1995 P Cr (PLP)

2. Brief facts are that the petitioner Muhammad Shafi was in physical possession of agricultural land, that is, Square No.41, Killas Nos.7 to 10 including house constructed thereon before 26-6-1991. On 26-6-1991, Shadi Khan respondent No. l ousted the petitioner from the said land forcibly and illegally. As there v6s likelihood to arise a dispute, which could be a cause of breach of peace the S.H.O. Bhalwal made a report under section 145, Cr.P.C. to the Assistant Commissioner/Sub-Divisional Magistrate, Bhalwal respondent No.3.

3. The learned Assistant Commissioner after summoning the parties to put in their written statements under section 145(1), Cr.P.C. recorded the evidence of both the parties in support of their respective claim, visited the spot and also perused the record of Revenue Patwari concerned.

4. The learned Assistant Commissioner, Bhalwal vide his order, dated 26-7-1992 decided the matter in favour of the petitioner Muhammad Shafi holding that within two months prior to the passing of order, he had been in possession but was forcibly and wrongfully dispossessed from the disputed land, as maintained above by respondent No. l, but at the same time under section 145(6), Cr.P.C. instead of restoring the possession of disputed land to the petitioner, left the matter of title regarding the disputed property to the judgment of competent Court.

5. The petitioner aggrieved of the order, dated 26-7-1992 passed by the learned Assistant Commissioner, Bhalwal, filed a revision petition before the learned Additional Sessions Judge, Bhalwal, praying therein that the said impugned order be modified to the extent of decision of the title of disputed land by some competent Court and also prayed that the petitioner be put in possession of the disputed land mentioned above. The learned Additional Sessions Judge, dismissed the revision in limine but by the same order, dated 9-8-1992 advised the petitioner to move Assistant Commissioner, Bhalwal for a warrant of possession under section 145(6), Cr.P.C. for restoration of possession. The petitioner accordingly applied before the learned Assistant Commissioner, Bhalwal who vide his order, dated 7-9-1992 rejected the application with observation that unless the petitioner gets his title regarding disputed land declared from any competent Court, no proceedings could be taken under section 145, Cr.P.C. for the restoration of possession. The petitioner aggrieved by this order of the learned Assistant Commissioner, dated 7-9-1992 filed a revision petition before the learned Additional Sessions Judge, Bhalwal.

6. At this stage, respondent No. l, Shadi Khan, also filed a revision petition against the order, dated 26-7-1992 passed by the learned Assistant Commissioner, Bhalwal wherein he challenged the finding of the Court confirming the possession of the petitioner over the abovementioned disputed land within two months next before the date of order and that the petitioner had been ousted there from by respondent No. l, forcibly and wrongfully. The learned Additional Sessions Judge, - heard both the revision petitions and dismissed the same vide his single order, dated 28-2-1993, hence these writ petitions.

7. The contentions of the petitioner/respondent No. l in Writ Petition No-4927 of 1994 are that Mutation No.3730 was got entered by the petitioner Muhammad Shafi by fraudulent act and then the Deputy Commissioner had recorded the finding; thus Mutation No.3730, dated 25-9-1986 affected was allowed to be corrected. A criminal case was also t6 be registered against the petitioner Muhammad Shafi. Muhammad Shafi petitioner challenged the validity of the aforesaid order of the Collector upto the level of Member, Board of Revenue, Punjab Lahore and failed. Then; lastly he challenged the vires thereof before this Court by way of moving Criminal Miscellaneous No.42/Q of 1992 whereby his Lordship Mr. Justice Fazal Karim was pleased to hold as follows: "It- is not necessary to go into the question whether the Deputy 'commissioner was or was not actuated by malice in having this case registered against the petitioners. It is sufficient to say that the facts do disclose the commission of a criminal offence at all. Admittedly, Muhammad Shafi, petitioner is a nephew of Muhammad Hussain. Muhammad Hussain was not survived by a son and it was, therefore, for that reason that Muhammad Shafi was given a share in his estate. Assuming that inheritance mutation was wrong and Muhammad Shafi was not entitled to any share in Muhammad Hussain's estate, all that the Deputy Commissioner could do was to direct the review of the mutation. He has exercised that jurisdiction and it is now for the parties to take the matter to the Civil Court, that being the Court of ultimate jurisdiction in such matters. As to the Mutation No.3163 and Mutation No.3241, again the question whether they were the result of fraud and misrepresentation was for the Civil Courts, for those mutations were based upon the decisions of the Civil Courts."

8. Thus, the order of the Deputy Commissioner/Collector, dated 28-5-1989 to the extent of the registration of a criminal case against the petitioner Muhammad Shag was held to be an abuse of process of law. Hence, the petitioner in Writ Petition No.4927 of 1994 prayed that the orders passed by the Assistant Commissioner, Bhalwal, dated 26-7-1992 and that of Additional Sessions Judge, dated 28-2-1993 be declared to have been made, without any lawful authority and of no legal effect.

9. I have heard the arguments advanced by the learned counsel for the 'parties at length and have gone through the record carefully.

10. In this matter, it is the case of the petitioner Muhammad Shafi that he was dispossessed by respondent No. l, Shadi Khan forcibly and wrongfully when he had been in possession before 26-9-1992 while respondent No. l, Shadi Khan petitioner's case is that Muhammad Shafi fraudulently got sanctioned Mutation No.3730 which was ordered by the Deputy Commissioner/Collector to be corrected and a case was registered against him but was quashed in Criminal Miscellaneous No.42/Q of 1992 by his Lordship Mr. Justice Fazal Karim, hence it is established that Muhammad Shafi was, in fact, in possession of the land by fraudulent act or otherwise. Relying on the law as laid down by their Lordships of Supreme Court of Pakistan in the Commissioner and another v. M. Sher Muhammad 1972 S C M R 395 and case titled Muhammad Akbar v: Additional Sessions Judge, Lahore and 3 others 1983 P Cr. L J 1355, I am of the view that in the proceedings under section 145, Cr.P.C. the learned trial Magistrate is only to decide as to which party was in possession of disputed land within two months, next before the date of such order and when comes to conclusion that any party has within two months next before the date of orders been forcibly and wrongfully dispossessed by the other party, then it is obligatory upon the Magistrate to restore its possession to the party. For the foregoing reasons, Writ Petition No.4555 of 1993 is accepted while Writ Petition No. 4927 of 1994 is dismissed being without any merits. The impugned orders, dated 26-7-1992, 7-9-1992 passed by the learned Assistant Commissioner, Bhalwal and order, dated 28-2-1993 passed by the learned Additional Sessions Judge, Bhalwal are hereby modified to the effect that the possession of the disputed land be restored to the petitioner Muhammad Shafi. N.H.Q./M-1858/L?????? ?????????????????????????????????????????????????????????????????????? Order accordingly.