1. ' Applicant .Quresh Ali has filed this criminal miscellaneous application against an order dated 8- 12-1984 passed by the Joint Civil Judge and F.C.M., Shikarpur under section 204 of Cr.P.C. And the revisional order dated 6-3-1985 passed by the Sessions Judge, Shikarpur in Criminal Revision No, 1/1984. Said revision was directed against the order dated 8-12-1984 passed by the Joint Civil Judge and F.C.M., Shikarpur.
2. ' Applicant Quresh Ali an Advocate of Shikarpur had filed a direct complaint i,4 Court of the Joint Civil Judge and FCM, Shikarpur against the respondents Nos. 2 to 21 for offences punishable under sections 500 and 501 of P.P.C. According to the allegations in the complaint on 12-8-1984 there was a meeting of Municipal Committee, Shikarpur attended by respondents 2 to 20 who were Councilors. The meeting of the Municipal Committee passed inter alia a resolution against applicant Quresh Ali Shaikh, who was alleged to be running a gambling den at a certain place within the municipal limits. During the meeting Municipal Councillor Abdul Karim complained that Mr. Quresh Ali was speaking ill of the Chairman and the Council of the Municipal Committee. Dr. Sikandar Ali a Councillor proposed stern action to be taken against the applicant who should be awarded extreme penalty because he was blackmailing the Government, the Council set up by the Government and the Chairman. The resolution sought immediate action against the applicant. In this complaint, the applicant alleged that the Chairman and the Councillors of Municipal Committee, who attended the meeting dated 12-8-1984 had defamed him and had passed a resolution containing defamatory remarks about his character.
3. ' After holding preliminary examination, the Joint Civil Judge and F.C.M., Shikarpur under his order dated 8-12-1984 ordered issue of process against Dr. Sikandar Ali Shah and Abdul Karim Memon only.
4. ' Aggrieved by such order, the applicant filed Criminal Revision Application No, 1/84 in Court of the Sessions Judge, Shikarpur, with a prayer that process be issued against the remaining persons, shown as accused in the complaint. Under his order dated 6-3-1985 the Sessions Judge dismissed the revision application with an observation that the trial Magistrate was competent to take necessary action in the matter if on recording the evidence he found the case fit for issue of process. After dismissal of his criminal revision application, the applicant has chosen to file present application under section 561-A of Cr. P.C. With the prayer that his grievance be redressed.
5. ' Mr. Haji Ghulam Qadir Jatoi, learned counsel for the applicant argued that by not issuing process against all the persons shown as accused in the complaint of the applicant, the Joint Civil Judge and F.C.M. Had committed an illegality. That there was sufficient evidence on record to show that all the persons named as accused in the direct complaint, were liable for passing of the resolution in question, by which the applicant was defamed.
6. ' Mr. Abdul Fattah Malik, learned counsel for the respondents argued that the present application under section 561-A of Cr.P.C. Was not maintainable in law, because such an. Application cannot be directed against an order passed in criminal revision application under section 435 read with section 439-A of Cr.P.C. It was further argued that the applicant had alternate remedy as he could move the trial Court after adducing evidence to issue process for remaining accused under section 190 (c) of Cr.P.C. In support learned counsel for the respondents cited the cases of:
(i) Haji Dur Muhammad v. Malik Muhammad Akram 1984 PCr.LJ 2308.
(ii) Prof. A. Hameed Kausar v. State etc. PLD 1979 Lah.
7. 727.
(iii) Ghulam Muhammad v. Muzammal Khan and others PLD 1967 SC 327.
8. ' Replying to the legal objection raised on behalf of the respondents Mr. Ghulam Kadir Jatoi, learned counsel for the applicant argued that inherent powers of this Court were very wide and could be invoked for furthering the ends of justice even if the remedy of filing a revision application was exhausted. In support learned counsel for the applicant cited the following cases:
(i) Shahkot Bus Service, Shahkot v. State and another (1969 SCM R 325).
(ii) Abdul Aziz v. State and another (1985 PCr.LJ 1615).
(iii) Dinal and others v. Mian Najamuddin and another (1984 PCr.LJ 193).
(iv) Mst. Syeda Banoo v. Muhammad Saleem and another (1983 PCr.LJ 2349)
(v) Shamsul Qamar alias Sepoy v. State (1984 PCr.LJ 504).
9. ' The leading case on the point is that of Ghulam Muhammad v. Muzammil Khan and others PLD 1967 SC 317 where it was held as below: "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 utilised as to interrupt or divert the ordinary course of criminal procedure as laid down in the procedural statute. The High Court should be extremely reluctant to interfere in a case where a competent Court has, after examining the evidence adduced before it, come to the view that a prima facie case is disclosed and has framed charges or summoned the accused to appear, unless it can be said that the charge on its face or the evidence, even if believed, does not disclose any offence."
10. ' In the case of Haji Dur Muhammad 1984 PCr.LJ. 2308 a learned Single Judge of Lahore High Court took view that where an order of the trial Court had already been considered on revisional side by the Sessions Judge, the same cannot be reconsidered under inherent discretionary powers provided in section 561-A of Cr.P.C., as such powers are exercised in matters of extraordinary and exceptional nature. In said case a party filed quashment petition in the High Court against the proceedings pending before a Magistrate under section 145, Cr.P.C. On being unable to obtain stay, the same party moved the Sessions Judge under section 439-A of Cr.P.C. Challenging legality of the same proceedings under section 145, Cr.P.C. Without disclosing to the Sessions Judge that earlier High Court was approached regarding the same matter. The Sessions Judge stayed proceedings before the Magistrate, but ultimately dismissed the revision petition on the ground that the matter had already reached the stage of final arguments. Prior to that there was a hearing of quashment petition in the High Court, but the party moving for quashment concealed the fact that the same proceedings were challenged before the Sessions Judge. While dismissing the quashment petition, the High Court disapproved of the conduct of the petitioner in pursuing dual proceedings, deliberately concealing what was happening in one Court from the other Court. In these circumstances inherent discre tionary powers were not exercised under section 561-A of Cr.
11. P.C. Such was not the position in the instant case.
12. ' In the case of Shahkot Bus Service, Shahkot (1969 SCM R 325) it was held 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, in presence of which recourse cannot be had to the inherent jurisdiction to achieve the same purpose. In the case of Prof. A. Hameed Kausar (PLD 1979 Lah. 727) the view taken on the authority of Ghulam Muhammad (PLD 1967 SC 317) was, that the jurisdiction under section 561-A of Cr. P.C. Is not to be used as an additional or an alternative jurisdiction and that the inherent jurisdiction under section 561-A of Cr. P.C. Has been preserved in the interest of justice to redress the grievances for which no other procedure is available or is provided by the Cr.P.C. The case of Ghulam Muhammad has magnified the powers exercisable by a High Court under section 561-A of Cr.P.C. It was also held in said case that the provisions contained in section 561-A of Cr.P.C.
13. Are not intended for vesting the High Courts with powers to make any order which they are pleased to consider to be in the interest of justice because such powers are as much controlled by the principles and precedents as are its express statutory powers. In this authority it has not been laid down that a High Court cannot exercise the powers under section 561-A of Cr.P.C. Once a revision application on the same point has been filed and decided.
14. ' The authorities cited on behalf of the applicant elaborate the point further. In the case of Abdul Aziz (1985 PCr.LJ 1615) the view taken was that exercise of extraordinary jurisdiction of High Court conferred by section 561-A of Cr.P.C. Cannot be refused merely because aggrieved party has already exhausted alternate remedy by filing revision application before the Sessions Judge. In case of Dinal v. Najamuddin (1984 PCr.LJ 193) it was held by a D.B. Of this Court that if a case of flagrant injustice which has been committed at the level of inferior Court, is brought to the notice of the High Court it cannot refuse to exercise its extraordinary jurisdiction conferred by section 561-A of Cr.P.C. Merely because the aggrieved party has already exhausted the alternate remedy by filing revision application before the Sessions Judge under section 439-A of Cr.P.C. And the same has failed. It was also held that although power of High Court for entertaining second revision application, after dismissal of first revision application has been expressly barred, the extraordinary powers vesting in the High Court under section 561-A of Cr.P.C. Have been left intact and can therefore be invoked in an appropriate case notwithstanding the exercise of revisional power by the Sessions Court. In the case of Mst. Syeda Banoo (1983 PCr.LJ. 2349) the view taken was that inherent jurisdiction under section 561-A may be exercised even to correct an error in an order passed under section 439-A of Cr.P.C. In the case of Shamsul Qamar alias Sepoy (1984 PCr.LJ 504) the view taken was that inherent jurisdiction of the High Court under section 561-A of Cr.P.C. Was not to be used as additional or alternate jurisdiction. It was also held that section 439-A of Cr.P.C.
15. Does not override the provisions of section 561-A of Cr.P.C. And that High Court can interfere with order of the Sessions Judge passed under section 439-A of Cr.P.C. where the Court erroneously failed to exercise jurisdiction vested in Court under section 439-A of Cr.P.C. In view of the said authorities, which are not affected by any authority cited on behalf of the respondents, I am of the view that the powers exercisable by the High Court under section 561-A of Cr.P.C. Are independent of the fact whether any inferior Court has exercised the revisional powers under section 439-A of Cr.P.C. Or not. In this view of the matter, I overrule the legal objection raised on behalf of the respondents that after decision of a revision application, the application under section 561-A of Cr.P.C. Is not maintainable.
16. ' On merits, I find that learned Courts below have not been able to note that the resolution in question dated 12-8-1984 was passed unanimously and not by majority of votes. It is not a requirement of law that the Councillors supporting a resolution in a meeting, should do so in writing or should sign the minutes of the meeting. In case a resolution is passed unanimously, all the Councillors who attended the particular meeting in which such resolution was passed, arc responsible for passing of such resolution. In any case Abdul Karim Memon and Dr. Sikandar Ali Shah were as instrumental in supporting the resolution in question as the other Councillors who participated in the meeting dated 12-8-1984. The Joint Civil Judge & F.C.M. Who ordered issue of process against two of the accused under his order dated 8-12-1984 has misread the evidence by remarking as below:-- ' Resolution was passed and list of the persons who attended the meeting is also submitted, but perusal of the record does not show that it was unanimous decision and all the members have voted for it."
17. ' Had the Magistrate known that the resolution in question was unanimous, he would have perhaps issued process against all the Councillors who attended the meeting dated 12-8-1984. He had no apparent reason to decline issue of process against all those Councillors who attended the meeting dated 12-8-1984.
18. For the foregoing reasons, the order dated 8-12-1984 passed by the Joint Civil Judge and FCM, Shikarpur is modified to the effect that process would be issued against all the Councillors who attended the crucial meeting dated 12-8-1984 and who are named as accused in the complaint.
19. The case is remanded to Court of the Joint Civil Judge and FCM, Shikarpur for proceeding according to law. With this the impugned order passed by the Sessions Judge, Shikarpur is set aside. The application under section 561-A of Cr.P.C. Is disposed of accordingly.