GHULAM SADIQ and another vs MUKHTIAR AHMAD and others

ORDER

1. ' NASIM HASAN SHAH, J.-- A registered Firm, by the name of United Prestressed Concrete Products, Peshawar owned a factory comprising of building, stores and offices etc. Situate in Small Industries Estate, Kohat Road, Peshawar consisting of the following 4 partners:-

(1) Mr. Zahid Hussain son of Mehr Ali.

(2) Mrs. Tahira Sadiq wife of Ghulam Sadiq.

(3) Mrs. Khalida Anwar wife of Muhammad Anwar.

(4) Mrs. Farida Sahib Din wife of Mr. Sahib Din.

2. ' An agreement to sell was entered into between Mr. Zahid Hussain, aforesaid and one Mr. Mukhtiar Ahmad, respondent No,1 on 20-1-1983, whereby Mr. Zahid Hussain agreed to sell the factory premises in question to Mr. Mukhtiar Ahmad, aforementioned in consideration of Rs,3,70,000. A sum of Rs,1,50,000 was received by the former as earnest money, while the balance amounting to Rs,2,20,000 was to be paid by Mr. Mukhtiar Ahmad respondent No,1 by the 31st March, 1983. In the event of default on his part, it was stipulated in the agreement that a sum of Rs,50,000 shall be forfeited out of the earnest money but in vase of non-performance of the contract by the vendor, he was to pay a similar sum, by way of penalty to the vendee.

3. ' Mukhtiar Ahmad, respondent No,1, it is alleged, did not perform his agreement. Nevertheless,he tried to take the forcible possession of the factory in question and an attempt in this connection was made on 1-7-1983. Whereupon the husband of petitioner No,2, Ghulam Sadiq, lodged a report with the Police Station Bhana Mari, Peshawar, on the basis of which a case was registered under section 448/147, P.P.C. Vide F.I.R. No,240 against Mukhtiar Ahmad, respondent No,1. The local police took possession of the factory and the Investigating Officer visited the spot and put his locks on it.

4. ' The petitioners submitted an application to the Ilaqa Magistrate on 6-7-1983 for restoration of the premises in question from the custody of the police. The application was referred to S.H.O. Bhana Mari, Peshawar, for report and the Investigating Officer, in his report, affirmed that the petitioners were in possession of the disputed premises until he placed his locks on the premises. He also stated in his report that the local police had no objection if the possession was delivered to the petitioners. On the basis of the said report of the Investigating Officer, the learned Ilaqa Magistrate, by his order dated 10-7-1983, directed that the possession of the premises should be handed over to the petitioners, subject to their furnishing security in the sum of Rs,5,00,000.

5. ' Aggrieved by the above order, Mukhtiar Ahmad, respondent No,1, filed a revision on 17-7-1983 under section 439-A, Cr.P.C. In the Court of the Additional Sessions Judge-II, Peshawar, whereupon he suspended the operation of the order of the Ilaqa Magistrate, dated 10-7-1983 and after hearing arguments of both the parties finally accepted the revision petition of Mukhtiar Ahmad, respondent No,1 observing, inter alia, that he found no warrant for the claim of the petitioners that the order passed by the Magistrate dated 10-7-1983 fell within the purview of section 516-A read with section 523, Cr.P.C. He, therefore, set aside the order of the learned Ilaqa Magistrate, dated 10-7-1983 by his order dated 10-10-1983.

6. ' Dissatisfied with the above order of the learned Additional Sessions Judge, the petitioners filed a petition under section 561-A, Cr.P.C. For the quashment of the order dated 10-10-1983 passed by the learned Additional Sessions Judge before the Peshawar High Court. This matter was heard by a learned Single Judge of the said Court, before whom a preliminary objection was raised to the effect that a second well is not competent because the powers of the High Court as well as of the Sessions Court in regard to revisions were the same. The learned Judge found that the learned counsel for the petitioners could not satisfy him on the point of law. Accordingly, he, without touching the merits of the case, held that the petition filed by the petitioners was misconceived and dismissed it, vide his order dated 8-2-1984. Hence this petition for leave to appeal.

7. ' Mr. M. Bilal, learned counsel for the petitioners, in support of this petition for leave to appeal, has submitted that the view of the learned Judge in the High Court was not correct that once the Sessions Court had exercised jurisdiction under section 439-A, Cr.P.C., a second revision in the High Court was not competent. He submitted that the High Court could still under its inherent jurisdiction under section 561-A, Cr.P.C., correct any error that might exist in the order passed by the Sessions Judge. He relied upon Pervaiz-ur-Rehman v. Muhammad Hussain etc. 1980 P Cr. L J 3 and Muhammad Bakhsh v. Iqbal Ahmad and another 1980 P Cr. L J 191, in support of this submissions.

8. ' Section 561-A, Cr.P.C. , on which reliance has been placed, reads as follows:- "Section 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."

9. ' The learned counsel relied upon the last part of section 561-A to contend that the High Court could have interfered in this case. He pointed out that the High Court is empowered to interfere in a case, under its inherent powers, "to secure the ends of justice". The High Court in this case, however, had overlooked this aspect of the matter.

10. In this connection, it is to be noted that in this case the dispute is only with regard to an interim order passed by a Magistrate, whereas the actual dispute between the parties can be settled only if the rights of the parties in the property are properly and finally adjudicated upon. This adjudication can be done by proceedings in a civil Court. In these circumstances,the resort to the High Court with the view that it should exercise its inherent jurisdiction to quash the order of the Additional Sessions Judge, so that an interim order regarding the custody of the property is revived is hardly justified. Indeed the exercise of the inherent jurisdiction with the view to securing the ends of justice would not be served, in the facts and circumstances of this case, as other more appropriate remedies are available to the petitioners to secure complete and proper justice in this case.

11. ' This petition must, therefore, fail and is dismissed hereby, leaving the parties to avail of any other available remedy, if so advised.