1968 P Cr (PLP)

Basharatullah for Petitioners. S. H. Jafri for Respondents Nos. 1 and

2. M. Haleem, A. A.-G. for the State. Date 9f hearing : 1st April 1968. On a complaint by Malik Behram Khan and others Tarin, the Tahsildar Duki submitted his report dated the 23rd of July 1965, to the Sub-Divisional Magistrate, Duki, that is dispute regarding the use of land, water and boundaries existed between Sadozais and Tarins in Hazar Shahr area, Duki Tahsil, which was likely to cause a breach of peace between the two tribes. The learned Magistrate under section 145 (1), Cr. P. C, directed that Din Muhammad Sadozai and Feroz Shah of Hazar Shahr should furnish security in the sum of Rs. 10,000.00 each to stop work of raising embankments in addition to those already recently raised by them whereby the share of flood water belonging to Tarins was used by Din Muhammad and Feroz Shah etc. It was further directed that the parties concerned in the dispute, through their headmen, should attend the Court in person or by pleader on the 2nd of August 1966, and put in written statements of their respectable claims. The learned Magistrate after recording the statements of the parties and their witnesses as well as that of the Tahsildar as Court witness made the following order: - "I am convinced that Tarins are entitled to the use of the flood water of Thall Rud and the respondents had no right to raise new embankments or dig new 'wahs' etc. which they did during the month of July 1966, and in accordance with the first proviso to subsection (4) of section 145, Cr. P. C., I treat Malik Behram Khan and others, Tarins, as being in possession of the right of use of flood water of Thall Rud and I according ly declare under subsection (6) this party to be entitled to the possession thereof until evicted there from in due course of law, and forbid all disturbance of such possession until such eviction." Against that order Din Muhammad went up in revision before the learned Sessions Judge, Quetta, who vides his order dated the 27th of April 1967, dismissed the same. Din Muhammad has now preferred this revision.

2. At the outset it was contended that the order under section 145 of the Code of Criminal Procedure could not be passed by the learned Magistrate as there was no apprehension of breach of peace. This contention has no force because even the Tahsildar in his report had specially mentioned that he had obtained securities from both the parties in the sum of Rs. 20,000.00 each with personal bonds in the like amount to keep the peace towards each other. If there was no apprehension of breach of peace then there was no point in obtaining securities from both the parties. Even Malik Behram Khan in his state ment before the learned trial Magistrate definitely stated that there was danger of breach of peace between Sadozats and Tarins. In any case when both the tribes like Sadozai and Tarins were at loggerheads with each other because each of them was claiming the right of the use of floodwater of Thall Rud, it cannot be said that there was no likelihood of breach of peace between the two tribes. Under these circumstances the learned Magistrate rightly came to the conclusion that there was an apprehension of breach of peace. The learned counsel for the petitioners also challenged the final order of the Magistrate on merits. I have gone through the record including the statement of the Tahsildar, who was examined as a Court witness, and find that the learned Magistrate rightly came .to the conclusion that Malik Bebram Khan and others Tarins were entitled to the use of floodwater of Thall Rud.

3. In the result I find no merits in this revision, which is hereby dismissed. Petition dismissed.