' In this petition under section 561-A, Cr.P.C., Faqir Hussain and others, petitioners, pray for quashment of the impugned order, dated 22-10-2002 of the learned Additional Sessions Judge, Charsadda whereby the complaint of the petitioners under section 145, Cr.P.C. Against Saleemur Rehman and another, respondents Nos.I and 2, was dismissed.
2, Brief facts of the case are that Faqir Hussain and others, petitioners, filed a complaint against the respondents Saleemur Rehman and another on 6-11-1993 as well as another complaint against one Khan Bahadur on 1-11-1993, alleging therein the existence of breach of peace between the parties over the possession of the disputed property measuring 26 Kanals, 1 Marla situated in Khasra Nos.296 and 298, Village Tarnab. The learned trial Magistrate after recording evidence of the parties at the first instance attached the property in dispute with directions to the parties to seek their remedy, before the' Civil Court, however, the revisional Court set aside the said order and remanded the case to the trial Magistrate with the direction to pass a fresh order after finding out as to which of the parts was in possession of the disputed land two months prior to the institution of the complaints, as who was dispossessed forcibly and who is entitled to restitution of possession.
3. The learned trial Magistrate complied with the directions contained in the remand order of the learned revisional Court and vide order, dated 23-11-2000 while vacating the notice under section 145, Cr.P.C. Directed that the 1st Party (petitioners) if dispossessed from the disputed lands, be put in possession of the same to the extent of 18 Kanals, 1 Marla in the total lands. The conclusion drawn by the learned trial Magistrate was the result of appreciation of the evidence of both the parties with regard to the disputed issues, which can precisely be stated as under--
(1) That initially the property in dispute being Shamilat land was dedicated to the mosque of the area and entry in the Revenue Record was made to this effect since 1926-27.
(2) That one Muhammad Ilyas, being Pesh Imam of the mosque was in possession of the same till the, Jamabandi of 1966-67.
(3) That in the year 1970-71 the disputed property was entered in the name of Jamilur Rehman, Kifayatur Rehman (petitioners) as well as Khalil-ur-Rehman (father of Salimur Rehman, respondent, all sons of Muhammad Ilyas.
(4) That Saleemur Rehman, respondent, was inducted in the Jamabandi of 1982-83 to be in possession of 4 Kanals in Khasra No,296 and in possession of 2 Kanals, 5 Marlas in Khasra No,298 of the disputed land and that the remaining area was shown in possession of Faqir Hussain etc. (petitioners).
(5) That both the parties in their evidence also produced their respective tenants i,e, Ikramuddin and Mohabat Khan. Ikramuddin asserted his tenancy under Faqir Hussain etc. Whereas Mohabat Khan claimed the same under Saleemur Rehman (respondent), but the name of Ikramuddin did find mention in the Revenue Record as well but Mohabat Khan was not recorded so.
(6) That Saleemur Rehman (respondent) had also filed a complaint under section 145, Cr.P.C. In the year 1977 against Kifayatur Rehman etc. (petitioners) which was decided on the basis of a compromise on 54-1978, duly signed by both the parties and attested by the then learned 1st Class Magistrate, to the effect that on mutual compromise 8 Kanals in the entire property was given to Saleemur Rehman while the remaining area was left to be in possession of Kifayatur Rehman, etc.
4. Both the parties feeling aggrieved went in revision before the learned Additional Sessions Judge- 1, Charsadda, who vide impugned order, dated 22-1-2002 dismissed the complaints of the petitioners mainly on the following reasons:--
(a) That the disputed property is Shamilat of Kandi Munda Khel of Village Tarnab, which is recorded in possession of Muhammad Ilyas son of Mirajuddin as per the entry of settlement record 1926-27.
(b) That Muhammad Ilyas is the father of Faqir Hussain etc. (petitioners) whereas the grandfather of Saleemur Rehman (respondent).
(c) That the said property was not transferred to Muhammad Ilyas, the then Pesh Imam permanently, therefore, any person who performs the services in mosque and is a Pesh Imam of that mosque would be presumed to be in possession of the disputed property.
(d) That Saleemur Rehman is presently performing the service of Pesh Imam in the said mosque.
(e) That the statement of Ikramuddin, tenant, does not indicate actual physical possession of Faqir Hussain etc. Over the disputed property whereas from the statement of Mohabat Khan it is evident that Saleemur Rehman, respondent, was in physical possession of the same.
(f) That the dispute is pending in between the parties since 1993, but till date no serious dispute in between the parties had taken place which can lead to any disharmony or any breach of peace.
(g) That the Magistrate has not fulfilled the required mandatory formality as provided by section 200, Cr.P.C. By not recording the statements of the complainant or their attorney on oath, hence the illegality committed by the Magistrate was not curable under section 537, Cr.P.C. And the complaints were not liable to be proceeded further.
(h) That the compromise effected between the parties in the earlier proceedings under section 145, Cr.P.C. Stood denied by Saleemur Rehman, hence it was required that his signature should have been referred to an Expert for opinion.
5. Faqir Hussain etc. Petitioners, feeling aggrieved have filed the instant application.
6. 1 have heard the learned counsel for the parties and have also perused the record of the case.
7. Under section 537, Cr.P.C. All errors, omissions or irregularities in the proceedings before competent Courts are curable, unless such error, omission of irregularity has in fact occasioned a failure of justice. The Explanation under section 537, Cr.P.C. Reveals that the Court while determining whether any omission or irregularity in the proceeding under the Code has occasioned a failure of justice shall have regard to the fact whether the objection could and should have been raised at an earlier stage in the proceedings.
8. In this case, the matter in hand twice remained under consideration before the trial Magistrate, but at no stage of the proceedings any objection was raised about the alleged omission of the trial Magistrate to examine the complainants within the meanings of section 200, Cr.P.C. Even such objection was not raised when the revisional Court remanded the matter back to the trial Magistrate with certain directions. Hence, the learned revisional Court was required to have kept this fact in view while declaring the complaints in question as not liable to be proceeded further. So far as the question whether any failure of justice has occurred due to non-examination of the complainants under section 200, Cr.P.C., in my view, no prejudice has been caused to the rival party in their defence as they have fully availed the opportunity to cross-examine the complainants and their witnesses in the proceedings before the learned trial Magistrate. The august Supreme Court of Pakistan in the judgment reported as Shamim v. The State and Muhammad Bashir PLD 1966 SC 178 has held that the language of section 200 of the Code of Criminal Procedure does not lead to the inevitable inference that the examination of a complainant is a sine qua non of valid proceedings, in all circumstances. For the sake of convenience the relevant citation is reproduced as under:-- "The language of section 200 of the Code of Criminal Procedure does not lead to the inevitable inference that the examination of a complainant is a sine qua non of valid proceedings, in all circumstances. In a case where the complaint has been made by a Court or by a public servant, this section expressly declares that there need be no examination of the complainant before issuing process. There is no provision in the Code to the effect that a failure to follow the provisions of section 200 in respect of examination of the complainant entails invalidation of the proceedings taken. The history of this section apparently bears' out the contention that the defect amounts to a mere irregularity and apart from the question of prejudice, would be insufficient to vitiate the proceedings.
' The Explanation to section 537 says that in determining whether any error, omission or irregularity in any proceeding under the Code had occasioned a failure of justice, the Court shall have regard to the fact whether the objection could or should have been raised at an earlier stage in the proceedings.
' In the instant case the objection to the legality of the process was not taken till after the complainant and some other witnesses had been examined in the case, in the presence of the accused and charge had been framed against him. Even then the objection was not raised in the trial Court. It was merely mentioned in a transfer application preferred to the District Magistrate and raised later in the High Court. That transfer application succeeded and the case went for disposal to another Magistrate. The appellant had the opportunity to cross examine the complainant and his witnesses, and it did not, therefore, appear that he had been, in any way prejudiced in his defence."
The learned revisional Court was, therefore, not correct to treat the same as an illegality not curable under section 537, Cr.P.C., which was merely an irregularity and in absence of any prejudice caused to the respondent was curable under section 537, Cr.P.C.
9. Similarly the learned revisional Court has also committed an illegality by giving preference to the oral evidence of Saleemur Rehman wherein he denied the factum of any compromise arrived at between the parties in the earlier proceedings under section 145, Cr.P.C. As not only certified copies of the order and compromise were before the revisional Court but the original file of the proceedings was also requisitioned, which clearly indicated that in the earlier round of litigation under section 145, Cr.P.C. Initiated by Saleemur Rehman, respondent, he was held entitled to the possession of only 8 Kanals of land in the entire disputed property. Such documentary proof of the fact before the learned revisional Court being part of a judicial record was liable to be given preference over the oral assertion of Saleemur Rehman in this regard.
10. From the evidence adduced by the parties it is evident that the land was transferred in the name of Muhammad Ilyas, the predecessor-ininterest of both the parties, as is evident from the Revenue Record. The petitioners are sons whereas the respondent is grandfather of Muhammad Ilyas. The Revenue Record further suggests that later on the said land stood transferred in the names of the sons of Muhammad Ilyas. Hence the land was in joint possession of the parties when the dispute arose between the parties and Saleemur Rehman, respondent, filed a complaint under section 145, Cr.P.C. Against the petitioners, which proceedings in the complaint, however, ended into a compromise to the effect that Saleemur Rehman, respondent, was held entitled to only 8 Kanals of land in the entire property. In these circumstances, there remained no question of performing the services of Pesh Imam in the mosque, as in any case the property was in joint possession of the parties according to their determined shares of possession and if there is any dispute between the parties, the same can be resolved by a competent Court of civil jurisdiction.
11. Perusal of the statement of Mohabat Khan, tenant, does not indicate either any exact date of ceasing the tenancy of Ikramuddin under the petitioners nor it indicates any specific. Date of his holding the dispute property as tenant under Saleemur Rehman, respondent. The learned revisional Court has made calculation of the probable date on which Mohabat Khan became tenant under Saleemur Rehman, but the same cannot be accepted in absence of any cogent proof, when as a result of such calculation on mere pres'umptions a party having documentary evidence in the shape of Revenue Record was going to be dispossessed from the same. The approach of the learned trial Court in this regard suffered from no illegality when the Revenue Record itself showed the possession of the petitioners over an area of more than 18 Kanals. The oral assertion of Mohabat Khan, tenant, to the effect that he was tenant over the disputed property till filing of the complaint cannot be given much importance as against documentary evidence, particularly when he was a witness of the respondent and was produced for promoting his cause in the proceedings. The status of Ikramuddin, tenant, stood recognized even through the Revenue Record and admittedly he was tenant under the petitioners over the disputed property.
12. The learned revisional Court has committed yet another illegality when while declaring the complaints of the petitioners as not liable to be proceeded further on account of non-examination of the complainants under section 200, Cr.P.C., he has still accepted the revision petition of Saleemur Rehman and held entitled him to the possession of the disputed land.
13. For the aforesaid reasons, I am of the view that the impugned order of the learned revisional Court has caused gross miscarriage of justice and is liable to be quashed. Accordingly, this petition is accepted, the impugned order of the learned revisional Court is set aside and consequently the order, dated 23-11-2000 of the learned trial Magistrate (Magistrate 1st Class, Charsadda) is hereby restored.