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Criminal Petition for Special Leave to Appeal No. 306 of 1969, decided on 29th January 1970.
(On appeal from the judgment and order of the High Court of West Pakistan (Bahawalpur Circuit, Baghdadul Jadid), dated the 17th November 1969, in Cr. Ref. No. 116 of 1968/BWP).
S. 145‑Dispute as to possession of immovable property‑Magistrate, passing order under S. 145 and declaring person as illegally dispossessed and entitled to possession‑Such order not merely declaratory in nature‑Court required under S. 145 to declare which of contesting parties entitled to remain in possession‑Identity of land fully set out in application as also in' preliminary order‑Magistrate's order that that order was merely declaratory in nature and identify of land not specified therein, held, erroneous‑Such order, held amounted to review .of previous order and being not backed by legal authority Magistrate had no jurisdiction to review it.
Javaid Iqbal, Advocate Supreme Court instructed by Masud Akhtar Sheikh, Advocate-on‑Record for Petitioners.
Nemo for Respondents.
Date of hearing : 29th January 1970.
‑Faiz Mohammad, respondent, moved an application under section 145 of the Code of Criminal Procedure in the Court of the Additional District Magistrate, Rahimyar Khan, on the assertion that he was wrongly dispossessed of two squares of land by the petitioners herein. A protracted inquiry was held and eventually an order in his favour was passed on 27‑11‑1962 declaring that he had been illegally dispossessed by the petitioners and that he was entitled to rec6ver possession. Thereafter the respondent No. 1 moved successive applications for implementation of the order of the 27th November 1962, but without any success. In the meantime, the 'petitioners filed a civil suit and obtained an injunction on appeal from the Court of the District Judge which was eventually vacated by the High Court. However, the Additional District Magistrate, when moved again by the respondent No. 1 for delivery of possession, dismissed the application for the reason that the order dated the 27th November 1962, was only declaratory A and the identity of the land was not specified in it.
In substance, the Additional District Magistrate had reviewed the order dated the 27th November 1962, for which he had no legal authority. The Sessions Judge, accordingly, at the instance of the respondent No. 1 made a reference to the High Court for setting aside the order as illegal and without jurisdic tion. The reference was accepted by the High Court with which the petitioners feel aggrieved.
On hearing learned counsel we find no reason to differ' with the view formed by the Sessions Judge and affirmed by the High Court. The order dated the 27th November 1962, had attained finality and under the Code of Criminal Procedure the Additional District Magistrate did not have the jurisdiction to review it. The conclusion reached by him that the order 6 was declaratory in nature was also erroneous inasmuch as under section 145 the Court is required to declare which of the parties before it, is entitled to remain in possession. Similarly, the identity of the land in dispute wag fully set out in the application made by respondent No. 1 as well as in the preliminary order passed under subsection (1) of section 145.
In the circumstances, no exception can be taken to the order passed by the High Court accepting the reference and setting aside the order of the Additional District Magistrate dated the 27th November 1962.
The petition for leave to appeal is dismissed.
Petition dismissed.
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