AKHTAR ZAI and otherss vs THE STATE and others

ORDER

1. ' This application under section 561-A, Cr.P.C. Has been filed against the judgment of learned Ilnd Additional Sessions Judge, Karachi South dated 12-6-1999 whereby the learned Judge allowed both the revision applications by a single judgment. Learned IInd Additional Sessions Judge, Karachi Sought in his order dated 12-6-1999 has mentioned as under:- "He gadded that if special powers were not given to the Judicial Magistrate under section 19(1) of Cr.P.C. To proceed with the case, proceedings resorted to by such Court were without jurisdiction and not curable under section 537 of Cr.P.C. And he placed his reliance upon 1988, P.Cr.L.J. Page 1835 (Lahore).

2. I am very clear in my mind that after separation of Judiciary from Executive in March, 1994, the powers were defined for the Executive and Judicial Magistrates. I a.m. Fortified by the Honourable Authority of Supreme Court 1994 page 105 dated 23-3-1994 the Honourable District Judge had transferred this case from the Court of SDM Arambagh to the Court of IVth judicial Magistrate: South ,Karachi on 15-1-1994. This Judicial Magistrate was not specially empowered under Section 190(1) of Cr.P.C. To proceed with the case under Section 145, Cr.P.C.I reproduce Section 145, Cr.P.C.

3. ' Section 145, Cr.P.C.

4. "Procedure where dispute concerning land, etc. Is likely to cause breach of. Peace---(1)Whenever a District- Magistrate, or Sub-Divisional Magistrate or an Executive Magistrate specially empowered by the Provincial Government it this behalf is satisfied from. a police, report or other information that a dispute likely to cause breach of the peace exists concerning any land or water or the boundaries thereof, within the local limits of his jurisdiction,. He shall make an order in writing stating the grounds of being so satisfied, and requiring the parties concerned in such dispute to attend his Court in person' or by pleader, within a time to be fixed by such Magistrate and to put in written statement of their respective claims as respects the fact of actual possession of the subject .Of dispute."

5. The provision of this section is very clear that Executive Magistrate has the jurisdiction under Section 145, Cr.P.C.

6. The, change of forum by a 'aw always have retrospective effect and the procedural change brought by new law is to be treated as retrospective effect unless by clear words on necessary intendment it is shown to be prospective effect.

7. Judicial Magistrate had no jurisdiction to deal with the case under Section 145 of Cr.P.C. He could have refer the matter for the transfer of the case. The order passed by the Judicial Magistrate is without jurisdiction, coram non Judice hence it is set aside. Let the position of the property to be remain there same as it was prior to passing of the order. Both the Revisions are allowed as above.

8. ' The learned Ind Additional Sessions Judge is clear that the Judicial Magistrate has no jurisdiction to deal with the cases under Section 145, Cr.P.C.

9. ' Learned Advocate for the applicants submits that the proceedings under Section 145, Cr.P.C. Were transferred to the Judicial Magistrate under the order of District and Sessions Judge, Karachi South and, therefore, the Judicial Magistrate has jurisdiction.

10. Learned counsel for the respondents have produced Legal Reforms Act, 1997 and have relied on decisions reported in PLD 1997 Lah. 208 on the point that the Judicial _Magistrates were not to perform the executive duties. It has also been held in this decision that the proceedings under Sections 100/107/151/133/145/552 of the Code of. Criminal Procedure are not the part of judicial working of the Judicial. Magistrates which come within the ambit of the powers of the concerned Executive Magistrates.

11. ' The view of the 'Ind Additional Sessions Judge; Karachi. South is obviously correct and cannot be disturbed by exercising powers under Section 561-A, Cr . P.0 . This application is misconceived and as such the same is dismissed along with the listed application bearing M.A. No,843 of 1999.

12. However, it will remain open to the parties to approach competent forum.