TARIQ Versus STATE

This is a petition under section 561-A .of the Cr.P.C. seeking quashment of the criminal proceedings pending against the petitioner in the Court of a learned Magistrate 1st Class (Judicial) at Kharryan of District Gujrat arising out of F.I.R. No.146/93, dated 31-8-1993 of Police Station Kakrali registered for the alleged commission of offences punishable under section 186/147, P.P.C. The petitioner had approached the learned trial Court for the same relief under section 249-A, Cr.P.C. but the prayer had been rejected: He then approached the learned Sessions Court seeking revision of the said order of the learned trial Court passed on the petitioner's application under section 249-A, Cr.P.C. but the learned Sessions Judge of Gujrat through his order, dated 24-2-1994 dismissed the petition on the ground that after the dismissal of an application under section 249-A, Cr.P.C. the remedy available to the aggrieved person was not before the Sessions Court by way of revision but was before the High Court under section 561-A, Cr.P.C.

2. As per the abovementioned F.I.R., a complaint had allegedly been received by the local WAPDA office that electricity to Account No.442305182040 was not being supplied. On this complaint which had been lodged by one Ghulam Ahmad, a Linesman by the name of Abdullah Tariq Butt was sent to rectify the fault and when he went and checked the meter he had found that the P.V.C. service wire was lying on the ground. It had been alleged through the said F.I.R. that the linesman reconnected the said wire with the pole but in the meantime, Muhammad Boota, his son Tariq, one Altaf, Muhammad Sadiq and Muhammad Riaz asked the abovementioned linesman not to reconnect the connection and also declared that they would not permit this reconnection of electricity supply. This F.I.R. had been recorded on the report of some WAPDA official which report had been forwarded to the S.H.O. by the concerned S.D.O. of WAPDA. Abdullah Tariq Butt, linesman abovementioned entered the witness-box at the trial as P. W.1 but did not support the F. I. R. He deposed that when he went to the spot he had found the P.V.C. service line in question fallen down; some people were present at the spot who informed him that there was some dispute about this electric line and that he should not reconnect it; the people present had further "informed him that the owners of the property over which this electricity wire was passing had got a stay order and further that he thereupon returned to the office and informed the Line Superintendent accordingly. This P.W. had further deposed that he could not identify the abovementioned persons present at the spot and further that the accused persons present in Court were not amongst the said persons who had told him not to reconnect the P.V.C. service line in question. This P.W. was consequently declared hostile but the learned Prosecutor could extract nothing really favourable to the prosecution from him through the cross-examination.

The learned counsel for the petitioner-accused submitted that the only eye-witness of the occurrence in question was Abdullah Tariq Butt, Linesman who had refused to support the prosecution case and thus even if the trial was permitted to continue; there was no possibility of the same resulting in the conviction of the accused persons. He had added that the house of one Ghulam Ahmad was adjacent to the property of the accused-petitioner who had got. an electricity connection for his said house sanctioned from the WAPDA Authorities and who was insisting that he would get the said connection from a, pole from which the service line would have to pass from over the property belonging to the accused-persons which desire of the said Ghulam Ahmad was being resisted by the accused persons who were the owners of the said property and who had a legal right not to permit the electricity service line to pass from over their property. The learned counsel further submitted that the said Ghulam Ahmad could very conveniently get connection for his house from another pole on the other side of the street without causing any disturbance to any other property owner in the vicinity but he was not agreeing to the same, having made it a matter of personal prestige. The learned counsel had further contended that the criminal proceedings in question had been maliciously manoeuvred by the said Ghulam Ahmad for ulterior motives and to harass the accused party to submit to his illegal designs. Reference was made by the learned counsel to Writ Petition No. 12254 of 1993 which had been filed by the said Ghulam Ahmad and which had been disposed of by this Court on 17-10-1993.

4. The parawise comments submitted by the WAPDA Authorities in the said writ petition fully support the contentions of .the petitioner herein. The house of Ghulam Ahmad is situate on a street and only 27 meters away from his main gate is a pole available on the said street from which electricity could be supplied to the said Ghulam Ahmad's house. Adjacent to his house and on the back side of his house, is a plot owned by the present accused party and then there is a street on the back side which also has a pole, the distance of which pole from the house of the said Ghuiam Ahmad is 53 meters and if the electricity was supplied to the house of Ghulam Ahmad from this pole then the service line wire would have to pass from over the said plot of the accused party. It had been submitted in the parawise comments to the said writ petition that the WAPDA tried to provide electricity to Ghulam Ahmad from the pole in the back street but the owners of the intervening plot were not allowing the wire to pass from over their plots and the WAPDA then tried to supply electricity to Ghulam Ahmad's house from the pole available in the street oh the front side but the said Ghulam Ahmad was not agreeing to the supply of electricity to him from the said pole and this had led to litigation and disputes between the said Ghulani Ahmad and the owners of the abovementioned plot i.e. the accused party. The Police Officer and other officials present in Court verified this position.

5. From the above facts, it is clear that the entire litigation including the present criminal proceedings are a result of the personal whims and vendetta of the said Ghulam Ahmad. The electricity lines through which electricity is to be supplied to the consumers are required to pass along the public streets and roads and no one has a right to insist that the said wires would pass from over the property of another person except with the permission of the said owner or occupier of the property or unless the WAPDA Authorities acquired the land underneath for passing electricity line over the same. Such an act on the part of WAPDA could deprive the owner/occupier of the property of the full user and enjoyment of the property over which WAPDA electricity lines are passing. If the accused party are insisting that they would not permit the WAPDA Authorities from putting an electricity line over their property then they have perhaps a right to do so. The position of the WAPDA Authorities is that the electricity can be supplied to Ghulam Ahmad from the pole located on the street on which his house is situate The insistence of the said Ghulam Ahmad not to get electricity supply from the said pole is not understandable.

6. In addition to these facts and circumstances, as has been mentioned above, the star witness of the prosecution, namely, Abdullah Tariq Butt, Linesman has already refused to support the prosecution case.

7. In the circumstances, I find that not only that the prosecution of the accused persons is for purposes other than legal but also that the trial is not likely to result in their conviction.

8. Consequently, this petition is allowed and the criminal proceedings abovementioned pending in the Court of the learned Magistrate 1st Class at Kharryan are quashed.

9. Before I part with this order, I would also like to say something about the legal position stated by the learned Sessions Judge in his order, dated 24-2-1994 to the effect that an order passed by a learned Magistrate under section 249-A of the Cr.P.C. was not revisable under section 439-A of the Cr.P.C. by a Court of Session but could be called in question only before the High Court under section 561-A of the Cr.P.C. This proposition is legally untenable. Section 439-A of the Cr.P.C. has conferred on the Sessions Judges all the powers which stand conferred on the High Court by section 439 of the Cr.P.C. Under section 439 of the Cr.P.C. all orders passed by an inferior criminal Court situate within the local limits of its jurisdiction are revisable with following limitations:--

"(a) Where an appeal lies against an order or judgment under the Cr.P.C. and no appeal is filed, no proceedings by way of revision shall be entertained at the instance of the party who could have filed an appeal against such an order or judgment;

(b) no order in the exercise of revisional jurisdiction shall be made to the prejudice of a party unless he has had an opportunity of being heard and finally that;

(c) a finding of acquittal shall not be converted into a finding of conviction in the exercise of revisional powers."

10. It will thus be noticed that no clog exists on the power of a sessions Judge to exercise its revisional powers, in respect of an order passed under section 249-A of the Cr.P.C. by an inferior Court. It is true that the High Court has inherent powers under section 561-A of the Cr.P.C. to interfere with any order or proceedings in the interest of justice or where miscarriage of justice has been caused or where such an interference has been necessitated to meet the ends of justice but vesting of this general power in the High Court cannot be said to have the effect of depriving other Courts of the powers conferred on them by or under the Code of Criminal Procedure. It is, therefore, held and declared that the' learned Sessions Judges do have the jurisdiction to exercise revisional powers vesting in them under section 439-A of the Cr.P.C. in respect of orders which are passed by Courts inferior to them, under section 249-A of the Cr.P.C. Send a copy of this order to the learned Sessions Judge of Gujrat for his information.

N.H. Q./T-89/1 Proceedings quashed