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Criminal Revision Application No. 35 of 1955, decided on 31st October 1955.
S. 145‑Magistrate has, no jurisdiction to pass an order under S. 145 in respect of evacuee property‑Pakistan (Administration of Evacuee Pro perty) Ordinance (XV of 1949), S. 12.
A Magistrate has no jurisdiction to pass an order under section, 145 Cr. P. C. as such an order is barred by the provisions of section 12, Pakistan (Administration of Evacuee Property) Ordinance (XV of 1949).
Ahsanul Haq for Applicants.
Z. C. Valliani for Opponents.
--This revision must succeed as the learned Magis trate had no jurisdiction to pass an order under section 145 Criminal P. C. in respect of evacuee property. Section 12 of Pakistan Administration of Evacuee Property Ordinance (XV of 1949) runs thus :
"Property which has vested in, or of which possession has been taken by the Custodian, shall be exempt from all legal process, including seizure, distress, ejectment, attachment or sale by any officer of a Court, and no injunction or other order of whatever kind in respect of such property shall be granted or made by any Court".
The section is exhaustive and all embracing. Even the criminal Courts come within the mischief of section 12 and they are not competent to exercise any power by virtue of section 145, Criminal P. C., it has been argued by Mr. Valliani that grave consequences are likely to ensue if no such power is conceded to First Class Magistrates. I do not find much force in this apprehension. The Criminal Court can take action under section 107, Criminal P. C. and also may draw attention of the Custodian to the existing dispute. I do not think he would be unreasonable enough to turn a deaf ear to the representation made. In any case the Magistrate can proceed under section 107, Criminal P. C.
The revision therefore, must succeed and the order im pugned is set aside. The Magistrate shall restore the property to the party from which possession had been taken.
A copy of this order should be sent to the Custodian.
A. H. Petition accepted.
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