2004 PLP 667 (SCMR)

SARDAR MUHAMMAD RAZA KHAN, J.

Saleem-ur -Rehman son of Khalil-ur-Rehman resident of Tarnab, Tehsil and District Charsdda, through this petition, seeks leave to appeal against the judgment dated 24-6-2002 passed by an Honourable Single Judge of Peshawar High Court, whereby the judgment dated 22-1-2002 given by Additional Sessions Judge-I, Charsadda in Criminal Revision No.18/Cr was quashed under section 561-A, Cr.P.C.

2. Faqir Hussain and others had filed a complaint under section 145, Cr.P.C. against one Khan Bahadur on 1-11-1993 and against Saleem-ur-Rehman on 6-11-1993 stating therein that a dispute over the possession of land measuring 26 Kanals, 1 Marla was likely to cause breach of peace and hence necessary action be taken within the contemplation of section 145, Cr.P.C.

3. At the first instance, the matter was referred to S. H. O. concerned. An A.S.-I. was appointed to inquire about the dispute and the existence or otherwise of conditions leading to the breach of peace. Upon his report a preliminary order of attachment was passed on 1-2-1994. Respondents of first and the second party were called upon to submit their written statement, whereafter the evidence of the parties was recorded. It appears that from evidence on record the learned trial Magistrate could not come to a definite conclusion qua the question of possession and thus, under section 146, Cr.P.C., he attached the entire property vide order dated 22-8-1998 and referred any of the parties interested to resort to the Civil Court.

4. Both the parties went in revision, wherein the learned Additional Sessions Judge, vide his order dated 19-1-2000, remanded the case to the Magistrate directing him to determine the question of actual physical possession. In second round .the trial Magistrate, vide his order dated 23-11-2000, gave a finding that Faqir Hussain and others respondents of the first party, were in possession of 18 Kanals, 1 Marla while Saleem ur-Rehman respondent of the second party was in possession of 8 Kanals out of the disputed land comprising Khasra Nos.296 and 298.

5. Saleem-ur-Rehman of the second party challenged the aforesaid order under section 439, Cr.P.C. This revision was heard by learned Additional Sessions Judge-I, Charsadda, who, vide order dated 22-1-2002, set aside the finding of the Magistrate and himself determined that Saleem-ur-Rehman respondent of the second party was in actual physical possession with reference to preliminary order dated 1-2-1994. Faqir Hussain and others filed a petition before the High Court seeking quashment under section 561-A, Cr.P.C. of the order dated 22-1-2002 aforesaid. Honourable High Court while agreeing with the decision dated 23-11-2000 of the trial Magistrate set aside the finding of Additional Sessions Judge dated 22-1-2002 and hence this petition seeking leave to appeal against the judgment dated 24-6-2002.

6. We have heard Qazi Muhammad Jamil, Aman Khan learned counsel for the parties and Sardar Shaukat Hayat, learned Additional Advocate-General for the State. As the available record was not sufficient, we also requisitioned the original from the trial Court.

7. It is proved, rather an admitted fact, chat none of the parties are the owners of the property. The land measuring 26 Kanals, 1 Marla comprising Khasra Nos.296 and 298 belongs originally to the village proprietary body of Tarnab and it was for the first time given to one Maulana Muhammad Ilyas, a Pesh Imam of the village mosque in lieu of services so rendered by him. Saleem-ur-Rehman is the, grandson of Maulana Muhammad Ilyas while Faqir Hussain and others, respondents of the first party, are his sons, being uncles of Saleem-ur-Rehman. It has also come on record that Saleem-ur-Rehman petitioner is presently the Pesh Imam of the mosque.

8. A similar dispute had also arisen between the parties in the year 1977 and a petition had been filed under section 145, Cr.P.C. Such proceedings had resulted into a compromise dated 5-1-1978 referred to in the judgment dated 23-11-2000 of the Magistrate First Class, Charsadda (pages 31 to 36). According to this compromise, land measuring 8 Kanals, 1 Marla had been given to Saleem-ur-Rehman petitioner while rest of the land was given to the respondents. The learned Magistrate as well as the Honourable High Court shared the view that such compromise was, valid and that both the parties were in possession accordingly. Whereas, on the other hand, learned Additional Sessions Judge held the contrary view holding Saleem-ur-Rehman to be in possession.

9. This being the background, what required to be determined under section 145, Cr.P.C. was the factum of actual physical possession on the crucial day of preliminary order or during two months next before such order. It is but a settled principle of law that question of entitlement as such is not a matter of consideration before a Magistrate exercising jurisdiction under section 145, Cr.P.C. Such question is always decided by a Civil Court while the Criminal Court is only supposed to determine the factum of actual physical possession on the crucial dates. We have thoroughly gone through all the judgments so far delivered and we felt no hesitation in arriving at the conclusion that all the evidence discussed by the Magistrate in order dated 23-11-2000 and the order dated 24-6-2002 of the Honourable High Court, was with reference to the actual entitlement of the parties. The Magistrate was of the view that according to compromise dated 5-1-1978 the parties were given their respective shares and that since then they were in possession. So was the Honourable High Court. Entitlement as such, in the instant case is a complicated question because it relates to the title which does not vest in any of the parties, for, the property still belongs to the proprietary body of the Mahaal or Kandi. Any distribution of property amongst the successors of Maulana Muhammad Ilyas is just a mutual settlement between them regardless of the title which can only be determined by the trial Court.

10. After having perused the judgments before us, we are of the view that the question of actual physical possession irrespective of title was taken up only by learned Additional Sessions Judge in his judgment dated 22-1-2002. It may be pointed out at this juncture that settlement through compromise dated 5-1-1978 had taken place 15 years prior to the present dispute and, thus, the Courts that relied upon such mutual adjustment lost sight of the fact that during these 15 years many things could have happened resulting into many changes in the nature of actual physical possession on the spot. Let us see what evidence was available on record before Additional Sessions Judge when he decided the matter in favour of Saleem-ur-Rehman, the petitioner, and thereafter we would appreciate as to whether the circumstances existed for invoking inherent jurisdiction of the High Court under section 561-A, Cr.P.C.

11. The applications under section 145, Cr.P.C. were filed in November, 1993. The A.S.-I. visited the spot on 4-11-1993 and found one Mohabat Shah to be in possession who subsequently turned out to be a tenant of Saleem-ur-Rehman at the relevant time. Muhammad Shoaib, Patwari while conducting Gardawari of Rabi 1994 (April, 1994) found that wheat crop had been sown by Mohabat Shah. The latter also appeared in the witness-box to make the same claim. Before attachment when Faqir Hussain was examined by the Inquiry Officer, the former clearly stated that after the death of Maulana Muhammad Ilyas and through compromise 8 Kanals of land was given to Saleem-ur-Rehman but subsequently, with the assistance of numerous persons (named in the statement) Saleem-ur-Rehman possessed the entire land in dispute. This, we believe, was a substantial evidence in order to determine the actual physical possession of a party at the relevant time,

12. The matter does not end here and we confronted with a strong piece, of evidence which was relied upon by the learned Additional Sessions Judge. It exists in the shape of an application filed by Mohabat Shah, the tenant, on 16-5-1994 claiming that as he hat sown wheat crop in the disputed property and as the entire property alongwith crop stood attached, he be given his share of half Batai leaving the remaining half to be disposed of in accordance with final order. This application was seriously contested by Faqir Hussain and others of the opposite-party. On 24-8-1994. Sub-Divisional Magistrate, Charsadda passed an Order No.336/SDM (date torn) (page 162) directing the S.H.O. to deliver half share of Batai to Mohabat Shah, the tenant. This order was in connection with reports dated 24-8-1994 (page 60 and the same was complied with on 27-8-1994 page 117). Against such order dated 24-8-1994 the opposite party went in revision which was dismissed by Additional Sessions Judge, vide order dated 16-11-1994 (page 127). This is another piece of evidence showing that Rabi crop was sov4n by Mohabat Shah. It is a matter of common knowledge that Rabi crop is sown in the month of November which exactly coincides with the dates of applications under section 145, Cr.P.C. Such types of evidence were placed reliance upon by the learned Additional Sessions Judge, Charsadda in his judgment dated 22-1-2002.

13. Whether in the light of such evidence one can say that the order of Additional Sessions Judge was highly perverse, illegal and void ab initio and whether the revisional Court had fallen into any serious error of either misreading or non-reading of evidence. Having gone through the entire record of the case, we are of the view that the judgment dated 22-1-2002 of the Additional Sessions Judge was well-reasoned and well- founded in the light of what he practically appreciated with reference to the factum of actual physical possession on the spot at the relevant time provided in section 145, Cr.P.C. It was neither perverse nor a result of misreading or non-reading of evidence and thus, did not under any circumstances need to be quashed in the exercise of extraordinary jurisdiction under section 561-A, Cr.P.C. as an alternative of appellate jurisdiction. After when the remedy of revision was exhausted, the High Court invoked its jurisdiction under section 561-A, Cr.P.C. merely because, on appreciation of evidence, it came to a different conclusion. It should have interfered only when it was satisfied that in the appreciation of evidence by the lower Courts gross miscarriage of justice had taken place amounting to abuse of the process 14 Court. This Court had already disapproved of such action in Khawaja Fazal Karim v. The State PLD 1976 SC 461 and Syed Munawwar Ali Zaidi v. Mst. Qaisar Jehan PLD 1992 SC

406. We have observed that the Additional Sessions Judge in his judgment dated 22-1-2002 had not resorted to any serious misreading or non-reading of evidence or to any perversity resulting into miscarriage of justice. The above referred evidence was, of course, unavoidably available before it and thus, the reliance was rightly placed upon. It is to be noted that application dated 16-5-1994 of Mohabat Shah was with regard to the entire property in dispute and not any portion thereof: The report thereon also related to the entire property and order dated 24-8-1994 of SDM upheld by ASJ (mentioned earlier); all were passed for, the entire one in dispute.

14. Here, we may also remark with concern that such decision has nothing to do with title or entitlement to possession. This shall be decided by a Civil Court if resorted to by the parties and in presence of the real owners. The questions may also arise as to what is the nature of such entrustment, as to whether the entrustment amounted to the transfer of title, whether it was heritable and whether any single possession or any mutual adjustment has any effect on the rights, if any, of the parties. Let all these questions be decided by the Civil Court whenever or if ever resorted to.

15. Consequently, the instant petition after conversion into appeal, is hereby accepted, the impugned judgment dated 24-6-2002 of the Honourable High Court is set aside and that dated 22-1-2002, of the learned Additional Sessions Judge, Charsadda is restored. Leave petition converted into appeal and appeal allowed. N.H.Q./S-15/S Appeal allowed.