1989 P Cr (PLP)

Abdul Latif Khan for Respondents Nos. 1 to

3. Faizullah Khan Sadozai for the State. Date of hearing: 20th March, 1989. This application under section 561‑A, Cr.P.C. is directed against the orders, dated 3‑3‑1987 and 10‑7‑1987 passed by the learned Sub‑Divisional Magistrate exercising the powers of a Magistrate of the First Class, D.I. Khan, passed under section 145, Cr.P.C. and the learned Additional Sessions Judge, D.I. Khan under section 439‑A, Cr.P.C. respectively.

2. It appears from the record that the learned Magistrate passed an order under section 145(1), Cr.P.C. on 3‑3‑1987 that it was made to appear to him that there existed dispute between the applicant Chowdhry Bhurey Khan respondent herein and the opposite party, namely, Naseeb Shah etc. the petitioners herein, over the possession of land measuring 2 Kanals 14 Marlas bearing Khasra No‑81 situated in village Diwala, Tehsil and District D.I. Khan, and requiring the parties to file on 17‑3‑1987, written statements of their respective claims as respects the fact of actual possession of the disputed land. This order was assailed in a revision petition before the learned Additional Sessions Judge, D.I. Khan who had dismissed it on 10‑7‑1988 holding that the petitioners instead of lodging the revision petition before him should have invoked the provisions of subsection (5 of section 145, Cr.P.C. In consequence he held that in the given situation, the impugned order did not warrant any interference in exercise of his revisional jurisdiction and thus dismissed the revision. Hence this petition.

3. The learned counsel for the petitioners has reiterated his contention which he had raised before the learned Additional Sessions Judge that as a result of Court decree they had been given possession of an area of 15 Marlas in the disputed field declaring that property to be their ownership and as such the question of proceedings under section 145, Cr.P.C. did not arise.

4. As. against this, the learned counsel appearing on behalf of the answering respondent contended that since only symbolic possession of 15 Marlas of land out of disputed Khasra number had been delivered to the petitioners therefore, they could not be given the actual possession thereof unless and until the whole Khasra of which land in dispute was a portion was partitioned amongst the co‑owners.

5. It appears from the record that order under section 145(1), Cr.P.C. was passed by the learned Magistrate after holding preliminary enquiry and then directed the parties to file written statements as respects claim of their possession over the land by a specified date. The petitioners instead of representing their case before the learned Magistrate rushed to the revisional Court and then to the High Court for quashment of the proceedings. There does not appear any apparent legal flaw in the order under section 145(1), Cr.P.C. Nonetheless if the applicants cannot succeed on that score, all the objections which have been raised by the learned' counsel for the petitioners before the learned Additional Session. Judge or before this Court could be validly agitated in their written statement within contemplation of subsection (1) of section 145, Cr.P.C. of their claim as respects the fact of their actual possession of the subject of dispute. They may, if they so wish, also invoke the powers of the learned Magistrate under subsection (5) of section 145, Cr.P.C. The grievance of the petitioners which could be agitated before and decided by the Magistrate under subsection (5) of section 145, Cr.P.C. cannot be considered under the extraordinary jurisdiction under section 561‑A, Cr.P.C.

6. For the foregoing reasons, the application is dismissed. The Sub -Divisional Magistrate is directed to hold the enquiry on the basis of order under section 145(1), Cr.P.C. and may also decide under section 145(5), Cr.P.C. the objections, if any, raised by the petitioners herein within three months. The record to be returned to the Sub‑Divisional Magistrate expeditiously. S.A./780/P Petition dismissed.