Haji SHER HASSAN KHAN Through Legal Heirs vs HIDAYATULLAH And Another
This matter originated from a dispute over the possession of a 'Baithak' between the petitioner and his nephew, leading to proceedings under Section 145/146 of the Code of Criminal Procedure 1898. The Magistrate initially found the respondent in possession, a decision reversed by the Sessions Judge who restored possession to the petitioner. Subsequently, the Peshawar High Court, exercising powers under Section 561-A of the Code of Criminal Procedure 1898, set aside the Sessions Judge's order and restored the Magistrate's original finding. The core legal question before the Supreme Court is whether the High Court was justified in invoking its extraordinary jurisdiction under Section 561-A of the Code of Criminal Procedure 1898 to interfere with a revisional order when an alternative, adequate remedy existed through the Civil Court. The Supreme Court granted leave to appeal to examine the propriety of this exercise of jurisdiction. The principle highlighted concerns the limitations of the High Court's inherent powers when statutory remedies or civil litigation avenues are available to resolve disputes regarding possession of immovable property.
- Whether the High Court is justified in exercising its extraordinary powers under Section 561-A of the Code of Criminal Procedure 1898 when an adequate remedy exists in the Civil Court?
- Can the High Court interfere with a revisional order of a Sessions Judge regarding possession of property under Section 561-A of the Code of Criminal Procedure 1898?
- Section 145, Code of Criminal Procedure 1898
- Section 146, Code of Criminal Procedure 1898
- Section 561-A, Code of Criminal Procedure 1898
ORDER
1. FAZAL ILAHI KHAN, J.-Legal heirs of Haji Sher Hassan khan petitioner are to be brought on record as prayed for subject to all just exceptions.
2. Leave to appeal is prayed for against the judgment and order of the Peshawar High Court, Peshawar dated 31-7-1993, in Cr. Misc. No.30 of 1993.
3. Haji Sher Hassan Khan predecessor-in-interest of the petitioners made an application under section 145/146, Cr.P.C. Against respondent No.1, his nephew, alleging that in order to take forceful possession of the disputed Baithak the respondent locked the same. Apprehending breach of peace he prayed for attachment of the Baithak or restoration of its possessions to the petitioner/applicant. The application was marked to the S.H.O. Concerned for report. The S.H.O. After making some inquiry recommended action under section 145, Cr.P.C. Accordingly, the learned Magistrate passed a preliminary order as required under the law. After filing their written statement both the parties-led their evidence where after the second party was found to be in possession of the Baithak on 6-12-1992 i.e. 4 months prior to the filing of the application.
4. Accordingly the second party was to retain possession. The first party challenged that in the revision before Sessions Judge, Swabi, who accepted the revision petition, set aside the order of the learned Magistrate and on the contrary declared Sher Hassan Khan to be in possession of the suit Baithak and ordered restoration of possession in his favour. The order in revision was challenged under section 561-A, Cr.P.C. In the Peshawar High Court, which was treated as a revision and on its acceptance the order of the learned Sessions Judge was set aside and that of the Magistrate restored. Hence this petition, After hearing the learned counsel for the petitioner leave to appeal is granted to consider; whether the High Court in exercise of its extraordinary powers under section 561-A, Cr.P.C. Was justified in interfering with the order of the Sessions Judge passed in revision when other adequate remedy by approaching the Civil Court was available to the aggrieved party.
5. N.H.Q./S-825/S