GHULAM YARYA AND Others vs GHULAM SADIQ AHD Other

ORDER

1. ANWARUL HAQ, J.-This petition for special leave to appeal is directed against an order made by a learned Single Judge of the Peshawar High Court on the 12th of August 1971, on a reference made by the learned Sessions Judge of Peshawar under section 438 of the Code of the Criminal Procedure, recommend--ing that an order made by a learned Magistrate of the 1st Class at Charsadda on the 26th of October 1970, in proceedings under section 145 of the Cr. P. C. Be set aside. The reference has been accepted by the High Court and while setting aside the order of the learned Magistrate it has been directed that he should proceed in accordance with section 146(1) of the Code.

2. The proceedings under section 145 of the Code were started on the basis of a report made on the 15th of March 1970, by Abdul Malik son of respondent No. 2 Abdul Gbafoor to the effect that Ghulam Yahya, Muhammad Shuaib and Abdul Waheed petitioners had forcibly started ploughing agricultural land belonging to Mst. Sultana, widow of Abdul Hanan, who is an aunt of Abdul Ghafoor. It was stated that there had been previous criminal litigation also regarding this very land inasmuch as the said persons were prosecuted under section 447 of the Pakistan Penal Code but acquitted by the Court, and that Abdul Rauf, son of Abdul Khaliq, was murdered for which Ghulam Yahya along with his brothers was charged but again acquitted.

3. The Ilaqa Magistrate passed an order on the 17th of March 1970, directing the issuance of notice to the parties and also restraining them from interfering with the disputed land. On the 26th of October 1970, the Magistrate, after examining the evidence brought on the record, came to the conclusion that none of the parties was in possession of the land which was to be construed as being in the lawful possession of Mst. Sultana and her five daughters through their tenants. On this view of the matter he vacated the order of attachment of the land.

4. Aggrieved by this order of the learned Magistrate the three petitioners moved the Sessions Court in revision praying that the Ilaqa Magistrate and the local police be ordered to refrain from delivering the possession of the disputed property to Mst. Sultana and her daughters. The learned Sessions Judge formed the opinion that there was no evidence on the record to show the existence of the apprehension of a breach of the peace between the parties, and even otherwise the dispute was between the petitioners and Mst. Sultana or her daughters and not between the petitioners and the other respondents. He further observed that in these proceedings the Magistrate was only to give a finding as to which of the parties was in possession on the date of the preliminary order, and not with regard to the title or interest of the contending petitioners, and therefore, the Ilaqa Magistrate could not divest the petitioners of the possession of the disputed property.

5. The learned Judge in the High Court has not accepted the opinion of the learned Sessions Judge on the question of the existence of an apprehension of the breach of the peace, as there was evidence to show that the dispute over the possession of this land had definitely led to violence, so much so that during the pendency of these proceedings, Ghulam Yahya had been murdered. His legal representatives have since been brought on the record for continuing these proceedings. It has also to be noted that the respondents, Abdul Sattar and Sadiq, are married to two daughters of Mst. Sultana, and therefore, they were not connected with the land. However, the High Court bas found that once the conclusion was reached that the land was not in the possession of either of the parties then the learned Magistrate should have proceeded in terms of section 146(1) of the Code of Criminal Procedure.

6. The main challenge to the order made by the High Court is that the evidence regarding the possession of the parties has not at all been examined by the learned Judge, as otherwise it would have become clear that the land was in the possession of the late Ghulam Yahya and his brothers as being the co-sharers in the property. It is submitted that even Ghulam Yahya's previous prosecution under section 447 of the Pakistan Penal Code points to this fact, and therefore, the property should have been restored to the petitioners and not to Mst. Sultana and her daughters.

7. After hearing Shaikh Muharnmad Shafi in support of this petition, we have formed the view that no justification 9s made out for our interference in the matter. It is incorrect to say that the High Court has riot examined the question regarding the possession of the land. It is true that there is no elaborate discussion of the relevant evidence, but in para. 7 of the order, the learned Judge in the High Court has summed up the position by saying that :-- "The oral testimony to prove the possession of either of the parties is meagre and the revenue record also cannot be conclusive. A conclusion is, therefore, inevitable that the land in dispute was not in possession of either of the two parties on the date when the proceedings under section 145, Cr. P. C. Were initiated."

8. From these observations it can safely be presumed that the High Court did examine the relevant evidence for tae purpose of deciding whether the learned Magistrate had acted correctly or not.

9. Once the High Court had endorsed the finding of fact recorded by the learned Magistrate What the property was in the constructive possession of Mst. Sultana and her daughters through their tenants, the High Court was clearly right in directing the learned Magistrate to proceed in terms of subsection (1) of section 146 of the Code of Criminal Procedure, which lays down the steps to be taken by the Magistrate if he decides that none of the parties to the proceedings, initiated under section 145 of the Code, was in possession of the disputed property. The learned Magistrate was clearly in error in not following the provisions of section 146. We are not persuaded that why should we embark upon a detailed examination of the evidence having a bearing on the question of the petitioners' possession of the disputed property. It is enough for our purposes to hold that the High Court has examined the question and has given a proper direction in accordance with law.

10. For the foregoing reasons the petition falls and is hereby dismissed.