Find a Lawyer

On 7-9-1985 the learned S. D. M. Bin Qasim forwarded to S.H.O. Quidabad for report within five days. The S.H.O. submitted the report on 15-9-1985. The operative part of which reads as under:----

"Sir, the enquiry was conducted on the application of Dad Muhammad son of Raza Muhammad. During the enquiry the applicant has not been able to produce any documentary evidence. He has also failed to produce any witnesses in support of his case. The plot in question is Government/KMC property. This plot after being sold by various parties, is at present in possession of Muhammad Umar wherein he is doing business of Buffaloes since the year 1980. He has produced K . E . S . C . receipts which have been placed on the file."

The learned S.D.M. issued notice on the parties. Respondent No.2 produced his witnesses namely Jumo Khan, Behram, Haji Kamal and Abdul Qadir, who were examined by the learned S.D.M. The applicant did not produce any witness or document. Consequently, the learned S. D. M. passed an order under section 145(4), Cr.P.C. directing the attachment of the plot in question. The applicant filed revision application before the learned Sessions Judge (East) Karachi, which was disposed of by the learned III Additional Sessions Judge Karachi vide order dated 26-10-1986 whereby he dismissed the application of the applicant.

The learned counsel for the applicant has assailed the proceedings before the learned S.D.M. on the grounds:-

(1) That no order under section 145(1), Cr.P.C. was passed'.

(2) That there is no finding even in the order under section 145(4) Cr.P.C. that there was any emergency of peace.

(3) That there was no evidence before the learned S . D . M . that there was any likelihood of breach of peace.

(4) That the applicant is admittedly in possession of the disputed plot for two years before the proceedings and as such no proceedings under section 145 could be initiated, specially when the Civil Court had issued the order directing parties to maintain the status quo in the Civil suit filed by the applicant.

The learned counsel has taken me through the statements of the above-named four witnesses of respondent No.2. All of them state, that the applicant Muhammad Umar is in possession for the last two years. None of them states that there is any likelihood of breach of peace. However, they do state, that the plot in question belongs to the respondent No.2. The learned counsel has also taken me through the application of the applicant on which proceedings were initiated. In this application also the respondent 2 does not allege that there is any likelihood of breach of peace, but he prays that his plot may be got vacated from the unauthorised persons. The statement of respondent Dad Muhammad was not recorded by the learned S.D.M., but it was recorded' by the police. In this statement he has stated, that he had asked Muhammad Umar to leave his plot, but he refused to do so and he was prepared to fight and, therefore, he moved this application so, that the matter may be decided in his favour.

It was contended by the learned counsel for the applicant, that no order as contemplated under section 145(1), Cr.P.C. was passed by the learned Magistrate. However, the learned counsel for the respondent No.2, stated that such order was passed by learned S.D.M. on 19-9-1985, which has been referred to by the learned Additional Sessions Judge in his order dated 26-10-1986. The certified copy of the order dated 19-9-1986 has been produced, which shows that on the receipt of the report of police, the learned S.D.M. passed the following order:-----

"Call all the concerned on 22nd September, 1985."

The learned Additional Sessions Judge has referred to this order as an order under section 145(1), Cr.P.C.

The learned counsel has also taken me through the order under section 145(4), Cr.P.C. passed on 11-11-1985. The relevant part of this order reads as under:-

"I am, therefore, satisfied that there exists chance of breach of peace over the ownership of the said plot which is situated within the local limits of jurisdiction of this Court."

It may be relevant to reproduce subsections (1) and (4) of section 145, Cr.P.C. which read as under:-

"145. Procedure where dispute concerning land, etc., is likely to cause breach of peace. (1) Whenever a District Magistrate, Sub-Divisional Magistrate or Magistrate of the first class is satisfied from a police-report or other information that a dispute likely to cause breach of the peace exists concerning any land or water or the boundaries thereof, within the local limits of his jurisdiction, he shall make an order in writing, stating the grounds of being so satisfied, and requiring the parties concerned in such dispute to attend his Court in person or by pleader, within a .time to be fixed by such Magistrate, and to put in written statements of their respective claims as respects the fact of actual possession of the subject of dispute.

(4) Inquiry as to possession. --The Magistrate shall then, without reference to the merits or the claims of any of such parties to a right to possess the subject of dispute, peruse the statements so put in, hear the parties, receive all such evidence as may be produced by them respectively, consider the effect of such evidence, take such further evidence (if any) as he thinks necessary, and, if possible, decide whether any and which of the parties was at the date of the order before mentioned in such possession of the said subject:

Provided that, if it appears to the Magistrate that any party has within two months next before the date of such order been forcibly and wrongfully dispossessed, he may treat the party so dispossessed as if he had been in possession at such date:

Provided also, that if the Magistrate considers the case one of emergency, he may at any time attach the subject of dispute, pending his decision under this Section."

It will be seen from the plain reading of subsection (1) that the learned Magistrate has to record in writing, that he was satisfied that there was likelihood of breach of peace due to dispute over the land and also record the grounds for such satisfaction. The order of the learned S . D . M . dated 19-9-1985 does in no way satisfy the mandatory requirements of subsection (1) of section 145, Cr.P.C.

In his support the learned counsel has relied upon P L D 1965 (W.P.) Kar. 305 where it is held by learned Single Judge of this Court as under:-

"Section 145(1), Criminal Procedure Code, 1898 makes an imperative provision requiring the Magistrate to state the grounds of his being satisfied that a dispute likely to cause breach of peace exists. The reason for this is obvious. The Criminal Courts are not expected to decide disputes of civil nature relating to possession of immovable property. That is the function of the civil Court. They acquire jurisdiction only when there is apprehension of breach of peace. That being so, it must appear from the order of the Magistrate that he had applied his mind to the question as regards the breach of peace because it is the existence of such a dispute which gives him jurisdiction to entertain the matter."

In P L D 1969 Kar. 22 a learned Single Judge of this Court had held: Satisfaction of Magistrate of an apprehension of breach of peace was condition precedent for assuming jurisdiction under section 145(1), Cr.P.C. Omission to comply with this condition of jurisdiction was not merely an irregularity but an illegality which rendered subsequent order illegal. When nothing either on the record or in circumstance of case led to inference of satisfaction of Magistrate, that breach of peace was likely, order of notice in the circumstances was illegal."

In 1969 P Cr. L J 1143 it was held:-

"According to the requirements of section 145(1), Criminal Procedure Code, before a Magistrate enters upon his jurisdiction he must make an order in writing stating the grounds of his satisfaction that upon a Police report or other information laid before him a dispute existed which was likely to cause breach of peace. After the Magistrate has complied with this requirement he is then required to give notice to the parties to appear before him on specified date and to put in written statements of their respective claims in proof of the fact of actual possession of the subject-matter of dispute. Then comes subsection (4) of section 145 according to which, when the parties appear before the Magistrate and have put in their written statements and adduced whatever evidence they wished to rely upon, the Magistrate is to decide whether any and which of the parties was in possession of the subject-matter of dispute at the date when he made his initial order under subsection (1) of section 145, Criminal Procedure Code. While determining this question the Magistrate is required not to refer to the merits of the rival claims of the parties. According to the second proviso appearing after this subsection if the Magistrate considers the case one of the emergency, he may at any time attach the subject-matter of dispute, pending his decision."

Applying the principles laid down in the above-referred cases to the facts of the present case, it will be seen, that the applicant even according to the evidence of the respondents' witnesses was in possession of the disputed plot for two years prior to the institution of proceedings. None of the witnesses has stated that there was any likelihood of breach of peace under section 145, Cr.P.C. There is no order under section 145(1), Cr.P.C. of learned Magistrate to the effect that he was satisfied that there was likelihood of breach of peace over the dispute of land nor has he recorded any grounds for such satisfaction.