2007 PLP 1953 (SCMR)

CH. IJAZ ARMED, J.

We intend to decide the captioned petitions by one consolidated judgment arising out of the same common .impugned judgment.

2. Petitioners have sought leave to appeal against the judgment of the Lahore High Court, Bahawalpur Bench dated 15-2-2007 passed in Criminal Miscellaneous Nos.908 and 909/Q of 2002 filed by respondents which were accepted by the learned High Court and set aside the orders dated 30-3-2002 passed by Special Magistrate and order, dated 25-7-2002 passed by the learned Additional Sessions Judge, Rahim Yar Khan.

3. Detailed facts have already been mentioned in the impugned judgment. However, necessary facts out of which the present petitions arise are that respondent filed applications under section 145', Cr.P.C. in the Court of Assistant Commissioner, Sadiqabad against the petitioners with regard to property in question (shop) who directed Executive Magistrate, Sadiqabad td proceed under section 145, Cr.P.C. and also directed to seal the shop in question vide order, dated 18-7-2000. The aforesaid Magistrate sealed the shop in question on 19-7-2000. Petitioners being aggrieved filed revision petition before the Additional Sessions Judge, Sadiqabad who dismissed the same vide order, dated 25-9-2000, which was assailed through Constitutional Petitions Nos.4836 and 4837 of 2000 before the Lahore High Court, Bahawalpur Bench. Writ petitions were disposed of by the learned High Court vide orders, dated 5-11-2001 with direction to the learned Sessions Judge to entrust the matter to any Magistrate of competent jurisdiction to proceed further and conclude the matter within a period of 90 days. Petitioners being aggrieved filed C.P. No.3220 of 2001 and C.P. No.3217 of 2001 before this Court which were not pressed by the petitioners: This Court, however, vide orders, dated 30-1-2002 directed the concerned Magistrate to conclude the matter within a period of three weeks from the receipt of the order of the Court. The matter was proceeded on merits by the Special Magistrate who has recorded the evidence of the parties and dismissed the application of respondent filed under section 145, Cr.P.C. vide order, dated 30-3-2002. Consequently, the shop in question was desealed in favour of the petitioners. Respondents being aggrieved filed revision petition before the learned Additional Sessions Judge, Rahim Yar Khari who dismissed the same vide orders, dated 25-7-2002. Respondents being aggrieved filed aforesaid criminal miscellaneous before the Lahore High Court which were accepted vide impugned judgment. Hence, the present petitions.

4. The learned counsel for the petitioners submits that learned High Court had erred in law to disturb the concurrent conclusions arrived at by the learned Magistrate and the learned Additional Sessions Judge in revision petition without application of mind. He further maintains that petitioners had secured the possession of the property in, question much before the filing of application under section 145, Cr.P.C. by the respondents. He further maintains that as the possession was at relevant time with the petitioners, therefore, learned High Court had decided the cases against the petitioners in violation of the mandatory provisions of section 145, Cr.P.C. He further maintains that civil litigation is pending adjudication before the different Courts and the ingredients of section 145, Cr. P. C. are not attracted but these aspects of the cases were not considered by the learned High Court in its true perspective.

5. We have considered the submissions made by learned counsel for the petitioners and perused the record. The learned High Court had re-examined the evidence one record and had come to the conclusion that shops in question were sealed for the first time. At the time of sealing of shops, these were in possession of the respondents as evident from para.6 of the impugned judgment. If is a settled law that this Court does not normally go behind the concurrent findings of fact recorded by the learned High Court while exercising power under Article 185(3) of the Constitution unless and until it can be shown that the finding is on the face of it against the evidence or so patently improbable or perverse that to accept it could amount to perpetuating a grave miscarriage of justice or if there has been any misapplication of principle relating to A appreciation of evidence or finally if the finding can be demonstrated could be physically impossible. This being the practice and rule of the Court in criminal petitions, the burden lies rather heavily on the petitioner to show that the findings recorded by the High Court are not sustainable on the record and should be interfered with by us. We have re-examined the evidence on record with the assistance of the learned counsel for the petitioners. We find that the conclusions arrived at by the learned High: Court on the basis of report of the sealing officer Exh.P.A. and his statement as P:W.7, we do not find any misreading or non-reading of the said record by the learned High Court. We also find that there is only one possible conclusion which the learned High Court had arrived at on the basis of the record. It is pertinent to mention here that the aforesaid pieces of evidence were not considered by the Courts below. This fact was duly considered by the learned High Court, thereafter, the learned High Court had come to the conclusion that property in question was in possession of the respondents. It is a settled law that the finding of fact may be interfered with. where the circumstances of the case vitiate the finding or where the finding of fact B is based on no evidence or an important point of evidence has not been taken into consideration or a finding arrived at by misreading certain documents and by relying upon certain passages in documents which do not refer to the property in dispute. See Ghulam Mustafa's case PLD 1964 Lah. 9, Mofizur Rehman Chowdhury's case _1968 PCr.LJ 599, Dulare Kumar's case AIR 1947 Pat. 175, Abdul Hanif Khan's case PLD 1968 Pesh. 214 and Jabbar Ali Ghazi's case 1969 PCr.LJ

784. It is pertinent to mention here that the controversy in criminal side had started since 2000 and this is a second round of litigation before this Court. Substantial justice has been done between the parties in view of findings recorded by the learned High Court in para.6 of the impugned judgment, therefore, we are not inclined to exercise our discretion in favour of the. petitioner in view of conduct of the petitioner and the controversy between the parties as law laid down by this Court in Noora's case PLD 1973 SC 469 and Nawab Syed Raunaq Ali's case PLD 1973 SC

236. The finding of .the learned High .Court in para.6 is in consonance with the law laid .down by this Court in Saleem-ur-Rehman's case PLD 2003 SC

578. It is pertinent to mention here that the question of actual possession is a factual matter of day to day occurrence and it must be proved by direct and positive evidence. It is a settled law that the Magistrate should declare that the person found to be in possession on the date of preliminary order is entitled to the possession C of the property until evicted in due course of law. See Bindhyachal Prasad Varma's case AIR 1946 Pat. 330 and Khubi Singh's case AIR 1921 Pat. 176.

6. For what has been discussed above, we find no merit in these petitions which are dismissed. Leave declined. M.H./A-56/SC???????????????????????????????????????????????????????????????????????????????????? Petition dismissed.