QAISAR AHMAD HAMIDI, J.- This application filed under section 561-A, Cr.P.C., involved a somewhat important point of law on which there did not seem to be any direct authority.
2. Applicant Hashim Khan is in occupation of plot No.1678, Bizerta Lines, Karachi, previously a Bazar Area/Kutchi Abadi. The Government of Pakistan has regularised this Abadi and as a result thereof the Karachi Cantonment Board granted lease of this plot to the applicant which was being used as residential and commercial units. It is alleged that on 25.9.1991 at about 3- 00 P.M. The Assistant Commissioner/S.D.M., Saddar, Karachi came to this premises alongwith S.H.O. Saddar P.S. And other officials and forcibly dispossessed the applicant. The belongings of the applicant were then thrown out and the premises was sealed. The applicant who wanted copies of proceedings drawn against him and the orders passed thereon was denied this right also. It is in these circumstances that the applicant has invoked the inherent jurisdiction of this Court by stating that this action of Assistant Commissioner/S.D.M., Saddar, Karachi, purported to be taken under sub-section (4) of section 145, Cr.P.C., is without jurisdiction and a nullity in the eyes of law. A pre-admission notice was given to Advocate General, Sind, and parawise comments of Assistant Commissioner and S.D.M. Saddar, Karachi, were called. The learned Magistrate has denied the allegations made against him in his parawise comments in the following words:- " The contents of para No.4 are based on misrepresentation of facts and it is a concocted story. On 25.9.1991 neither undersigned accompanied the police nor he was present at the site. He had only marked the application of the complainant dated 25.9.1991 to the S.H.O. Saddar Police Station for necessary action. On the site what happened is not in the knowledge of the undersigned but anyhow the two persons Khusta Khan S/O Haider Khan and Roshan Khan S/O Khusta Khan were produced before him in police custody by the \ police of P.S. Saddar, Karachi who were arrested under section 151 Cr.P.C. On their production the undersigned passed the order immediately on 26.9.1991, requiring them to furnish surety in sum of Rs.5000/- each, failing which both of them were sent to J.C. No. Proceedings under section 145 Cr.P.C, was initiated by the undersigned nor the Ilaqa Police moved such application for the proceedings under section 145 Cr.P.C, before him. The proceedings pending before the undersigned is only for preventive measure under section 107/'117, Cr.P.C.
The contents of para No.5 of the petition are false, baseless and concocted hence are denied as there is no proceedings under section 145, Cr.P.C, pending before the undersigned so the question of sealing tho property does not arise, even the police has never moved such application before the undersigned for sealing the property in question. The undersigned has never inspected the site and the allegations of sealing the property and mis-behaving with the applicant are misconceived and false. Every person is at liberty to get the certified copy of any proceedings and the question to refuse the certified copies does not arise, as this is fundamental right of the parties and the undersigned can not even think about depriving the applicant of such legal rights."
3. The report of concerned S.H.O, was then called who too denied the allegation made against the police officials in the following words:- " That on 25.9.1991 the then SHO, Insp: Rana Gul Zareen was on patrolling in the area and was at SMC, SDM Saddar was also present at SMC. On the verbal request of management of JPMC, Karachi, SDM, Saddar alongwith Insp. Gul Zareen the then SHO, Saddar with mobile rushed infront of emergency ward JPMC, Karachi for maintaining law and orders situation.
The management of JPMC, were present at the hotel premises of Khaista Khan. Police did not take any part but only standing near emergency ward to meet any unhappy incident. After vacation of the site by the management of JPMC, kept their articles belongs to JPMC in the said premises and all the moveable property handed over to Khaista Khan."
4. At the request of advocate for applicant the Nazir of this Court was deputed to inspect the site who after inspection submitted the following report:- The premises having ground floor and 1st. Floor. There were six shutters/doors on the ground floor.
All the shutters were locked and sealed. On each shutter there were two locks with sealed were fixed and same were intact. One door of shop was locked and its door was sealed by fixing wooden rods. The main door for entrance for 1st.Floor was also locked and sealed."
5. With the consent of the parties it was decided to hear and dispose of the case once for all and consequently the petition came up for regular hearing.
6. I have heard Mr. Muzaffar-ul-Haque, learned counsel for applicant and Mr.S.ZA. Qureshi, learned counsel for State. The latter has raised a preliminary objection about the competency of the present application filed under section 561-A, Cr.P.C.
7. Section 561-A, Cr.P.C. Lays down that nothing-in the Code of Criminal Procedure, 1898, 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 the process of any Court or otherwise to secure the ends of justice, it will, therefore, be seen that structurally this section is divisible into three parts, namely,:
(i) to make such orders as may be necessary to give effect to any order under the Code of Criminal Procedure, 1898;
(ii) to prevent abuse of the process of any Court; or
(iii) otherwise to secure the ends of justice.
The use of word 'or' clearly indicates that the inherent jurisdiction can be invoked if the case falls within any of these three parts and it is not necessary that the alternatives are read together. While examining the scope of section 561- A, Cr.P.C, in the case of Shahkot Bus Service, Shahkot v. The State and another, reported in 1969 S.C.M.R. 325, the Supreme Court observed as follows:- " It is, no doubt, true that where express provision is made in the Code itself for a particular purpose, recourse cannot be had to the inherent jurisdiction to achieve the same purpose, but at the same time it has to be pointed out that the inherent power of the High Court is of a very wide and indefinable nature and in exercise of this power the High Court can make all such orders which may be necessary to do real and substantial justice and prevent abuse of the process of the Court, subject only to the limitation that it cannot override an express provision of the Code."
8. Bearing in mind the scope of section 561-A, Cr.P.C. as laid down by the Supreme Court in the above cited case, let us now examine the facts of the present case. The copy of registered lease deed which is placed on record shows that the applicant is the lessee of plot No.1678, Bizerta Lines, Karachi, over which the premises in question is constructed. It is alleged by the applicant that the Assistant Commissioner/S.D.M. Saddar, Karachi, with the help of S.H.O. Saddar P.S. And other officials has got this premises sealed after dispossessing him from there. The learned S.D.M, has denied this fact when asked to explain it. He has even denied the pendency of proceedings under section 145, Cr.P.C, against the applicant. According to the comments offered by him in writing there was only a case pending in his Court under section 107/151, Cr.P.C. He has specifically denied his presence at the time when the applicant was allegedly dispossessed and the premises in question was sealed. The report submitted by S.H.O. Saddar P.S., however, makes it clear that the Assistant Commissioner/S.D.M. Saddar was present at the site on the relevant date and time. The Nazir of this Court who was deputed to inspect the site has also confirmed that the premises in question is still sealed. All these factors when combined together lend support to the allegation of the applicant that the said premises was sealed under the verbal orders of the S.D.M, who has now chosen to disown the same. This case is a good illustration of the way in which the police officers and the Magistrates are misusing their powers. In view of this attitude of a Sub-Divisional Magistrate and an incharge of a police station the applicant had no other remedy but to knock the doors of this Court by invoking its inherent jurisdiction and this Court is not denuded of its powers to quash a verbal order which was subsequently disowned by the Magistrate who had passed it, specially when it is necessary to secure the ends of justice.
9. I would, therefore, accept the application filed under section 561-A, Cr.P.C, directing the Nazir of this Court to restore possession of the premises in question to applicant after unsealing it and making an inventory of the goods found therein. The applicant to deposit Rs.500/- as fee of Nazir.