' MUHAMMAD ILYAS, J.---This criminal appeal, by leave of this Court, has arisen out of a complaint made by the appellant, Haji Sher Hassan Khan, against respondent No,1, Hidayatullah and two others, namely, Sadaqatullah and Gul Rehman, under sections 145 and 146 of the Code of Criminal Procedure. It was alleged by the appellant that the said three persons had forcibly occupied his Baithak (drawing room) situated in village Swabi, Tehsil and District Swabi, without any justification and that this unlawful act on their part was likely to result in breach of peace. A Magistrate of Swabi, before whom the complaint was lodged, obtained report from the S.H.O., Police Station, Swabi, and then held an inquiry. He recorded evidence of both sides and found that the complainant was not in possession of the disputed premises for more than four months prior to the filing of the complaint. It was, accordingly, dismissed by him. It may be noted here that under section 145 of the Code of Criminal Procedure, the appellant could regain possession of the disputed premises if he had been dispossessed therefrom within two months of the making of order on his complaint.
2. The appellant submitted a revision petition before the Sessions Judge, Swabi, against the order of the learned Magistrate. The learned Sessions Judge accepted the petition and directed that possession of the Bathe be restored to the appellant.
3. Verdict of the learned Sessions Judge was assailed by the said Hidayatullah, who was one of the respondents in the complaint, by making petition under section 561-A of the Code of Criminal Procedure, before the Peshawar High Court. While accepting his petition, a Single Judge of the said High Court set aside the judgment of the learned Sessions Judge and resorted that of the learned Magistrate. View taken by the learned Judge in Chamber was that the complainant before the learned Magistrate had not successfully proved his forcible and wrongful dispossession within two months and the learned trial Court had rightly dismissed his complaint. Hence this appeal by Haji Sher Hassan Khan complainant.
4. It was contended by learned counsel for the appellant, Haji Sher Hassan Khan that the learned Judge in Chamber disposed of the matter before him like a provisional Court although, after the decision of the revision petition filed before the learned Sessions Judge, the learned Single Judge had no jurisdiction to do so. It is true that the remedy of revision had been availed of in this case prior to the coming up of the matter before the High Court yet this did not, by itself, debar the learned Judge in Chamber from exercising his inherent jurisdiction under section 561-A of the Code of Criminal Procedure if he had felt that it was necessary to do so, in order to prevent abuse of the process of any Court or otherwise to secure the ends of justice. This is clear from the very language of section 561-A of the Code of Criminal Procedure which reads as follows:- "561-A. Saving of inherent power of High Court.--Nothing in this Code 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."
5. Sections 435 to 442 of the Code of Criminal Procedure deal with the revision of criminal proceedings. Section 439 relates to the High Court's power of revision. It has been laid down in clause (b) of subsection (4) of section 439 that nothing in this section shall be deemed to authorize a High Court to entertain any proceedings in revision with respect to an order made by the Sessions Judge under section 439-A. The above provisions of the Criminal Procedure Code, relating to the remedy of revision, form part of the Code of Criminal Procedure and it has been specifically provided in section 561-A that nothing in the said Code shall be deemed to limit or affect the inherent powers of the High Court thereunder. Thus clause (b) of subsection (4) of section 439 does not limit or affect the inherent powers conferred on the High Court under section 561-A. Revision petition filed before the learned Sessions Judge in the instant case, therefore, did not preclude the learned Judge in Chamber from exercising his inherent powers, referred to above.
In this view of the matter, we are unable to agree with learned counsel for the appellant that the learned Single Judge could not pass the impugned judgment under section 561-A, because of the exercise of provisional jurisdiction by the learned Sessions Judge in the present case.
6. Similar was also taken in the case reported as Gulab Din v. Muhammad Salim (1985 PCr.LJ 721).
The said precedent case too was under section 145 of the Code of Criminal Procedure. In that case, complaint made to a Magistrate was dismissed by him. When his order was assailed before an Additional Sessions Judge, in revision, the learned Additional Sessions Judge set aside the order of the learned Magistrate and remanded the case to him for fresh decision. The provisional order was Challenged before the Lahore High Court by means of a petition, under section 561-A of the Code of. Criminal Procedure. Khizar Hayat, J. (as he then was) accepted the petition and quashed the proceedings in exercise of his "inherent extraordinary jurisdiction". While so doing, he took notice of the revision filed before the learned Additional Sessions Judge but did not refrain from exercising his inherent jurisdiction under section 561-A. Relevant portion of his judgment makes the following reading:-- "While dealing with this matter I am conscious that the impugned order had been passed by the learned Additional Sessions Judge in his provisional jurisdiction under section 439, Cr.p.c., and clause (b) of subsection (4) of section 439, Cr. P.C., contains clear bar to the exercise of provisional powers by this Court. The Legislature in its wisdom has kept the inherent jurisdiction of the High Court under section 561-A, Cr. P.C., intact despite recent amendments 'made in the Code of Criminal Procedure, so this Court in case of patent Legal error and grave injustice committed by the lower forum can competently interfere for redressing the grievance of the party so affected."
7. It was discretionary with the learned Single Judge to act under section 561-A of the Code of Criminal Procedure. He, however, chose to proceed under section 561-A and, in exercise of the inherent jurisdiction conferred on him thereunder, delivered a well-reasoned judgment while setting aside the decision of the learned Sessions Judge. On the question of title and dispossession within two months prior to the disposal of the complaint by the learned Magistrate there is solitary statement of the complainant. The other two witnesses examined by him are police officials who had no personal knowledge in this regard. On the other side, the statement of a respondent is supported by two private witnesses and a rent deed. The learned Judge in Chamber was of the view that it would be abuse of the process of Court and also unjust to give preference to the statement of the complainant, who was an interested person over the testimony of three witnesses and the documentary evidence produced by the opposite side in respect of ownership of the Bathe in question and with regard to the point of time of the complainant's dispossession therefrom.
Consequently, the learned Single Judge did not accept the complainant's version and set aside the judgment of the learned Sessions Judge.
8. We may also mention that, as remarked by the three Courts referred to above, the question of title to the Bathe in question and that of its possession will ultimately be decided by the Civil Court as the dispute between the parties is of civil nature. Admittedly, at present, the appellant is not in possession of the Bathe. Now, if its possession is given to the appellant in pursuance of the order of the learned Sessions Judge, the other side would have to file a suit to retrieve the possession. In the circumstances, it would be in the fitness of things that the appellant should establish' his title before the Civil Court and obtain possession of the Bathe in question, if so ordered by the said Court, instead of obliging the other side to hand over possession to the appellant and then endeavor to get it back by securing order of the Civil Court in this regard.
9. Since the parties have to go before a Civil Court, which would finally decide the question of title and possession, we will not like to express any opinion on the subject. Suffice it to say that the learned Judge in Chamber had thoroughly discussed the evidence of the parties before reversing the verdict of the learned Sessions Judge. Judgment of the learned Single Judge is supported by cogent reasons. In any case, his judgment is not perverse, shocking or ridiculous. We are, therefore, not inclined to interfere with it.
10. With these observations, the appeal in hand is dismissed.