This criminal revision filed by Ghulam Mustafa petitioner is directed against the revisional order of the Additional Sessions Judge, Rawalpindi, dated the 10th of November 1965, whereby an order passed by the learned Magistrate under section 147, Cr. P. C. Directing the petitioner not to raise an obstruction in the public street by constructing a wall at points A and B in site plan Exh. P. A. Was upheld.
2. The simple background of the case is that Messrs Zahur Ahmad and Manzur Ilahi respondents filed an application before the Magistrate Ist Class, Rawalpindi, under sections 133, 145 and 147, Cr.
P. C. Alleging that the petitioner was going to block a public passage by raising a wall at points A & B in the site plan Exh. P. A. And that this was likely to lead to breach of the peace. Vide his order dated the 30th of December 1963, the learned Magistrate passed a preliminary order under subsection (1) of section 147, Cr. P. C. That he was satisfied as to the existence of a dispute likely to cause a breach of peace in respect of the right of user of the street in question and called upon the parties to put in written statements in support of their claims. The position taken up by the petitioner was that the disputed portion of the so-called street formed a part of his plot which he had purchased from one maulvi Isma il in the year 1955-56, and that it had never been used as a public path. In support of his claim he produced Muhammad Khurshid Patwari and Kh. Bashir Ahmad Building Superintendent of the Municipal Committee. The latter stated that he had recommended the sanction of plan Exh. D. B. On the application of the petitioner. He admitted in cross-examination that Ghulam Mustafa petitioner did not produce before him an extract from the jamabandi relating to the plot where the building was sought to be constructed. It was suggested to him that the plot formed a portion of the graveyard and he admitted that if this were so, he would not have recom--mended the sanction of this plan. He further admitted that Exh. P. D. Was a communication issued to Muhammad Ismail predecessor-in-interest of the present petitioner, informing him that his application dated, 6-7-1955 for the sanction of plan and permission to raise a compound could not be accepted for the reason that it would result in the closing of to lanes.
Muhammad Khurshid Patwari deposed that the relevant Khasra number of the lane was 936. He could not give Khasra number of the disputed piece of land. He could not state whenever Ghulam Mustafa petitioner was the onwer of the disputed plot. He, however, deposed that the land, in question had remained closed since 1941 according to the record, with him. On the contrary, the respondents, placed on the record a copy of the jamabandi, for the year 1905-06 purporting to show, that survey No. 1053 measuring one kanal and 19 marlas consisted of a graveyard measuring one kanal and nine marlas and of Ghair mumkin resta measuring ten marlas. They also relied on a copy of application filed by Muhammad Ismail, predecessor-in-interest, of the petitioner, before the Municipal Engineer, for the sanction of plan Exh. P. C. And Exh. P. D. And the order Exh. P. D.
Reformed to earlier whereby the prayer was declined.
3. Having considered the evidence led by the parties in support of their respective positions the learned Magistrate passed the impugned order directing the petitioner not to obstruct the lane between points AD and CD on plan Exh. P. A. The precise finding which formed the basis of the order was since as follows: "The respondent's evidence has been recorded and considered. From the evidence it is abundantly clear that the public street had been in existence since 1905-06."
In revision before the learned Additional Sessions Judge, the petitioner, raised a to-fold contention, firstly, that in the pre--liminary order the Magistrate had not given reasons for his being satisfied as to the existence of a dispute likely to cause a breach of peace over the right of user of the lane, and secondly, that the notice issued to the petitioner was not published on a conspicuous place as required by section 145, Cr. P. C. Which procedure was also made applicable to proceedings, under section 147, Cr. P. C. Both the contentions were overruled giving rise to the present revision petition.
4. It is contended by the learned counsel for the petitioner that assuming that the learned Magistrate was satisfied about the existence of a dispute likely to give rise to the breach of peace over the use of the lane in question which was sought to be obstructed by the petitioner, he was under a statutory obligation to give a finding that such a dispute did not continue to exist at the the of pissing of the final order by him which he failed to do. Reliance is placed on Dwarka Singh and others v. Babu Jamuna Singh and others (AIR 1941 Pat. 281) and Malik Manzoor Elahi v. Gala Bishambar Dass and another (PLD 1964 SC 137). It is next contended that it was equally incumbent on the learned Magistrate, to give a specific finding that the order passed by him was not hit by the proviso to subsection (2) of section 147, Cr. P. C. And in particular he should have given a finding that the right to use the land had been exercised within three months next before the institution of the enquiry. It was argued that his omission to give such a finding was vitiative of the order.
Reliance is placed in this regard on Sirkawal Singh and others v. Bhuja Singh and others (AIR 1224 Pat. 784) and Guru Prosad Dhar v. Lachman Ram Ghose (14 Cr. L J 303). Lastly it is contended that the finding as regards the existence of the road is not based on a correct appreciation of the evidence on the record which appears to have been misread.
I have not been able 'to find much substance in the conten--tions raised by the learned counsel. A perusal of the record show that having considered the petition filed by the respondent specifically alleging grave apprehensions of breach of peace over the user of the lane, the learned Magistrate after satisfying himself had issued the preliminary order under section 147(1), Cr. P. C. Once the Court resorts to proceedings under section 145 or 147 and after having recourse to the necessary formalities passes final order the mere fact that it fails to specifically refer to the continued existence of an apprehension of breach of peace would not invalidate the proceedings which fact could otherwise to safely presumed to make such a specific mention of the continue existence of apprehsions of breach of the peace as an essential legal requirement of a valid order would be taking to technical a view. The statutory provision contained in subsection (5) of section 145 and relied upon by the learned counsel for the petitioner does not make it incumbent on the Magistrate to give such a finding. All that it says is that a party called upon to attend the Court would be well within its rights to show that no dispute is in existence AIR 1941 Pat. 281, an authority relied upon by the learned counsel for the petitioner, proceeds on entirely distinguishable facts, and has no bearing whatever on the circumstances, of the instant case. No doubt, the precise form No. 24 prescribed in Schedule 5 of the Cr. P. C. And particularly the phraseology used therein has not been precisely employed by the Magistrate with meticulous care, yet it would be to technical a view to hold that such an omission has vitiated the order itself.
6. Coming now to the second contention, it maybe observed that after considering the evidence adduced by the parties the learned Magistrate came to the conclusion that the lane in question had been used as a public street since 1905-06. It would be pertinent to observe in this context that no such finding is determinative of the rights or titles of the parties which can only be determined by a civil Court and as such it was a finding merely prima facie in nature given to the effect that the lane had been used by members of the public since a pretty long the. No doubt, the proviso to subsection (2) of section 147, Cr. P. C. Creates an exception to the rule that the Magistrate may make an order prohibiting any interference with the exercise of the right if it appears to him to have been in existence and normally when such an order is passed the only proper inference would be that the proviso was attracted to the facts and circumstances, of this case it was not the petitioner's case that the right of the user of the land had not been exercised within three months next before the institution of the enquiry. Rather, on the contrary, he was denying the very basis of existence of such a right. Even otherwise the normal presumption of propriety to official acts and orders would be equally applicable to the order in question. Further more a perusal of the relevant finding that the lane has been in existence since 1905-06 would impliedly cover its use by the members of the public as such within three months next before the institution of the enquiry. The authority relied upon by the learned counsel, namely Trijogi Narayan Singh and others v. Kamta Parsad and another (A 1 R 1955 Pat. 265) obviously proceeds on distinguishable facts. In that case, the closing of the path in question had been admitted by the opposite-party with effect from July 1951. The enquiry, under section 147, Cr. P. C. Was instituted on 15th November 195.Nd the point specifically raised before the learned Magistrate was that the right of way was not exercised within three months from that date It was in this background that his Lordship observed that it was incumbent on the Magistrate to have given a specific finding on this most relevant point. On the contrary, the position in the instant case is quite different.
7. Normally, in exercise of revisional jurisdiction this Court, would be rather reluctant to go in for re- appraisal of the evidence when there is a concurrent finding given by the Courts below Nor have, I been able to find out any misreading, and suffice it to say that the finding is only prima facie in nature.
8. The upshot of the discussion, therefore, is that the petition fails and is hereby dismissed.