ORDER SHEET

IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA

Constitutional Petition No. D- 315 of 2018.

Date of hearing

Order with signature of Judge

1. For orders on office objections “A”

2. For hearing of M.A.No.1682/2018

3. For hearing of main case.

09.10.2018.

Mr. Imdad Ali Mashori, Advocate for the petitioners.

Mr. Sharafuddin Kanhar, A.P.G for the State

Respondent No.1 present in person.

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The facts in brief necessary for disposal of instant Constitutional petition are that the respondent No.1 herein filed criminal miscellaneous application No.42 of 2014, under section 145 of Cr.PC which was dismissed by the learned 4^th Judicial Magistrate, Larkana, vide order dated 06.06.2016, by making an observation that the civil litigation between the parties was pending adjudication before the Civil Court having jurisdiction. The respondent No.1 being aggrieved of above said order; impugned the same by way of filing Criminal Revision Application No.16 of 2016, under Section 439-A (i) Cr.P.C, before the learned Sessions Judge, Larkana, which was assigned for disposal to 3^rd Additional Sessions Judge, Larkana, who vide order dated 29.03.2018, converted the same into a complaint under Sections 3 and 4 of Illegal Dispossession Act, 2005, and then by resorting to provision of Section 7 (ibid) directed for restoration of possession of the land under dispute to the respondent No.1. The petitioners being aggrieved of above said order have impugned the same before this Court by way of instant Constitutional petition.

It is contended by learned counsel for the petitioners that the order impugned is bad in law, which could not be sustained on legal premises, as according to him there is no power under Criminal Procedure Code, which may authorize an Additional Sessions Judge, to convert a criminal revision application into a direct complaint. By contending so, he sought for reversal of the impugned order.

Learned A.P.G has also not supported the impugned order. The respondent No.1 present in person however supported the impugned order by contending that he is being deprived of his valuable right of use his own property by the petitioners without lawful justification.

We have considered the above arguments and perused the record.

It was an order passed under Section 145 Cr.P.C, which was to have been examined by learned 3^rd Additional Sessions Judge, Larkana, in exercise of his revisional powers under Section 439-A (i) Cr.P.C. No such exercise was taken by him instead he adopted a novel procedure by converting the criminal revision application as a complaint u/s. 3 and 4 of Illegal Dispossession Act, and then passed an order u/s. 7 (ibid), for restoration of possession of land under dispute to the private respondent, which was not asked for by the private respondent even. It all was done by him without adopting the procedure which is necessary by brining a direct complaint under Illegal Dispossession Act, 2005 on record. It is settled by now that the things which are to be done in a manner prescribed by law. If done otherwise, would be unlawful. The order impugned apparently has been passed in excess of jurisdiction.

In view of above, the impugned order is set aside while allowing the instant constitutional petition. Consequently, the Criminal Revision Application No.16 of 2017 would be deemed to be pending. Since the impugned order has been passed by the learned 3^rd Additional Sessions Judge, Larkana, without applying judicious mind and in excess of jurisdiction, we deem it appropriate to withdraw the Criminal Revision Application No.16 of 2016 from the board of said Court and transfer it to the Court of learned Sessions Judge, Larkana, to decide the same in accordance with law, expeditiously and preferably within sixty (60) days hereof.

The instant constitutional petition is disposed of accordingly.

JUDGE