P L D 1983 Quetta 11 (PLP)

As a dispute over a piece of land arose between the applicant, Arbab Muhammad Hashim and the second respondent Dr. Javed Mahmood, hence a suit was filed by applicant on 27th September, 1980 against the second respondent under the provisions of Dastural Amal Diwani in the Court of the Deputy Commissioner, Bela to seek declaration and partition in respect of the disputed land, which according to the applicant's claim was purchased by him through a "Bainamee" transaction in the name of second respondent who was now trying to deny him his share and was also refusing its partition. The suit was pending with the Deputy Commissioner, Bela (the Court of institution under the Dasturul Amal Diwani) when on 30th September, 1980, the second respondent submitted an application to the same Deputy Commissioner to the effect that he had apprehension of the breach of the peace and that to avoid the same, the applicant may be bound down in peace securities. This application was entertained under section 17/18 of the Criminal Law (Special Provisions) Ordinance, 1968 and peace sureties were obtained from the applicant. The applicant in turn moved a similar application and the second respondent was also bound down in peace sureties.

2. Although no formal application under section 145, Cr. P. C. was submitted to the Deputy Commissioner by any of the parties, yet as a dispute over land had come to his notice, he initiated proceedings under this provision of law as well, and issued notice to the applicant as required by section 145 (i), Cr. P. C. to put in his written statement; though without recording a proper preliminary order. Subsequently the applicant and the second respondent settled the dispute outside the Court and submitted an application to the Deputy Commissioner on 5th February, 1981 to the effect that they bad amicably compromised the dispute on Oath and no cause of grievance was available to them; accordingly the civil suit may be consigned to record and the proceedings under section 145, Cr. P. C. may also be dropped. It may be referred here that by this compromise the dispute land was regarded to the second respondent's exclusive property and it was agreed upon that its possession would be handed over to him by the applicant forthwith.

3. As said above, the same Deputy Commissioner was seized of the matter both on civil and criminal side, therefore, on parties' request he recorded an order disposing of the suit in terms of the compromise and consigned the case to record. The acceptance of the compromise and passing of final order in the light thereof was within the meaning of section 11 of Dasturul-Amal Diwani, and there is no dispute about it that under this provision of law "the Hakim" which term also includes the Deputy Commissioner, before whom a suit was instituted, was required to try to bring about an amicable settlement between the parties through arbitration, mutual compromise or through "steariah"; and only in case be failed in such efforts, he was to send the matter to Qazi after framing the issues on all points on which the parties were at variance. As such, the Deputy Commissioner's order in suit was legal and valid.

4. The proceedings under section 145, Cr. P. C. were also dropped simultaneously in view of the parties agreement submitted to the Court by them and an order to that effect is available on the relevant file.

5. It appears that after the said compromise, the applicant tried to wriggle out of the agreement. Although as pointed by Mr. Tariq Mehmood, learned counsel for the State, that after the said compromise the applicant had withdrawn from this Court Criminal Revision No. l I of 1981, on 7th March, 1981 which was filed by him to challenge 145, Cr. P. C. proceedings initiated by the Deputy Commissioner and had also handed over possession of the disputed land to the second respondent vide two receipts both dated 28th February, 1981, copies whereof have been placed by him on record. The order of the withdrawal of the said criminal revision application is also on record. Anyhow the applicant filed an application to the Deputy Commissioner on 8th February, 1981 on the civil side alleging that the oath administered to the second respondent was not in accordance with law, as such, it was not binding upon him and resultantly the compromise was of no legal effect. I shall not deal with this aspect of the dispute as the matter is sub judice before me through a separate civil revision (No. 51 of 1981). It may, however, be pointed out that the said application was not decided by the Deputy Commissioner and such situation obliged the applicant to approach the Majlis-e-Shoora through an appeal in the first instance to seek disposal of this application; but since that remedy was not proper and his appeal was dismissed as withdrawn, therefore, he filed civil revision No. 51 of 1981, which is pending in this Court and is likely to be disposed of early.

6. After the acceptance of the said compromise on 5th February, 1981, the second respondent sought its implementation namely the handing over of the possession of the disputed land to him as agreed. Upon this the Deputy Commissioner gave a direction to the Assistant Commissioner, Lasbella on 18th February, 1981 to take possession of the disputed land from the applicant and hand it over to the second respondent. This order is now the bone of contention between the applicant and the second respondent. The later feeling aggrieved by this order filed a revision application before the Sessions Judge, Khuzdar mainly contending that the Deputy Commissioner had become functus officio after he had dropped the proceedings in view of the compromise on 5th February, 1981 and was not, therefore, justified in making such an order subsequently; and also that the proceedings suffered from inherent illegality and were liable to be quashed as the Deputy Commissioner did not record a proper preliminary order as envisaged by section 145(1) of the Code. The Sessions Judge, Khuzdar accepted these contentions and has vide order dated 25th April, 1981 recommended the quashment of the proceedings, and annulment of the order referred to above.

7. Mr. M. M. Pirzada, learned counsel for the applicant supported the reference on the abovesaid two grounds that had been raised by him before the Sessions Judge, Khuzdar. He also raised an additional ground that virtue of Law Reforms Ordinance, 1972 .reference should not have been made to this Court; instead the Sessions Judge should have decided the case himself as section 438, Cr. P. C. whereunder reference to the High Court was necessary had been omitted and a new section 439-A was inserted in the Code to enable the Sessions Judges and the Additional Sessions Judges to decide the revision petitions independently. Mr. Tariq Mahmood, learned counsel for the State and Mr. Khalid Latif, learned counsel for the second respondent opposed the reference.

8. The contention of the learned counsel with reference to the Law Reforms Ordinance, 1972 may be disposed of first. This Ordinance by virtue of section 1(2) required that the amendment brought about by it should be promulgated by all the Provincial Government not later than Ist day of January, 1973, and in case that was not done such amendments shall be deemed to have come in force automatically, sections 151 to 154 thereof introduced a fundamental change in Chapter XXXII of Cr. P. C., dealing with the revision petitions. Section 154 added a new section, 439-A which conferred same powers upon the Sessions Judges and the Additional Sessions Judges, as were heretofore enjoyed by the High Court under section 439, Cr. P. C., thus enabling them to decide revision petitions themselves. Section 152 omitted sections 437 and 438 of which the later provision dealt with reference to the High Court for appropriate orders upon this premises, Mr. Pirzada contended that since the Provincial Government had failed to notify the promulgation of the Law Reforms Ordinance, 1972 before the target date, therefore, by virtue of section 1(2), it had automatically come into operation with effect from 1st January, 1973. However, Mr. Khalid Latif pointed out that section 1 had later been amended to the extent of the date fixed for its promulgation by a later enactment namely Law Reforms (Amendment) Act, 1973 (enforced on 7th February, 1973) which omitted the date of 1st January, 1973 fixed by the Law Reforms Ordinance, 1972. This amendment is sufficient to clinch the issue. As to the Law Reforms Ordinance, 1972 the position in Baluchistan is that vide a Notification dated 23rd December, 1975, its provisions were enforced by the Provincial Government only to the extent of Quetta City, Quetta Cantt. and the District of Naseerabad. In the left over areas which include the District of Bela also, the position that existed prior to the enforcement of the Law Reforms ,Ordinance, 1972 still holds good. This reference is not, therefore, unjustified in law or incompetent.

9. The other contention was with regard to the Deputy Commissioner's omission to record a proper preliminary order as envisaged by section 145(1), Cr. P. C. In view of the legal position that prevails, it is certainly a defect ; but hardly sufficient to warrant the quashment of proceedings if they otherwise appeared to be justified. It is settled legal position that if the drawing of such proceedings was otherwise justified by the circumstances, mere omission to pass a detailed preliminary order recording the grounds o satisfaction etc. would not taint the proceedings with an uncurable illegality (See Muhammad Ishaque Chaudhary and another v. Nur Mahal Begum and others (PLD1961SC 426). In the instant case, there was sufficient material before the Deputy Commissioner to be satisfied that apprehension of the breach of the peace did exist and his act of binding down the parties in peace securities under West Pakistan Criminal Law (Special Provisions) Ordinance, 1968 bears sufficient witness to the same. This contention is thus without force and the recommendation of the Sessions Judge, Khuzdar to quash the proceedings on this ground alone is not legally tenable.

10. Last contention of Mr. Pirzada was that the Deputy Commissioner bad become functus officio after having recorded the order of consignment of the case to .record in view of the compromise dated 5th February, 1981, as such, the subsequent directions given by him to the Assistant Commissioner were liable to be struck down. Here, it would be pertinent to mention that the same Deputy Commissioner was exercising powers on the civil side as well, and had decided both the civil suit and the case under section 145, Cr. P. C., simultaneously in terms of the compromise, which was common to both the cases. Thus he did not act only as a criminal Court, but also as civil Court, being the Court of execution of decrees under Dasturul Amal Diwani. The impugned directions given by him to the Assistant Commissioner makes reference to both the civil suit and the criminal proceedings. The language used in the title indicates that he was cognizant of the fact) that he was seized of the jurisdiction in the matter both on the civil and criminal side and that is why he referred to as well as to the proceedings under section 145, Cr. P. C. To obviate the confusion, however slight it might be, he should not have amalagmated the two separate and distinct channels of law. As mentioned above, he was competent as a civil Court under Dasturul Amal Diwani to implement the parties agreement which he had made rule of the Court by accepting the same and disposing of the suit in terms thereof. But misnomer, in the title would hardly make any substantial difference, as the order is justified on the civil side at least and no appeal or provision has been filed against the same so far. Since it E is an order passed on the civil side as well, therefore, the reference to 145, Cr. P. C. proceedings can be conveniently ignored. In this view of the matter it cannot be challenged through this revision petition. There is, however, another facet of the argument also. Mr. Khalid Latif contended that the Deputy Commissioner was not divested of jurisdiction to pass ancillary orders in 145, Cr. P. C. Proceedings, after the case had come to a close. He relied upon Ram Lal v. Mangu (A I R 1960 Raj. 216) ; B. D. Naidu v. Shamsher Jung Bahadur Rana (A I R 1957 Mys. 21) and Dasa Mahanty and another v. Gadadhar Samal and others (A I R 1957 Orissa 92) to support this averment. These cases deal with the same proposition as has been raised before me i. e.; whether an ancillary order could be made by a Magistrate who had dropped to proceedings under section 145, Cr. P. C. and had apparently become functus officio. Although reference in these cases is to such change of possession which is normally necessitated after a Magistrate has come to the conclusion that the complainant had been unlawfully dispossessed from the property within two months of the passing of preliminary order by him and was, therefore, entitled to the restoration of the possession ; and thereupon makes such order after the conclusion of the case. But the fundamentals remain the same, namely whether the Magistrate was helpless to redress the grievance of the rightful person despite his conclusions in favour of such persons. Shall not such a rigid view, if taken, work against the norms of justice 7 Decision of a case does not mean a technical decision or only a declaration of rights ; rather it carries in its fold the necessary requisite of the redress of aggrieved person's grievance. Of course, the idea of such redress cannot make the Court to travel outside the limits of his jurisdiction. But if there is no legal embargo, and only the declaration of a right was riot the actual relief that could be granted to a person within the framework of the proceedings before him, he should take steps to finally and effectively set the dispute at rest and that is only possible when the rightful person receives what is due to him under law from a wrongdoer ; and precisely ancillary orders passed in the above cited cases as well as in the case in hand, serve the same end. It will be appreciated that in the cases under reference the Magistrate ordered restoration of the possession of property as without that the purpose of litigation before him would not have been satisfied and this act was upheld by High Court. In the instant case also, the Deputy Commissioner made directions for the implementation of the agreement, on the basis of which he had decided the case by dropping the proceedings. Accordingly in my humble view, such order was validly passed in exercise of the powers under section 145, Cr. P. C. Mr. Pirzada's contention is thus without force. For the reasons given above., the impugned order of the Deputy Commissioner is held as legal and valid. The reference is hereby rejected. Reference rejected.