P L D 1964 (W (PLP)

It is, therefore, recommended that the revision petition be accepted, the order of the learned Magistrate be quashed and be substituted by an order declaring Ghulam Mustafa to be entitled to the possession of the shop until evicted from in due course of law and forbidding to disturbance of his possession until such eviction restoring the possession to him. Khan Hamid All Khan Sharwani for Petitioner. Raja Said Akbar and Dilawar Mahmud for the State. Dates of hearing : 18th and 25th November 1963. This is a reference by the learned Additional Sessions Judge, Rawalpindi, to quash the order passed by Mr. M. R. Khalid, Magistrate 1st Class, Rawalpindi, dated the 24th of July 1962, in proceedings under section 145, Cr. P. Code mainly on the ground that the impugned order was against the weight of the evidence. The learned Additional Sessions Judge was also of the opinion that it was necessary under section 145 (4), Cr. P. Code for the learned Magistrate to consider the effect of the evidence produced by the parties in proof of their possession of the shop in dispute and to decide which of the parties was at the date of the order passed under subsection (1) in actual possession of the shop without reference to the merits or the claims of any of such parties to a right to possess the shop and further that under the first proviso to subsection (4) of section 145, Cr. P. Code the trial Court should have treated the party which had been dispossessed within two months next before the date of his order as if he had been in possession on such date and if Ghulam Mustafa petitioner was dispossessed on the 31st of January 1962, he could not have been treated out of possession on the 23rd of February 1962, and consequently the final order of the trial Court releasing the shop in favour of Abdul Karim respondent was not in accordance with the provisions of subsection (6) of section 145, Cr. P. Code. The learned Additional Sessions Judge, therefore, made a recommenda tion to this Court that the order of the trial Court be set aside and be substituted by an order declaring Ghulam Mustafa to be entitled to the possession of the shop until evicted in due course of law.

2. The facts which led to the reference may be stated briefly as follows : On the 31st of January 1962, a case under section 448, P. P. Code was registered at Police Station A‑Division, Rawalpindi, against Abdul Karim and three others, namely, Ayub, Akram and Qalandar, in respect of criminal trespass committed by them in shop bearing No. V/518‑19, Namak Mandi, Rawalpindi. A report was made to the Ilaqa Magistrate by the investigating Police Officer saying that there appeared to be a danger of the breach of the public peace owing to a dispute relating to the shop and for taking action under section 145, Cr. P. Code. On the 3rd of February 1962, the learned Magistrate passed the order which runs: "The complaint has been received today. The subject of the dispute is a shop about which a case has already been registered. From the police report it transpires that both the parties are adamant to take its possession and I feel that they might resort to force and endanger the public peace. I therefore attach this shop under section 145, Part IV, Cr. P. C. and hereby direct that it should be sealed till further orders. Copy of this order should be forwarded to SHO `A‑Division' for immediate compliance. Notices should be issued to both the parties to put in their written statements in respect of their claims on 8‑2‑62."

3. Ghulam Mustafa petitioner maintained In his written statement that he had been working in partnership with Abdul Karim in the shop in dispute since 1958, that the shop was allotted to the petitioner and was subsequently transferred in his favour in 1960, and in December 1961, the partnership with Abdul Karim was dissolved and they had put him in possession of the shop, and that from the 1st of January 1962, Ghulam Mustafa petitioner took Abdul Majid as his partner in business and that on the refusal of Ghulam Mustafa to accept Abdul Karim once again as a partner, he, along with others, committed criminal trespass into the shop.

4. Abdul Karim contended in his written statement that he was an allottee and an old tenant and had been in continuous possession since before partition and that his possession was protected.

5. The learned Magistrate after taking evidence came to the conclusion that although Ghulam Mustafa, who is a refugee, had been allotted the shop in dispute, but the same had been in possession of Abdul Karim since 1947. In view of the above finding the learned Magistrate proceeded to make the following order :‑ "Under the above circumstances, I have come to the irresisti ble conclusion that the shop has been in possession of Abdul Karim and I therefore release the same in his favour. My attachment order dated 3‑2‑62, is hereby withdrawn and cancelled."

6. The preliminary order was passed by the learned Magis trate on the 3rd of February 1962, without examining any witness. In view of the provisions of subsection (1) of section

145. Cr. P. Code it was not necessary for the Magistrate to examine any witness before making the preliminary order. He had before him the police report which says that there was likelihood of the breach of the peace between the parties as a result of a dispute over the possession of the shop and it was within the discretion of the learned Magistrate to pass the order (see Muhammad Araj and others v. Satramdas Sakhimad and others (A I R 1936 Sind 143)). In the circum stances there was nothing wrong in so far as the passing of the preliminary order by the Magistrate is concerned. Under section 145 (5) it is for the parties to show that no such dispute exists or existed. In the case under consideration, the written statements filed by the parties disclosed that there was a genuine dispute between them over the possession of the shop. The case of Ghulam Mustafa petitioner was that he had been in possession as a partner with Abdul Karim and others since 1958, and that after the dissolution of the partnership on the 31st of December 1961, he had been in exclusive possession of the shop in dispute. The statement of Ghulam Mustafa is amply corroborated on this point from the documentary evidence. It is clear to me on reference to the deed of dissolution of partnership (Exh. P. A) that posses sion of the shop was delivered to Ghulam Mustafa by Abdul Karim and others on the 31st of December 1961. The execution of the document is proved by its scribe whom I see no reason to distrust in this case. It is unnecessary to discuss the oral evidence produced by the petitioner before the learned Magistrate as he did not consider it as reliable. The case of the opposite‑party rested entirely on oral evidence which could not be preferred over the documentary evidence produced by the petitioner. The learned Magistrate clearly fell in error when he took into con sideration certain unproved documents to come to the conclusion that the possession of Abdul Karim was established on the record. He also fell in error in mixing the question of right to possession with the question of actual possession in his judgment.

7. Learned counsel for Abdul Karim vehemently contended that the weighing of the evidence is primarily the concern of the trial Court and the High Court cannot interfere in revision with the order passed by the learned Magistrate. He cited Mahadeo Prasad and others v. Ram Saran and others (A I R 1945 Oudh 12), Abdul Satar and others v. Udha Lal and another (93 I C 695), Wazir Chand and others v. Dr. Rawal Chand Faquir Chand (A I R 1947 Lah. 227), Saudi Mahto v. m Sukhlal Mahto and others (A I R 1934 Pat. 33) and Gurditta and others v. Taja (A I R 1939 Lah. 108). The principle laid down in the aforesaid rulings is certainly not open to question because the finding of a Magistrate on the point of possession is a finding of fact in which this Court will not ordinarily interfere, but when the circumstances are such which completely vitiate the finding of the trial Court, it is the bounden duty of this Court to interfere.

8. In the case under consideration the finding on the point of possession arrived at by the learned Magistrate is clearly vitiated inasmuch as he disregarded the documentary evidence and travelled beyond the scope of section 145 (4), Cr. P. Code by coming to a finding that Abdul Karim had been in possession since 1947. It was not open to the learned Magistrate to deter mine whether possession was founded on title. He had merely to decide as to who was in de facto possession. Two months in section 145(4) mean two months from the date of the pre liminary order under section 145 (1) and not two months from the date of the complaint (see Mahmood Beg and another v. Ehsan Beg (A I R 1941 Oudh 515) and Muhammad Ali Yar Muhammad v. Shamsul Haq Pir Zialdin Shah and others (A I R 1940 Sind 33)).

9. In view of the material on the record I am satisfied that the finding of the learned Magistrate on the point of possession is vitiated and is hereby set aside. The possession of Ghulam Mustafa within two months of the date of the order is clearly established on the record. The order of the trial Court is hereby set aside, Ghulam Mustafa is declared to be entitled to the posses sion of the shop and I direct that he be put in possession and the opposite‑party is forbidden from disturbing his possession of the premises until duly evicted from it in due course of law.

10. In Criminal Miscellaneous No. 1189 of 1963 for quash ment of the order of the learned Additional Sessions Judge, Rawalpindi, continuing the attachment order, learned counsel for Abdul Karim cited Ram Autar v. Udaioir Singh and others (A I R 1953 All. 498) and Mukutdhari Shao v. Ajodhya Shao (A I R 1949 Cal. 241) in support of the con tention that the learned Additional Sessions Judge was not competent to suspend the order of the trial Court because the Code expressly grants the Sessions Judge the power to stay a sentence and the Sessions Judge has not the power to stay the carrying out of an order. The authorities are no doubt directly in point but the question is of academic interest only for the reason that I have decided to accept the reference.

11. In the result, Criminal Miscellaneous No. 1189 of 1963 is dismissed and the reference is accepted. K. B. A. Reference accepted.