2007 PLP 2777 (YLR)

IJAZ AHMAD CHAUDHRY, J.--Through this writ petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973, the petitioner has challenged the validity of order, dated 1-4-2006 passed by the learned Special Judicial Magistrate, whereby he held respondent No.3 (Ch. Ghulam Farooq) as owner of the disputed property and directed the S.H.O. concerned to restore the possession of the same to him. The petitioner being aggrieved filed revision petition before the learned Addl. Sessions Judge, Gujranwala, who accepted the same vide order, dated 17-10-2006 and while setting aside the impugned order remanded the case back to the learned Judicial Magistrate to decide afresh recording the respective evidence of both the parties.

2. The brief facts of the case are that Ghulam Farooq (respondent No.3) moved an application to the DIG, Gujrarwala alleging therein that he was owner of the disputed plot on the basis of registered sale-deed and that in his presence the petitioner took over the possession of the same unauthorized and forcibly. The application was marked to S.H.O. P.S. Civil Line, Gujranwala, who initiated proceedings under section 145, Cr.P.C. and submitted "Qalandara" in the Court of learned Judicial Magistrate, who passed the impugned order, dated 1-4-2006. The petitioner being aggrieved filed revision before the learned Addl: Sessions Judge, Gujranwala, who while accepting the same vide order, dated 17-10-2006 remanded the case to the learned Judicial Magistrate with the direction to decide the same afresh after recording respective evidence of both the parties and after conducting thorough inquiry. He further directed to seal the disputed plot till the final disposal of the same to avoid of any breach of peace. Hence, this writ petition.

3. The learned counsel for the petitioner has contended that there was no reason for initiating proceedings under section 145, Cr.P.C. that proceedings under sections 107 and 151, Cr.P.C. have t already been initiated against the parties; that the respondent has alleged that he had been dispossessed from the disputed plot by the petitioner illegally but it is not true fact and that a civil suit is pending between the parties and proceedings 145, Cr.P.C. cannot be continued in such circumstances.

4. I have heard the arguments and gone through the impugned orders as well as the other documents attached with this writ petition.

5. Both the parties have claimed their ownership upon the disputed premises and the police in such circumstances reported the matter that there are chances of breach of peace whereupon the learned Magistrate initiated proceedings under section 145, Cr.P.C, The learned Addl: Sessions Judge has discussed in detailed the facts and circumstances of the case in his order, dated 17-10-2006. Even otherwise, the petitioner has admitted that private respondent claimed that he is in possession of the disputed property and he has also filed a civil suit in this regard, wherein status quo order has been passed by the Civil Court. The petitioner allegedly violated the status quo order and then application under Contempt of Court Act has also been filed against the petitioner. In such circumstances, it cannot be said that the initiation of proceedings under section 145, Cr.P.C. was illegal. Moreover, the learned Addl: Sessions Judge has only remanded the case to the learned Judicial Magistrate for passing afresh order after recording whole evidence of both the parties and the matter is still open to the parties, who can produce the evidence to refute the claim of the other party. Even otherwise, the writ petition is not maintainable against the remand Order as the matter is still to be finally decided by the Court of competent jurisdiction and it cannot be said that no other remedy is available to petitioner. Any findings of this Court on merits of the case at this stage may prejudice the case of either party in the appropriate proceedings. Consequently, this writ petition being not maintainable is dismissed in limine. H.B.T./M-227/L Petition dismissed.