IN
THE HIGH COURT OF SINDH AT KARACHI
Criminal Revision
Application No.211 of 2023
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DATE ORDER WITH SIGNATURE(S) OF
JUDGE(S)
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For rehearing of case
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21.05.2025
Mr.
Taqdir Ali Khan, advocate for applicant
Ms.
Rubina Qadir, D.P.G.
Mr.
Muhammad Javed, A.A.G.
Mr.
Ayaz Ali Burriro, advocate
for respondent No.1
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Shamsuddin Abbasi,
J.— Through this criminal revision application,
applicants Mst. Bibi Fatima
wife of Imamuddin and Imam Rafiuddin
son of Imamuddin have impugned order dated
14.10.2023, passed by learned Additional Sessions Judge-III, Karachi South in
Illegal Dispossession Petition No.14 of 2023, in which present applicants above
named were arraigned as proposed accused, whereby learned Additional Sessions
Judge has taken cognizance of the matter and issued BWs against the proposed
accused.
2. Brief facts of the case are that husband of respondent No.1
is a lawful and absolute owner of property i.e. House constructed on
residential Plot No.1158, Sheet No.1, Akhtar Colony, Karachi on the basis of sale deed. On 17.09.2022 proposed
accused forcibly occupied the portion of subject property, applicant and her
husband tried to vacate the premises but they failed to; proposed accused No.1
filed Civil Suit No.1370/2022 against husband of applicant, which is pending
before competent Court of law. The complainant also stated that proposed
accused No.1 filed an application under section 22-A and 22-B Cr.PC before the Court of law, which was dismissed. It was
also alleged by the complainant that proposed accused are also extending
threats of dire-consequences. It was further stated by the applicant that her
household articles are lying in the occupied room of the house,
however, she is not allowed to enter the house. Since the portion of said house
has been illegally occupied therefore its possession may be restored to her.
3. Learned counsel for applicant submits that the impugned order passed by
learned trial Court is erroneous and bad in law; that impugned order has been passed
without providing opportunity of hearing to the applicant whereas the mandate
of law is that one no one should be condemned unheard and every litigant should
be provided with a fair opportunity to plead and defend his/her case by
adhering to the principle of audi alteram partem; therefore,
the same is liable to be set aside; that there is civil dispute between the
parties and the respondent tried to convert civil litigation into criminal
proceedings; that Illegal Dispossession Petition was incompetently filed as the
subject property was allegedly purchased by husband of petitioner, whereas,
said petition was filed by his wife and learned Additional Sessions Judge
without taking into consideration factual aspects of the case issued bailable warrants against proposed accused, therefore, the
impugned order is illegal.
4. On the other hand, learned counsel for respondent No.1 Mst. Nadir Jamal Khan submits that respondent No.1 is
lawful owner of the subject property; that the proposed accused earlier filed a
suit for partition but she failed to produce the title documents proving
ownership in her favour whereas respondent No.1 produced
title documents i.e. registered sale deed, receipt of payments made in respect
of sale consideration of the subject property as well as utility bills for the
years 2021 to 2023; that applicants illegally occupied the portion of the
aforesaid house, therefore, she filed Illegal Dispossession Petition No.14 of 2023 and
learned Additional Sessions Judge has rightly taken cognizance of the matter
and issued bailable warrants against the
applicants/proposed accused.
5. Learned D.P.G. fully supported the impugned order passed by learned trial
Court in Illegal Dispossession Petition No.14 of 2023 and states that
rightly cognizance of the matter has been taken by learned trial Court and
issued bailable warrants against the
applicants/proposed accused.
6. Heard learned counsel for applicant, learned
counsel for respondent No.1 and learned D.P.G. and perused the material
available on record.
7. Perusal of impugned order reflects that
after receipt of complainant, report was called from SHO of the Police Station
concerned who, after conducting proper inquiry, submitted report stating
therein that both the parties are relatives and real uncle of husband of
complainant, namely, Murad Khan and said Murad Khan transferred the subject property in the name of
husband of complainant through registered sale deed; that KMC Land Department
verified that owner of subject property was Murad
Khan, who transferred such property in favour of Mir Ajab Khan, husband of complainant, through registered sale
deed, which was also verified by concerned Sub-Registrar whereas proposed
accused have occupied one room of the subject property and filed suit for
cancellation which is pending. However, learned Additional Sessions Judge,
after hearing the learned counsel of both the parties and having gone through
the material available on record passed the impugned order, relevant portion
whereof is reproduced below:
“On perusal of the record,
it appears that the proposed accused have claimed that they were in possession
and permitted the complainant to reside in the subject property but he has
illegally encroached upon it. However, they have not produced any proof of
possession in shape of utility bills etc. On the other hand, the complainant
has registered sale deed in favor of her husband. The complainant/applicant has
also produced copy of sale agreement, receipt of payment of sale consideration
and utility bills pertaining to 2021, 2022 and 2023 Respondent/SHO has also
submitted inquiry report in favor of the complainant. Accordingly, the instant
complaint is hereby established and cognizance is hereby taken in the
complaint. Office is directed to issue BWs against both the proposed accused in
the sum of Rs.20,000/- each for the next date of
hearing. Order accordingly.”
8. The order passed in I.D. Petition No.14 of 2023 whereby
cognizance has been taken by learned trial Court and issued bailable
warrants for procuring attendance of proposed accused. In case of taking
cognizance of offence after hearing the accused persons and the prosecutor, if
Court considers that charge is groundless or that there is no probability of
accused being convicted of any charge, it may record acquittal under section
249-A Cr.PC and or Section 265-K Cr.PC
as the case may be. Exercise of inherent jurisdiction is dependent on non-availability
of alternate and efficacious remedy and or existence of some extraordinary
circumstances warranting exercise of such jurisdiction, bypassing such
alternate remedy by High Court. Another rule of propriety, that has evolved by
precedent law must not lose sight is that where two Courts have coextensive or
concurrent jurisdiction, than propriety demands that jurisdiction of Court of
the lower grade is to be invoked in the first instance as held by the Supreme
Court of Pakistan in the case of Muhammad Farooq
versus Ahmed Nawaz Jagirani and others (2016 PLD SC
55).
9. The remedy under Section 561-A, Cr.PC
is not an alternate and or substitute for an express remedy as provided under
the law in terms of Sections 435 to 439, Cr.PC and or
Sections 249-A or 265-K, Cr.PC, as the case may be.
One cannot be allowed to bypass and or circumvent the ordinary remedy in normal
course of the event. In the case of Maqbool Rehman v. State (2002 SCMR 1076) in paragraph 6 thereof, it
was held that "normally, High Court does not exercise inherent
jurisdiction unless there is gross miscarriage of justice and interference by
High Court seems to be necessary to prevent abuse of process of Court or to
secure the ends of justice. Jurisdiction under section 561-A, Cr.PC is neither alternative nor additional in its nature
and is to be rarely invoked only to secure the ends of justice so as to seek
redress of grievance for which no other procedure is available and that the
provisions should not be used to obstruct or direct the ordinary course of
Criminal Procedure. This kind of jurisdiction is extraordinary in nature and
designed to do substantial justice. It is neither akin to appellate nor the revisional jurisdiction.
10. Hon’ble Supreme Court of Pakistan in
the case of Bashir Ahmed v. Zafar-ul-Islam
(PLD 2004 Supreme Court 298) after examining the legislative history of Section
561-A, Cr.PC in paragraph 23 of its judgment
summarized the circumstances under which the inherent jurisdiction could be
exercised by the High Court, which reads as under:-
"(i)
The said provision should never be understood to provide an additional or an alternate
remedy nor could the same be used to override the express provisions of law;
(ii) the
said powers can ordinarily be exercised only where no provision exists in the
Code to cater for a situation or where the Code offers no remedy for the
redress of a grievance;
(iii) inherent powers can
be invoked to make a departure from the normal course prescribed by law only
and only in exceptional cases of extraordinary nature and reasons must be
offered to justify such a deviation; and
(iv) in the matter of
quashing criminal proceeding, the trial must ordinarily be permitted to take
its regular course envisaged by law and the provision of section 561-A, Cr.PC should be invoked only in exceptional cases for
reasons to be recorded."
11. Learned counsel for applicant mainly contended that civil
litigation is pending between the parties. It is settled by now that civil
litigation and criminal litigation can go side by side as held in the case of Shaikh Muhammad Naseem versus Mst. Farida Gul (2016 SCMR 1931).
12. In view of foregoing discussion, I do not find any illegality
or irregularity in the impugned order; question of misreading and non-reading
of evidence or material does not arise warranting
interference by this Court. The matter requires further probe by leading
evidence by both the parties before the trial Court concerned. Therefore,
instant criminal revision application is dismissed.
However applicants are at liberty to file proper application before learned
trial Court for their premature acquittal in accordance with law. Learned Additional
Sessions Judge concerned may proceed further with the matter pending
adjudication, strictly in accordance with law.
J U D G E
Gulsher/PS