1968S3193 (PLP)

HAMOODUR RAHMAN, J.

This is a petition for special leave to appeal from the judgment and order of a learned Single Judge of the High Court of West Pakistan, Peshawar Bench, accepting a reference under section 438 of the Criminal Procedure Code from the learned Additional Sessions Judge, Mardan. This reference arose out of a proceedings under section 145, Cr. P. C. in which a Magistrate of the First Class at Swabi had, upon a perusal of the oral evidence only, came to the conclusion that the father of the petitioner was, immediately before lodging complaint, in possession of practically the whole of fields, numbers 5133 and 5096, except for the portion on which there was a thrashing floor and boosara owned by the father of the respondent. The learned Additional Sessions Judge bad recommended that this order should be set aside because the learned Magistrate had not only failed to take into account the fact that the land in dispute was ghair mumkin gar which, according to the revenue records, was consistently shown to be in the joint ownership of the owners, but also ignored even portions of the oral evidence which appeared to support the entries in the revenue records. The High Court agreed with the learned Additional Sessions Judge and came to the conclusion after examining the evidence, both oral and documentary, that the finding of the Magistrate as to possession was based on no evidence "because apart from the entries in the khasra girdawari there is no evidence to show that the father of the petitioner was in exclusive possession of the disputed lands". The order of the Magistrate was accordingly, set aside and the petitioner's father who was the respondent in the High Court, was directed to seek big remedy in the proper Court of law. The petitioner now seeks special leave to appeal but we can find no ground for interference in this matter. Learned counsel appearing in support of the petition concedes that the land is ghair mumkin gar which means that it is an area containing stones and bushes. It also appears that it has not been cultivated since 1951. It is also conceded that the revenue records consistently show the lands in dispute to be in the joint possession of the owners except for the area underneath the thrashing floor and the Boosara. The High Court has referred in detail to this documentary evidence which was not referred to by the Magistrate. In the circumstances the High Court was fully entitled in its power of revision to set aside the order of the Magistrate and no legitimate objection can be taken to the order of the High Court. No prejudice also has, by this order, been caused to the petitioner, for, he has merely been directed to seek his remedy in a proper Court of law. He can do so if he has any just claim to the area in dispute. This petition is, however, dismissed. Leave refused.