1998 P Cr (PLP)

‑‑‑‑Ss. 439(4) & 439‑A‑‑‑Revisional jurisdiction, exercise of‑‑‑Sessions Judge having already exercised his revisional jurisdiction under S.439‑A, Cr.P.C. High Court under S.439(4), Cr.P.C. could not entertain any proceedings in revision with respect to an order made by Sessions Judge under 5.439‑A, Cr.P.C. Said Rehman Khan for Petitioners. Fateh Muhammad Khan for Respondent No. 1 Kh. Azhar Rashid, Asstt. A.G. for the State.. Date of hearing: 18th August, 1997. This is an application under section 561‑A, Cr.P.C. for setting aside the orders of the learned Sessions Judge/Zilla Qazi, Buner, dated 22‑1‑1996 whereby revision petition of the petitioners was dismissed and upheld the order of the E.A.C./Illaqa Qazi, Daggar, dated 6‑11‑1995 whereby the petitioner's complaint under section 133, Cr.P.C. was dismissed.

2. This case has a chequered history. The petitioners filed a complaint in the Court of S.D.M., Daggar against respondent No. l on 5‑7‑1993, to the effect that respondent No. l had raised a wall in the thoroughfare comprised in Khasra No. 1356 measuring 2 Kanals, 7 Marlas, belonging to the District Council, Buner that the learned S.D.M. decided the complaint according to the compromise arrived at between the patties on the basis of the opinion of the Jirga, directing the .respondent to leave six feet wide thoroughfare for the use of the petitioners and the public at large; that aggrieved of the order revision petition was filed by the respondent before the Court of Sessions which was accepted vide order, dated 2‑3‑1994 and the case was remanded back to the learned S.D.M., Daggar with the direction to appoint a fresh Jirga in accordance with law to submit the opinion independently; that thereafter the learned S.D.M. after going through the statements, Revenue Record and the opinion of the Jirga decided the case in favour of the petitioners on 15‑6‑1994; that again dissatisfied with the order, respondent filed a revision petition before the Sessions Judge, Buner, which was allowed vide his order, dated 11‑8‑1994 and the case was again remanded back to the learned S.D.M. with the direction to pass a clear order as required under section 140, Cr.P.C.; that the learned S.D.M. passed another order on 26‑9‑1994 directing the respondent to remove the encroachment up to the extent of five feet in Khasra No.1356 and restore the thoroughfare in its original shape within fifteen days; that a third revision petition was filed by the respondent in the Court of Session, who for the third time remanded the case back to the S.D.M., Buner vide his order, dated 1‑12‑1994 for decision afresh after recording evidence; that without recording the evidence of the parties, the learned E.A.C./Illaqa Qazi, Daggar, District Buner dismissed the complaint and the respondent was acquitted; that the petitioners approached the Court of Sessions Judge/Zilla Qazi challenging the order of E.A.C./Illaqa Qazi, dated 6‑11‑1995 which was dismissed vide his order, dated 22‑1‑1996. Hence the petition in hand.

3. Learned counsel for the petitioners contended that the learned Sessions Judge/Zilla Qazi, Buner remanded the case back to the S.D.M. for recording evidence as required under section 137(1), Cr.P.C. which is a mandatory provision, but the learned S.D.M. without recording evidence of the parties dismissed the complaint and acquitted the respondent, which tantamounts to uncurable illegality, therefore, on acceptance of this application, the order of Learned E.A.C./Illaqa Qazi, Daggar, dated 6‑i1‑1,995 and the order of learned Sessions' Judge/Zilla Qazi, dated 22‑1‑1996 be set aside and the order of S.D.M., Buner, dated 26‑9‑1994 be restored.

4. Learned counsel for the respondent and the learned Assistant Advocate -General' appearing for the State opposed the contentions raised by the learned counsel for the petitioners and while defending the impugned orders submitted that the learned E.A.C., Daggar himself inspected the spot in presence of the parties, Tehsildar, Girdawar and the Patwari Halqa. The E.A.C. observed that no encroachment has been made by the respondent and complainant himself has raised a wall and for the passage of his tractor he should demolish his own wall.

5. I have given anxious consideration to the contentions of the learned counsel for the parties. The perusal of the record would show that soon after the submission of the complaint to the S.D.M., it was referred to local Police for inquiry and report. The local police in its report, dated 7‑7‑1993 submitted that no obstruction or encroachment has been made in the thoroughfare, which is 4 to 6 feet wide and is used by the pedestrians and for the cattle and cannot be used for tractor. After third remand, the E.A.C./Illaqa Qazi with the concurrence of the parties inspected the spot in their presence and the revenue staff, who carried out the measurements and found that the respondent has not encroached upon the thoroughfare and the wall has been constructed in his own area. The order of the Trial Court has been upheld in revision petition filed by the petitioners, which has been competently passed by the Court of competent jurisdiction and there seems to be no abuse of process of Court as such the provision of section 561‑A, Cr.P.C. cannot be used as additional remedy. The learned Sessions Judge/Zilla Qazi, Buner has already exercised his revisional jurisdiction under section 439‑A, Cr.P.C. as such under subsection (4) of section 439, Cr.P.C. this Court cannot entertain any proceedings in revision with respect to an order made by the Sessions Judge under section 439‑A, Cr.P.C. In view of this legal; position the petitioner under the garb of the provisions of section 561‑A, Cr.P.C. cannot be allowed to avail it as second revision by defeating the provision of subsection (4) of section 439, Cr.P.C. Consequently, this petition is dismissed. H.B.T./33/P Petition dismissed.