This revision petition is directed against the order of Mr. Ehsan-ul-Haq, learned Additional Sessions Judge, Lahore, dated the 12th of January 1969, purporting to have been passed in exercise of his revisional jurisdiction, whereby he set aside the order of Mr. S. A. Naqvi, Magistrate 1st Class, Lahore, dated the 9th of July 1968, passed under section 145, Cr. P. C. The Additional Sessions Judge remanded the case to the learned Magistrate with the direction that he shall allow an opportunity to Dr. Abdur Razzaq (respondent), the petitioner before him, to produce his two witnesses including Raja Muhammad 1qbal, S. I. Of Police who had reported the case under section 145, Cr. P. C.
2. The dispute in this case relates to the possession of one-half portion of the premises known as Cardex Clinic (Shop No. S-52-R-11, Nisbet Road, Lahore) which was originally an evacuee property and was transferred in the name of the respondent. The latter appears to have transferred in turn one---half-portion in favour of the petitioner by means of a sale-deed. The parties who are both doctors by profession are closely related, inter se, the sister of respondent being the wife of the petitioner. For some time the parties carried on joint practice with the Cardex Clinic but later separated and started practising in the portions in their respective possession. After some time the respondent appears to have started practice in Baghbanpura at 196, G. T. Road and leased out his Eastern portion of the property to Dr. Abdul Ghani which was not relished by then present petitioner.
3. It was on the 11th of February 1967, that Abdur Razzaq (respondent) initiated proceedings under section 145, Cr. P. C. Alleging inter alia that the petitioner, a day earlier, i.e. 10th December 1967, with the help of certain other persons had forcibly dispossessed Dr. Abdul Ghani (lessee) and had also damaged the property. On the same day Dr. Akhtar A.I (petitioner) made a report with Gowalmandi Police alleging that Abdur Razzaq (respondent) along with Dr. Abdul Ghani and some other person had criminally trespassed into the premises which was in his exclusive possession. Consequently, a case under section 448/452, P. P. C. Was registered against them. A cross case was also registered under the same sections against the petitioner. It appears that simultaneously with this, proceedings under section 107, Cr. P. C. Were also resorted to by the S. H. O., Police Station, Gowalmandi, who reported the matter to Rana Salim Akhtar, M. I. C., Lahore. Vide his order dated the 12th of December 1967, the learned Magistrate, passed the preliminary order under section 145, Cr. P. C. Requir--ing the parties to put in their written statements in regard to their respective claims and also ordered the attachment of the Eastern-portion of the Cardex Clinic which was accordingly sealed by the police.
4. From a perusal of the record one cannot avoid an Impression that no effort was spared to prolong the proceedings and all possible dilatory tactics were resorted to including transfer applications filed at every stage right up to the High Court. While the proceedings were still at the preliminary stage, Dr. Abdur Razzaq (respondent) moved an application for the transfer of the case before the A. D. M. Who transferred the case to his own file. While the case was pending before the A. D. M. The respondent again sought its transfer by filing Criminal Miscellaneous No. 789 of 1968 which was allowed by my learned brother Muhammad Siddiq, J., vide his Lordship's order dated the 24th of April 1968, sending the case back to the Magistrate Ilaqa, namely, Mr. S. A. Naqvi, with a direction for its ex--peditious disposal. This time the petitioner sought the transfer of the case from the Court of Mr. S. A. Naqvi and moved an application before the District Magistrate which was turned down. The final order was passed by Mr. Naqvi on the 9th of July 1968. It was held, firstly, that he was not satisfied as to the apprehension of breach of peace and secondly that the petitioner was in possession of the property in dispute before the initiation of proceedings. It was accordingly directed that the premises be resealed and the petitioner be put in possession.
5. Feeling aggrieved the respondent filed a Criminal Revision before the learned Additional Sessions Judge, Lahore, which was accepted by him vide his impugned order dated the 12th of January 1969. The learned Judge came to the conclusion that the impugned order had been passed without proper compliance with the provision contained in section 145(4), Cr. P. C. And that the learned Magistrate was under an obligation to summon the S. I. As also to examine the respondent before passing the final order. The case was accordingly remanded to the learned Magistrate with the direction that an opportunity be allowed to the respondent to produce the S. I.
Besides his personal exami--nation. Feeling aggrieved the petitioner has filed the present revision petition.
6. It needs no elaborate discussion to show that the impugned order purporting to have been passed by the learned Additional Sessions Judge, in exercise of his revisional jurisdiction is illegal and without jurisdiction, and as such, cannot be sustained. Since obviously, the order passed by the learned Magistrate and impugned before the learned Additional Sessions Judge was neither appealable nor covered by any of the provisions contained in sections 436 and 437, Cr. P. C. He was, in the cir--cumstances, under a statutory obligation to refer the case to the High Court, being himself incompetent to adjudicate in exercise of his revision jurisdiction. This position was frankly conceded by the learned counsel for the respondent who never--theless contended that since the High Court was siezed of the matter being fully competent to dispose it of on merits it would be merely a futile and wasteful exercise to remand the case to the Additional Sessions Judge for referring the case to this Court. It was contended that it would be rather in the fitness of things to eliminate this avoidable delay and decide the case on merits. The contention has obviously some force and is upheld not being resisted by the learned counsel for the petitioner.
7. Coming to the merits of the case, I find that obviously being conscious of the direction of the High Court for the expeditious disposal, the learned Magistrate has fixed short dates in the case which came up for hearing on the 5th of June 1968, 8th of June 1968, 15th of June 1968, 24th of June 1968, 27eh of June 1963 and 28th of June 1968. During this period 12 witnesses were examined by the respondent who appears to have obtained dasti summonses for the service. The case was then adjourned to the 6th of July 1968, when another adjournment was sought by the respondent which was allowed and the case was finally adjourned to the 9th of July 1968, with a clear indication that no further opportunity would be granted to the respondent to conduct his evidence. This case was called several times till 1 p.m. When the respondent's junior counsel appeared seeking yet another adjournment which prayer was declined by the learned Magistrate.
8. It was contended on behalf of the respondent: firstly, that the learned Magistrate should have summoned the S. I. Who was a Government official and was under no obligation to appear in the Court at the behest of the respondent; secondly, that at least the respondent who was present before him should have been examined as his own witness and lastly that even otherwise whatever evidence was brought on the record, was not at all discussed by the learned Magistrate and, as such, the in--ference that the petitioner was in possession of the disputed property was wholly unwarraned. It was also contended that the respondent who was undeniably the sole transferee of the premises having voluntarily transferred the I of the same in favour of the respondent could not have been expected to relinquish the possession of his own share which being ideally situated from business point of view could fetch handsome income.
9. In so far as the first contention is concerned, it would be absurd to hold that in the proceedings under section 145, Cr. P. C. The Magistrate was under an obligation to grant adjourn--ment after adjournment to the respondent to enable him to complete his evidence who was definitely given the last oppor--tunity to do so on the 6th of July 1968. The principal object of section 145 is two- fold: firstly to prevent the breach of peace over land or water and secondly, to restore the possession of the same to the party found to have been forcibly and wrong--fully dispossessed within two months next before making the preliminary order under section 145(1), Cr. P. C.
Irrespective of its right to possess, the question of title having been obviously left to the civil Courts for determination.
10. Subsection (4) of section 145, Cr. P. C. Reads as follows:- "The Magistrate shall without reference to the merits of the claims of any of such parties to a right to possess the subject of dispute, peruse the statements so put in, hear the parties, receive all such evidence as may be produced by them respectively, consider the effect of such evidence, take such further evidence (if any) as he thinks necessary, and, if possible, decide whether any and which of the parties was at the date of the order before mentioned in such possession of the said subject: Provided that, if it appears to the Magistrate that any party has within two months next before the date of such order been forcibly and wrongfully dispossessed, he may treat the party so dispossessed as if he had been in possession at such date: Provided also, that if the Magistrate consider the case one of emergency, he may at any time attach the subject of dispute, pending his decision under this section."
It is abundantly clear from the plain reading of this provision that the evidence has to be produced by the parties, which, of course, would include summoning of witnesses through Court. A perusal of the record does not indicate that the S. I. Having been duly summoned was not served. As regards the petitioner's own examination, there is no indication on the record either that be wanted to make a statement and was not allowed to do so. Even otherwise an elaborate written statement filed by him was already on the record in addition to his preliminary statement recorded on the 11 of December 1967. The contention is, therefore, overruled.
10. The next contention which falls for determination, however, is as to whether the learned Magistrate had discussed the evidence adduced by the respondent in support of his con--tention that his lessee Dr. Abdul Ghani was in actual physical possession of his portion and was forciblyth thrown out by the petitioner and others. I have no hesitation in saying that there: is no discussion whatever of the evidence led by the respondent and the only relevant observation made by the learned Magistrate in this regard is just one sentence occurring in the concluding paragraph of his order. It is as follows:- "Dr. Akhtar A.I was in possession of the property in dis--pute."
Although it would have been appropriate for the learned Magistrate to have discussed the evidence even though briefly, to g justify his inference in regard to the petitioner's possession yet this per se would be hardly sufficient to justify the setting aside of his order and remanding the case to the Magistrate with a direction to pass a fresh order after discussing the evidence. The position is analogous to the order passed by the learned Addi--tional Sessions Judge. It has to be seen whether the inference drawn is in consonance with the evidence on the record and based on its correct appreciation.
11. Having perused the record I am of the view that prima facie the conclusion arrived at by the learned trial Magistrate was not unwarranted by the evidence on the record although as stated earlier there has been no relevant discussion in this regard. In fact the petitioner's possession appears to have been admitted by the respondent himself in his notice dated the 22nd of May 1967, sent to the petitioner through Mazhar-ul-Haq, Advocate, photostat copy of which is Annexure 'A' and is at page 70 of the trial Court's record, paragraph 3 of the same is very significant and may be reproduced with advantage "You are hereby informed to finalise the remaining terms of the said agreement dated 11-9-1966, within a week from the date of receipt of this notice and to vacate the half portion of the Cardex Clinic that has fallen to the share of my client, as he needs the premises for his business."
Further support is lent to this by two receipts placed on the record by the respondent, relating to the payment of Municipal Tax and Property Tax of the entire premises, which exist at pages 81 and
83. The petitioner also lodged a report against the respondent, his lessee Dr. Abdul Ghani, and others alleging criminal trespass. The entire evidence led by the respondent appears to be wholly inadequate to refute the aforesaid docu--mentary evidence showing the petitioner's possession over the disputed portion of the Cardex Clinic. Consequently, I see no reason to take a different view from the one taken by the learned trial Magistrate.
12. The upshot of the discussion, therefore, is that the order of the learned Additional Sessions Judge, cannot be main--tained and is hereby set aside with the result that the order of the learned trial Court stands restored.