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Criminal Revision No.930 of 1967, decided on 16th March, 1985.
‑‑‑Ss. 145 & 438‑‑Reference to High Court‑‑Magistrate passing order without taking into consideration material on record as to which of two parties was in actual physical possession of disputed land two months next preceding date of preliminary order‑‑Reference accepted and case remanded for decision afresh.
Sh. Maqbool Ahmad II for Petitioners Nos. 1 to 5.
Nemo for the State.
Date of hearing: 16th March, 1985.
This order will deal with three criminal revisions namely Criminal Revision 930 of 1967, Criminal Revision 931 of 1967 and Criminal Revision 1082 of 1967. Criminal Revision 930 of 1967 and Criminal Revision 931 of 1967 arise out of a joint reference made under section 438, Cr. P. C. by the learned District Magistrate, Lahore, recommending quashment of the order of the learned Magistrate, dated 31‑3‑1966 and for the remand of the case to another Magistrate with a direction to hear the case and decide the same in accordance with law.
2. Criminal Revision No. 1082 of 1967 is a revision filed by Pira and others, petitioners Nos.1 to 5, against Shamas Din and bther6, respondents Nos.1 to 4, for a direction restraining Mr. S.M. Ismail, Magistrate, Lahore from changing the Receiver, pending the disposal of the above two references by this Court.
3. Sh. Maqbool Ahmad II, Advocate, appears on behalf of Pira and others in the above three revision petitions. Registered A.D. notices were issued to Shamas Din and others for today's date of hearing, but nobody has turned up on their behalf.
4. With the assistance of Sit. Maqbool Ahmad II, Advocate, I have read the record. It appears that Mr. S.M. Ismail, M.I.C., Lahore, whilst passing his order, dated 31‑3‑1966, did not take into consideration the material which was on the record to determine as to which of the two parties was in actual physical possession of the dispute land two months next preceding the date of the preliminary order. I agree with the learned District Magistrate, Lahore, that there is evidence on the file which the trial Magistrate has not cared to consider.
5. In view of the above, revision petitions Criminal Revision No.930 of 1967 and Criminal Revision No.931 of 1967 are both accepted. The order of Mr. S.M. Ismail, M.I.C., Lahore, dated 31‑3‑1966, is set aside and the case is remanded to another Magistrate with a direction to hear the arguments afresh and to give a final decision in the matter, after properly applying his mind as to which of the .two parties was in actual possession of the disputed property two months next preceding the date of the preliminary order.
6. The District Magistrate is hereby directed to entrust the case to a competent Magistrate, with a direction that he should take up the same day to day, subject to all just exceptions, and decide the case within six months.
7. With regard to Criminal Revision 1082 of 1967, the order of Mr. S.M. Ismail, Magistrate, Lahore, appointing Abbas Shah, respondent No.3, as a Receiver is hereby quashed. The Magistrate before whom the case is now being sent shall be at liberty to pass a fresh order, after giving notice to both the opposing parties and hearing them.
8. For the foregoing reasons, all the three above revision petitions stand accepted.
M. A. K. Revision petitions accepted.
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