Petitioner Habibullah son of Jumma Khan, being aggrieved from the order dated 20th October, 1990, 24th April, 1991 and 25th September, 1991, passed by S.D.M./M.F.C. And Additional Sessions Judge, Quetta, has preferred instant petition under section 561-A, Cr.P.C. For quashment.
2. Precisely the relevant facts necessary for the disposal of the instant petition are that on 5th September, 1990, respondent Malik Muhammad Hashim Khan, instituted a complaint under section 145(2), Cr.P.C. Before the S.D.M., Quetta inter alia contending that he has got share in the lands entered at Khewat No,7491/759 located at Mahal Wiala Bank, Tehsil Quetta. It was further alleged that petitioner without his consent and permission has cultivated the crop of onion, on the land, as such, has committed a criminal offence. Lastly he claimed share out of the produce of onion crop.
3. The S.D.M. Without having passed preliminary order as required under section 145(1), Cr.P.C.
Referred the matter to Tehsildar for report. On the receipt thereof vide order dated 20th October of 1990, it was opined by him that the petitioner without the permission of the respondent has cultivated the lands. This order was followed by another order dated 24th April, 1991 wherein it was stressed upon the authorities to ensure delivery of a proportionate share of respondent from the produce of onion crop. In the meanwhile the petitioner filed a revision under section 439, Cr.P.C.
Before the Additional Sessions Judge, challenging the aforenoted orders but the same was dismissed vide order dated 25th September, 1991.
4. Petitioner then filed the present quashment petition which was however allowed by the Honourable Chief Justice vide order dated 19th December, 1991. The respondent No,1, then filed a criminal review application, which was allowed on 23rd March, 1993, with direction for rehearing of the petition.
5. Mr. Hasham Khan, respondent No,1, appeared in person and argued that as the petitioner had already availed the remedy of revision for the redress of his grievance therefore, the present proceedings in the circumstances are not competent. He placed reliance on Muhammad Samiullah Khan and another v. The State PLD 1963 SC 237 and Masood All Khan v. Muhammad Aslam and another PLD 1979 Quetta 84.
6. On the other hand Mr. Ghulam Muhammad Sheikh, learned counsel for the petitioner did not cite any judgment to rebut the contention raised by respondent No,1. However, Mr. Salahuddin Mengal, learned A.A.-G. Stated that inherent jurisdiction is conferred upon this Court under section 561-A, Cr.P.C. Which competently can be exercised to prevent the abuse of the process of any Court to secure the ends of justice, notwithstanding the fact that the petitioner has already availed the remedy by filing the revision petition before the Sessions Court. He referred to Muhammad Shafique and others v. Abdul Hayee and others 1987 SCMR 1371 and Syed Munawar All Zaidi v. Mst.
Qaiser Jehan and another PLD 1992 SC 406.
7. I have heard the learned counsel for parties as well as respondent Muhammad Hasham Khan, at length.
8. It would be expedient at this stage to reproduce herein below the relevant para. From the judgment passed by the Honourable Supreme Court in the case of Muhammad Shafique:- "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.
(ii) To prevent abuse of process of any Court.
(iii) To secure the ends of justice.
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 power possessed by the Court under section 435/439, Cr.P.C. Do not impinge, curtail, or limit in any manner whatsoever the powers under section 561-A, Cr.P.C."
9. Similarly in the case of Syed Munawar All Zaidi it was ruled that after exhausting the remedy of revision, inherent jurisdiction under section 561-A, Cr.P.C. Can be exercised only when the Court is satisfied that in the appreciation of evidence by the lower Court gross miscarriage of justice has been taken place amounting to abuse of the process of Court, and interference is necessary to secure the ends of justice.
10. Whereas in the case of M. Samiullah, the Honourable Supreme Court was of the view that inherent jurisdiction of the Court to correct the abuse of the process of Court or patent injustice cannot be invoked, where there is an express provision in the Code, under which, the case can be adequately dealt with. The perusal of the case of Masood Ali, reveals that this Court has taken the following view;-- "The overall conclusion from the above-stated circumstances is that generally High Court should not revise, alter or amend its own orders. Special jurisdiction recognised by section 561, Cr.P.C. Can be invoked only in exceptional cases for which there is no express provision in the Code. When there is specific provision in the Code, then the aid of section 561-A under section 435/439, Cr.P.C.
And after disposal of this application another application under section 561, Cr.P.C. May be made.
There may be some circumstances in which departure has to be made from the general principle in the interest of justice. Some of these cases are when the order is passed without jurisdiction or patent injustice has been done and that order cannot be revised except under section 561-A.
Similarly when a party against whom an order has been passed in revision has no notice of that petition. Furthermore when the matter has not been adjudicated on merits. The paramount consideration in exercising the power under section 561-A is that such an order would prevent the abuse of the process of any Court or otherwise it would secure the ends of justice."
11. The ratio decidendi of the above reports leads to suggest that High Court is competent to exercise inherent jurisdiction under section 561, Cr.P.C. To give effect to any order passed under the Criminal Procedure Code or to prevent abuse of process of the subordinate Court or to secure the ends of justice, irrespective to the fact that aggrieved party had already availed the remedy of filing a revision before the competent Court under section 435/439, Cr.P.C. And the jurisdiction of this Court cannot be curtailed because under the statute an alternative remedy was available which has been exhausted or should be adhered to, before approaching the Court. However, the inherent jurisdiction in criminal administration of justice should not be exercised sparingly except where there is apprehension that by allowing the proceedings, to continue it would amount to abuse of the process of Court or it is otherwise necessary to pass an appropriate order to achieve the ends of justice.
12. Keeping in view the above principle of the law it would be important to examine whether by allowing the proceedings to continue in the lower Court, it would not amount to abuse of the process of the Court or to secure the ends of justice it is necessary to quash the proceedings.
13. It is uncontroverted legal position that proceedings under section 145, Cr.P.C. Are initiated to prevent eminent apprehension of breach of peace between the parties, over an immovable or movable property and the Court seized with the matter is under obligation to determine as to whether there is any likelihood of blood feud etc. Between the parties or not. A perusal of the complaint indicates that no apprehension of breach of peace was alleged by the respondent, so much so, the learned subordinate Court did not pass order under section 145(1), Cr.P.C. After holding an enquiry that a dispute is likely to cause breach of peace, exist between the parties over the land which is the subject-matter of the proceedings. Even no notice as required under section 145(1), Cr.P.C. Was issued calling upon the parties to put forth their respective claims. During hearing of petition respondent Hasham Khan admitted that petitioner cultivated the land only once for the purpose of growing of crop of onion and after harvesting the same, he has left the property which is presently lying barren. However, this grievance was that as the land was jointly owned by him with the other sharers, therefore, the petitioner being his tenant was under obligation to deliver his share to. Him. On the other hand Mr. Ghulam Muhammad Sheikh learned Advocate stressed that since there is a dispute of civil nature between the co-sharers as such, the cultivator cannot be roped unnecessarily in criminal litigation. According to the learned counsel the property which is the subject-matter of the proceedings is jointly owned by the respondent as well as other sharers therefore, he should approach the competent civil forum for getting the lands partitioned and the grievance of the respondent cannot be conveniently settled by the subordinate Court, in the proceedings under section 145, Cr.P.C.
14. Indeed it is important to mention here that after parting with the possession of the disputed land by the petitioner apparently no justification exists to allow the proceedings under section 145, Cr.P.C. To continue. Moreover, in case of joint property all the sharers/Patidars have got equal entitlement to enjoy the benefits therefore, it would have been more appropriate and expedient for the respondent to have resorted to the civil remedy for the redress of his grievance.
15. Since under the circumstances no useful purpose shall be served in allowing the proceedings to continue, therefore, it is in the interest of justice to quash the proceedings, however, leaving the aggrieved party to avail the civil remedy if advised and desired.
16. Consequently the petition is allowed, and all the proceedings drawn under section 145, Cr.P.C. By the S.D.M. And the impugned orders dated F 20-10-1990, 24-4-1992 and 25-9-1991 are hereby quashed.