons, will be in the affirmative. While holding that in appropriate cases, its inherent powers under section 561-A can he exercised by the High court qua a revisional order also, I agree with the view expressed in the cases The State, Muhammad Afzal and Sarwar Ali that the said provisions cannot be made use of to defeat the provisions of clause
(b) of subsection (4) of section 439, Cr. P. C. If a petition under section 561-A, Cr. P. C is, for all intents and purposes, a petition seeking second revision it should be dismissed but if it really falls within the purview of section 561-A it should not be thrown out just for the reason that it is directed against a revisional order. It will, therefore, be in view of the facts and circumstances of each case that the High Court would determin whether petition under section 561-A seeking quashment of a revisions order calls for exercise of its inherent powers. The fact that a petition under section 561-A is directed against a revisionsl order, by itself, is not a valid ground for dismissing such petition.
14. I now proceed to examine if the petition before me attracts the provisions of section 561-A, Cr. P.
C. As pointed out earlier, finding of the learned Additional Sessions Judge that since application under section 145, Cr. P. C. Was made within two months of the dispossession of the respondents, it was within time is in utter disregard of the relevant provisions of law, namely, first proviso to subsection (4) of section 145. It has also been noted that the final order passed by him is without jurisdiction because the respondents were not in possession of the disputed property within two months next before the making of the preliminary order. Order of the learned Additional Sessions Judge regarding restoration of possession, therefore, amounts to abuse of process of law and it is necessary to quash it with a view to securing the ends of justice. Accordingly, it is a fit case for exercise of inherent powers under section 561-A, Cr. P. C.
15. In result, I accept this petition, set aside the order of the learned Additional Sessions Judge and restore the order of the learned Magistrate by which application under section 145, Cr. P. C. Was dismissed.