This is a revision petition against the order of Mr. Shah Sahib, Sub-- Divisional Magistrate, Swat, dated 10-5-1990, whereby `the tenants' of lands in village Kandak, Jehangir, Kota, Sandoka and Chawa with its `Dakhliat' were ordered under section 144 of the Code of Criminal Procedure, 1898 (V of 1898) not to lift the crops from the fields except after payment of `Batai' to their landlords and having obtained a receipt in writing thereof.
2. Moved on 28-5-1990, this petition was admitted to full hearing on 30-5-1990 by my learned brother Syed Ibne Ali, J. Notice of Criminal Miscellaneous No.308 of 1990 for suspension of the order was also issued on the same day. On 6-6-1990 the matter was placed before my learned brother Wali Muhammad Khan, J., who while dismissing Criminal Miscellaneous No.308 of 1990 ordered the fixation of the main petition for full hearing on 16-6-1990. As the order passed under section 144, Cr.P.C. Would have lapsed after the specified' period, therefore, revision petition there against was ordered to be disposed of expeditiously. It was accordingly placed before me on 16-6-1990, which had to be posted to 23-6-1990 because despite direction by the Court the record was not made available. The record and parawise-comments of the respondents were made available on 23-6- 1990. The case was partly heard on 23-6-1990. On 27-6-1990, the case was again adjourned to 30- 6-1990 due to pre-occupation of Mr. Hamid Saeed Malik, the learned Assistant Advocate-General, before another Bench. On the last mentioned hearing, the learned Assistant Advocate-General filed a copy of the Office Order, dated 28-6-1990 passed by the learned Sub-- Divisional Magistrate whereby he had withdrawn the impugned order, dated 10-5-1990 and submitted that as the impugned order was no longer in force; therefore, there should be no interference with an order under section 144 of the Cr.P.C. Mr. Iqbal Hussain Mian, the learned counsel for the petitioners, on the authority of Sultan Ahmad Gazi v. Ahmad Ali Gazi PLD 1964 Dacca 520, conceded to the proposition canvassed by the learned AA.-G. But pointed out, and rightly so, that there may be a circumstance in which the order may be revised by the High Court and that there is no absolute bar against such an action if any circumstance so warrants. The learned counsel for the petitioners made pointed reference to the following observations in the case of Sultan Ahmad cited above: "If it is found that although the impugned order has spent its force, the parties will suffer from consequence or effect of that illegal order, justice undoubtedly requires that it should be set aside."
Mr. Iqbal Hussain Mian, therefore, maintained that effect of the impugned order, dated 10-5-1990 read in conjunction with the subsequent impugned order, dated 12-5-1990, tends to bring about permanent deprivation of the so-called share of `Batai' of the crop in dispute and as such were not sustainable in law.
3. The learned counsel for the petitioners next submitted that there was no relationship of `landlords' and `tenants' between the parties and that, therefore, the description by learned Sub- Divisional Magistrate of the petitioners as tenants was Coram non judice. It was then urged that section 144, Cr.P.C. Is not intended to vest a Magistrate with powers to decide disputes of civil nature. In this context reference was made to Hafizuddin v. Laborde AIR 1928 All.
14. I find myself in respectful agreement with the dictum laid down in Hafizuddin's case. A bare reading of section 144, Cr.P.C. Would show that its scope is very limited and that powers vested in the Magistrate by that section ought to be sparingly exercised. The section was never intended to empower a Magistrate to decide disputes of civil nature between private individuals and to usurp the functions of civil Courts. It is, therefore, not permissible for a Magistrate under the cover of an order under section 144, Cr.P.C. To recover share of Batai, even if the relationship between the parties is proved to be that of landlords and tenants and the liability of the tenants to pay the share of produce stands determined.
4. In the present case, it appears from the record that the dispute of title to the lands in possession of the persons described in the impugned order as tenants is pending decision in a competent Civil Court or a Tribunal established under the Provincially Administered Tribal Areas, Regulation II of 1975. This being so, the dispute between the parties being purely of a civil nature was not within the competence of the learned Sub-Divisional Magistrate to decide.
5. The impugned order as held in Gulab Din v. Azad J&K Government PLD 1960 Azad J&K 51, also suffers from another inherent legal flaw in that an order under section 144, Cr.P.C. Has got to be in the form of an injunction asking a person to abstain from a certain act and not to be in the form a mandatory injunction to do a certain act. In the case of Gulab Din, a direction of the nature of the present case, issued to the tenants to deposit the rent in the treasury was declared to be ultra vires.
An identical direction in the above cited case, by the District Magistrate, Mirpur, to the tenants to refrain from removing the harvest of Kharif crop from thrashing floor was held to be suffering from legal infirmity and in clear violation of the conditions of subsection (3) of section 144 ibid. In this respect, it would be worthwhile to borrow the following observations from page 55 of the report: "In the present case the order requires a large section of the public (more than one hundred alleged tenants were present at the time of the arguments), to refrain from removing the harvest of Kharif crop from the thrashing floor. The order is, therefore, invalid on that ground alone, but much more so is the order beyond the scope of the section as it purports to presume the relationship of a landlord and tenant in a vague manner between inseminate persons and to decide their civil rights about the payment of rent."
6. The authority in the case of Gulab Din is on all fours to the case before me. Respectfully following dictum in that case, I have no hesitation to hold that the impugned order, dated 10-5-1990, which had since been withdrawn and that dated 12-5-1990 must be held to be illegal. In this respect I am also fortified by a long chain of authorities including Taturum Sahu v The State of Orissa AIR 1935 Orissa 96, Dewan Singh and others v. Deo Narainsingh and others AIR 1951 Patna 253, M. Siddique v.
MA. Razak PLD 1960 Dacca 512 and Akhtar Mahmood v. District Magistrate Lahore PLD 1964 (W.P.)
Lah 93
7. In the facts and circumstances of the case, as indicated above, I am of the opinion that in this case an order setting aside the impugned order, dated 10-5-1990 should be made although it is no longer in force and so is the case with the subsequent impugned order, dated 12-5-1990, which is of permanent character inasmuch as refusal to do so affects the rights of the petitioners. In the result, I accept the revision petition holding the impugned orders ultra vires of the powers of the Sub-Divisional Magistrate and consequently of no legal effect.