1. SHAFIUR RAHMAN, J.--Leave to appeal was granted to examine the following questions of law arising in proceedings initiated by the appellants under section 145, Cr.P.C. Which culminated in the impugned judgment of the Lahore High Court, dated 2nd of February, 1986 in proceedings under section 561-A, Cr.P.C.-- "(i)As to whether an application under section 561-A, Cr.P.C. Was competent after the exercise of revisional powers by the Sessions Judge under section 439-A, Cr.P.C. In regard to the same subject-matter as if it was an appellate power to correct errors in the order passed in the exercise of revisional jurisdiction, particularly when the concurrent powers of revision are conferred on the High Court and the Sessions Judge; and (ii)Do the orders passed in the proceedings conform to sections 145 and 146, Cr.P.C.?"
2. The property in dispute is a shop/godown No. U-218-A, Mochi Bazar, Rawalpindi. It was an evacuee property. Its transfer to one Sardar Muhammad had been refused and the property was ordered to be put to auction. However, subsequently it was transferred to one Sharif, a son of the aforesaid Sardar Muhammad and he associated Sardar Muhammad in the transfer and a share in it was sold to Muhammad Rafique, the predecessor-in-interest of the appellants. Muhammad Rafique instituted proceedings for the eviction of Abdul Hayee, respondent No. l who was the occupant/tenant of the shop.
3. The Rent Controller passed an order of his eviction on 6-11-1977. This order was maintained in appeal on 1-10-1978 and in second appeal by the High Court on 15-1-1979. A Petition for Leave to Appeal (45-R of 1979) filed by the occupant/tenant Abdul Hayee was dismissed allowing him three months' time to vacate the shop. While these proceedings for his eviction were taking place, he instituted an application against the transferee Sharif and Sardar Muhammad from whom Muhammad Rafique acquired title in the shop complaining that it was a fraudulent transfer not sustainable in law. Those proceedings also ended against Abdul Hayee the last order in those proceedings being in Civil Petition for Special Leave to Appeal No. 189-R of 1984, dated 15-8-1984, when leave to appeal was refused to him. Execution of the order of ejectment was taken up by Muhammad Rafique and he was able to get the shop vacated on 21-10-1984. Abdul Hayee and the decree-holder appeared in the executing Court and made a statement on 1-11-1984 that the possession had been delivered.
4. The grievance of the appellants who succeeded Muhammad Rafique having died in the meanwhile was that when they returned from the executing Court after making a statement of having obtained possession on 1-11-1984. They found that Abdul Hayee had with the assistance of his other close relatives, brother and nephews, the respondents in the proceedings obtained forcibly possession of the same shop/godown. He thereupon got a case registered under section 448/34, P.P.C.
5. The next step taken by the appellants was that they instituted a criminal original by reference to the decision of this Court in C.P.S.L.A. No.45-R of 1979 and prayed for the punishment of the respondents for contempt. This criminal original was instituted on 27-11-1984 and an order was passed on 18-12-1984 that "no justification is made out to initiate contempt proceedings against the respondents. The criminal miscellaneous petition is accordingly dismissed".
6. Another fact to be noted is that when Civil Petition for Special Leave to Appeal No:189-R of 1984 came up before the Court certain suppressions were noticed for which Abdul Hayee as well as his learned counsel were issued notices of contempt. About Abdul Hayee, the following decision was given- "So far as the case of Abdul Hayee is concerned, we observe that he is almost illiterate and was desperately desirous of obtaining an order or stay of his dispossession. In these circumstances, he instructed his counsel to try to obtain it, even if in doing so certain important circumstances were concealed from this Court. This is a serious misdemeanour but considering his plea for mercy, we have decided to forgive him and discharge the notice issued to him."
7. It was in this background of events that on the 27th of December, 1984, the appellants initiated proceedings under section 145, Cr.P.C. Before the Ilaqa Magistrate by filing an application there.
8. Two facts are to be noted so far as this application is concerned. Firstly it mentioned the registration of a case under section 448/34, P.P.C. But did not mention the likelihood of breach of peace taking place though an action under section 145, Cr.P.C. Was prayed for. The other fact to be noted is that it was specifically mentioned that the application was being filed on the direction of the Supreme Court. It was marked by the Magistrate the same day to the S. H .O. Police Station City for report. A report was submitted by the police on 13-1-1984. The police officer independently took up the proceedings under section 107/151, Cr.P.C. The police officer also submitted on 1-2-1985 a report that till the decision in the case the shop be sealed. The learned Magistrate passed the preliminary order on 18-2-1985. He ordered the sealing of the shop and issued notices to the respondents. The order of sealing of the shop was carried out on 22-2-1985. The evidence of the parties was recorded and by an order dated 20-7-1985 the ejectment order passed on 18-2-1985 was withdrawn and the property was restored to Rahimuddin, Abdul Hayee and others who were in physical possession of the shop on the date the preliminary order was passed and even two months preceding that order. The reasons given appear from the following finding recorded by the learned Magistrate--- "On 1-11-1984 Rahimuddin, Abdul Hayee and others wrongfully and forcibly dispossessed Muhammad Shafiq son of Muhammad Rafiq and others. On 18-2-1985 the learned Magistrate passed the preliminary order. It shows that the preliminary order was passed 3 months and 17 days after the date Muhammad Shafiq was wrongfully dispossessed. Muhammad Shafiq dispossessed of the property moved the Court to take action under this section within two months of his dispossession but my learned predecessor did not pass a preliminary order until after the expiry of 2 months of such possession. I do not find myself on good legal ground to dilate on the way the proceedings were drawn under 145, Cr. P. C . By my learned predecessor. But I fell at this stage, that legally this Court, in these circumstances, has no power to restore possession to Muhammad Sharif and others who were wrongfully and forcibly dispossessed of their Shop No.U/281A, Mochi Bazar, Rawalpindi, on 1-11-1984; whereas the preliminary order was passed on 18-2-1985. The record shall show that on 18-2-1985 when the preliminary order was passed and even 2 months preceding this order Rahimuddin and Abdul Hayee etc. Were in physical possession of the Shop No. U /281A situated in Mochi Bazar, Rawalpindi. "
9. A revision was filed against this order by the appellants in the Court of the Sessions Judge, Rawalpindi. It came up for disposal before Additional Sessions Judge, Rawalpindi. On acceptance of the revision petition, the learned Additional Sessions Judge set aside that order observing as follows- "I hold that the impugned order is illegal to the extent that the petition was not filed within time. I hold that according to the above-said citation referred to above by the learned counsel for the petitioner, the application Exh. P.A. Was filed within sixty days on 27-12-1984 from the date 1-11-1984, the date of forcible and illegal dispossession of the petitioners by the respondents."
10. A petition under section 561-A, Cr.P.C. Was then filed by the respondents which succeeded. As regards the competency of an application under section 561-A, Cr.P.C. After exhausting the revisional jurisdiction and when no second revision was competent the High Court came to the following conclusion-- "Inherent powers under section 561-A, Cr.P.C. Are such available qua a revisional order, passed under section 439-A, Cr.P.C., as against any other order 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.
11. Accordingly, it is a fit case for exercise of inherent powers under section 561-A, Cr.P.C."
12. It allowed the application. The order of the Additional Sessions Judge was set aside and that of the learned Magistrate was restored.
13. Maulvi Sirajul Haq, Advocate, the learned counsel for the appellants, has referred at some length to the background of the dispute and the recklessness of the effort on the part of Abdul Hayee and his associates to protect their possession and to avoid honouring their commitment and to obstruct the implementation of the orders passed by various authorities including at its apex this Court. It is, according to the learned counsel for the appellants, a link in that chain that on 1-11-1984 Abdul Hayee by a clever ruse ousted the appellants from the property and such an act on the part of the respondents was wrongful, high-handed and in clear violation of the law and orders of the Court.
14. The appellants were vigilant and invoked all appropriate remedies forthwith. They got a criminal case registered. They moved this Court for proceedings in contempt against the respondents and only when they did not succeed in the latter and from the observations of the Court they inferred that they had to take up the proceedings before the Magistrate that they filed an application under section 145, Cr.P.C. Before the Magistrate. The apprehension of breach of peace was imminently there as will appear from the action taken by the police in getting the respondents bound down in proceedings under section 107/151, Cr.P.C. If the learned Magistrate unjustifiably delayed the passing of the preliminary order that would be an act of Court for which the rights of the appellants could not be jeopardized or denied. The learned counsel then also referred to a number of decisions of the High Court itself pointing out that what the legislature prohibits, namely, a second revision to the High Court after the delegated revisional powers have been exhausted by their exercise by the Sessions Judge could not be set at naught and frustrated by invoking jurisdiction under section 561-A Cr.P.C. In this connection, the learned counsel has referred to-- (1)Haji Dur Muhammad v. Malik Muhammad Akram 1984 P Cr. L J 2308.
15. (2)Sarwar A.I v. The State PLJ 1983 Cr. C. (Lah.) 40.
16. (3)The State v. Ch. Altaf Hussain & two others PLJ 1978 Cr.C.(Lah.) 516.
17. (4)Karimuddin v. The State 1985 MLD 1404.
18. Mr. Kowkab Iqbal, the learned counsel for the respondents, on the other hand contended that the powers possessed by the High Court under section 561-A, Cr.P.C. Are altogether different than the one conferred under section 439, Cr.P.C. On the District Judge or the High Court. The exercise of one power does not affect or exhaust the exercise of the other power. He has referred to the case of Durrani v. Muhammad Jan and etc. PLD 1979 Quetta 17 and in the same volume the case of Muhammad Bakhsh v. Iqbal Ahmad: at p.176 from Lahore in support of his stand.
19. PLD 1963 S.C. 237 the powers possessed under section 561-A, Cr.P.C. Were considered with reference to the revisional powers possessed then by the High Court alone under section 439, Cr.P.C. And the following observations were made which are relevant to the case-- "The scope of the jurisdiction 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 worngly placed the onus of proof or not supplied the correct principles relating to the appraisement of evidence or an important place 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."
20. PLD 1967 SC 317 this aspect was re-emphasized in the following words- "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."
21. The other cases decided by this Court and emphasizing the nature of powers possessed by the High Court under section 561-A, Cr.P.C. Are Shahhaz Begum v. The Hon'ble Judges of the High Court of Sind and Baluchistan PLD 1971 SC 677 and Khawaja Fazal Karim v. The State and another PLD 1976 SC 461.
22. The jurisdictional requirements for the exercise of powers under section 561-A, Cr.P.C. Are--- (i)To give effect to any order under the Criminal Procedure Code.
23. (ii)To prevent abuse of process of any Court.
(iii) To secure the ends of justice.
24. Such a power cannot be exercised against the express language of the statute and it only preserves what is possessed or is inherent in the Court itself. The revisional power certainly goes beyond in so far as the propriety as is distinguished from the mere legality can also be examined therein. The powers possessed by the Courts under section 435/439, Cr.P.C. Do not impinge, curtial, or limit in any manner whatsoever the powers under section 561-A, Cr.P.C.
25. As regards the legality of the order passed under section 145, Cr.P.C. It is to be noted that the jurisdiction of the Magistrate under that section is dependent not on an application by a party or a report by police or information received from any quarter but it is dependent on his being satisfied that a dispute likely to cause breach of the peace exists. How he comes to know of it, is not at all material for the purposes of assuming jurisdiction. It is only when that satisfaction is there that an order can be passed. The provision which is sought to be interpreted is reproduced hereunder-- "145.--(1) Whenever a District Magistrate, Sub-Divisional Magistrate or Magistrate of the first class is satisfied from a police report or other information that a dispute likely to cause a breach of the peace exists concerning any land or water or the boundaries thereof, within the local limits of his jurisdiction, he shall make on order in writing, stating the grounds of his being so satisfied, and requiring the parties concerned in such dispute *to attend the Court in person or by pleader, within a time to be fixed by such Magistrate, and to put in written statements of their respective claims are respects the fact of actual possession of the subject of dispute.
26. (2)For the purposes of this section the expression 'land or water' includes buildings, markets fisheries, crops or other produce of land, and the rents or profits of any such property.
27. (3)A copy of the order shall be served in manner provided by this Code for the service of a summons upon such person or persons as the Magistrate may direct, and at least one copy shall be published by being affixed to some conspicuous place at or near the subject of dispute.
28. (4)The Magistrate shall then, without reference to the merits or the claims of any of such parties to a right to possess the subject of dispute, persue the statements put in, hear the parties, receive all such evidence as may be produced by them respectively, consider the effect of such evidence, take such further evidence (if any) as he thinks necessary, and, if possible decide whether any and which of the parties was at the date of the order before mentioned in such possession of the said subject: Provided that, if it appears to the Magistrate that any party has within two months next before the date of such order been forcibly and wrongfully dispossessed, he may treat the party so dispossessed as if he had been in possession at such date: Provided also, that if the Magistrate considers the case one of emergency, he may at any time attach the subject of dispute, pending his decision under this section.
(5) Nothing in this section shall preclude any party so required to attend, or any other person interested, from showing that no such dispute as aforesaid exists or has exists; and in such case the Magistrate shall cancel his said order and all further proceedings thereon shall be stayed, but, subject to such cancellation, the order of the Magistrate under subsection (1) shall be final.
29. (6)If the Magistrate decides that one of the parties was or should under the first proviso to subsection (4) be treated as being in such possession of the said subject, he shall issue an order declaring such party to be entitled to possession thereof until evicted therefrom in due course of law, and forbidding all disturbance of such possession until such eviction and when he proceeds under the first proviso to subsection (4), may restore to possession the party forcibly and wrong fully dispossessed.
(7) When any party to any such proceeding dies, the Magistrate may cause the legal representative of the deceased party to be made a party to the proceedings and shall thereupon continue the inquiry, and if any question arises as to who the legal representative of a deceased party for the purposes of such proceeding is, all persons claiming to be representatives of the deceased party shall be made parties thereto.
30. (8)If the Magistrate is of opinion that any crop or other produce of the property, the subject of dispute in a proceeding under this section pending before him, is subject to speedy and natural decay, he may make an order for the proper custody or sale of such property, and, upon the completion of the inquiry, shall make such order for the disposal of such property, or the sale proceeds thereof, as he thinks fit.
31. (9)The Magistrate may, if he thinks at any stage of the proceedings under this section, on the application of either party, issue a summons to any witness directing him to attend or to produce any document or thing.
32. (10)Nothing in this section shall be deemed to be in derogation of the powers of the Magistrate to proceed under section 107."
33. It is by reference to this satisfaction and the order passed thereafter that further proceedings or the nature of the orders to be passed are conditioned. The first proviso refers to the date of such order as is passed on being satisfied that a dispute likely to cause breach of the peace exists. In such a situation where the satisfaction I of the Magistrate is the jurisdictional ground and that has no reference to any application or to a particular source of information no party laying such an information can claim a right in the proceedings as such of which a grievance can be made that the Magistrate by delaying the order had prejudiced its cause. On the subcontinent this provision of the law has been interpreted a number of times and the view as is advanced by the learned counsel for the appellants was formed in Chunhu Narayana v. Karrapati Kesappa AIR (38) 1951 Mad. 500 in the following words--- "The Sind case mentioned supra takes note of the fact that the Code, contemplates the passing of a preliminary order without any delay after the receipt of the police report or the information.
34. Subsection (1) of 5.145 does not contemplate any sustained enquiry before the making of the preliminary order. The condition prescribed is that the Magistrate should be satisfied from the police report or other information as to the necessity of action and since the whole purpose of the section is to prevent immediately a breach of the peace, it is very necessary that there should be no delay in passing the preliminary order by the Magistrate undertaking an enquiry for some time.
35. On the other hand, what is contemplated is the passing of an emergent order if the Magistrate is satisfied from a perusal of the police report or from other information which he has got that it is necessary to take action. If that is the proper view to take of the compelling provisions of subsection (1) of S.145, viz., that no appreciable time should elapse between the presentation of the complaint or the receipt of the police report and the passing of the preliminary order, then it necessarily follows that the preliminary order should be deemed to have been made when the Magistrate takes congnizance of the matter and satisfies himself about the urgency. Therefore, by applying the legal fiction of nunc pro tune it is just that the preliminary order should be deemed to have been made on an earlier date. That the passing of a preliminary order should immediately follow the presentation of the complaint or the receipt of the police report does not seem to have been emphasized in the decisions of Wallace, J., Devadoss, J. Or Lakshmana Rao, J. Referred to supra and if that basic principle is clearly understood, then there will be no difficulty in concluding that the time taken for passing the preliminary order should not prejudice the party who has been wrongfully dispossessed. The decisions is Pichai Moopan v. Narayansami Moopan 1931-4 M. Cr. C.
36. 168 and Arucachala Goundan v. Chinnadarai, 1945-I M.L.J. 210: AIR (32) 1945 Mad.216: 46 Cr.L.J.767) are, therefore, not good law."
37. This view also found approval in Bhadramma v. Kotam Raj AIR 1955 Hyd. 140 in the following words- -- "In the particular case now before us the words of the proviso to subsection (4) of S.145 appear to come within the doctrine of casus omissus. The provision only speaks of dispossession within two months of the date of the preliminary order. The words are very clear but they do not contain any provision in respect of cases in which the date of the preliminary order exceeds two months---.This we do not think, is what the legislature intended and what the canons of interpretation enjoin. We are, therefore, clearly of the opinion that an order should be passed under 5.145 when the delay is not due to any fault of the parties but due to circumstances incidental to the, working of the Court,"
38. All these cases came up for consideration before a Full Bench in Ganga Bux Sing v. Sukhdin AIR 1959 All.
141. Examining the scheme of the provision of section 145, Cr.P.C. The following observations were made--- "From the nature of the provision it is clear that the Magistrate has been given this power primarily to preserve peace. The individual rights are affected only incidentally.
39. The nature of the enquiry is quasi-civil. It is an incursion by the criminal Court in the jurisdiction of the civil Court. It is, therefore, necessary that this incursion should be carefully circumscribed to the extent absolutely necessary discharging the function laid down on the Magistrate of preserving the peace. The provisions of 5.145, Code of Criminal Procedure make that amply clear. The Magistrate does not enquire into the merits of the claim of the parties or even their right to possess the subject of the dispute. He is only concerned with the question as to who was in actual physical possession on the relevant date. This also indicates that the starting point of the proceedings must be the date when he was satisfied that an apprehension of a breach of the peace existed and not when he received the first information.
40. It is clear that the parties have no right to get their dispute adjudicated upon by the Magistrate.
41. Even on the receipt of the application the Magistrate may not think any action necessary. He may not take any action at all under 5.145, Code of Criminal Procedure."
42. As regards the language and the scope of the proviso under consideration, the following meaning was given--- "The proviso itself does not vest any right in the party interested. This being a discretionary provision it is only just and proper that the discretion should be circumscribed within narrow limits and once circumscribed, the limits have to be strictly observed. The Lagislature in its wisdom vested only a limited discretion and we can see no reason for further extending the period for the exercise of this discretion by deeming that the preliminary order was passed on the date of the original application. "
43. The equitable principles contained in Maxims nunc pro tunc or actus curiae neminem gravabit were held not applicable. The same provision was considered by a learned Judge of the Lahore High Court in Fazal Din v. The State 1982 PCrLJ 277. The situation in that case was identical. The learned Judge concluded as follows-- "The principles of equity or the doctrines of nunc pro tune and actus curiae neminem gravabit, cannot be applied to an order passed by a Magistrate under section 145 (4). No doubt contrary view was taken by Madras High Court in the case of Chunchu Narayana and others v. Karrapati Kesappa AIR 1931 Mad. 500, but this view was dissented by the learned Judges of Orissa and Andhra High Court in cases reported in Gangadhar Singh and others v. Shyam Sunder Singh AIR 1958 Orissa 153 and Padmaraju Subba Raju and others v. Padmaraju Koneti Raju and another AIR 1955 Andhra 99. As far as the superior Courts of Pakistan are concerned, the view which was prevailed throughout is that the provisions of section 145, Cr.P.C. Are to be construed literally.
44. Reference may be made to Ch. Muhammad Siddiq v. Sahibzada Sahibyar Khan PLD 1963 (W.P.) B.J.
45. 26; Nawabuddin v. Abdul Ghafoor 1968 P Cr. L J 355 and Mst. Zohra Bai alias Fatima Sughar v. The State and another 1973 P Cr. L J 317."
46. It is important to note that Legislature's intervention was considered necessary and was forthcoming in the form of an amended proviso in the following words in the Code of Criminal Procedure enacted in India in 1973--- "Provided that if it appears to the Magistrate that any party has been foribly and wrongfully dispossessed within two months next before the date on which the report of a police officer or other information was received by the Magistrate, or after that date and before the date of his order under subsection (1), he may treat the party so dispossessed as if that party had been in possession on the date of his order under subsection (1).If It follows that notwithstanding the filing of the application within two months of dispossession if such dispossession not within two months of the order passed by the Magistrate under subsection
(1) of section 145, Cr.P.C. Restoration of possession cannot be ordered and an order to the contrary would not be in accordance with the provisions of the Code. In that situation the very first jurisdictional requirement for interference under section 561-A would be amply satisfied and the High Court was justified in invoking that power to correct the obvious legal error committed by the Additional Sessions Judge while interfering in revision with the order of the learned Magistrate. For the reason this appeal must be dismissed as without merit.
47. However, keeping in view the background of the litigation, the involvement of the parties and the nature of the pleas taken, we consider it eminently a proper case where the proceedings instituted under section 448/34, P.P.C. Must be concluded expeditiously and the Magistrate-in-Charge of the proceedings shall ensure that proceedings are concluded within three months from the receipt of the copy of the order.