P L D 1961 (W (PLP)

S. 145 ‑Magistrate may pass preliminary order before summoning parties ORDER OF REFERENCE BY DISTRICT MAGISTRATE The Narang police reported to the Ilaqa Magistrate that there was great probability of breach of peace concerning agricultural land situated in village Narang. The facts of the case briefly are that one Haveli owner of a certain land situated in village Narang. Tehsil Shahdara died in 1927 without any mate‑issue He prior to his death had, however, mutated his entire land in favour of his wife Mst. Nawab Bibi, who in turn had mutated the land in favour of her daughter Mst. Rabia Bibi. Mts. Nawab Bibi died in 1957. After her death one Mst. Karam Bibi instituted a suit for possession of the land on the ground that she being the sister of Haveli, was entitled to a certain share of the land in dispute. Her claim was established by the Civil Court to the extent of 5/24th of the land. The litigation, is, however, pending before the High Court. Mst. Karam Bibi was given symbolical posses sion of her share of land in execution of the decree passed by the Civil Court in her favour. It was also reported by the police that Barkat Ali, Fateh Muhammed and Safdar Ali sons of Mst. Karam Bibi had forcibly taken into their possession 8 acres of land bearing khasra Nos. 430, 432, 437 and 438. Due to the imminent danger of breach of peace the Ilaqa Magistrate Mr. Saeed Ahmad, Magistrate Ist Class. Sheikhupura pissed an order under section 145, Criminal Procedure Code on 4‑8‑60, that the parties should present their respective claims on 6‑9‑60 and that the land in dispute should remain in possession of Mst. Nawab Bibi till further orders. The lower Court further ordered that if Mst. Karam Bibi or any of her representatives were found in possession of any portion of disputed land; the police should oust them and deliver the possession to Mst. Nawab Bibi. Mst. Karam Bibi presented a revision petition under section 435, Criminal Procedure Code, against the order of the Ilaqa Magistrate. The contention of the petitioner is firstly that the learned Magistrate had no jurisdiction to pass a preliminary order under section 145, Criminal Procedure Code, without hearing the parties and secondly that he erred in holding that Mst. Nawab Bibi was in possession of the land in dispute because Mst. Nawab Bibi had died in 1957. The counsel for the respondents has not been able to show any provision of law according to which a preliminary ex parte order like this could be passed. Moreover, it is admitted by the respondent that Mst. Nawab Bibi has already died. Therefore, the question of delivery of possession to Mst. Nawab Bibi does not arise. Under the above circumstances I am of the view that the petition should be accepted. No order reversing the decision of the lower Court can, however, be passed in revision by this Court and the matter is, therefore, recommended under section 438, Cr. P. C. to the High Court, West Pakistan for setting aside the preliminary order in question. In the meantime I have directed that the order in question will remain suspended. S. Imam Ali Kazmi for Petitioner. Abdul Aziz Malik for Respondent. Date of hearing : 12th April 1961. The facts are sufficiently mentioned in the order of reference made by the District Magistrate, Sheikhupura. Proviso second to subsection (4) of section 145 of the Code of Criminal Procedure empowers a Magistrate that if he considers a case to be one of emergency, he may at any time attach the subject of dispute pending the decision under this section. Subsection (8) empowers the Magistrate to make an order for the proper custody or sale of a property in case it is subject to speedy and natural decay but a Magistrate is not empowered to order the delivery of the possession of the property in dispute to any of the parties before the passing of a final order. 2. The learned District Magistrate has pointed out two defects in the order under consideration, firstly, that the learned Magistrate had no jurisdiction to pass a preliminary order without hearing the parties This objection is rot valid as a Magistrate exercising powers under section 145 of the Code of Criminal Procedure is required to pass a preliminary order before summon ing the parties. Consequently, the order passed by the learned Magistrate is not bad. The second objection that has been taken against that order is that Mst. Nawab‑ Bibi having died in the year 1957, the restoration of possession to Mst. Nawab Bibi could not have been ordered. The name of Mst. Nawab Bibi seems to have been mentioned through a clerical mistake. In fact, the intention of the learned Magistrate was to hand over the posses sion to Mst. Rabia Bibi, the daughter of Mst. Nawab Bibi. If the learned Magistrate had the power to order the transfer of possession pending the decision, I would have only corrected this mistake and substituted the name of Mst. Rabia Bibi in place of Mst. Nawab Bibi ; but, as discussed above, the law does not empower a Magistrate to pass any interim order restoring possession to any of the parties during the pendency of the proceedings under section 145, Criminal Procedure Code. Such an order can only be passed at the conclusion of the proceedings. I would. therefore cancel the order of the learned Magistrate so far as it relates to the delivery of the possession of the land in dispute to Mst. Nawab Bibi. The learned Magistrate, in case he considers the case to be one of emergency, would attach the property and appoint a proper person to be the receiver and entrust posses sion of the property in dispute to him till such time as he passes a final order in the proceedings. The case will be sent back to the learned trial Magistrate to proceed further in accordance with law. K. M. A. Reference answered.