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Criminal Reference No. 46 of 1980, decided on 1stJanuary, 1981.
--- Ss. 107 & 145-Attachment of property-Attachment of subject- matter in dispute, in case of emergency, could be made at any stage-Drawing up a preliminary order or at least to write an elaborate order indicating circumstances attended by imminent Breach of peace, held, incumbent upon Magistrate while proceeding with case-Magistrate not acting as such and ordering attachment of property, order set aside and case remanded for trial according to law.-[Attachment of property].
S. Muhammad Hussain Khan for Petitioner.
S. Sardar Khan for Respondent.
Date of institution : 30th August, 1980.
The dispute over a shop or shops as the case may be situated in the Town of Pallandri is existing between the parties and there is every likeli hood of the breach of peace to occur. The matter was brought to the notice of the police by Muhammad Aziz Khan, petitioner as a result of which a report was submitted by the Police to the Sub Divisional Magistrate Pallandri to proceed under sections 107/145, Cr. P. C. against the parties and it was also prayed therein that the shops in dispute should also be attached so as to evade the impondent danger of the breach of peace, She report in form of a complaint was presented before the Court of Sub Divisional Magistrate Pallandri to take action against the parties under section, 107/145, Cr. P. C: At the very presentation of the police report, an order for attachment of the shops in dispute was passed but no preliminary order could be drawn by the Magistrate as required by section 107/145, Cr. P. C. The police cited Syed Yaqoob Shah, Head Constable, Captain Muhammad Aziz Khan, Muhammad Azim Khan and Ch. Ahmad Saeed Khan, S. H. O. as witnesses in the calendar of evidence but none of them appeared before the trial Court to give evidence as a result of which non-production of the witnesses the complaint of the police was dismissed by the trial Court for want of proof.
A revision petition against the order of dismissal by the trial Court was made .by Muhammad Aziz Khan petitioner before the Court of Sessions Judge Rawalakote from where it was recommended to this Court that the impugned order should be set aside and the trial Magistrate be ordered to proceed with the case as required by section 145, Cr. P. C.
After having heard the learned counsel for the parties and the parties themselves and going through the record, I find that the proceeding were not properly taken by the trial Magistrate. It was proper for the trial Magistrate to proceed with the case after looking into the provisions of section 107/145, Cr. P. C. No doubt in the case of emergency the attachment of the subject matter in dispute could be made at any stage but it was incumbent upon the Magistrate to DRAW up a proper preliminary order or at least to write an elaborate order so as to indicate the circumstances attended by imminent breach of peace apprehended while proceeding with the case but nothing of the sort was done. In the calendar of evidence only one side seems to have been quoted the police to produce evidence including the petitioner who could have only stated his case but the trial Court failed-to see that it was bound to take evidence of both the parties in support of their respective claims. The parties were never asked in clear words by the trial Magistrate to put in written statements of their respective claims and then to adduce evidence in support of their respective stands.
The perusal of the file shows that the Sub Divisional Magistrate who is also a revenue officer is not acquainted with the relevant law and it may not be easy for him to deal with this case according to law There fore, by acceptance of the reference made by the Sessions Judge the impugned order is set aside for the reasons above, and the case is remanded to the Sub Judge Magistrate Ist Class Pallandri for its trial from the very beginning in accordance with law. He is further directed to study the relevant law before he proceeds with the case as directed by this Court.
Case remanded.
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