' Chulab Din, petitioner, has filed this quashment petition praying that the proceedings under section 145, Cr.P.C., filed by Muhammad Salim, respondent, presently pending before Magistrate 1st Class, Sahiwal, constitute abuse of process and should, therefore, be quashed.
2. Brief history of the case is that Muhammad Salim, respondent, filed an application under section 145, Cr.P.C,, against the petitioner on 30-9-1979 alleging that a flour mill installed in Ahata No,45/1/i in Chak No,79-80/5-R was owned by his uncle Faqir Muhammad where the petitioner was employed as servant. After the demise of Faqir Muhammad his wife Mst. Ghulam Fatema became its owner who too died on 9-1-1977 whereafter the legal heirs of aforesaid Faqir Muhammad and Mst.Ghulam Fatema took over the said flour mill as owners by dispossessing the petitioner therefrom. This resulted in litigation between the parties. During the pendency of that litigation the petitioner forcibly dispossessed the respondent from that flour mill and grabbed that property and deprived its lawful owners from the benefits of the property. He also complained that whenever he tried to enter the premises of the flour mill the petitioner administered him threats to kill and thus there existed grave situation and imminent danger of breach of peace. After recording some evidence the learned Magistrate on 22-12-1979 passed preliminary order under subsection (1) of section 145, Cr.P.C.
3. In response to the notice, the petitioner appeared and filed written statement on 2-1-1980 maintaining that he was an employee of the original owner (late Faqir Muhammad) of the flour mill, after whose death Mst.Ghulam Fatema becdte owner of the mill and from her he purchased it vide agreement to sell dated 16-11-1970. After the death of Mst.Ghulam Fatema some of her heirs including Khushi Muhammad (father of applicant-respondent Muhammad Salim) attempted to take the possession of the disputed premises forcibly from him and consequently he was obliged to file a suit for declaration with permanent injunction on 11 1-1979/28-3-1979 claiming to be owner in possession of the flour mill and obtained injunction restraining them from interfering with his possession. On 1-7-1979 Ahmad Ali, one of the defendants, made a statement in the civil Court to the effect that Gulab Din, plaintiff petitioner shall not be dispossessed forcibly and illegally, therefore, the petitioner withdrew that suit.
4. On 23-1-1982 learned Magistrate dismissed the application as the applicant-respondent failed to produce a single witness despite 45 opportunities were granted to him in a period of over two years, obviously under section 145(5), Cr.P.C. But he wrongly stated to have acted under section 249-A, Cr.P.C. Against this order Muhammad Salim, respondent filed a revision which was accepted by the learned Additional Sessions Judge with the observation,- "The learned lower Court has not followed the proper procedure as laid down under section 145, Cr.P.C., nor he mentioned any offence in the impugned order under which the respondent was acquitted." and remanded the proceedings to the lower Court for deciding afresh.249-A, Cr.P.C., were applicable to the proceedings under section 145,It appears that learned trial Court mistook that provisions of .Section Cr.P.C., and the learned Additional Sessions Judge laboured under the impression that the Magistrate had acquitted the respondent of some criminal offence. It is regrettable that the Court below while exercising the revisional jurisdiction did not know what matter it was dealing with. On this short ground that conscious mind was not applied the impugned order of learned Additional Sessions Judge is liable to be struck down.
5. There is yet another aspect of this case which remained unnoticed by the Courts below, that is, the petitioner, according to the material available on record, was in possession of the disputed flour mill prior to 1st July, 1979, vide statement of Ahmad Ali made before a Civil Judge (before whom a case pertaining to this very premises was pending) and the preliminary order under section 145(1), Cr.P.C., was made on 22-12-1979. Obviously, therefore, the petitioner had not come into possession of the disputed premises two months before the passing of preliminary order and these proceedings are not maintainable in the meaning of first proviso to subsection (4) of section 145, Cr.P.C. The basic order dated 27-12-1979 is, therefore, illegal in its inception and the subsequent proceedings thereto automatically crumble down.
6. While dealing with this matter I am conscious that the impugned order had been passed by the learned Additional Sessions Judge in his revisional jurisdiction under section 439-A, Cr.P.C., and clause (b) of subsection (4) of section 439, Cr.P.C., contains clear bar to the exercise of revisional powers by this Court. The Legislature in its wisdom has kept the inherent jurisdiction of the High Court under section 561-A, Cr.P.C., intact despite recent amendments made in the of Criminal Procedure, so this Court in case of patent legal error and grave injustice committed by the lower forum can competently interfere for redressing the grievance of the party so affected.
7. In this view of the matter while exercising the inherent extra ordinary jurisdiction I allow this petition and quash the proceedings pending under section 145, Cr.P.C., filed by Muhammad Salim, respondent, in the Court of Magistrate 1st Class, Sahiwal.