' ATTAULLAH KHAN, J.---Through the instant quashment petition filed under section 561-A, Cr.P.C.
The petitioners Bakht Zamin and four others have challenged the order of the learned Additional Sessions Judge-VIII, Peshawar, dated 20-6-2011 whereby while accepting the revision petition filed by the respondents, he set aside the order of the learned Judicial Magistrate dated 13-5-2010 and ordered attachment of property for an indefinite period, thereby accepting the application under section 145, Cr.P. Filed by the respondents before the court of first instance.
2. Brief facts of the case are that Lal Zada and his two brothers moved the court of Judicial Magistrate by filing a complaint under section 145, Cr.P.C. Against Bakht Zamin and four others. It is averred in the complaint that the complainants are owners in possession of the property located in Khasra Nos. 3626, 3745, 3746, 3747, 3627, 3628, 3629, 3630, 3633 and 3622 situated in Mauza Adizai, District Peshawar and that the respondents despite having no nexus whatsoever with the aforesaid property, have started interference in it and have also taken into possession a some chunk of the said property which overt act on the part of respondents, there is every likelihood of apprehension of breach of peace.
3. The learned Judicial Magistrate after recording evidence of the parties, dismissed the complaint, vide order dated 13-5-2010. Feeling aggrieved, the complainants filed a revision petition before the Additional Sessions Judge and the learned Additional Sessions Judge vide his judgment and order dated 20-6-2011 accepted the revision petition, set aside the order of the Judicial Magistrate and accepted the application under section 145, Cr.P.C., with order qua attachment of the disputed property for an indefinite period. Hence, this quashment petition.
4. The learned counsel for the petitioner contended that the revisional court has misread the evidence available on record; that not only the statement of the Patwari concerned but the Revenue Record too established that the disputed property remained in possession of the petitioners for the time immemorial; that the possessory rights being with the petitioners, there is no apprehension of breach of peace in terms of section 145, Cr.P.C. As in the past too neither any criminal case nor even a complaint or quarrel took place between the parties and thus the order of attachment of property owned and possessed by the petitioners, is violative of fundamental rights and natural justice, therefore, the said order being based on surmises and conjectures is liable to be set at naught.
5. As against that; the learned Additional Advocate-General appearing for the State assisted by the learned counsel for the private respondents argued that the order of the learned Additional Sessions Judge being based on proper appraisal of evidence is not open to any exception as the dispute over the property which is subject-matter of the -complaint under section 145, Cr.P.C. Is likely to erupt between the parties, therefore, in the public interest and fair play, the revisional court has rightly accepted the application under section 145, Cr.P.C. And passed order of attachment of the property for an indefinite period.
6. I have gone through the record carefully and have also considered the submissions made by the learned counsel for the parties.
7. After going through the impugned judgment and scanning the entire evidence recorded in support of application under section 145, Cr.P.C., I tend to agree with the arguments of the learned counsel for the petitioners for the following reasons: Patwari Halqa while appearing as P. W.1 produced Aks Shajra Kishtwar, Fard Jamabandi and Khasra Girdwari and in his cross-examination he admitted that the complainants are nowhere recorded in the Khasra Girdwari to be in possession of the disputed property which means that the disputed property is not in their possession.
That in a complaint filed under section 145, Cr.P.C., the moot' point for consideration of the court is to see the possession of the disputed property and not its ownership. Had the property in dispute been in possession of the complainants, the result would have been different but the statement of Patwari fully supported by revenue record negated the stance taken by the complainants in their application under section 145, Cr.P.C.The complainant too while deposing as P.W. Failed to pin point the Khasra No, which had been forcibly taken into possession by the respondents (petitioners herein) despite being complainants' ownership.
The complainants (respondents herein) in support of their complaint under section 145, Cr.P.C.
Have badly failed to prove the factum of apprehension of danger to peace and tranquillity which was going to happen as a result of forcible possession enacted by the petitioners.
For the reasons discussed above, I allow this quashment petition, set aside the order of the learned Additional Sessions Judge dated 20-6-2011 and maintain the order of the learned Judicial Magistrate dated 13-5-2010 whereby application filed under section 145, Cr.P.C. Was dismissed.