1976 P Cr (PLP)

Mohammad Saeed Ahmad for Respondents. Qazi Umar Daraz Khan for the State. Date of hearing: 12th May 1975. In this Criminal Revision the petitioner has challenged the order dated 14‑1‑1975 of a Magistrate at Layallpur whereby in proceedings under section 145, Cr. P. C. he directed inter alts that the respondent No. 1 be put in possession in a half portion of tic shop in dispute which is situated in Jinnan Chak of Chak Jhumra, District Layallpur.

2. In his written statement filed under subsection (1) of section 145 respondent No. 1 admitted that he was forcibly dispossessed from the shop in dispute on the night between the 9th and 10th July, 1971. In fact at the time when the proceedings under section 145, Cr. P. C. were initiated by the local police a complaint filed by respondent No. 1 was already pending before the learned Magistrate under section 448 of the Pakistan Penal Code to that complaint too the case of respondent No. 1 was that he bad been forcibly thrown out of the shop on the night between the 9th and 10th July 1971. It will thus appear that even according try respondent No. 1's own showing his dispossession was completed on the right between the 9th and 10th of July, 1971.

3. The proceedings under section 145, Cr. P. C. started on a police report made on 27‑12‑

72. On this report the learned Magistrate passed the preliminary order of attachment on 28‑12‑72, that is, about a year and half after the dispossession of respondent No. 1 had been completed.

4. The only question for consideration in this criminal revision is whether the learned Magistrate could direct the restoration of possession to respondent No. 1 under section 145 of the Cr. P. C. when his dispossession had taken place more than two months before the making of the preliminary order of attachment. The answer is clearly in the negative. It is to be noticed that under subsection (4) of section 145 all that a Magistrate is required to decide is that which of the parties, if any, was at the time of the retaking of the preliminary order in possession of the property in dispute. By virtue of the first proviso to the said subsection a party which has been dispossessed within two months of the preliminary order can also be treated as if it was in possession on the date when the preliminary order was made. The order with regard to restoration of possession has to follow the finding so recorded. Thus subsection (6) empowers a Magistrate to restore possession to only that party which was or which was to be deemed to be by virtue of the first proviso in possession on the date of the preliminary order. A Magistrate has no jurisdiction to put in possession a partly which was not in possession within the meaning of subsection (4).

5. As already indicated according to the case of respondent No. I himself be was dispossessed by the petitioner from the shop in dispute about a ear and a halt' prior to the making of the preliminary order. This being so, the learned Magistrate could not under subsection (6) put him in possession of a portion of the shop in question. Thus the order of the learned Magistrate was without jurisdiction and must be quashed. I order accordingly. Petition accepted.