FAROOQ AHMAD NAQASHBANDI Vs. PEER GH SHAH

JUDGEMENT

(1.) THE contention of the petitioners in nutshell is that proceedings under section 145 Cr.P.C. came to be initiated wayback in the year 1982 regarding property situate at Aqilmir, Khanyar, which property stands notified as evacuee property. Petitioners claim to be in possession of 3/4th of the property and the respondent in possession of 1/4th share. Proceedings were initiated under section 145 Cr.P.C. on the pretext that there was apprehension of breach of peace. At the relevant time, when proceedings seem to have been drafted and initiated by the court, the Evacuee Department did not put in their appearance, though as per law the notice was issued and the proceedings were initiated, the orders are being passed in rem only and not in personium as anybody who has any right can come and put in his rights through documents, affidavits in support of his contentions. However, the Evacuee Department did not find it proper or were not advised to approach the trial Magistrate at the relevant time. .

(2.) THE records reveal that the trial Magistrate had concluded the proceedings and referred the matter under section 146 Cr.P.C. to a civil court of competent jurisidiction. I am told that the civil Court has also returned its finding. However, the trial Magistrate has not till date passed final orders as is envisaged under section 145 Cr.P.C. in light of section 146 of Cr.P.C. and the statute, but the Evacuee Department had at one stage moved an application in the court below for being arrayed as a party to the proceedings. The learned Magistrate while hearing the application had also shown his anxiety that the Evacuee department has come at a very late stage for being arrayed as a party, when already the matter has been referred to a civil court, who has also returned its finding against the Evacuee Department as per observations made by the learned trial Magistrate. This order was out in challenge in revision and the revisional court had returned a finding that the order being an interlocutory order, is not reviseable and obviously rejected the revision petition.

(3.) THE petitioner have come under section 561 -A Cr.P.C. by moving the present petition on the ground that there has been miscarriage of justice and misuse of powers of the court by taking recourse to the proceedings under Section 145 Cr.P.C.