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Criminal Revision No. 557 and Criminal Miscellaneous No. 5431 of 1970, heard on 6th August 1971.
S. 439 read with S. 145‑Order of Magistrate under S. 145 passed after hearing parties at length and after applying his mind to facts of case --Such order neither suffering from any legal defect nor without jurisdiction‑‑Order maintained, in circumstances of case.
Muhammad Ishaq v. Mst. Nur Mahal Begum P L D 1961 S C 426 and Arshad Mahmood and others v. Masud Ahmad Khan and others P L D 1969 Lah. 74 ref.
Ss. 439 & 561‑A Purpose of provisions of Ss. 439 & 561‑A‑Not to start a parallel trial in High Court.
Syed Fayyaz Hussain Hamdani for Appellant.
Raja Muhammad Muzafar for Respondent No. 1.
Date of hearing: 6th August 1971.
In these two petitions (Crl. Misc. No. 5431 of 1970 and Crl. Revision No. 557 of 1970), the relief claimed according to the learned counsel is the same; therefore, they are being disposed of together by one judgment.
2. A learned Magistrate acting under section 145 of the Code of Criminal Procedure on submission of a report by the police summoned the parties by a short order, to the effect that the report having been received, 'parties be summoned'. Subsequently, the learned Magistrate on 28‑4‑1970 passed an order in which he mentioned that one party had submitted a written statement. He noticed the nature of the dispute between the parties and also that there was apprehension of breach of the peace between them. At this stage it may be mentioned that the report of the police was before the learned Magistrate and the learned counsel for the parties, according to the report of the learned Magistrate (in Crl. Misc. No. 3455/ 70), "were heard at length". The question had arisen whether the property should be attached. The aforesaid report shows that the learned Magistrate passed the order of attachment "because the apprehension of breach of peace between the parties was found". The case was then adjourned to 12th June 1970. Learned counsel states that after this date no proceedings could take place before the learned Magistrate because of the stay order passed by this Court on the connected transfer application by Khushi Muhammad petitioner.
3. The learned counsel has challenged both the orders, one dated 11th February 1970 summoning the parties and the other dated 28th April 1970 whereby the property was attached. According to him, the learned Magistrate had no jurisdiction because he did not apply his mind to the facts of the case in so far as the first order is concerned; and because the first order is without jurisdiction therefore the second order is also illegal.
4. The question of jurisdiction and/or legality of such like orders passed by a Magistrate under section 145, Cr. P. C., has been considered in detail in a judgment of the Supreme Court. The learned counsel for the petitioner is unaware of that judgment. Learned counsel for the respondents has cited the ruling as Muhammad Ishaq Choudhry v. Nur Mahal Begum (P L D 1961 S C 426). The first order passed by the learned Magistrate is just a formal order asking the parties to appear. Even if that order is irregular, the second order passed by the learned Magistrate on 28th April 1970, in which he has noticed all the necessary elements and it was passed after hearing the parties "at length" can also be treated as an order passed under section 145, Cr. P. C., and passed this order after applying his mind to the facts of the case. It does not suffer from any legal defect nor is it without jurisdiction. The cases Muhammad Ishaq Choudhry v. Nur Mahal Begum and Arshad Mahmood and others v. Masud Ahmad Khan and others (P L D 1969 Lah. 74) can be referred as support for the view I have taken of the question involved in this case.
5. The other contentions sought to be raised by the learned counsel relate to the merits of the case. They can be raised before the learned Magistrate. The purpose of the provisions of section 561‑A, Cr. P. C., or for that matter section 439, Cr. P. C., e is not to start a parallel trial in the High Court. None of the, other contentions can be finally decided without giving an opportunity to the parties concerned, of examining their witnesses and producing other relevant evidence.
6. I find no merit in these two petitions and the same are dismissed accordingly.
Petitions dismissed.
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