SYED GHULAM MURTAZA Versus BABER AKBAR

RAJA MUHAMMAD KHURSHID KHAN, ACTG. CJ .--- An application, under section 145, Cr.P.C. moved by the appellant before a Magistrate, at Muzaffarahad, on 11-5-1962, after passing through a chequered history, spreading over practically thirteen years, ended in rejection in the Court of Additional District Magistrate, Muzaffarabad, on 20-11-1967. The rejection order was made on the ground that the appellant failed to establish his possession over the disputed land within two months prior to the proceedings under section 145, Cr.P.C.

2. The appellant challenged legality of this finding by way of a revision before the District Magistrate, Muzaffarabad, who dismissed the same on 2-10-1971. The appellant then went up in revision before the High Court to assail both the aforementioned orders of the Additional District Magistrate and that of the District Magistrate, dated 20-11-1967 and 2-10-1971 respectively.

3. The High Court, however, affirmed the findings recorded by the Courts below and dismissed the revision petition on 3-2-1975 inter alia on the grounds:

(i) that a civil case, in respect of the land in which a temporary injunction had already been issued by the Civil Court, still awaits adjudication and the proceedings under section 145, Cr.P.C. in the circumstances of this case, therefore, cannot sustain; and

(ii) that the impugned order of the A.D.M., dated 20-11-1967 does not suffer from any illegality and, therefore, no interference is justified.

4. This appeal wants to assail the said order of the High Court. After hearing the learned counsel for the respondent and giving thought to the entire evidence we are of the view that this appeal merits no consideration for the following reasons:

(a) There is ample evidence on record to sustain the conclusion arrived at by the learned A.D.M. that the appellant failed to establish his possession on the disputed land within two months prior to the proceedings taken under section 145, Cr P.C. The mere fact that the different inference could be drawn from the evidence than the one drawn by the A.D.M. is no ground for interference in revision.

(b) The grounds put forth on behalf of the appellant turn entirely on the propriety and correctness of the reasoning advanced by the High Court in refusing to interfere with the finding of the lower Courts. It clearly amounts to appreciation of the evidence, which hardly furnishes a ground for disturbing the finding recorded by the lower Courts.

(c) All along a question of fact as to whether the land remained under the possession of the appellant within two months prior to the proceedings taken under section 145, Cr.P.C. was in issue and this question, after well-reasoned out analysis of the evidence, had been decided by both the Courts against the appellant. In our view, as there is no element of lack of jurisdiction or material irregularity in coming to the conclusion,, the findings concurrently recorded do not call for any interference.

(d) The scope of revisional jurisdiction is very limited and a High Court is not competent to reopen a question of fact unless it suffers from any illegality to make the order perverse or manifestly unjust.

(e) That under section 7, subsection (2), clause (b) of the Azad Jammu and Kashmir Judicial Board (Constitution and Jurisdiction) Act, 1974 where the decree or final order of the High Court affirms the decision of the Court immediately below (as the instant case is), no appeal is competent to the Judicial Board unless it involves some substantial question of law. In our view, as stated in the aforementioned paragraphs, no substantial question of law is involved and, therefore, on this short ground too the appeal is liable to be refused.

For the above stated reasons we would dismiss this appeal.

N.H.Q./298/S.CA. Appeal dismissed.