' This revision petition is directed against the order dated 11-11-66 of the learned Additional Sessions Judge, Lahore, wherein he set aside the order dated 9-8-65 passed by the Magistrate and remitted the case to him for further enquiry into the charge under section 448, P. P. C. Only against the petitioners.
2. The relevant facts of the case are that the petitioners and Bashir Hussain respondent were joint transferees of a house situated at Railway Road, Lahore, by Settlement Authorities. One Siraj Din was in occupation of a room in the same house. Bashir Hussain respondent secured his ejectment from the disputed room.
3. It was alleged that on 11-10-64, the petitioners broke open the lock, took forcible possession of the room and grabbed the articles lying therein. The respondent lodged an F. I. R. On the following day which led to the registration of the case under sections 457/380 and 448, P. P. C. At Police Station, Gawalmandi, against the petitioners.
4. The case was tried by Qazi Mahmood Afzal, Magistrate, Lahore. He recorded evidence of five prosecution witnesses and passed an order of discharge of the petitioners on 9-8-65.
5. The State did not file appeal or revision against the order of the discharge passed by the trial Court but Bashir Hussain challenged the order by way of revision petition. The learned Additional Sessions Judge, vide his order dated 11-11-66 set aside the order of the trial Magistrate, accepted the revision petition and remitted the same to the Magistrate for holding further enquiry into the matter.
6. Learned counsel for the petitioners submitted that the learned Additional Sessions Judge, had erroneously set aside the order of trial Magistrate. He contended that prosecution had closed the evidence and no further opportunity could be provided to it for abridging the gaps in the prosecution case. He argued that the onus lies on the prosecution, to establish its case against the petitioners beyond reasonable doubt. He relied on Mohammad Fazal-ul-Karim v. The State and another (1) for the proposition. It was next submitted that learned revisional Court was not competent to pass final order in revision petition setting aside the order of the trial Magistrate. In case, he was to set
(1) PLD 1964 SC 792 ' aside the order, it was incumbent upon him to recommend the case to the High Court.
7. Learned counsel for the respondent and State opposed this petition and submitted that the order passed in revision by the learned Additional Sessions Judge, was legal. Learned counsel for the respondent however, admitted that a compromise had taken place between the parties with regard to the disputed room and that room had ultimately fallen in the share of the petitioners. He submitted that the compromise between the parties was effected in Writ Petition No, 970/R/71, decided on 31-5-77 by this Court.
8. It is true that the learned Additional Sessions Judge, had set aside the order of the trial Magistrate without submitting his recommendations to this Court as contemplated under section 438, Cr. P. C. It appears that the faulty reasoning advanced by the trial Magistrate in rejecting the charge under section 448, P. P. C. Against the petitioners, did not appeal to the learned Additional Sessions Judge and for that reason alone he set aside his order, otherwise the conclusion reached by the trial Magistrate was neither perverse nor inconsistent with the evidence on the record. The revisional Court itself felt and pointed out the deficiency of relevant material on the record and impressed by this fact remitted he case for further enquiry. The prosecution itself had closed the evidence and the revisional Court was to examine the legality of the order of the trial Court passed on the evidence on record. The prosecution did not take into possession the broken lock nor any witness was produced to vouchsafe the fact that he had seen the petitioners taking forcible possession of the disputed room. There is delay in lodging the F. I. R. Without reasonable explanation. The order passed by the trial Magistrate was legal and called for no interference by the learned Additional Sessions Judge, exercising revisional jurisdiction.
9. Furthermore, the occurrence in this case had allegedly taken place on 11-10-64. The litigation regarding the disputed property after prolonged delay had ended in compromise in the year 1977.
In these circumstances, 1 am of the view that it will be neither legal nor just to revive the litigation unwanted by the parties, at this stage.
10. For the foregoing reasons, I set aside the impugned order passed by the learned Additional Sessions Judge, Lahore and accept this petition.