P L D 1955 Peshawar 31 (PLP)

MUHAMMAD SHAFI, J.-On 4th .November, 1948, at about 2 p.m., a report was made by Sahibzada Abdul Hamid, son of Sahibzada Abdul Latif in Swabi Police Station that a certain building, situated in Topi village, which was in his possession up till then, had been forcibly taken ,possession of by Sabqatullah, a servant of one Muhammad Umar Khan, who was accompanied by Sultan Muhammad, son of Saadat Khan and two other persons unknown to him. All of them it was alleged in the report were armed with fire-arms, sticks, etc., and were threatening Sahibzada Abdul Hamid not to go near the building. The Police challaned a case under sections 148/448 P. P. C., on the basis of this report against eight persons, including one Muhammad Amir Khan. K. S. Muhammad Umar Khan was mentioned in Column No. 2 of the challan as a mere suspect. The Police also recommended that pro ceedings under section 145 Cr. P. C. be taken between the parties. The case under section 145 Cr. P. C. was disposed of on 17th June, 1949, when the Magistrate 1st Class, Swabi, ordered the attachment of the building in dispute under section 146 Cr. P. C., until a competent Court had determined the rights of the parties thereto. Sahibzada Abdul Hamid went up in revision against this order to the Court of the Sessions Judge, Peshawar. Mr. Fazal Rahman Khan, Additional Sessions Judge, Peshawar, by his order dated 21st September, 1949, submitted the record of the case to this Court with the recommendation that the order of the Magistrate should be vacated, because it was not preceded by a preliminary order as contemplated by section 145 Cr. P. C. The reference was heard by Hon'ble the Judicial Commissioner, who by his order dated 22nd February, 1950, accepted the recommendation and setting aside the order of the Magistrate remanded the case to him for fresh enquiry and decision in accordance with law. On the 29th of May, 1950, a preliminary order to the following effect was passed :- "From the police report I am satisfied a dispute likely to cause the breach 6f the peace between Muhammad Amir Khan, etc., on one side and Abdul Hamid on the other concerning a school building situated in Top village. I, therefore, call upon the parties to submit their written statements on 9th June, 1950, with regard to the factum of possession." The case for the second time was disposed of by Mr. Sher Bahadur Khan Magistrate 1st Class, Swabi, by his order dated 6th August, 1951. He held that in section 145 Cr. P. C. the factum of possession was important, and as the possession of the complainant had not been proved, therefore, the attachment made under section 145 Cr. P. C. was bad and should be vacated. With these words he disposed of the complaint under sections 146 and 145 Cr. P. C. Sahibzada Abdul Hamid again moved the Sessions Judge for vacating this order, and Mr. Ghulam Daud Khan, Additional Sessions judge, by his order dated 14th February, 1953, again sent up the case to this Court with the following remarks :- "From what I have discussed above, it is apparant that the learned Magistrate, Mr. Sher Bahadur Khan, failed to comply with the explicit orders and direction given by the Hon'ble Judicial Commissioner for holding fresh enquiry and decision in accordance with law in case under section 146 Cr. P. C. between the parties, and he simply muddled up this case with the case of criminal house tres pass and rioting while armed with deadly weapons under sections 448/148 P. P. C., and, therefore, I feel constrained to recommend to the Court of Hon'ble the Judicial Commis sioner, N. W. F. P., to set aside the order of Mr. Sher Bahadur Khan passed against the petitioner under sections 145 and 146 Cr. P. C. proceedings." This order was made by the learned Additional Sessions judge, because he found that Mr. Sher Bahadur Khan had not made any fresh enquiry in the case under section 145 Cr. P. C., after the remand. The case for the second time was heard by Hon'ble the Judicial Commissioner, who accepted the recommendation of 7th April, 1953, and remanded the case for fresh enquiry and decision in the light of the observations made by His Lordships in his order dated 22nd February, 1950. The case for the third time was heard by S. Hizbullah Khan Magistrate 1st Class, Topi, who recorded the evidence of five witnesses, and came to the following conclusion :- "I, therefore, order that S. Abdul Hamid is entitled to the possession of the building in dispute and which was a Girls' Primary School until evicted therefrom in due course of law, and I forbid all disturbance of such possession until such eviction, and I further order that as Abdul Hamid was forcibly and wrongfully dispossessed the possession of the said building be restored to him." In the beginning of his order he had held that Sahibzada Abdul Hamid was in possession of the school building at the time when the case under section 448 P. P. C. was registered, and that he was wrongfully dispossessed thereof. Muhammad Amir Khan went up in revision against this order and the learned District Magistrate, Mardan, has forwarded the case on to this Court with the recommendation that the order passed by the Magistrate should be vacated, and the case remanded back to him with the direction that he should take evidence anew and determine the factum of possession on 29th May, 1950, the date of the preliminary order, or within two months next before this date as required by the facts and circumstances of the case and in accordance with the provisions of section 145 Cr. P. C. The procedure which is laid down by section 145 Cr. P. C. is that when a Magistrate mentioned in the said section is satisfied that a dispute likely to cause a breach of the peace exists concerning any land within the local limits of his jurisdiction, he shall make an order in writing stating the grounds of his being so satisfied, and requiring the parties concerned in such dispute to attend his Court in person or by pleader, within a time 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. This order in the ordinary legal language is known as the preliminary order. After this order is passed, then the Magistrate under subsection (4) of section 145 Cr. P. C., without going into the merits of the claim of any of such parties to a right to possess the subject of dispute, has to peruse the statements put in by the parties, hear the parties, and after considering the effect of the evidence produced by the parties, decide, if it is possible for him so to do, which of the parties was at the date of the preliminary order in actual possession of the property. The order under this subsection is to be based on possession at the date of .the preliminary order and not before or after that date. The first proviso to subsection (4) is only explanatory and affords a circumstance under which a presumption can be raised that any party who has within two months next before the date of such order been forcibly and wrongfully dispossessed, would be treated to be in possession of the property on such date. The provisions of subsection (4) and the proviso mentioned above are positive, and if effect is given to the plain words used in this provision of law, then no other interpretation, whether literal or liberal, can possibly be placed on them except that the Court must find on the date when it passes the preliminary order, as to which party-was in possession of the property in dispute. In order to name such party, the Court is authorised to take that party as in actual possession of the property in dispute on the date when the preliminary order is passed, which has been forcibly and wrongfully dispossessed of such property within two months next before the date of such order. It is clear that the only date which is material is the date on which the preliminary order is passed. It is true that sometimes for no fault of one party, the Court may delay passing the preliminary order, and thus cause manifest injustice in the case to that party, still the Court is bound by the precise and unambiguous provisions of subsec tion (4) of section 145 Cr. P. C. and cannot lay down any other date as the material date except the date mentioned therein. It certainly casts a duty on the Magistrate to pass a preliminary order as soon as he is satisfied from a police report or other information that a dispute likely to cause a breach of the peace exists concerning any land or water or boundaries thereof, and his omission to do that amounts to gross negli gence in the performance of his duties, and subjects him to strict disciplinary action. The law, however, as it stands has got to be given effect to by the Courts. The above view, that the material date in proceedings under section 145 Cr. P. C. is the date on which the preli minary order is passed, is supported by the following authorities : - Emperor v. Baifnath (A I R 1929 Oudh 526.); "Emperor v Parashram (A I R 1931 -Nag. 38.); Emperor v. Sundarlal and others (A I R 1936 Nag. 271.) Maharban Singh v. Bhola Singh and others (A I R 1935 All. 35.) ; Muhammad Ali Yar Muhammad v. Shamsul Haq Pir Zialdin Shah and others (A I R 1948 Sind 33.) ; Mahmood Beg and others v. Ehsan Beg (A I R 1941 Oudh 515.) and Dabendra Chandra Sarkar v. Khodaram Sangma and others (P L D 1951 Dacca 59.), At one time the Madras High Court was found to hold a different view as is clear from Krishnam Raju v. Chintala Swami Naidu and others (A I R 1927 Mad. 816.), and R. Srinivass Reddy v: M. Dasaratha Rama Reddy (A I R 1929 Mad. 198.), but then even Madras view came in line with the other High Courts as is apparent from A. Draiviasundaram Pillai v. N. Subramania Pillai (A I R 1945 Mad. 217.). I am consequently constrained to hold that the learned Magistrate finding that Sahibzada Abdul Hamid was in possession of the property on the day when the case under section 448 P. P. C. was registered, which date, as has already been mentioned, was 4th November, 1948, and that he was on that date dispossessed thereof, was absolutely immaterial for the decision of this case. What he should have found was as to who was in possession of the property on the date when the preliminary order, vii., the order dated 29th May, 1950, was passed. The case has already taken more than six years. It has twice been remanded and the Courts have not been able to arrive at any positive conclusion. I think it will be sheer waste of time and money to remand the case for a third time for enquiry de novo. In my view the present proceedings should be concluded and the parties left to seek their remedy for the possession of the property in dispute in accordance with law. The preliminary order passed in this case surely is not going to help the Courts in arriving at a just and equitable decision, because it has been unduly delayed by the negligence of the Magistrates concerned. I, therefore, accept this revision petition, set aside the order of the learned trial Magistrate, and quash the proceedings initiated by the police under section 145 Cr. P. C. Orders announced. A. H. Proceedings quashed.