1. ' This order will dispose of Criminal Revisions Nos. 1 and 2 of 1977. Haji Mir Khan son of Rahan and Nazar Khan son of Qadir Bux filed an application under section 145, Cr. P. C. Before the Assistant Commissioner, Bhag on 5th October, 1976. Petitioner, Nazar Khan filed another application under the same provisions and on practically the same grounds in respect of different pieces of land.
2. ' In the first application the contention raised is that the petitioners had purchased the disputed land from its original owner Abdul Karim in the year 1974 and that since then it is in their possession.
3. But during the present season respondent Lehna had started cultivation on the disputed land forcibly. It was alleged that the parties were Baluch, and because the respondent is preparing to take forcible possession of the land, therefore, there was an apprehension of the breach of peace.
4. The Magistrate was, therefore, requested to proceed under section 145, Cr. P. C. In the other application same story of purchase of the disputed land from Abdul Karim by the applicant is put forward with similar allegations of forcible possession by Lehna respondent.
5. ' The learned Assistant Commissioner passed an order under section 145(1), Cr. P. C. On the day the two applications were presented before him and notices were issued to the respondents with directions to file their written statements on 13th October, 1976. At the same time an order was made keeping the disputed land in the Mianji Khana pending proceedings. On the 13th of October, 1976 respondents in both the applications filed their respectives written statements. The next date was fixed for 30th October, 1976 when both the parties prayed for an adjournment on the ground that there was a chance of a compromise. The next date was 20th November, 1976 when the petitioner was absent due to illness and prayer was made on his behalf for an adjournment on that ground. Next date fixed was 6th of December, 1976 when the Presiding Officer was away on tour.
6. However, on 11th December, 1976 he directed that the next date be fixed for hearing on 22nd December, 1976 and that the parties should be summoned for the date so fixed.
7. ' On this adjourned date the learned Assistant Commissioner and Magistrate First Class proceeded to decide the matter on the strength of the documents relied upon by both the parties and directed handing over the plots to respondent Lehna.
8. ' Mr. Muftakhiruddin for the petitioners in both the cases contends as under :- (a). The order dated 22nd December, 1976 has been passed behind the back of the parties, and
(b) that it has been passed without regard to the provisions of section 145(4), Cr. P. C.
9. The learned counsel contends that order dated 11th December, 197 indicates that the learned Magistrate directed that the patties be summon but no such summons were ever issued. The perusal of the file of the lower Court does not indicate if any such summons had ever been issued.
10. At the same time the impugned order is also silent if the parties were present before the learned Magistrate when he passed it. An order passed behin the back of the parties particularly the party who is affected adverse violates the principle that no man should be condemned unheard and is, therefore, not sustainable.
11. ' Mr. Muftakhiruddin while relying upon Younas Meah v. Abdur Rashid and 7 others (1), insists that the learned Magistrate could not pass the impugned order merely on the basis of the documents relied upon by the parties. His contention is that an independent enquiry has to be conducted on the question of possession on the day when the order under section 145(D Cr. P. C. Had been passed. The contention has force in it. Subsection (4 of section 145, Cr. P. C. Clearly indicates that the Magistrate has to decide "whether any and which of the parties was at the date of the order before mentioned in such possession of the said subject." The date referred to is the date on which the order under subsection (1) of that Section is passed.
12. ' The first proviso to this -subsection lays down that if any party was dispossessed within two months of the aforesaid order such party is to be deemed to be in possession for the purposes of such provision. This question of possession cannot be solved merely by relying on the documentary evidence produced by the parties. It is always to be borne in mind that a Magistrate proceeding under this provision does not determine the title to property. His sole function is to determine as to who was in possession of the disputed piece of land on the crucial day, and that also only if there is an apprehension of breach of peace. The documents may help in solving the question of title but not always the question of possession unless they unmistakably indicate the date of possession to be the same as is envisaged by subsection (4) of section 145. In the present case the sale-deed relied upon by the petitioners is dated 8th February, 1974. The acceptance or rejection of this document does not in any way help the solution of the question of possession with respect to 5th October, 1976, or within two months before such date. The petitioners in both the cases have filed list of witnesses which they respectively wanted to be examined in support of their contention as to the question of possession. The learned Magistrate when he ignore to examine such witnesses, and proceeded to decide the dispute of possession on the basis of the sale-deeds dated February, 1974 and entries in 8th mutation register, clearly relied upon inadequate evidence and did not carry out the type of inquiry envisaged by section 145(4), Cr. P. C. Mr. Basharat ullah concedes that the proceedings before the learned Magistrate suffer from such lacuna and that the orders were passed behind the back of the parties.
13. ' But Mr. Basharatullah has taken a very strong exception, to the procedure followed by the petitioners inasmuch as they have come to this Court of Sessions. Mr. Basharatullah concedes in this behalf that the jurisdiction to entertain a revision application concurrently vests in the Court of Sessions and the High Court, but claims that long standing practice of High Courts as well as propriety demanded that the petitioners should firstly go to the Court of Sessions. As the revision petition already stands admitted, I would be loath to entertain such submission. But in this particular case in view of the vehemence with which Mr. Basharatullah has put forward arguments in this behalf I would examine them. In actual fact Mr. Basharatullah is left with only this ground of attack.
14. ' The first case relied upon by Mr. Basharatullah in this behalf is Muhammad Farooq v. Rais Hassan Khan (2). The observation made is that the High Court should not entertain an application for revision where the applicant could have applied to the Sessions Judge and he had not done so. {{FOOT NOTE}}
(I) 1969 P Cr. L J 759 (2) PLD 1960 Kai., 42 {{FOOT NOTE}} ' At the same time it is also observed that in certain cases it has been held by some High Courts in India before partition that if the cases are admitted, they must be disposed of on merits. The second case is that of Muhammad Ehsan v. The State (1), the observations particularly relied upon by Mr. Basharatullah are :- "Since, however, the exercise of revisional jurisdiction is a discretionary matter, this Court is under no obligation to directly entertain such petition where the party invoking its jurisdiction tries to short-circuit the procedure laid down by the law."
15. ' Further on it is observed that if there were no other reasons for the dismissal of the petition, the learned Single Judge would not have "perhaps deemed it proper to rely on a mere technicality for its dismissal". In Qadir Bakhsh v. The State (2), it is held that although some time the High Court has directly entertained the revision on matters concurrently falling within the revisional jurisdiction of the Sessions Court but such practice is not to be encouraged.
16. ' These cases clearly lay down the law that the High Court has always the power to entertain a revision application under section 435, Cr. P. C. Directly. Mr. Basbaratullah also readily concedes that the law does not envisage any such bar. It is only on the basis of propriety and long practice that he insists that such a revision application should not have been entertained. The practice of directly approaching the High Court is particularly to be deprecated in cases where the applicant tries to short-circuit the Sessions Court. The advantage of moving the Sessions Court, in the first instance, is that matter is subjected to detailed examination. Another reason, as pointed out in Qadir Bakhsh's case referred to above, is the "huge accummlation of work in the High Court."
17. ' Conceding that it is always proper, and in the interest of better administration of justice that the parties should approach the Sessions Court in the first instance, there can always be cases where the Sessions Court is unable to provide immediate relief. In this connection Mr. Muftakhiruddin relies upon Bansi and others v. Hari Singh (3) to show that the Sessions Court does not have the power to grant interim relief required in the present case. This ruling states that the "revisional powers of the Sessions Judge or the District Magistrate are far inferior in respect of an order of stay under section 426, for under section 435(1) or section 438(1) of the Code they can only direct stay of the execution of any sentence passed on an accused-person by a subordinate Court, while they have no power to stay the execution of any order".
18. In the present case the challenge is to the legality of an order under section 145, Cr. P. C. And not a sentence. At the same time the praye made is for the stay of such order pending proceedings under section 435, Cr. P. C. It is obvious that in view of the provisions of section 439(1), Cr. P. C. The High Court, and not the Sessions Court has powers to suspend the execution of such order.
19. Therefore, in cases where Revision Petition D challenges an order, as distinguished from a judgment and the petitioner can show that the circumstances of the case warrant the grant of interim relief, it would always be fit and proper that the revision application should be entertained at the level of the High Court, because such interim relief is {{FOOT NOTE}}
(I) EL D 1968 Labh 451 (2) 1972 P Cr. L T 982 (3) AIR 1956 All. 297 {{FOOT NOTE}} beyond the jurisdiction of Sessions Court. As the facts and circumstance of present revision petitions conform to these conditions, I would hold that they have been properly entertained in this Court :- ' As the order was passed behind the back of the parties and in disregard of the provisions of section 145(4), Cr. P. C. The impugned orders in both E the petitions are set aside. It is explained that the affect of this order would be that the order dated 5th October, 1976 passed by the learned Magistrate under section 145(1), Cr. P. C. Would hold the field. The learned Magistrate would now proceed to determine, after holding proper inquiry, as to who was in possession of the disputed pieces of land in terms of section 145(4), Cr. P. C.