STATE Versus KHANZADA KHAN

1. MUHAMMAD HALEEM, C.J. ‑‑Leave to appeal was granted to consider the question:

2. "Whether the High Court could constitute an independent body for adjudication and decision of the question whether the disputed land is situated within the territorial jurisdiction of the learned Magistrate who had taken cognizance of the proceedings under the said provision, outside the provisions of section 145, Cr.P.C."

3. The facts out of which this ‑appeal arises are that on 30th of April, 1982, a complaint was lodged by the S. H .0. , Police Station Shabkadar, in the Court of the Magistrate 1st Class, Charsadda, stating therein that there was a dispute over possession of certain Khasra numbers situate in Mauza Matta Rustam Khel between the two rival groups of persons, and that there was a likelihood of imminent breach of peace. It was prayed that the land comprised in the Khasra numbers be attached till the decision of the dispute.

4. Upon the receipt of this complaint, the Magistrate First Class, Charsadda on being satisfied that there did exist a dispute over the possession of the land likely to cause imminent breach of peace ordered the land to be attached by order, dated 31‑5‑1982 and directed the parties to appear in Court either personally or through their legal representatives on 10‑6‑1982 and to submit their written statements in support of their respective claims. This order was not challenged and the parties appeared as directed and submitted their written claims. Evidence was thereafter recorded and as the final order shows, a question of jurisdiction was raised to the effect that the land in dispute was not in the settled area, but it was rejected on the basis of documentary and oral evidence. It would be pertinent here to refer to the remarks in the order in this behalf:

5. "As already discussed above the land is barren i.e. Banjar Qadeem, Banjar Jadid and Ghair Mumkin Pahar. Counsel on behalf of the 2nd party challenged the jurisdiction of this Court and stated that the land in dispute is situated in the T . T. and this Court has no jurisdiction to proceed with the case. I am not convinced with this argument of the counsel which carries no weight because the complaint has been lodged by the local police and the land in dispute, according to revenue record, available on the file, is in the jurisdiction of Sub‑Division Charsadda and this Court has got the jurisdiction to proceed with the case."

6. It was held that there was serious apprehension of breach of peace over the possession of the land and that none of the parties were able to establish their exclusive possession. Accordingly, the learned Magistrate maintained the order of attachment under section 146(1). Cr.P. C, till such time as the dispute was decided by the Civil Court.

7. Against this order one of the parties preferred a revision in the High Court and the other before the Sessions Judge. The one filed before the Sessions Judge was brought over to the High Court and both of them were disposed of by a common order dated 11‑6‑1983. The question of jurisdiction was again raised before the High Court and as is evident from the order, the High Court was not satisfied that the property in dispute was exclusively located in the settled area. Accordingly, the High Court held as under:‑

8. "Thus, I consider that a fresh Commission of notables, who are well‑experienced and know the job of demarcation very fairly must be appointed to carry out demarcation of the disputed land. The matter in this behalf is to be referred to the Political Agent Muhamand Agency and the District Magistrate Peshawar, who will call the elders of both parties and will suggest to them as to who should be the proper persons for nomination to the Commission. When this is done, the Commission will call the parties and in their presence will carry out the demarcation proceedings in the light of all the available material and after hearing the parties. Meanwhile the District Magistrate Peshawar and the Political Agent Muhamand Agency will take over charge of the disputed land. They will appoint a receiver, who will keep the usufruct of the disputed land in safe custody until final determination of the dispute between the parties. Thus, the disputed land shall remain attached till then."

9. And disposed of the revisions in terms thereof by order, dated 11th of June, 1983.

10. The powers exerciseable by the High Court in revision under section 435, Cr.P.C. are limited to examining "the correctness, legality or propriety of any finding, sentence or order recorded or passed", but what the High Court has achieved is to constitute a forum other than the Magistrate exercising jurisdiction under section 145, Cr.P. C. to decide the dispute which was beyond the ambit of section 145, Cr P. C. in the exercise of its own revisional powers. There was, therefore an exercise of rower which was not warranted by the jurisdiction so exercised in revision. Moreover, we do not find any defect or irregularity in the jurisdiction exercised by the Magistrate. He had acted not only on oral but also on documentary evidence which went to establish that the land was in the settled area. It, accordingly, left no room for doubt which was entertained by the High Court on a mere surmise.

11. We would thus set aside the judgment of the High Court an restore the order of the Magistrate 1st Class, dated 14‑9‑1982.

12. The appeal is thus allowed.

13. M.Y.H./S‑138/S Appeal allowed.