IMTIAZ AHMAD Versus COMMON SERVICE CO-OPERATIVE HOUSING SOCIETY LTD.

ANWAARUL HAQ PANNUN, J.--- Through this Constitutional petition, the petitioner (who has not been arraigned as an accused in the complaint) calls in question the order dated 10.12.2018 passed by the learned Addl. Sessions Judge, Lahore whereby he had dismissed the application of one Imtiaz Ahmad, petitioner seeking dismissal of the complaint titled "Common Services Co-operative Housing Society Ltd v. Badar Munir and others" filed through its President under sections 3, 4, 5, 6, 7 and 8 of Illegal Dispossession Act, 2005, pending trial before the court of learned Addl. Sessions Judge, Lahore.

2. At the very outset, learned counsel for respondent No.1 submits that since the petitioner has not been arraigned as an accused in the pending criminal complaint, therefore, being alien to the proceedings, neither his application seeking dismissal of the complaint was maintainable nor he is an aggrieved person, therefore, being a stranger, the learned trial Judge has rightly dismissed his application of the petitioner holding that petitioner has no locus standi to file this application.

3. Learned counsel for the petitioner has argued that the impugned order dated 10.12.2018, is nullity in the eyes of law. Learned counsel for the petitioner has, therefore, relied upon the case law reported in Captain S. M. Aslam v. The State and 2 others (PLD 2006 Karachi 221), Maqsood Ahmed Qureshi v. Muhammad Azam Ali Siddiqui and 8 others (PLD 2009 Karachi 65), H. M. Saya & Co., Karachi v. Wazir Ali Industries Ltd., Karachi and another (PLD 1969 SC 65), Qazi Munir Ahmed v. Rawalpindi Medical Colleze and Allied Hospital through Principal and others (2019 SCMR 648), Alamgir Khan v. Ghulam Rasul and others (2015 YLR 2512), Nazir Ahmed v. Asif and 4 others (PLD 2008 Karachi 94), Noor Zada v. Muhammad Khalid and others (2007 PCr.LJ 891), Fazil Khan v. Additional Sessions Judge, Sialkot, and others (2006 YLR 1791); Samandar Khan and another v. Haji Abdul Rehman and others (PLD 2008 Quetta 21), Sahib Khan v. Saadullah Khan and another (PLD 2008 Peshawar 49), Sajawal Khan and 4 others v. Amir Sultan and 11 others (2016 Cr.LJ 929) and Ghulam Raza v. Samo Khan and 25 others (2016 YLR 2138) to argue that a person aggrieved of an order has a right to challenge it by filing an appeal and on the same analogy, since the application of the petitioner has wrongly been dismissed, this petition is, therefore, maintainable. In order to examine the legality of the impugned order in the light of arguments of the learned counsel for the petitioner, it will be appropriate to examine certain relevant provision of law in order to properly reply, the moot question arising out of the proceedings that whether an application on behalf of a person, neither a complainant nor an accused, can be entertained by a criminal court. The Illegal Dispossession Act is a special law. It has its overriding affect upon all other available laws on the statute books on the subject. Needless to observe that procedural law is concomitant with the substantive law, for its enforcement. It is also necessary to regulate the proceedings while ensuring certainty to the litigants before any court of law. The parties should get fair trial; they should also have their faith in the proceedings, being conducted by a court of competent jurisdiction.

4. The arguments advanced by the learned counsel for the parties have been heard and record perused.

5. Till 6th July, 2005 the day on which The Illegal Dispossession Act, 2005 as special law, was promulgated, the persons, without adopting due course of law and illegally dispossessed from their properties could seek certain remedies under ordinary criminal as well as civil law. i) A remedy by way of putting the machinery of law into motion under section 154, Cr.P.C. in case of commission of criminal trespass, house trespass, lurking house trespass, lurking house trespass by night, house breaking and house breaking by night was available to the aggrieved persons. ii) Under the provisions of section 145, Cr.P.C., a Magistrate has been empowered to restore the possession of a person, dispossessed within a period of two months of passing of order by the Magistrate on receiving an information after being satisfied from a police report or other information about the likelihood of breach of peace concerning any land, water or boundaries thereof within the local limits of his jurisdiction, after holding an inquiry, the Magistrate can restore the possession of a party so wrongfully dispossessed by the other party within two months next before the date of passing of his order. He has also been empowered to attach the property. The Magistrate, however, has not been invested with the power to entertain and decide finally the claim of title between the parties. For guidance, in the case law reported in Muhammad Saleem v. Muneeza Begum and 6 others (2019 PCr.LJ 364) wherein it is held that,

"(b) Criminal Procedure Code (V of 1898)---

---S. 145--- Procedure where dispute concerning land is likely to cause breach of peace---Power to attach subject of dispute---pendency of civil litigation----Scope--Whenever Magistrate was satisfied that dispute likely to cause breach of peace existed regarding any land and considered it a case of emergency, he could attach the subject and order for its proper custody---Section 145, Cr. P.C. nowhere provided that in presence of civil litigation Magistrate could not exercise his powers conferred on him---Mere filing of suit did not debar the Magistrate to proceed under S. 145, Cr.P.C. unless interim injunction was issued or Receiver was appointed or decree was finally passed, or possession was regulated by the Civil Court. iii) A person illegally and without adopting due course of law dispossessed from his property, has also been provided a remedy by way of filing of a civil suit under section 8 of the Specific Relief Act, 1877 on the basis of title in the manner provided by the Code of Civil Procedure, 1908, subject to law of limitation. iv) Another remedy, by means of a civil suit, was also available to a person dispossessed of his immoveable property, as envisaged under section 9 of the Specific Relief Act, 1877 against the persons causing dispossession. The provisions of Section 9 of Specific Relief Act, 1877 gives a special privilege to persons in possession who takes action primary on their dispossession of immoveable property. Under section 9 of the Act, ibid, summary procedure has been provided, to persons dispossessed from immoveable properties without their consent. It is, for bringing the cause under this Section, it is required to show that the person invoking the jurisdiction of the Court had actual physical possession of immoveable property from which he was dispossessed without any consent by defendants within six months prior to the institution of the suit. It is not mandatory for the parties claiming retrieval of the possession over the property, who have dispossessed from his possession over the property, to establish his title simply it is sufficient to prove that the pretty claiming retrieval has been dispossessed within the period of six months. crime remained an unwanted companion of man throughout history from stone ages to the modern era of information technology

6. Hike up in price of real estates, time taking process involving procedural technicalities, rendering the available legal remedies, in public perceptions almost ineffective, the dwindling state superstructure not providing swift measures, the porous and posting seeker bureaucracy pliant before their political masters, gradual decay in value system of society, alarming increase in the illegal public and private land grabbing incidents by the powerful individual and organized groups backed by unscrupulous elements, ignoring the voice of their conscience, eager to make their fortune, without distinguishing between the right and wrong unfortunately the incidents of illegally occupying the valuable properties owned by weak segments of the society and Pakistani immigrants abroad, gained currency in absence of any deterrent remedial legislation; in this back drop, the legislature felt it expedient to enact The Illegal Dispossession Act, 2005 (hereinafter to be called as the Act) for providing protection to lawful owners and occupants of immoveable properties from their illegal and forcible dispossession therefrom by the property grabbers. The act being a special law has an over riding effect upon prevalent laws. Through the provisions of the Act "everyone" has been prohibited in clear words from entering into or upon any property to dispossess, grab, control or occupy it, without having any lawful authority to do so with the intention to dispossess, grab, control or occupy the property form the "lawful owner" or "occupier of such property". For ready reference, it will be advantageous to produce section 3 of Illegal Dispossession Act, 2005:--

3. Prevention of illegal posses-sion of property, etc .---(1) No one shall enter into or upon any property to dispossess, grab, control or occupy it without having any lawful authority to do so with the intention to dispossess, grab, control or occupy the property from owner or occupier of such property.

(2) Whoever contravenes the provisions of the subsection (1) shall, without prejudice to, any punishment to which he may be liable under any other law for the time being in force, be punishable with imprisonment which may extend to ten years and with fine and the victim of the offence shall also be compensated in accordance with the provision of section 544-A of the Code.

(3) Whoever forcibly and wrongfully dispossesses any owner or occupier of any property and his act does not fall within sub-section (1), shall be punished with imprisonment which may extend to three years or with fine or with both, in addition to any other punishment to which he may be liable under any other law for the time being in force. The person dispossessed shall also be compensated in accordance with provisions of section 544-A of the Code.

7. It will be very important to say that through the enforcement of the Act, a contravention of subsection (1) of Section 3 has been made a punishable offence with imprisonment besides imposition of fine upon the person found guilty of commission of offence under subsections (2)(3) of section 3 ibid. Awarding of compensation has also been made permissible. In the case reported as Captain S.M. Aslam v. The State and 2 others (PLD 2006 Karachi 221) wherein it is held that,

"Subsection (1) of section 3 forbids any person from entering into or upon any property with the intention to dispossess, grab, control, or occupy any property from its owner or occupier, whereas subsection (2) of section 3 provides that any person who contravenes the provision of subsection (1) of section 3 shall be liable for a punishment of imprisonment which may extend to ten years and with fine and also provide compensation to the victim in accordance with section 544-A of the Code. The punishment provided in subsection (2) of section 3 is beside and without prejudice to any punishment provided under any other law."

8. Any act, without any lawful authority doing so by any person, in contravention of subsection (1) of Section 3, constitutes an offence under the Act ibid which according to its gravity has been made punishable under sub-sections (2) and (3) of Section 3 of the Illegal Dispossession Act, 2005. In the case of Muhammad Akram and 9 others v. Muhammad Yousaf and another (2009 SCMR 1066) it is held that,

"---S. 3(1) & (2)---Scope and application of S.3(1)(2) of the Illegal Dispossession Act, 2005---Essentials for Complainant to allege and show before the court and the defence line of the accused enumerated.

The Illegal Dispossession Act, 2005, is a special enactment which has been promulgated to discourage the land grabbers and to protect the right of owner and the lawful occupant of the property as against the unauthorized and illegal occupants. The careful examination of the relevant provisions in the Act would reveal that all cases of illegal occupants without any distinction, would be covered by the Act, except the cases which were already pending before any other forum. The purpose of this special law was to protect the right of possession of lawful owner or occupier and not to perpetuate the possession of illegal occupants.

The provisions of subsection (1) of section 3 of the Illegal Dispossession Act 2005 are in the form of preventive provisions. The section begins with the words: "no one shall .." This is a prohibitory mandate. There is no restriction as to the class of persons. All persons have been prohibited to commit the offence detailed in this provision, be he male or female. In order to constitute an offence under section 3(1) of the Illegal Dispossession Act 2005, the Complainant is to allege and show before the Court:-

(i) That the Complainant is the actual owner (or occupier i.e. in lawful possession) of the immovable property in question.

(ii) That the accused has entered into (or upon) the said property.

(iii) That the entry of the accused into (or upon) the said property is without any lawful authority.

(iv) That the accused has done so with the intention to dispossess (to grab or to control or to occupy) the Complainant.

The provision of section 3(2) is salutary and inundatory. It is with the purpose to alleviate the suffering and is also effective deterrent against crime. The Legislature has taken full care to close all doors of any injustice to the parties.

9. For quite some-time, there remained a debate in the annals of the courts that as to whether the provisions of Illegal Dispossession Act, 2005 can be invoked against the persons holding the credentials of land grabbers and "Qabza Mafia" only, the Hon'ble Supreme Court of Pakistan in its celebrated judgment reported as Mst. Gulshan Bibi and others v. Muhammad Sadiq and others (PLD 2016 SC 769) while removing the confusion, earlier caused through various shades of opinions has held as under:Legislation---

---Special law enacted to curb a crime---Scope and applicability---Category of persons who could be prosecuted---Legislature while enacting a special law for awarding punishment for a crime, in its wisdom, may or may not describe any particular category of persons who could be prosecuted----Where a special law after making a particular act an offence also described the category of persons who could be prosecuted then unless such person fell within the described category, he could not be prosecuted---Where the special law only described the offence or a set of offences and sought to punish any person and every person who was found to have committed the described offence then terms like `anyone', 'any person' whoever' and 'whosoever' were used for the offenders in order to include all offenders without any distinction--- In such a case, the offender may belong to any class of offenders, he as an accused could be prosecuted under such law."

Needless to say that through the above ratio, a question of law has been decided, which has its binding effect under Article 189 of the Constitution upon all the courts.

10. In the light of arguments advanced by the learned counsel for the parties, the facts and law reiterated hereinabove, the issue seeking its determination, which will also decide the fate of this lis, is WHETHER A CRIMINAL COURT HAS A POWER TO STRIKE OUT OR ADD PARTIES, EITHER IN THE CAPACITY OF COMPLAINANT OR THE ACCUSED, IN PENDING CRIMINAL CASES. In order to examine the legality of the impugned order dated 11.07.2016 and reply the above question, let us first, examine certain relevant provisions of (i) The Illegal Dispossession Act, 2005, (ii) Code of Criminal Procedure, 1898; (iii) Code of Civil Procedure, 1908, (iv) The Punjab Civil Courts Ordinance, 1962 and (v) the relevant provisions of The Constitution of Islamic Republic of Pakistan, 1973.

11. Shorn of verbiage, I firstly propose to decide the legality of impugned order dated 11.07.2016 whereby the trial court, allowed the application of respondents Nos.2 to 10 for their impleadment as party in the pending complaint, with a direction to the complainant to file amended complaint. It will be appropriate to observe that the Pakistan Penal Code as well as the Code of Criminal Procedure, 1898 were enacted during the days of The British Raj, following Anglo Saxon jurisprudence. As to what, jurisprudence is best may be stated in the words from "Salmond on Jurisprudence":

"The distinction between crimes and civil wrongs is roughly that crimes are public wrongs and civil wrongs are private wrongs. As Blackstone says:" 'Wrongs are divisible into two sorts or species, private wrongs and public wrongs. The former are an infringement or privation of the private or civil rights belonging to individuals, considered as individuals, and are thereupon frequently termed civil injuries; the latter are a breach and violation of public rights and duties which affect the whole community considered as a community; and are distinguished by the harsher appellation of crimes and misdemeanours.' A crime then is an act deemed by law to be harmful to society in general, even though its immediate victim is an individual. Murder injures primarily the particular victim, but its blatant disregard of human life puts it beyond a matter of mere compensation between the murder and the victim's family. Those who commit such acts are proceeded against by the State in order that, if convicted, they may be punished. Civil wrongs such as breach of contract or trespass to land are deemed only to infringe the rights of the individual wronged and not to injure society in general, and consequently the law leaves it to the victim to sue for compensation in the court."

"From a practical standpoint the importance of the distinction lies in the difference in the legal consequences of crimes and civil wrongs. Civil justice is administered according to one set of forms, criminal justice according to another set. Civil justice is administered in one set of courts, criminal justice in a somewhat different set. The outcome of the proceedings, too, is generally different. Civil proceedings, if successful, result in a judgment for damages, or in a judgment for the payment of a debt or (in a penal action) a penalty, or in an injunction or decree of specific restitution or specific performance, or in an order for the delivery of possession of land, or in a decree of divorce, or in an order of mandamus, prohibition, or certiorari, or in a writ of habeas corpus, or in other forms of relief known distinctively as civil. Criminal proceedings, if successful, result in one of a number of punishments, ranging from hanging to a fine, or in a binding over to keep the peace, release upon probation, or other outcome known to belong distinctively to criminal law."

12. In case of commission of an offence, under Section 3 of Illegal Dispossession Act, 2005, which is public wrong, a remedy by way of filing of a complaint before the court is provided. The court upon a complaint may direct the officer in charge of the police station to investigate the complaint. The offence in this Act (under section 3 of the Act) shall be non-cognizable. The court has been empowered to direct the police to arrest the accused at any stage of the trial. It has manifestly been made clear that "notwithstanding anything contained in the Code or any laws for the time being in force", the offence shall be triable by the court of session. To regulate the court proceedings for holding trial of an accused, it has been provided under section 9 of the Act that "unless otherwise provided in this Act," the provisions of the Code of Criminal Procedure, 1898 (Act V of 1898) shall be applicable. Needless to say, the Illegal Dispossession Act is a special law, having overriding effect upon other laws. Under the provisions of Section 2, certain terms which are relevant have been defined as under:--

(a) "Court" means the Court of Session;

(b) "Code" means the Code of Criminal Procedure, 1898 (Act V of 1898);

For ready reference, the provision of section 9 of the Illegal Dispossession Act, 2005 is also reproduced hereunder:-

9. Application of Code.---Unless otherwise provided in this Act, the provisions of the Code of Criminal Procedure, 1898 (V of 1898) shall apply to proceedings under this Act.

13. In the light of above discussion, legal position emerges that besides the special provisions contained in the Act ibid, the provision of "Code of Criminal Procedure" are applicable for holding a trial of an offence under this Act before the Court. In order to further elucidate the issue under discussion, a necessity has arisen to examine certain provision of Code of Criminal Procedure. Let's now examine the preamble of the Code of Criminal Procedure to know the purpose behind its promulgation which says that it is an act to consolidate and amend the law relating to criminal procedure. Prior to enactment and promulgation of this Code, there existed no uniform procedural law for regulating the proceeding before criminal courts during the colonial era. The scheme behind the criminal procedure code is to streamline, channelize and facilitate the smooth running of system of criminal justice. THE OBJECT IS TO PROVIDE A MACHINERY FOR PUNISHMENT OF OFFENDERS AGAINST THE SUBSTATIVE CRIMINAL LAW UNDER THE CODE.

14. I have found that under section 2(a) of the Illegal Dispossession Act, 2005 the Court has been defined, as the court of sessions. About the constitution of courts, it mention in Chapter II, Part-II as under:

Section 6. Classes of Criminal Courts Magistrates.

(1) Besides the High Courts and the Courts constituted under any law other than this Code for the time being in force, there shall be two classes of Criminal Courts in Pakistan, namely:

(i) Courts of Session;

(ii) Courts of Magistrates.

Section 9 of the Code speaks that the Provincial Government shall establish a Court of Session for every sessions division, and appoint a judge of such Court. Under subsection (3) of this section, the Provincial Government may also appoint Additional Sessions Judges and Assistant Sessions Judges to exercise jurisdiction in one or more such Courts. It evinces that the criminal courts are constituted under the above referred provisions of Cr.P.C. A description of offences triable by each court, constituted, under the above referred provision has been given (under sections 28 and 29 of the Code, of Chapter III). According to section 28 subject to the other provision of the Code, any offence under the Pakistan Penal Code may be tried (a) by the High Court or (b) by the court of sessions or (c) by any other court by which such offence is shown in the eighth column of II schedule to be triable. For the offences under other laws, section 29 of the Code provides as under:-

Subsection (1) 29 (1) subject to other provision of this Code, any offence under any other law shall when any court is mentioned in this behalf in such law be tried by such court.

(2)

15. The above discussion, has led to this Court to conclude that the offence under section 3 of the Illegal Dispossession Act, in view of section 29(1) of Cr.P.C., while adopting the procedure given in Cr.P.C. to regulate its proceedings, is triable by a court of sessions. As noted above, wrongs are divisible into two sorts or species, (i) personal wrong and (ii) public wrong. The crime is a public wrong, a breach and violation of pubic right affects the whole community. The crime is deemed by law to be a harm to the society in general. Irrespective of the fact that its immediate victim is an individual, therefore, even in absence of availability of any private person to be a complainant, the State functionaries himself can report a crime for bringing to book the person who had committed a crime. It may be pointed out that, any individual cognizant of the commission of crime, can put the machinery of law into motion. In doing so the individual, is not under any legal obligation to show that personally he is aggrieved of the Act complained of. This is because that the commission of crime is deemed not only a wrong against the individual but the same is deemed to be a crime against the society. The object behind putting the machinery of law against a person accused of commission of any criminal wrong is to get the person punished for the act illegal he had done. The punishment may be corporeal or in fine or in both. It is observed that (i) the provisions of Cr.P.C. constitute criminal courts, (ii) confer on the courts, the jurisdiction to try the offences and impose the penalty upon the accused for committing, the public wrong, (iii) it also provides procedure to regulate the proceedings before criminal courts. No provision has been found in the Code enabling a criminal court, to exercise its jurisdiction for impleading any person either on his own application as a party during the proceedings while trying an offence.

16. Unlike what has been said above, the preamble of Code of Civil Procedure (Act No.V of 1908) states that it is an act to consolidate and amend the laws relating to the procedure of courts of civil judicatures. According to subsection (1) of section 2 of C.P.C., Code includes Rules. By virtue of section 121, C.P.C., the rules are to have effect as if enacted in the body of the Code. Some relevant provisions in verbatim are reproduced, for facility to grasp the point under decision.

Section 5 of Code of Civil Procedure 1908 "Application of the Code to Revenue Courts"

(1) Where any Revenue Courts are governed by the provisions of this Code in those matters of procedure upon which any special enactment applicable to them is silent, the {Provincial Government} may, by notification in the {Official Gazette}, declare that any portions of those provisions which are not expressly made applicable by this Code shall not apply to those Courts, or shall only apply to them with such modifications as the {Provincial Government} may prescribe.

(2) "Revenue Court" in sub-section (1) means a Court having jurisdiction under any local law to entertain suits or other proceedings relating to the rent, revenue or profits of land used for agricultural purposes, but does not include a Civil Court having original jurisdiction under this Code to try such suits or proceedings as being suits or proceedings of a civil nature.

Section 9 of C.P.C. Courts to try all Civil Suits unless barred.--

Jurisdiction. The maxim 'ubi jus ibi remedium' (wherever there is a right, there is a remedy), is a fundamental principle of law (a). Any person having right has a corresponding remedy to institute suits in a court unless the jurisdiction of the court is barred (ab). By virtue of the provisions of this section, civil courts are granted general jurisdiction to try all suits of a civil nature. (ac) In other words wherever the objection of proceedings is the enforcement of civil rights, a civil court has jurisdiction to entertain the suit independently of any statute unless its cognizance is either expressly or impliedly barred (ad). Though the Code does not define the term "Court", it means the forum created by the Civil Courts Ordinance, 1962 (ae).

17. It may also be quiet relevant to observe that under the Code of Criminal Procedure, which is meant for regulating the proceedings before the court of civil adjudicature powers vests with a court under Order VII, Rule 11, C.P.C. for rejection of a plaint which is reproduced herein:--

11. Rejection of plaint.---The plaint shall be rejected in the following cases:

(a) Where it does not disclose a cause of action;

(b) ..

(c) ..

(d) ..

Ordinarily, as soon as cause for rejection appears, the plaint should be rejected straightway and such a suit be taken off at its very inception and the plaintiff be allowed opportunity to retract his steps as permitted under the law. Terms cause of action means the "CAUSE" for which the suit is brought. It also means a proceeding in which a legal demand of right is made. This power has been vested in the court with a view to burry frivoluous litigation, in the bud. In case of a plaint disclosing no cause of action in favour of the plaintiff is allowed to continue, it would amount to abuse of process of court only. This power is to be exercised by a court where the court is of the view that in absence of disclosing any cause of action in favour of the plaintiff, the entire exercise of undertaking of proceedings will be nothing but judicial exercise in futility. On the other hand, in case of criminal proceedings, apart from other remedies, an accused can make an application before the court under section 249-A (Magistrate) or 265-K (Sessions) of Cr.P.C., seeking his acquittal and termination of the criminal proceedings, a wide power has been vested with the court under the aforesaid provisions trying offences. The provisions of section 265-K, Cr.P.C. being applicable, is reproduced hereunder:--

265-K Cr.P.C. Power of Court to acquit accused at any stage:

"Nothing in this Chapter shall be deemed to prevent a Court from acquitting an accused at any stage of the case; if, after hearing the prosecutor and the accused and for reasons to be recorded, if considers that there is no probability of the accused being convicted of any offence."

The perusal of the provision clearly indicates that the power vested under section 265-K Cr.P.C. can be exercised by the learned trial court at any stage of the trial. The language "Nothing in this Chapter shall be deemed to prevent a Court from acquitting an accused at any stage of the case" adequately conveys the underlying object of the provision that there exists no impediment on the way of trial court in exercise of its powers for acquitting accused at any stage, subject to certain prerequisites, i.e.

(i) after hearing the Prosecutor and the accused both,

(ii) the reasons must be recorded for acquitting the accused,

(iii) the trial court shall exercise its powers only if it comes to the conclusion that there exists no probability of the accused being convict of any offence.

(iv) Moving of formal application by the accused is not necessarily envisaged.

(v) The court can exercise its power on its own motion.

Keeping in view the provision of section 265-K, Cr.P.C. in verbatim, I may add one thing more that the law has vested a trial court with a wide power, enabling it to see through the wall on its other end. The petitioner is, neither an accused nor a complainant, rather is a stranger to the proceedings, therefore, his application could not have been entertained by the learned trial Judge, thus he has rightly rejected the application of the petitioner through the impugned order.

18. Contrary to The Code of Criminal Procedure, 1898 (Act V of 1898), The Code of Civil Procedure, 1908 (Act V of 1908) despite recognizing through implication it does not create classes of courts. The Punjab Civil Courts Ordinance, 1962 (Ordinance II of 1962) says, that it is an Ordinance to amend and to consolidate the law relating to Civil Courts in the Province of the Punjab. Under section 3 of the Ordinance which reads as under:-

3. Classes of Courts.---Besides {a court established under the Small Claims and Minor Offences Courts Ordinance, 2002 (XXVI of 2002}, and the Courts established under any other enactment for the time being in force, there shall be the following classes of Civil Courts, namely:-

(a) the Court of the District Judge;

(b) the Court of the Additional District Judge; and

(c) the Court of the Civil Judge.

Moreover, the provisions contained in Chapter II, III and other supplemental provisions are relevant for determination of pecuniary territorial trial and appellate jurisdictions of the civil courts.

19. As noted above, the preamble of C.P.C. evinces that it has consolidated and amended the laws relating to procedure of court of civil judicature. This is a law of general application and the courts namely civil courts apply it in the enforcement of civil rights and obligations is ordinary course of civil jurisdiction. The distinguishing feature of C.P.C. is that it divides into two parts, its body which consists of sections 1 to 158 and the First Schedule which comprises over Orders 1 to 50. These Orders contain the rules which, as section 121, C.P.C. says, "shall have effect as enacted in the body of this Code until annulled or altered in accordance with the provisions of this Part (Part X C.P.C.). Unlike the Code of Criminal Procedure, 1898 the C.P.C. itself does not create any court; it does not even define the expression court. It merely is intended to regulate the procedure of civil judicature and its section 3 lays down that the District Court is subordinate to the High Court and every civil court of a grade interior to that of a District Court and every court of small causes is subordinate to the High Court and the District Court. In other words, it is only by implication that the C.P.C. recognizes civil courts of various grades. The provisions of Civil Court Ordinance, 1962 constitute the classes of courts to be established for civil justice. It also authorizes provincial Government to demarcate civil district and headquarters.

20. It will be appropriate to refer Article 175 of the Constitution of Islamic Republic of Pakistan,

197. Establishment and jurisdiction of Courts

Sub-Article (1) THERE SHALL BE A SUPREME COURT OF PAKISTAN, A HIGH COURT FOR EACH PROVINCE AND A HIGH COURT FOR THE ISLAMABAD CAPITAL TERRITORY AND SUCH OTHER COURTS AS MAY BE ESTABLISHED BY LAW.

Sub-Article (2) No court shall have any jurisdiction save as is or may be conferred on it by the Constitution or by or under any law.

Sub-Article (3) ..

21. As observed hereinabove, the criminal courts have been conferred on jurisdiction under the Code of Criminal Procedure quite in line with command contained in Article 175(2) of the Constitution of Islamic Republic of Pakistan, 1973. The criminal courts have been constituted under a law known as the Code of Criminal Procedure, 1898. The civil courts on the other hand have been constituted under the Punjab Civil Courts Ordinance (W.P. Ordinance II of 1962) and had been conferred jurisdiction in line with the above quoted Constitutional provisions also. The Code of Civil Procedure regulates the proceedings before the civil courts for the decision of the lis. The civil courts and not the criminal courts, Rule 10 C.P.C. are empowered to add or strike any person as a party in the lis before them. The application of the petitioner in absence of any provision of law enabling it to pass such order illegally has been accepted by the trial court. Reliance is placed on the case law reported in Dossan Travels Pvt. Ltd. and others v. Messrs Travels Shop (Pvt.) Ltd. and others (PLD 2014 Supreme Court 1).

(a) Constitution of Pakistan---

---Arts. 199, 175(2) & 187---Constitutional jurisdiction of High Court---Parameters of jurisdiction under Art.199 of the Constitution, enumerated.

While exercising powers under Article 199(1) of the Constitution, Courts should always keep in view the following three parameters of their jurisdiction;

(i) A High Court is the apex court in the province or in the case of Islamabad, of the capita territory, but they are the creatures of the Constitution and they have only that jurisdiction which has been conferred by the Constitution or under any law for the time being in fore. Article 175(2) specifically mandates "no court shall have any jurisdiction save as is or may be conferred on it by the Constitution or by or under any law."

22. The above ratio has been followed in the following case laws i.e. District Bar Association, Rawalpindi and others v. Federation of Pakistan and others (PLD 2015 Supreme Court 401) and S.M. Waseem Ashraf v. Federation of Pakistan through Secretary, M/O Housing and Works, Islamabad and others (2013 SCMR 338).

23. For what has been discussed above, the learned trial court has rightly dismissed the application of the petitioner through the impugned order. The petitioner was an alien to the pending proceedings court. The case law relied upon by the learned counsel for the petitioner, since had emanated from the civil proceedings, therefore, being distinguishable on facts, the same is not applicable in the instant case, resultantly, the instant Writ Petition bearing No.12869 of 2019 is dismissed, being devoid of any force.

MH/I-17/L Petition dismissed.