' Muhammad Ashraf petitioner claimed to be a tenant under Rana Baqir Ali and Rana Kausar Shabbir respondents Nos.2 and 3 alongwith others on the disputed premises wherein a petrol pump was installed. The ejectment petition filed by the landlords was accepted by the Rent Controller, Multan on 3-6-1981. During the pendency of the appeal the parties compromised and in terms of the compromise the appeal was disposed of on 12-3-1984. According to the compromise a fresh rent-note was executed for a period of ten years at the monthly rental of Rs,2,000 which was made operative from 1-1-1984. The petitioner paid the rent to the landlords. On 8-1-1994 the landlords sent a notice of ejectment to the petitioner which was replied by him on 15-1-1994. The landlords/respondents Nos.2 and 3 allegedly pressurised the petitioner and harassed him towards the vacation of the rented premises. The petitioner filed a suit for issuance of perpetual injunction getting the landlords restrained from dispossessing him otherwise than due process of law wherein the learned Civil Judge, Multan passed the order on 28-2-1994 for the maintenance of status quo.
On 14-3-1994 Rana Kausar Shabbir and Obaid-ur-Rehman respondents Nos.3 and 4 alongwith others allegedly attempted to dispossess the petitioner and the petitioner got recorded F.I.R. No,151 of 1994 under sections 395, 440, 148/149, P.P.C. Against respondents Nos.3 and 4 as well as others at Police Station Mumtaz Abad, Multan. On 16-3-1994 the accused of the F.I.R. Again allegedly attempted to dispossess the petitioner. The fact was got entered in the daily diary of Police Station Mumtaz Abad by the petitioner. Claiming to be in possession of the same property with effect from 22-1-1994 Obaid-ur-Rehman respondent No,4 also filed a suit for the issuance of perpetual injunction getting Muhammad Ashraf as well as the landlords restrained from dispossessing him forcibly and unlawfully. This suit was entrusted to another Civil Judge who also passed an order for the issuance of temporary injunction in the same terms after getting the report of a Local Commissioner.
2. Expressing that there was a dispute about the possession of the parties on the disputed property whereby there was the likelihood of breach of peace, the S.H.O., Police Station Mumtaz Abad, Multan prepared the Kalandara on 14-3-1994 and afterwards moved the Area Magistrate on 16-3-1994 for initiating the proceedings under section 145, Cr.P.C. And for disposal of the matter in accordance with law. Thereafter, the Ilaqa Magistrate proceeded in the matter. The property was attached on 26-3-1994. Without recording the evidence, but hearing the parties verbally, it was held that Rana Kausar Shabbir respondent No,3 was in possession of the disputed property within two months before the initiation of the proceedings under section 145, Cr.P.C. Consequently the Area Magistrate delivered the possession to him. Feeling aggrieved Muhammad Ashraf petitioner has filed this petition under section 561-A, Criminal Procedure Code for the quashment of the order of attachment, dated 26-3-1994 and final order, dated 7-4-1994 whereby the possession of the property has been handed over to Rana Kausar Shabbir respondent No,3.
3. According to the petitioner the matter could not be disposed of by the Ilaqa Magistrate 1st Class because in the civil suit instituted by him on 28-2-1994 before the initiation of the proceedings under section 145, Cr.P.C. On 14-3-1994 the possession of disputed property was regulated by the Civil Court in his favour through the issuance of a stay order, that the procedure mentioned under section 145, Cr.P.C. For the disposal of a matter of the instant nature has been flouted and ignored especially when no evidence has been recorded, that Kausar Shabbir respondent was not in the physical possession of the suit property within two months of initiation of the proceedings under section 145, Criminal Procedure Code and that the impugned judgment was without legal justification.
4. In the written reply submitted by respondents Nos.2 to 4 the assertions raised by the petitioner were denied and it was contended that the correct procedure has been adopted by the Area Magistrate while disposing of the controversy under section 145, Criminal Procedure Code brought before him by the S.H.O. Police Station Mumtaz Abad, Multan. According to respondents Nos.2 and 3, F.I.R. No,151/94 and the entry in the daily diary were got entered falsely and that F.I.R. Was cancelled after investigation. The preliminary objection was raised to the effect that final order, dated 7-4-1994 passed by the Area Magistrate was revisable by the Court of Session and the application for quashment of the impugned orders was not maintainable. It is added that the petitioner has suppressed the facts and has not entered this Court with clean hands who is not entitled to any relief in exercise of inherent powers of this Court. According to them Muhammad Ashraf petitioner parted with the possession of the premises on 15-1-1994 who made the futile attempt to get back the possession with the help of the police when F.I.R. No,151, dated 14-31994 was registered. They asserted that Muhammad Ashraf petitioner had no concern with the disputed premises at present.
5. I have heard the learned counsel for the parties as well as learned Assistant Advocate-General for the State and gone through the record before me. First of all it is proper to dispose of the assertion of respondents Nos.2 and 3 which stands projected from the following preliminary objection mentioned in the written reply:-- "The order, dated 7-4-1994 passed by the learned Magistrate is revisable by the learned Sessions Court. Therefore, the petition is incompetent before this Court."
6. Relying on Khawaja Faiz Karim v. The State and others 1986 SCMR 384 learned counsel for the respondents argued that the inherent jurisdiction of High Court under section 561-A, Cr.P.C. Is neither alternative nor additional in its character and was to be invoked in the interest of justice so as to seek redress of grievance for which no other procedure was available and that provisions of section 561-A, Cr.P.C. Could not be used to obstruct or divert ordinary course of criminal procedure as laid down in the procedural statute. He laid the emphasis that against the impugned order, dated 7-4-1994 revision petition is maintainable before the Court of Session at Multan and the inherent jurisdiction of this Court under section 561-A, Cr.P.C. Cannot be invoked. On the contrary the contention of the learned counsel for the petitioner is that the provisions of section 561-A, Cr.P.C. May not be available where other procedure or remedy is available, but where demands of justice require immediate, real and substantial justice, the inherent power of this Court can be invoked. In the alternative he prayed that this petition may be treated as a revision petition under section 439, Cr.P.C. And may be disposed of on merits as the jurisdiction to entertain and dispose of a revision application concurrently vests in the Court of Session and the High Court. At this stage learned counsel for respondents Nos.2 to 4 conceded that no doubt the jurisdiction to entertain and dispose of a revision application concurrently vests in the Court of Session and the High Court but raised the objection that long standing practice of High Court as well as the propriety demanded that the petitioner should first go to the Court of Session. According to them in the judicial hierarchy the matter has first to be disposed of by the Court of the lowest grade as the wisdom behind the same is that the affected party may not loose one chance of seeking the help of appellate/superior Court. Learned Assistant Advocate-General also adopted the same reasoning.
7. Since the impugned order, dated 7-4-1994 was assailed within a short time through the filing of this petition on 10-4-1994 I treat this petition filed under section 561-A, Cr.P.C. As a revision petition which shall be entered in the relevant Register and assigned the fresh number. In this regard the reliance is also placed on the dictum enunciated in Haji Mir Khan and another v. Abdul Karim and 2 others PLD 1983 Quetta 118. As expressed above learned Assistant Advocate-General and the learned counsel for the respondents conceded that the jurisdiction to entertain and dispose of a revision application concurrently vests in the Court of Session and the High Court. In view of the circumstances as well as analysis and appreciation of the matter, which shall stand projected infra, it is a proper that the matter is heard by this Court in its revisional jurisdiction especially when order, dated 7-4-1994 has been impugned on 10-4-1994 through the filing of this petition. The matter is pending since then and the opening of the new front before the Court of Session at Multan would further protract the dispensation of justice. Hence I proceed to dispose of this revision petition on merits.
8. It is admitted position that Muhammad Ashraf petitioner was inducted as a tenant in the disputed property by respondents Nos.2 and 3 against whom an ejectment order was passed on 3-6-1981. During the pendency of appeal compromise was effected and the fresh tenancy was initiated on 12-3-1984 for a period of ten years with effect from 1-1-1984. On the basis of the fresh tenancy no ejectment petition was filed and no ejectment order was passed. The petitioner got registered F.I.R. No,151, dated 14-3-1994 under sections 395, 440, 148/149, P.P.C. With the allegation that Kausar Shabbir and Obaid-ur-Rehman respondents alongwith others while armed with lethal weapons came to the petrol pump who removed the cash amount and obtained the thumb- impressions and signatures of Muhammad Ashraf complainant (petitioner), Riaz and Azam working at the petrol pump. The petitioner party came out of the premises of the petrol pump under the possession of the petitioner for the last 21 years as a tenant regarding which possession earlier the temporary injunction was issued by the Civil Court at Multan. On 15-3-1994 the S.H.O.
Made the report in the daily diary that Muhammad Azam and Riaz were making sale of the petrol at the petrol pump which shpwed that they were making sale of the petrol on behalf of Muhammad Ashraf. On 16-3-1994 another report was got entered by Muhammad Ashraf petitioner at Police Station Mumtaz Abad that another effort was made by Rana Baqir Ali respondent alongwith others to dispossess him who was shown the stay order passed till 30-3-1994 by the Civil Court of Multan. The exception taken by respondents Nos.2 and 3 is that on the basis of a compromise a Panchayat was held on 15-1-1994 when Muhammad Ashraf handed over the possession of the premises to them. The agreement dated 15-1-1994 has been referred to in this regard. Further, Obaid-ur-Rehman respondent No,4 instituted a suit on 16-3-1994 wherein he claimed to be in possession as a tenant under respondents Nos.2. And 3 with effect from February, 1994 till 31-12-2003 regarding which rent note was executed on 22-1-1994 which was registered on 23-1-1994. This suit was pending in some other Civil Court and therein the status quo about the maintenance of possession was also issued.
9. Learned counsel for the petitioner canvassed that the petitioner carried his business of petrol pump since more than 20 years against whom no ejectment order was passed and that it was on 14-3-1994 that Kausar Shabbir and Obaid-ur-Rehman respondents Nos.3 and 4 came to the petrol pump alongwith the co-accused while armed who deprived him of the amount and forcibly got the signatures and thumb-impressions on a paper and that thereafter even the possession of Muhammad Ashraf was seen at the spot by the Police Officer. He added that the respondents Nos.2 to 4 did not report the matter to the police regarding the inception and existence of dispute about ill,. Possession of the premises and the device was coined by the then S.H.O. To help the respondents to deprive the petitioner by reporting the matter to the Area Magistrate under section 145, Cr.P.C. Especially when the police was not in possession of any evidence, oral or documentary, about the possession of the respondents. According to him the Area Magistrate simply acted in haste who without obtaining the written reply from Muhammad Ashraf (adverse party) and without holding the enquiry by recording the evidence expressed the opinion that Kausar Shabbir respondent No,3 was in possession of the property within two months before the initiation of the proceedings through the submission of the Kalandra on 16-3-1994. He continued that the Area Magistrate was in league with the police who helped the respondents Nos.2 to 4 and in a perfunctory manner disposed of the matter against the petitioner whose goodwill of business of petrol pump was involved and huge amount was outstanding against his customers. Learned Assistant Advocate-General expressed that the matter may be disposed of in accordance with law. On the contrary both the learned counsel for the respondents Nos.2 to 4 laid the emphasis that Muhammad Ashraf had handed over the possession of the petrol pump to the respondents Nos.2 and 3 on 15-1-1994 when the compromise deed was scribed wherein thereafter Obaid-ur-Rehman respondent No,4 was inducted as a tenant who instituted the suit on 16-3-1994 and his possession at the spot was determined by the local Commissioner appointed by the Civil Court when the stay order was issued. He maintained that the stay order issued in favour of Muhammad Ashraf by the other Civil Court for the maintenance of status quo had no legal force as the same was not issued after holding the enquiry. At this stage learned counsel for the petitioner again entered the arguments and took up the plea that in view of the issuance of order for the maintenance of status quo on 28-2-1994 in favour of Muhammad Ashraf the Area Magistrate was not competent to take the matter in his hands. On that learned counsel for the respondents Nos.2 to 4 argued that there was no final order for the regularization of the possession at the spot and even if the order for the maintenance of status quo was passed on 28-2-1994 there was no bar for initiation of proceedings under section 145, Cr.P.C.
10. After making a perusal of the matter and giving my anxious consideration to the arguments addressed by the learned counsel for the contesting parties I have gathered the view that it is a dispute wherein there is abuse of process of law initiated by the concerned S.H.O. Which was illegally approved by the Area Magistrate. F.I.R. No,151 was got registered by Muhammad Ashraf petitioner on 14-3-1994 at Police Station Mumtaz Abad wherein he alleged that Kausar Shabbir respondent/landlord alongwith his co-accused attempted to dispossess him while armed with lethal weapons when the signatures/impressions were obtained on a plain paper. This F.I.R. Was lodged at 11-00 p.m. It is simply surprising that on 14-3-1994 and obviously after the aforesaid time when one hour remained for the lapse of the date of -44-3-1994 the Kalandra under section 145, Cr.P.C. Was prepared by the S.H.O. Rana Baqir Ali and Rana Kausar Shabbir allegedly attempted to dispossess Muhammad Ashraf whose civil suit was also pending before the Civil Court. I am at a loss to understand as to how the S.H.O. Police Station Mumtaz Abad gathered the impression that there was a dispute about the possession of the petrol pump. If his opinion/impression is affirmed then there would be administrative chaos because the persons claiming the title or possession of the property may attack the premises under the physical possession of the adverse party and after the initiation of the proceedings under section 145, Cr.P.C. May obtain the possession of the property, as in the instant matter. According to the report, dated 15-3-1994 mentioned in the daily diary of Police Station Mumtaz Abad the possession of Malik Petroleum Service was with Muhammad Ashraf petitioner. Hence there was no legal necessity to refer the matter to the Ilaqa Magistrate for proceeding under section 145, Cr.P.C. The important aspect of the matter is that Rana Kausar Shabbir, Rana Baqir Ali and Obaid-ur-Rehman did not report the matter to the police to make out the presence of any dispute of possession or that Muhammad Ashraf had dispossessed them and thereafter got recorded F.I.R. No,151, dated 14-3-1994. This silence on their part is enough to make out that there was no dispute about the possession and that they invoked the assistance of the police and thereby succeeded in getting dispossessed Muhammad Ashraf through the agency of the Area Magistrate who passed the impugned orders, dated 26-3-1994 and 7-4-1994 without holding any enquiry in the matter. The business of petrol pump has the link with the supplier of the petrol. Muhammad Ashraf petitioner was carrying on the business of sale of petrol under the name and style of Malik Petroleum Service. The matter was placed before the Ilaqa Magistrate on 16-3-1994 who disposed of the same within a short span of period on 7-4-1994 without holding any enquiry which has made out that he wanted to transfer the possession of the premises from the petitioner to respondent No,3. No ejectment petition was filed against him. No ejectment order was procured against him. It has been expressed that through a compromise deed he returned the possession of the property to Kausar Shabbir and Rana Baqir Ali on 15-1-1994.
However, it is the admitted position that the relevant compromise deed was neither got scribed from a deed-writer nor got registered. The enquiry is not being held at this stage, but a reference can be made to the photostat of the compromise deed dated 15-1-1994 forming part of this petition on which the signatures and thumb-impression of Muhammad Ashraf petitioner are not at the proper place at the foot of the same which have been obtained on a place somewhat abnormal in the matter which shows that the thumb-impression and signatures were made/obtained prior to the document was scribed. Further, the other landlords are not the party to the said compromise deed dated 15-1-1994 which is simply a forged document. It is pertinent to mention that no reply was obtained and no evidence was collected by the Area Magistrate who, however, gave the opinion that two months before the submission of the Kalandra, Kausar Shabbir respondent No,3 was in possession of the premises.
11. It is proper to express that even though no final order was passed in both the civil suits, yet the order for the maintenance of status quo was passed. In the presence of the said regularisation of the possession at the spot the Area is Magistrate was not competent to take cognizance of the matter which stood initiated at the instance of the S.H.O. Police Station Mumtaz Abad, Multan who had prepared the Kalandra on the day (14-3-1994) the matter was reported to him by Muhammad Ashraf petitioner.
12. The irresistible conclusion is that through abuse of process of law by initiating proceedings under section 145, Criminal Procedure Code Muhammad Ashraf petitioner has been dispossessed by the police at the direction of the Area Magistrate who passed the illegal order devoid of judicial propriety on 26-3-1994 for the attachment of the property and on 7-4-1994 for the delivery of the possession to Rana Kausar Shabbir. I pass an order for the dismissal of the Kalandra as well as for the restoration of the possession of the petrol pump to Muhammad Ashraf petitioner within a period of 15 days from today by the Area Magistrate, Police Station Mumtaz Abad, Multan positively under intimation to the Additional Registrar of this Court.
13. Muhammad Ashraf petitioner is a tenant on the disputed premises and ejectment proceedings may be initiated against him, if desired by the landlords, which shall be disposed of in accordance with law.