In this criminal miscellaneous application for quashment under section 561-A, Cr.P.C., petitioners have challenged the legality of orders, dated 1-2-1986 and 25-6-1986 passed by Magistrate 1st Class Lakki and Additional Sessions Judge, Bannu at Lakki respectively.
2. Facts of the case briefly stated are that Sadullah Khan son of Kundal Khan lodged a report in the Police Station Ghazni Khel on 29-11-1983 wherein he stated that he was the Mukhtiar of Haji Abdul Majeed Khan, Chairman District Council Bannu and used to manage his property. That land measuring 60 Kanals is owned by Abdul Majeed Khan in which Muhammad Nawaz, Haq and Rabnawaz sons of Mir Salam Khan also have got some share and have mortgaged their share to Abdul Majeed Khan. That the aforementioned land is under cultivation of Muhammad Nawaz and others who had been regularly paying produce to Abdul Majeed Khan but since last three years they have failed to make payment and have further constructed a house over a portion of the land.
That they are forcibly retaining its possession and have refused to make payment of the landlord's share. That they have also started raising further construction by raising a wall in the suit land and when approached refused to hand over possession to them. Prayer was made to proceed against the accused under section 145, Cr.P.C. On the following day i.e. 30-11-1983 a private complaint was filed in the Court of Illaqa Magistrate on behalf of Muhammad Tahir and one another minor sons of Abdul Majeed Khan through Sadullah Khan Mukhtiar in which it was simply stated that the respondents were going to take forcible possession of the land and prayed for attachment of the land under section 146, Cr. P. C . This complaint was sent to the S. H . O. Police Station Ghazni Khel for necessary action vide order of the Illaqa Magistrate, dated 1-12-1983. On receipt of the complaint, the S.H.O. Filed in Court proceedings under section 145, Cr.P.C. In which Sadullah Khan was arrayed as party No. 1 while Muhammad Nawaz and his two brothers were shown as the second party. A preliminary notice was served on the parties by the learned Magistrate on the very day i.e. 1-12- 1983 when the complaint was filed in Court. Both the parties were directed to file their written statement and ordered to maintain status quo. In the written statement filed by the second party (petitioners herein), it was alleged that they were in possession of the suit land since long and were in occupation of the house since last thirty years. After recording some evidence of the first party and on the objection of the second party, the evidence of first party was closed on his failure to produce rest of the witnesses. This order was challenged in revision by the first party which was accepted by the learned Additional Sessions Judge vide order, dated 28-12-1984 with the direction that the learned Magistrate is to record all the evidence to be produced by the parties and thereafter to proceed with the case and decided the same in accordance with law.
3. After recording the entire evidence produced by both the parties, the learned E. A . C . Ordered the attachment of Ghair Mumkin type of land measuring 9 Kanals 3 Marlas out of the disputed land while rest of the disputed land which was purely agricultural bearing Khasra Nos. 2242/301 and 3362/277 was ordered to be released from attachment, as according to him, it did not entail any dispute, therefore, it was to remain in respective possession of owners/ mortgagees as per "Annual Record of Rights" on file. However, Khasra numbers in dispute bearing Nos. 2262, 2263, 2264, 2265, 2266 and 2267 were released in favour of party No. 2 excepting land measuring 9 Kanals 3 Marlas which is Ghair Mumkin, as referred to earlier which was ordered to remain attached.
4. Dissatisfied with the order of the Ilaqa Magistrate, both the parties challenged it in revision petition before the Additional Sessions Judge, Bannu at Lakki who disposed of both the revision petitions vide his order, dated 25-6-1986. The revision petition filed by the first party was accepted while that filed by the second party was dismissed. The learned Additional Sessions Judge set aside the order of attachment passed by the Illaqa Magistrate in respect of part of the property under section 146, Cr.P.C. And ordered its restoration to the first party. Aggrieved by the order of both the Courts below, the second party has challenged the proceedings under section 145, Cr.P.C.
And the orders passed by the Illaqa Magistrate and that by the learned Additional Sessions Judge, dated 1-12-1986 and 5-6-1986 respectively to be illegal, without jurisdiction and suffering from abuse of process of Court of law.
5. Learned counsel for the parties present and heard. Record of the case perused. From perusal of the file especially the evidence recorded in the case, the present is the glaring example of abuse of the process of Court of law which must be deprecated to discourage its repetition. Admittedly in the report lodged by Sadullah Khan the petitioners have been admitted in possession of the suit land as tenants since long. It has further been admitted that they were regularly, paying the landlord's share of the suit land to Abdul Majeed Khan but subsequently when they constructed a wall over a portion of the land in dispute and wanted to raise a wall on a portion of it, a dispute arose between the parties whereafter they stopped the payment of landlord's share since three years before the lodging of the report. Thereafter on the second day of the report, a private complaint was lodged on 3-11-1983 which was marked by the Illaqa Magistrate to the S.H.O. For necessary action on 3-12-1983 subsequently corrected it as 1-12-1983. Before that the police had already drafted a complaint on 29-11-1983, under section 145, Cr.P.C. Which was put in Court on 3- 12-1983, the learned Illaqa Magistrate passed the preliminary order under section 1.45, Cr.P.C. On the same day according to which this order of maintenance of status quo was to remain intact till 7-12-1983 which was subsequently extended till further order by the Court. In the written statement filed by the second party it has been specifically stated' that the land in suit with the house in question was in their possession since last thirty years. The material evidence in this case is that of Shadi Khan Patwari Halqa Ghazni Khel who has placed on file extract of Khasra Girdawari and the copy of Jamabandi of the relevant period. From the perusal of copy of Jamabandi Exh. P.W.1/1 on the file, the first party is not shown in possession of the suit property, however, they are shown co- owners with the second party in the column of ownership. In the column of cultivation the petitioners are shown in possession of the suit Khasra numbers in the relevant period. Even in the report lodged by Sadullah Khan which is Exh. P.A. On the file, he has admitted the second party to be in possession of the suit land since long and further admitted they having constructed a house on al portion of the land. He further admitted that the second party failed to make payment of the share of produce of the petitioners in the land since last three years before lodging of the report.
This being the position, the dispute between the parties was not of a criminal nature to warrant proceedings under section 145, Cr.P.C. If there had been any dispute between the parties i.e. Of raising construction over the land in their possession by the second party and their refusal to make payment of the produce and to vacate the land and deliver its possession to the first party, that was a dispute purely of a civil nature for which the first party was to approach the civil Court of competent jurisdiction.
6. The upshot of the above discussion is that on the face of the report lodged by Sadullah Khan, the lodging of a complaint by the S. H . O. Was arbitrary and against the spirit of law. Similarly, the learned Magistrate and the learned Additional Sessions Judge also fell in error in going into the question of title by making observation regarding the total entitlement of the second party in the land in dispute and the nature of their possession. Therefore, the proceedings taken and the orders passed on the complaint of S.H.O. Under section 145, Cr.P.C. Are unwarranted under the law and are in excess of jurisdiction amounting to abuse of process of the Court of law. Consequently this criminal miscellaneous application for quashment is accepted and the orders of Illaqa Magistrate as well as of the Additional Sessions Judge, Lakki are hereby quashed.