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Petition for Special Leave to Appeal No. 23‑P of 1973, decided on 5th December 1973.
(On appeal from the order of the Peshawar High Court, dated the 30th of March 1973, in Criminal Revision No. 72 of 1973).
Criminal Procedure Code (V of 1898)‑
‑‑ S. 145‑Magistrate ordering restoration of possession to a party without arriving at conclusion that such party had been in possession on relevant date‑Documentary evidence revealing opposite‑party to have been in possession on such date‑Magistrate's order, held, rightly set aside by High Court as illegal.
Muhammad Shaft, Senior Advocate Supreme Court instructed by ht. Qasim Imam, Advocate‑on‑Record for Petitioner.
Nemo for Respondents.
Date of hearing : 5th December 1973.
SALAIIUDDIN AHMED, J.‑
This petition arises out of the following order of the Magistrate passed in a proceeding under section 145 of the Code of Criminal Procedure :‑
"In view of the above discussion I declare Party No. 1 (Abdur Razzaq) to be entitled in possession of the disputed land until evicted there from in due course of law and forbidding all disturbance of such possession until such eviction. I further order that Party No. 1 should be restored the possession of the disputed land if evicted there from or forcibly and wrongfully dispossessed. The aggrieved party to seek his legal remedy in competent criminal or civil Court."
Party No. 1, Abdur Razzaq mentioned in the order just quoted is the petitioner before us, and he has been aggrieved by the order of a learned Single Judge of the High Court setting aside the aforesaid order of the Magistrate. The learned Single Judge held that the order was illegal inasmuch as it did not say who was found to be‑in possession of the property in dispute on the relevant date. The learned Judge further found that upon the evidence it was clear that respondent Bahadur was the lessee of the property and in possession up to the end of Rabi 1971 and that Girdawari of Rabi 1971 took place on the 27th of April 1971. The proceeding under section 145 of the Code of Criminal Procedure was started on the 22nd of April 1971, i.e. before even the Girdawari took place. We think that the learned Judge is right.
There is no substance in the petition and it is, accordingly, dismissed.
Petition dismissed.
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