1. This criminal reference has been forwarded by Additional Session Judge 1, Quetta to this Court for passing of appropriate order.
2. Briefly stated the facts of the case are that respondent Malik Abdul Rauf filed a complaint under section 145, Cr.P.C. In the Court of Assistant Commissioner and Magistrate First Class Pishin, alleging therein that he is in physical possession of land in Khasra No. 939/941 situated at Mauza Malezai, District and Tehsil Pishin. It was further alleged that his physical possession is being interfered with, by the contesting parties. On this report, proceedings under section 145, Cr.P.C. Were initiated and the learned Magistrate First Class issued notices to the parties restraining them to dispossess or to interfere in the disputed land, in accordance with provisions of section 145(4)(c), Cr.P.C. Notices were also issued to submit their respective claims in the land. The petitioners were ordered to execute surety bonds in the sum of Rs.50,000 for keeping peace and directed the Tehsildar to inspect the site and submit his report. These proceedings were challenged and it was prayed that the same being illegal may be set aside.
3. The learned Additional Sessions Judge 1, Quetta vide his order, dated 3-12-1986 came to the conclusion that proceedings being unlawful were to be set aside and through this reference sent the file for final order of this Court, under section 438, Cr.P.C I have heard at considerable length, the learned counsel of the parties as well as Mr. Muhammad Nawaz Ahmed, Advocate appearing for the State.
4. At the very outset it was pointed out by Mr. Ehsanul Haq, the learned counsel for the respondent No. 2 that since the Additional Sessions Judge 1, Quetta has exercised his revisional jurisdiction purportedly under section 439-A, Cr.P.C., therefore, in view of section 439(4)(b), Cr.P.C. This Court is not authorised to entertain this reference.
5. It was next contended that reference is itself incompetent because under section 439(A), Cr.P.C.
6. The Court of Sessions or Additional Sessions Judge is competent to finally decide revision petition: In view of the Notification No. Legis: 3-15/Law/75/2510/47, dated 15-8-1977 the previous notification has been superseded and now in view of change in law the Sessions Judge or Additional Sessions Judge is empowered to pass final orders, therefore, no reference was required under law to have been forwarded to this Court for final disposal.
7. It was thirdly urged that since the Additional Sessions Judge has failed to exercise jurisdiction, hence the matter may be remanded back for final disposal to the Additional Sessions Judge 1, Quetta, and this Court is not competent to dispose of the reference.
8. Mr. Sikandar Khan, on the other hand, strenuously urged that the Additional Sessions Judge has not fallen in error by making reference for final disposal of the matter to this Court for the reasons that the notification referred to, by the counsel for the respondent No. 2 finds no place in Gazette Notification. Therefore, the Additional Sessions Judge was not empowered to have passed final orders in view of an earlier notification which was issued on 23-12-1975 and by virtue of which 439- A, Cr.P.C. Came into force in Quetta town, Cantonment area and Nasirabad District of Baluchistan province alone and all remaining areas were left over and this matter does not pertain to any of the aforesaid areas. He further argued that even through the Additional Sessions Judge has applied his mind fully to the entire facts of the case, but has made this reference for passing appropriate orders to this Court for the simple reason that he could make such report under section 438, Cr.P.C. Since his orders are subject to approval by this Court, hence the reference is not incompetent. Moreover, it was further argued that this Court has since already held in a similar matter that such a reference is not incompetent. Therefore, on this score too, the Additional Sessions Judge has not committed any mistake. 11e referred to the case of Arbab Muhammad Hashim v. State through District Magistrate, Lasbella and another as reported in PLD 1983 Quetta 11 wherein it was held that Provincial Government of Baluchistan having enforced provisions of Law Reform Ordinance, 1972 only in Quetta City and Cantonment area and District Nasirabad and in left over areas including District Lasbella position existing prior to enforcement of Law Reforms Ordinance, 1972 still holding good section 437., Cr.P.C. Remained operative and reference not incompetent.
9. Mr. Muhammad Nawaz Ahmed, Advocate appearing foe the State, urged that in view of the second notification as referred to by Mr. Ehsanul Haq, the Additional Sessions Judge I, Quetta was competent under law to have passed final orders in the matter and there was no need to make any further reference to this Court because as per second notification the power to exercise revisional jurisdiction has been extended to all the Sessions Judges throughout Baluchistan and previous notification in which Law Reforms were enforced only to Quetta city, Cantonment area and District Nasirabad has been superseded and substituted by the second notification, dated 15- 8-1977. However, he further submitted that since the matter has already come to this Court along with entire record, therefore, this Court is now competent to pass an appropriate order and the bar as imposed by section 439(4)(b), Cr.P.C. Will be no impediment in the way to exercise jurisdiction of this Court for the reason that the Additional Sessions Judge has not passed final orders but after applying his mind on the facts of the case he has made certain observations and recommendations to this Court for passing of final orders.
10. In order to dilate upon the respective contentions of the parties it would be proper and appropriate to see whether the Additional Sessions Judge has passed final orders in the case.
11. From the perusal of the orders of the Additional Sessions Judge it appears that he has taken into consideration the entire facts of the case and has drawn conclusions from the same. But the learned Additional Sessions Judge sent his recommendation through this reference to this Court for making final orders. It transpires from the order that in fact learned Additional Sessions Judge has applied his mind fully on facts as well as on law. But the file has been referred to this Court for passing of appropriate orders under the conception or misconception that 439-A, Cr.P.C. Has not been enforced in the Province of Baluchistan, since second notification was not produced before Additional Sessions Judge.
12. Since no final orders were passed by Additional Sessions Judge, therefore, this Court is not barred under section 439(4)(b), Cr.P.C. To exercise its jurisdiction.
13. The next contention which requires determination is whether the reference was competent? In this respect one has to advert to the legal position as prevailed prior to the Law Reforms and judgments delivered under that legal system. There can be no cavil to the proposition that prior to the Law Reforms the usual practice in such matters was that reference had to be made to this Court for proper orders by Court of Sessions. But after Law Reforms Ordinance, 1972 and its application to the respective provinces, the Sessions Judge under section 439-A was authorised to pass final orders in a revision petition. As is evident from the judgment of this Court referred to hereinabove PLD 1983 Quetta 11 case of Arbab Muhammad Hashim v. State through District Magistrate, Lesbella, a similar question arose and it was decided by late Acting Chef Justice of this Court that since Law Reforms have been enforced as far as section 439-A, Cr.P.C. Is concerned, only to the Quetta City, Cantonment area and District Nasirabad, therefore, any reference which did not fall in the said areas was competent.
14. Mr. Ehsanul Haq produced the second notification, dated 15-8-1977, This notification has been passed in supersession of the previous notification, dated 23-12-1975 by the Government of Baluchistan and for the words 'Quetta Town, Cantonment area and Nasirabad District of Baluchistan Province', the following words were to be substituted:- "the areas in Baluchistan Province where the Code of Criminal Procedure, 1898 is applicable:"
15. I have gone through the judgment of this Court. It appears that the second notification was never produced before his Lordship late Acting Chief Justice of Baluchistan as it does not find any mention in the said judgment. However, first notification has been discussed and it appears that the conclusions were drawn on the basis of the first notification.
16. Before proceeding further, for the sake of convenience, it would be profitable to reproduce section 439-A, Cr.P.C.
17. Sessions Judge's powers of revision:
(1) in the case of any proceeding before a Magistrate the record of which has been called for by the Sessions Judge or which otherwise comes to his knowledge, the Sessions Judge may exercise any of the powers conferred on the High Court by section 439.
(2) An Additional Sessions Judge shall have and may exercise all the powers of a Sessions Judge under this Chapter in respect of any case which may be transferred to him under any general or special order of the Sessions Judge.
18. It becomes abundantly clear that if Law Reforms are enforced in any of the areas where Cr.P.C. Is applicable then under section 439-A, Cr.P.C. The Sessions Judge may exercise all the powers conferred on the High Court by section 439, Cr.P.C. It is also clear as well, that an Additional Sessions Judge shall have all the powers of a Sessions Judge under this chapter in respect of any case which may be transferred to him.
19. In view of this legal position there remains hardly any room for doubt that the Sessions Judge or Additional Sessions Judge while acting under Cr.P.C. Is competent to pass final orders and exercise all powers as are conferred on the High Court under section 439, Cr.P.C.
20. In this view of the matter and in view of second notification that section 439-A has been enforced in all the areas of Baluchistan, the Additional Sessions Judge was empowered to have passed appropriate orders himself. He should not have made a reference to this Court for final orders.
21. However, still in very rare cases if there is a legal complication or intricate question, a reference may be made by the Court of Sessions under section 438, Cr.P.C. As has been held in the case of Feroz Khan v. State and another reported in 1983 P Cr. L J 482, and the relevant observations are hereby reproduced:- "On the other hand under section 438, Cr.P.C. a Sessions Judge after calling for the record and examining the same can `report for the orders of the Court, result of such examination'. By reference to the various provisions, the legal position is very clear that in suitable cases a Sessions Judge can examine a case and report to the High Court that the prosecution of that case is manifest abuse of the process of law or intends to defeat the ends of justice and then make a recommendation that proceedings should be quashed."
22. However, to re-capitulate the points raised I conclude that under section 439-A, Cr.P.C. The Court of Sessions is competent to pass final orders and there is no need for any reference to this Court because powers under section 439, Cr.P.C. Conferred on this Court can be exercised by the Court of Sessions under section 439-A, Cr.P.C. Which was enforced throughout Baluchistan vide Notification No. Legis: 3-15/Law/75/2510-47, dated 15-8-1977. The reference, therefore, to this extent is not competent. The view taken by late Acting Chief Justice was because of the non---production of the notification and, therefore, non-consideration of the same which has now changed the legal position.
23. Adverting to the remaining submissions of the counsel of the parties, the entire record is before me and I have also perused the same, the facts discussed and conclusions drawn by the Additional Sessions Judge are otherwise correct. The proceedings under section 145, Cr.P.C. Are not maintainable and the Magistrate had no jurisdiction to invoke proceedings under section 145, Cr.P.C. For the reasons that an application has already been moved before the competent Court of law for ejectment of the present petitioners. This indicates that the petitioners have been in physical possession of the disputed lands much prior to the mandatory period of two months of passing of preliminary order.
24. Be that as it may, in view of the facts and circumstances of the case the Additional Sessions Judge I, Quetta was correct in drawing conclusion that proceedings were not sustainable under law. I, therefore, set aside the orders of the Magistrate First Class, Pishin, dated 15- 8- 1985 and 5-9- 1985 whereby the proceedings under section 145, Cr.P.C. Were initiated and quashed.