Syed MUNAWWAR ALI ZAIDI vs Mst. QAISER JEHAN And Another

SAJJAD ALI SHAH, J.---Petitioner seeks leave to appeal against judgment dated 12-1-1992 of High Court of Sindh at Karachi, whereby Criminal Miscellaneous No.87 of 1991 filed by him under section 561-A, Cr.P.C. Is dismissed.

2. Briefly stated the relevant facts in the background are that on the complaint of respondent Mst.

Qaiser Jehan to the S.D.M. Malir and on subsequent report thereupon by S.H.O. Model Colony, plot in dispute was sealed under section 145, Cr.P.C. It was alleged by Mst. Qaiser Jehan that she was forcibly evicted from her plot by the petitioner on the night between 15/16 January, 1988. Mst. Qaiser Jehan filed written statement but petitioner did not, hence order was passed by the learned S.D.M.

On 13-2-1988 for desealing of the plot and restoration of possession to Mst. Qaiser Jehan. Petitioner filed Civil Suit No.213 of 1988, obtained order of status quo and in consequence possession was not delivered to Mst. Qaiser Jehan. Petitioner filed Criminal Revision Application No.75 of 1988 and having failed therein to obtain relief, filed Criminal Miscellaneous Application No.72 of 1989 in the High Court of Sindh, which was allowed vide order dated 21-3-1990 and the case was remanded to S.D.M. Malir directing him to allow both parties to file written statements and produce evidence on the question of possession. Mst. Qaiser Jehan examined herself and four witnesses. Petitioner examined himself and four witnesses. In addition, two witnesses namely Rao Muhammad Iqbal, S.H.O., Model Colony P.S. And Bashir Ahmed, Statistical Assistant of the District. Registration Karachi East, were examined as Court witnesses. After appreciation of evidence, learned S.D.M. Vide order dated 17-11-1990 came to the conclusion that petitioner was in actual and physical possession of the plot in dispute on 15-1-1988 and passed such order under section 145(6), Cr.P.C.

3. Above-mentioned order was challenged by Mst. Qaiser Jehan in revision bearing Criminal No.57 of 1990, which was allowed vide judgment dated 14-3-1991 by learned IIIrd Additional District Judge, Karachi East, holding that Mst. Qaiser Jehan is entitled to the restoration of possession. Revisional Court came to this conclusion after re-appraisement of evidence and it was held that petitioner based his claim on documents from Mst. Rehmatunnisa, which were found by official authorities to be fake and forged, hence documents produced by Mst. Qaiser Jehan were valid. In the circumstances, it was concluded that Mst. Qaiser Jehan was in possession when she was dispossessed on 15-1-1988 forcibly by the petitioner.

4. Above-mentioned order passed in revision was challenged in the High Court under section 561- A, Cr.P.C. By the petitioner and stand was taken on behalf of Mst. Qaiser Jehan that proceedings in the High Court under section 561-A, Cr.P.C. Were not maintainable for the reason that the second revision was competent against order passed under section 439-A; Cr.P.C. By IIIrd Additional Sessions Judge. High Court has dealt with this objection in appropriate manner and has held that application under section 561-A, Cr.P.C. Is maintainable in the High Court after remedy of revision is exhausted in the Sessions Court but as a matter of practice it is done sparingly when there is patent illegality committed in the Courts below resulting into miscarriage of justice.

5. In the instant case,, learned A.O.R. Appearing for petitioner has not been able to show us or satisfy us that any patent illegality was committed by revisional Court in the appraisement of evidence while coming to the conclusion it did. In such cases, question of title is always to be decided by the Civil Court while question of possession is to be decided by the Criminal Court within the framework of section 145, Cr.P.C. High Court would not interfere under section 561-A, Cr.P.C. After remedy of revision is exhausted just because High Court on appreciation of evidence comes to a different conclusion but only when it is satisfied that in the appreciation of evidence by the lower Courts gross miscarriage of justice has taken place amounting to abuse of the process of the Court or interference is necessary to secure the ends of justice. In support, reference can be made to the case of Muhammad Shafique and others v. Abdul Hayee and others 1987 SCM R 1371.

6. For facts and reasons mentioned above, we are satisfied that there is no justification for interference in this case, hence leave is refused and the petition is dismissed.