Syed MUNAWAR ALI ZAIDI- vs Mst. QAISAR JAHAN And Another

For the purposes of this application filed under section 561-A, Cr.P.C. The following statement of facts would suffice.

2. On 16-1-1988 Mst. Qaisar Jahan, the respondent No. 1 made an application to Assistant Commissioner/S.D.M, Malir, Karachi, alleging therein that she was in possession of Plot No. A-47, Sheet No. 25, Model Colony, Karachi since 1980, and had raised construction of two rooms, kitchen, bath room and the boundary walls on the entire plot. She further alleged in the said application that she has also obtained electric and Sui-gas connections in the said house in her own name. It is the case of respondent No.1 that on 15-1-1988 she was forcibly dispossessed by three persons who were armed with deadly weapons who broke open the locks and threw the belongings of her servants who were staying there. According to the case unfolded by respondent No.1 in her application, S. Munawar Ali Zaidi, the applicant was one of those persons responsible for dispossessing her from the disputed premises. This application was forwarded to S.H.O., Model Colony P.S. Who submitted his report and on the basis thereof the learned S.D.M. Took cognizance against the applicant, who also passed an order under section 145(4),Cr.P.C. Thereby sealing the said premises. The parties did not file their written statements till 13-12-1988 and consequently the learned S.D.M. Passed a final order. The applicant challenged this order in revision application bearing No. 75 of 1988 before learned Sessions Judge (East) Karachi, who maintained the order passed by S.D.M., Malir. The applicant then invoked the inherent jurisdiction of this Court by filing Cr.

Misc. Application No. 72 of 1989 which was heard by my learned brother Allah Dino G. Memon, J., who remanded the case to S.D.M. Vide judgment dated 21-3-1990. The parties then filed their written statements and also adduced evidence before the S.D.M. On the assessment of evidence available on record the learned S.D.M. Passed final order under section 145(6), Cr.P.C. On 17-11-1990 with a direction that the applicant be put in possession. The applicant who was put in possession of the said premises on 18-11-1990 invested huge amount to make it worth-living. The respondent No.1, however, challenged the order of learned S.D.M. Dated 17-11-1990 in revision application which was heard by IIIrd Additional Sessions Judge (East) Karachi who reversed the same and directed the restoration of possession to respondent No.l. This order dated 14-3-1991 is the subject-matter of the present application filed under section 561-A, Cr.P.C.

3. 1 have heard Mr. S.M. Alam, learned counsel for applicant, Mr. Shafi Muhammadi learned counsel for respondent No.1 and Mr. Shaikh Azizur Rehman, learned counsel for State. Mr. Shaikh has supported the impugned order by stating that no illegality was committed by the Addl. Sessions Judge in his order dated 14-34991 which has attained the finality.

4. Mr. Shafi. Muhammadi, learned counsel for respondent No.1 has challenged the maintainability of this application filed under section 561-A, Cr.P.C. By stating that no second revision is competent against the order passed by learned IlIrd Additional Sessions Judge under section 439-A, Cr.P.C.

The learned counsel should have known that a complete answer to this objection is provided by the Supreme Court in the case of Muhammad Shafique and others v. Abdul Hayee and others reported in 1987 SCM R 1371, wherein it was observed that the powers possessed by the Courts under section 435/439, Cr.P.C. Do not impunge, curtail, or limit in any manner whatsoever the powers under section 561-A, Cr.P.C. At page 1377, it was observed:-- "The jurisdictional requirements for the exercise of powers under section 561-A, Cr.P.C. Are--

(i) To give effect to any order under the Criminal Procedure Code

(ii) To prevent abuse of process of any Court.

(iii) To secure the ends of justice Such a power cannot be exercised against the express language of the statute and it only preserves what is possessed or is inherent in the Court itself. The revisional power certainly goes beyond in so far as the propriety as is distinguished from the mere legality can also be examined therein. The powers possessed by the Courts under section 435/439, Cr.P.C. Do not impunge, curtail, or limit in any manner whatsoever the powers under section 561-A, Cr.P.C."

5. The perusal of the impugned order shows that the learned Additional Sessions Judge has recorded the findings on the assessment of evidence available on record. Legally speaking, the High Court can entertain an application under section 561-A, Cr.P.C. In which the assessment of evidence is C involved, but as a matter of practice, it is done very sparingly when the finding recorded by the Courts below is patently illegal resulting into miscarriage of justice. To put it differently, in such petitions, the High Court would not substitute its own appraisement of evidence for that of the Court or Courts below, so long as there is legal evidence to sustain such findings.

6. The primary object of the proceedings under section 145, Cr.P.C is to preserve peace and not to enter into controversy about the title of the property. E It is only a stopgap arrangement and is dependent upon the final adjudication of the dispute by the competent Civil Court. It may also be added that section 561-A, Cr.P.C. Confers no powers on the High Court and it merely F safeguards the existing inherent powers possessed by the High Court to secure the ends of justice. Such powers, therefore, cannot be exercised when the finding recorded by the Court of revision is based on proper appraisement of evidence. The power of interference under section 561-A, Cr.P.C. Is to be exercised only for the purpose of correcting injustice and not mere irregularity or illegality.

7. In the circumstances mentioned above, I see no ground to interfere with the impugned order. The application filed under section 561-A, Cr.P.C. Is, therefore, dismissed.

As a necessary corollary to this order, Miscellaneous Applications Nos.1086, 1235 and 1259 of 1991 are also dismissed.