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Petitioner: WASAL KHAN VS Respondent: INAYAT ULLAHHonorable Justice Malik Hamid SaeedGul Sadbar,Saadullah Jandoli and Abdul Fayaz
2002 P Cr
2002 P Cr. L J 1476
[Peshawar]
Before Malik Hamid Saeed, J
WASAL KHAN‑‑‑Petitioner
Versus
INAYAT ULLAH and another‑‑‑Respondents
Criminal Miscellaneous for Quashment No.40 of 2002, decided on 13th ,May, 2002.
Criminal Procedure Code (V of 1898)‑‑‑
‑‑‑‑Ss. 145, 146 & 561‑A‑‑‑North‑West Frontier Province Tenancy Act (XXV of 1950), S.23‑‑‑Petition for quashing of order‑‑‑Petitioner/ accused was tenant under respondent/complainant over land in dispute under a proper lease, but on expiry of lease period, respondent without having recourse to law for ejectment of petitioner, filed a complaint against petitioner under S.145, Cr.P.C. before Magistrate which complaint was dismissed after recording evidence of the parties‑‑ Appellate Court on appeal though upheld order passed by Magistrate to the extent of rejection of complaint, but ordered attachment of suit property under S.146, Cr.P.C. till passing the order by a competent forum about actual possession of properties over. disputed land‑‑‑Order passed by Appellate Court was not sustainable because so ‑far as possession over suit property was concerned, petitioner was in possession of same within two months next before order passed by Magistrate and respondent had also admitted that fact‑‑‑Lease of petitioner though had expired; but, remedy for respondent was not in initiating proceedings against petitioner under 5.145, Cr.P.C. as proper course for ejectment of petitioner was, provided under S.23 , of North‑West Frontier Province Tenancy Act, 1950‑‑‑Order of Appellate Court with regard to attachment of land in dispute and auctioning of standing crops were quashed.
Gul Sadbar for Petitioner.
Saadullah Jandoli and Abdul Fayaz for Respondents.
Date of hearing: 10th May, 2002.
JUDGMENT
In this petition under section 561‑A, Cr.P.C. prayer for quashment of the relevant portion of the impugned orders, dated 2‑3‑2002 of the learned Additional Sessions Judge‑111, Charsadda is made by the petitioner in the background of the facts that admittedly the petitioner was tenant under the respondent over the disputed land under a proper lease, but on expiry of the lease period, the respondent without having recourse to the legal provisions of law for his ejectment, filed a complaint against the petitioner under section 145, Cr.P.C. before the M.I.C./Judicial Magistrate, which was dismissed after recording evidence of the parties, however, the learned Additional Sessions Judge on appeal; though upheld A the order of the Judicial Magistrate to the extent of rejection of the complaint of the respondent under section 145, Cr.P.C., but at the same time ordered the attachment of the suit property under section 146, Cr.P.C. till passing order by a competent forum about the actual possession of the parties over the disputed land.
2. After hearing the learned counsel for the parties, I am of the view that the impugned order of the learned Additional Sessions Judge is not sustainable because so far as possession over the disputed property is concerned, admittedly the petitioner was in possession of the same within two months next before the order passed by the Magistrate as required under section 145, Cr.P.C. Not only the petitioner has asserted that he is in possession of the suit property as lessee but the respondent himself in his statement has admitted that:‑‑
This shows the possession of the petitioner over the suit property within the required period. No doubt, the lease of the petitioner had expired, but the remedy for the respondent was not lying in initiating proceedings against the petitioner under section 145, Cr.P.C. as proper course for ejectment is provided under section 23 of the N.‑W. F. P. Tenancy Act, 1950 for such‑like tenants.
3. For the aforesaid reasons, the impugned findings of the learned Additional Sessions Judge with regard to the attachment of the disputed land and auctioning of the standing crops are hereby quashed.
H.B.T./522/P
Petition accepted.