This revision petition is directed against the orders of Ch. Manzoor Hussain, Magistrate First Class, Lahore, dated 19th of August 1970, and Ch. Shamas-ud-Din, Additional Sessions Judge, Lahore, dated 14th of October 1970 whereby both of them refused to put the petitioner in possession of shop No. 31 in Dinga Singh Building, Beadon Road. Lahore, as directed by Ch. Shamas-ud-Din himself in his order dated 12th of June 1970, by which he dismissed the appeal filed by the respondents against their conviction and sentences under section 448, P. P. C.
2. The petitioner had been put into possession of the above shop by a Bailiff of the civil Court with the help of the police in compliance with a warrant of possession issued by Mr. Muhammad Ashraf Butt, Rent Controller, Lahore. The respondents, however, on the night between 14th and 15th of October 1968, took forcible possession of the shop and the matter was reported to the police by the present petitioner on 16th of October 1968. Ch. Manzoor Hussain, Magistrate First Class, Lahore, passed an order convicting respondents under section 448, P. P. C. And sentencing them to six months' R. I. Each by his order dated 31st of January 1970. No order was passed under subsection (1) of section 522, Cr. P. C. By the trial Court for restoration of possession. After the order of conviction was announced by the trial Court, the petitioner applied to it for restoration of the possession. This request was refused on 24th of February 1970, and the petitioner filed an appeal against this order to the Sessions Court. The respondents appealed against their conviction under section 448, P. P. C.
Which came up before Ch. Shamas-ud-Din, Additional Sessions Judge, Lahore who upheld their conviction but reduced the sentence to a fine of Rs. 500 each. He also directed the respondents to hand over the possession of the shop on or before 16th of June 197x. The respondent --convicts filed a revision petition in the High Court which was dismissed on 16th of June 1970, by Shaukat Ali, J.
And his Lordship observed that the learned Additional Sessions Judge had rightly given a direction under section 522, Cr. P. C. For the restoration of the shop to the complainant.
3. The petitioner thereafter presented an application to the trial Court on 24th of June 1970, asking for a direction to the police of Qila Gujjar Singh to dispossess the respondents and restore physical possession of the shop to him. 'I he learned Magistrate dismissed this application by his order dated 19th of August 1970. He observed that the direction given by the appellate Court was to the respondents and not to the trial Court itself. He further observed that the property was situate in the jurisdiction of Police Station Qila Gujiar Singh which was not attached to his Court and he had disposed of the case in question because it had been transferred to him. Another ground for rejection was that the petitioner had not pursued his appeal before the learned Additional Sessions Judge and had with--drawn it on 21st of July 1970.
The petitioner then applied to Ch. Shamas-ud-Din, Additional Sessions Judge, on 3rd of September 1970 for execution of his order passed in appeal and prosecution of the respondents for contempt of Court. The learned Additional Sessions Judge dismissed this application on the ground that his was not the executing Court and that the petitioner should get his order executed in accordance with law. He also observed that no case of contempt had been made out against the respondents.
4. Notice was sent to the respondents and Mr. Muhammad Usman Khan, Advocate, appeared for respondent No. 1. Israrul Haq was present in person while Sirajul Haq was reported to be in Karachi.
It is, however, not denied that the shop is in possession of respondent No. 1. It is, therefore, not necessary for me to wait for the appearance of Sirajul Haq especially when the respondents are interested in delaying the matter. Under section 440, Cr. P. C. This Court is not bound to hear a party except when the case is covered by subsection (2) of section 439, Cr. P. C.
5. The only question before me is whether the learned Magistrate and the learned Additional Sessions Judge were right in refusing to implement the direction which was given by the latter himself. The learned Magistrate refused to execute the order of the appellate Court mainly on the ground that it was addressee to the respondents and that the petitioner had withdrawn the appeal that he had filed against his order dated 24th of February 1970. I must say that the learned Magistrate was wholly wrong in refusing to implement the direction of the appellate Court merely because it was expressed in a particular way. The Courts are not expected to pass orders in vacuum. Whatever the form they have to be implemented, otherwise the directions given b the appellate Court could be successfully thwarted by a recalcitrant party and the respect attaching to final adjudication of matters b competent Courts shall diminish.
6. The fact that the petitioner withdrew his appeal against the order of the learned Magistrate dated 24th of February 1970, is of no consequence. In the first instance no appeal was com--petent from such an order and, secondly, the relief sought for had been given to the petitioner in the order of the learned Additional Sessions Judge, dated 12th of June 19711, while dismissing the appeal of the respondents. There was no point in pursuing this incompetent appeal any further. The learned Additional Sessions Judge should have himself dismissed it but the date of its withdrawal by the petitioner in no way detracts from the force of the direction given by the learned Additional Sessions Judge.
7. The reasons given by Mr. Shames-ud-Din for non-imple--mentation of his own direction are not legally sustainable and it appears that the learned Additional Sessions Judge completely failed to address himself to the only question arising out of the application filed before him which was to the effect that the trial Court should be asked to implement the direction issued by him. Mr. Shames- ud-Din frustrated his own order by saying that he was not the executing Court. There was nothing to debar Mr. Shamas-ud-Din from asking the original Court to put the petitioner in possession in compliance with the appellate order or he could himself order the police concerned to do the same. If we accept the orders passed by the learned Magistrate and Mr. Shames-ud-Din, it would mean that orders passed by an appellate Court in solemn discharge of its duties can be permitted to hang in the air without affording relief to the citizens to which they are legitimately entitled. This will, give them the sad impression that the Courts are helpless to implement the orders passed In performance of their duties in the course of dispensation of justice.
8. Mr. Muhammad Usman Khan, the learned Advocate appearing for respondent No. 1 argued that the learned Additional Sessions Judge had no jurisdiction to pass an order directing the respondents to put the petitioner in possession. This argument was based on the reading of subsection (1) of section 522, Cr. P. C. It was asserted that it was only the Court of original jurisdiction which had the authority to pass such an order. This argument is directly opposed to the clear legislative intent expressed in subsection (3) of section 522, Cr. P. C. Wherein it is said that any Court of appeal, confirmation, revision or reference may pass a similar order. It is surprising that the learned counsel chose to advance such an impossible argument in view of the clear language of subsection (3) of section 522, Cr. P. C. Which was added by the amending Act XVIII of 1923. When questioned whether he had any authority to support his contention, he repeated, not without some beat, that "in his opinion" no authority was needed and the language of the law was too clear to admit of any other interpretation than the one he was putting on it. This rather opinionated assertion of the learned counsel runs counter to the unanimous judicial opinion expressed by the High Courts in this sub-continent which of course is in line with the language of subsection (3) of section 522. The only difference is that some Courts have said that the appellate and revisional Courts can pass orders under sub---section (3) of section 522, Cr. P. C. Only during the hearing of matter of conviction of the accused. This opinion was expressed to Ghazan and another v. Mst.
Shag Bhari (AIR 1932 Lah. 210), Said Umar and another v. Abdul Qadir (AIR 1937 Pesh. 7) and Muhammad Sharif v. Diwan Singh (AIR 1940 Lah. 95). In the two first mentioned cases the Magistrate who tried the case had passed orders of restoration of possession cater the statutory period of one month prescribed in sub-section (1) of section 522, Cr. P. C. It was held that the Magistrate had become functus officio after the lapse of one month. In the last mentioned case the learned Sessions Judge had passed wit order for restora--tion of property although there was no appeal against conviction before him. It was held that subsection (3) of section 522, Cr. P. C.
Applied to the Court which was dealing with the original matter either as a Court of appeal, confirmation, reference or revision in relation to that matter. The last portion of this judgment, however, does not exclude the possibility of revision petition being entertained by the High Court independently of the original matter if the impugned order even if passedwithout jurisdiction was in substance a just order in the circum--stances of the case. In Aswani Kumar leas v. Sasanka Mohan Bose (AIR 1932 Cal. 750) the Magistrate had passed the order after the statutory period of one month. Their Lordships held that the order of the Magistrate was without jurisdiction but such an order could have been obtained from the High Court during the hearing of the appeal. They refused to exercise their power on the revisional side and it appears that their Lordships thought that they could not pass such an order in exercise of their revisional jurisdiction. The view of the Bombay, Patna, Oudh, Allahabad a d Nagpur High Courts is different. It was held in Savlaram Sadoba.,Vavle v. Dnyaneshwar Vishnu Chinke (AIR 1942 Bom. 148) that even if there may be no appeal or revision against the conviction of the accused before the High Court, it can interfere in an order passed by a Magistrate even though an application may have been moved under section 522 (1), Cr. P. C. After one month.
It appears that the view of the Courts in Pakistan leans against the rather strict view taken in Ghazan and another v. Mst. Bhag Bhari and Said Umar and another v. Abdul Qadir referred to above. In Abdul Ghani v. Crown (PLD 1950 Lah. 154) the accused had been acquitted by the Sessions Judge who had said nothing about the orders passed by the Magistrate directing the delivery of possession to the complainant. The accused moved the High Court for re-delivery of the possession of the property to him. The High Court entertained the revision petition although the matter of the conviction or acquittal of the petitioner was not before it.In Saeed Ahmad v. The State (PLD 1963 Lah. 41) the Magistrate after acquitting the accused had directed that they be put into possession of the property in dispute. The complainant came in revision before the High Court against this order but not against the order of the acquittal of the accused. The revision petition was entertained and adjudicated upon finally by Muhammad Iqbal, J. Who dismissed the same. In Lal Mia v. Ahmedullah Mian and another (PLD 1960 Dacca 23) it was held that the High Court hearing a revision application not against tile order of conviction but against an order restoring or refusing to restore possession under subsection (1) of section 522, Cr. P. C. Is a Court of revision, within the meaning of section 522 (3) and, therefore, has jurisdiction to make an order under section 522 (i) of the Code.
10. I must say that the view taken in AIR 1932 Lah. 210 and AIR 1937 Pesh. 7 is too restricted. The revisional powers are for correcting tire errors of the Courts below and there can be no restriction against the exercise of these powers if the requirements of justice so demand. The Legislature has given complete discretion to the High Court to act in almost) inexhaustible situations arising out of a variety of disputes between the parties. The object of enacting subsections (1) and (3) of section 522, Cr. P. C. Is to prevent any person from retaining wrongful possession of an immovable property by his unlawful and forcible acts and to restore the state of things which existed at the time of the dispossession of the aggrieved party. The revisional powers of the High Court can, therefore, come into full play even if the aggrieved party hay failed to move a Magistrate within the statutory period of one month to restore possession to it. Each case, however, will have to be decided on its own facts.
11. The upshot of the above discussion is that a Court o appeal, confirmation, revision or reference while considering the original matter of the conviction of the accused can always pass an order regarding the delivery of possession to any party. The matter can also be independently considered by the High Court in exercise of its revisional jurisdiction irrespective of the fact whether or not an appeal or revision has been filed before it in the original case.
12. Now in this case, the order passed by the appellate Court while dealing with the question of the conviction of the accused was upheld by the High Court on the revisional side by the order of Shaukat Ali, J. This order had to be implemented by the Court of original jurisdiction which was subordinate to the Court of the Additional Sessions Judge. The Magistrate rejected the application of the petitioner for restoration of possession for reasons which have been subjected to legitimate criticism. The learned Additional Sessions Judge stultified his own order by saying that he was not an executing Court although the application before him was to direct the implementation of his order. I asked the learned Magistrate to appear personally before me and told him what I thought of his order. It is not clear to me why an officer of the rank of the Additional Sessions Judge could not see this simple matter in the correct perspective and why did he choose to frustrate his own order by passing another order which reduced it to a nullity. He shall be called upon to explain this.
13. The learned counsel next argued that the petitioner is not the owner of the property and, therefore, had no right to ask for restoration of possession. He questioned the correctness of the statement of fact made in the judgment of the learned Magistrate convicting the accused- respondents that the petitioner was the owner of the property. He said that the matter was pending before the Supreme Court. Now it is clear that the petitioner was ordered to be put in possession by the Rent Controller, who held that the respondents were admittedly the tenants of the petitioner.
The respondents cannot now be permitted to deny the title of their landlord. I have looked through the order of the Supreme Court granting leave for appeal to certain parties against the transfer of the property to some parties including the petitioner and I find that the petitioner was one of the transferees of this property. His adversaries have now filed an appeal in the Supreme Court. The petitioner, according to law, still remains the transferee of the property. The order of the Rent Controller declaring him to be the land-- lord of the respondents was not challenged before any forum and still holds the field. It has become final. This contention of the learned counsel also fails.
14. The petitioner has been deprived of the relief to which he was lawfully entitled from lath of June 1970. The wrong can be undone by setting aside both the impugned orders, which I, accordingly do.
I direct Mr. Mansoor Hussain, Magistrate, First Class, Lahore, to put the petitioner in possession of the property in dispute on or before 5th of January 1972, by the help of the police.