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Civil Petition for Leave to Appeal No. 351‑R of 1984, decided on 1^st July, 1986.

(From judgment of Lahore High Court, Rawalpindi Bench, dated 27‑10‑1984 in Writ Petition No. 366 of 1983).

‑‑‑Art. 185(3)‑‑Criminal Procedure Code (V of 1898), S.145‑‑‑Dispute over possession‑‑Revisional Court as well as High Court reaching conclusion that Magistrate's action under 5.145, Criminal Procedure Code, was not justified when there was no apprehension of breach of peace and foundation for action under S.145, Criminal Procedure Code was lacking and that civil litigation should have been allowed to determine dispute between parties‑‑Leave to appeal, against order of High Court dismissing writ petition of petitioner, refused.

Ghulam Dastgir, Advocate‑on‑Record for Petitioners.

Ch. M. Ashraf Azeem, Advocate Supreme Court and Ch. Mehdi Khan Mehtab, Advocate‑on‑Record (absent) for Respondents.

Date of hearing: 1st July, 1986.

Leave to appeal has been sought from judgment, dated 27‑10‑1984 of the Lahore High Court; whereby a writ petition arising out of proceedings under section 145, Cr.P. C. filed by the petitioners, was dismissed.

The petitioners had alleged in an undated complaint dispossession from the property in dispute. Although the Police Officer who investigated it ' the matter later on deposed that there was no apprehension of breach of piece yet he reported the matter to the Magistrate who after having passed preliminary order, subsequently, in the final order directed restoration of possession to the petitioners. On revision filed by the respondent‑side a learned Additional Sessions Judge remanded the case. On remand the learned Magistrate repeated the earlier order. The respondents again filed a revision petition which was accepted with a finding that there was no apprehension of breach of piece and the foundation for action under section 145 was lacking, the learned Magistrate should not have taken any action there under. The respondents then filed a writ petition which having been dismissed with the affirmation of findings of the revisional Court, the petitioners have now sought leave to appeal.

The case stands concluded by the findings of the fact by the revisional Court and the High Court that there was no apprehension of breach of piece. This point is supported, amongst other elements, in the case by the testimony of the Investigating Officer who stated that there was no apprehension of breach of piece. That being so, the learned Magistrate should not have acted under section 145, Cr.P.C. and the civil litigation between the parties should have been allowed to determine the dispute between them. This petition has no force and accordingly is dismissed as frivolous with costs of the respondents caveators which are fixed at Rs.1,000.

M. Y. H. Leave refused.

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