P L D 1970 Peshawar 19 (PLP)

(a) Criminal Procedure Code (V of 1898), S. 144‑Magistrate's powers under S.

144. Section 144, Cr. P. C. contemplates preventive jurisdiction in urgent cases of public nuisance or apprehension of danger in dis turbance of public tranquility, or riot, or affray. Before acting under this section, the Magistrate must be satisfied that immediate prevention or speedy remedy is necessary. It is, in fact, the urgency of the case that vests the Magistrate with jurisdiction to exercise the powers conferred by this section. Where the Magistrate is satisfied that the elements necessary for action under this section are shown to exist upon materials before him he can issue direction to abstain from a certain act or to take certain order with the property as specified in the section. It is prima facie for the Magistrate who knows the local conditions to say whether an emergency exists or not, and whether the elements necessary for action under this section are shown to exist upon materials legally before the Court. The High Court will, in exer cise of its powers, respect the opinion of the local authorities as to the gravity of the danger and as to the steps necessary for the maintenance of the peace. Subsection (2) and subsection (3) of section 144 contemplate that an order under this section may, in cases of emergency, or in cases where the circumstances do not admit of the serving in due time of a notice upon the person against whom the order is directed, be passed ex parse. An order under this section may be directed to a particular individual or to the public when frequenting or visiting a particular place. (b) Criminal Procedure Code (V of 1898), S. 435 read with S. 144(4)‑Revision‑Petitioners rushing to High Court to seek relief against order passed under S. 144, without first exhausting remedy available under S. 144(4)‑Relief refused in circumstance. Subsection (4) of section 144 provides for the rescission or alteration of the order on a cause being shown to the Magistrate to pass the order. In the absence of a special urgency, ordinarily a person aggrieved by an order under this section, should seek his remedy under subsection (4) in the first instance before going to the High Court in revision. Such direct applications to the High Court should not be encouraged when the Magistrate, who passed the order could himself, on a cause being shown to him, alter or rescind the order. (c) Criminal Procedure Code (V of 1898), S. 144‑Scope Operation of section not limited to cases of possible breach of general peace‑Section also contemplates cases of interference with individual rights‑Acts on completion giving rise to civil action only‑Protection of section can yet be extended to aggrieved person arid Magistrate's authority invoked in defence of his right's. Section 144, Cr. P C. is not limited in its operation to cases of possible breach of general peace but contemplates also cases of interference with individual rights. Therefore, even if the acts are such as when completed would furnish ground for a civil action only, the protection of the section will extend to the person, and the authority of a Magistrate under this section can be used in defence of such rights. Rashid Allidina v. Jiwandas Khemji and another A I R 1943 Cal. 35 fol. S. Fakhre Alam, A. A.‑G. for the State. This is a revision petition against the order of Khan Muhammad Jan Khan, P. C. S., Sub‑Divisional Magistrate, Charsadda, dated 9‑ 8‑69, whereby owners of Matta and Mian Isa on one side and Halimzai Mohamands on the other, were directed under section 144, Cr. P. C. not to interfere with the land situate in Daman Matta Rustam Khel by way of ploughing extracting stones, removing of bajri or any other act which may disturb the peace of the area.

2. The impugned order proclaims thus: "Whereas it has been made to appear to me that there exists a dispute between the people of Matta and Mian Isa on one side and the Halimzai Mohamands T. T. on the other side over a portion of Daman Matta Rustam Khel land, which is receiving Government's attention and efforts are being made to settle it amicably. And whereas I believe that any attempt by either of the parties or any third person to interfere with the land by way of ploughing, extracting stones, cultivating, digging earth, building houses, cutting trees, removing of bajri or any such act which can disturb the peace of the area. And whereas I am convinced that circumstances do justify the prevention of the breach of peace by stopping all these acts. Now, therefore, I, Khan Muhammad Jan Khan‑I P. C. S., Assistant Commissioner, Charsadda, and Sub‑Divisional Magistrate, Charsadda, do hereby order that no one would either extract stones, or cultivate or dig earth or build house or cut trees or remove bajri in and from the said Daman Matta Rustam Khel area, failing which any one doing any act in contravention of this order may render himself liable to legal action and punishment. This order will remain in force for a period of sixty days from 9‑8‑1969 to 7‑10‑1969. Given under my hind and the seal of this Court this day of 9th of August 1969. (Sd.) Khan Muhammad Jan Khan‑I P. C. S., Sub‑Divisional Magistrate, Charsadda."

3. The learned counsel for the petitioners (comprising of proprietors and representing the owners of Halimzai Mohmands) contended that the order is without jurisdiction and arbitrary in nature. Supplementing his arguments; the learned counsel further complained that the impugned order was passed ex parte, without giving reasonable opportunity, and that the opposite‑party who has already brought a suit for recovery of produce against some of the petitioners, should have been referred to a civil Court, rather than‑ preventing the petitioners from cultivating the disputed land and depriving them of the profit.

4. For the satisfaction of the Court that the impugned order of the S. D. M., Charsadda is legal, within his jurisdiction and that the Magistrate has not acted in an arbitrary manner, the record of the case was immediately requisitioned.

5. For the sake of expediency, section 144, Cr. P. C. is reproduced in substance as under:‑ "CHAPTER XI--‑TEMPORARY ORDERS IN URGENT CASES OF NUISANCE OR APPREHENDED DANGER 144.‑--(1) In cases where, in the opinion of a District Magistrate, Sub‑Divisional Magistrate, or of any other Magistrate not being a Magistrate of the Third Class, specially empowered by the Provincial Government or the District Magistrate to act under this section, there is sufficient ground for proceeding under this section and immediate prevention or speedy remedy is desirable, such Magistrate may; by a written order stating the material facts of the case and served in manner provided by section 134, direct any person to abstain from a certain act or to take certain order with certain property in his possession or under his Management, if such Magistrate considers that such direc tion is likely to prevent, or tends to prevent, obstruction, annoyance or injury, or risk of obstruction, annoyance or injury, to any person lawfully employed or danger to human life, health or safety, or a disturbance of the public tranquility, or a riot, or any affray. (2) An order under this section may, in case of emergency or in cases where the circumstances do not admit of the serving in due time of a notice upon the person against whom the order is directed, be passed, ex parte. (3) An order under this section may be directed to a particular individual, or to the public generally when frequent ing or visiting a particular place. (4) Any Magistrate may, either on his own motion or on the application of any person aggrieved rescind or alter any order under this section by himself or any Magistrate sub ordinate to him, or by his predecessor‑in‑office. (5) Where such an application is received, the Magistrate shall afford to the applicant an early opportunity of appearing before him either in person or by pleader and showing cause against the order; and if the Magistrate rejects the application wholly or in part, he shall record in writing his reasons for so doing. (6) No order under this section shall remain in force for more than two months from the making thereof; unless, in cases of danger to human life, health or safety, or a likelihood of a riot or any affray, the Provincial Government, by notifica tion in the official Gazette, otherwise directs."

6. The record reveals that the disputed land comprises of an area of about 698 Jaribs in Matta Rustam Khel, Police Station Batagram. One Fazal Elahi Khan of Mian Isa, Member of the Proprietary Body of Matta Rustam Khel, submitted an application under section 144, Cr. P. C. to S. D. M., Charsadda on 6‑8‑69 against Musafir Khan and 3 others of Shabqaddar, with the allegation that the respondents without legal title were about to take forcibly possession of the disputed land and such acts of the respondents are apprehensive of breach of the public tranquility. This application was sent to Circle Officer, Shabqaddar. Under the orders of the Circle Offcer, Sub- Inspector of Police Post, Shabqaddar made inquiries on the spot on 7‑8‑69, examined Fazal Wabid Patwari Halqa Matta Rustam Khel on the same day with reference to the Fard Jamabandi of the year 1966‑67, regarding the disputed land, and submitted his report dated 7‑8‑69, supporting the allegations contained in the application of Fazal Elahi. It is manifest that the S. D. M., Charsadda passed the impugned order on these basis.

7. Section 144, Cr. P. C. contemplates preventive jurisdiction in urgent cases of public nuisance or apprehension of danger in disturbance of public tranquility, or riot, or affray. Before acting under this section, the Magistrate must be satisfied that immediate prevention or speedy remedy is necessary. It is in fact, the urgency of the case that vests the Magistrate with jurisdiction to exercise the powers conferred by this section. Where the Magistrate is satisfied that the elements necessary for action under this section are shown to exist upon materials before him he can issue direction to abstain from a certain act or to take certain order with the property as specified in the section. It is prima facie for the Magistrate who knows the local conditions to say whether an emergency exists or not, anti whether the elements necessary for action under this section are shown to exist upon materials legally before the Court. The High Court will, in exercise of its powers, respect the opinion of the local authorities as to the gravity of the danger and as to the steps necessary for the maintenance of the peace. In my view, upon the materials on record and in appreciation of the local condition of the area; the S. D. M., Charsadda considering the existence of the emergency was legally justified in passing the impugned order. His order is not arbitrary in nature.

8. Subsection (4)‑ of section 144 provides for the rescission or alteration of the order on a cause being shown to the Magistrate to pass the order. The petitioners in this case instead of availing this remedy of the section, rushed to this Court to seek a relief. In the absence of a special urgency, ordinarily person aggrieved by an order under this section, should seek his remedy under subsection (4) in the first instance before going to the High Court in revision. Such direct applications to, the High Court should not be encouraged when the Magistrate, who passed the order could himself, on a cause being‑shown to him, alter or rescind ‑the order.

9. Subsection (2) and subsection (3) of section 144 contem plate that an order under this section may, .in cases of emergency, or in cases where the circumstances do not admit of the serving due time of a notice upon the person against whom the order is directed, be passed ex parte. An order under this section may be directed to a particular individual or to the public when frequenting or visiting a particular place. Thus the impugned order of the S. D. M., Charsadda on account of its having been passed ex parte, does not lose its legal and judicial character.

10. Section 144, Cr. P. C. is not limited in its operation to cases of possible breach of general peace but contemplates also cases of interference with individual rights. Therefore, even if the acts are such as when completed would furnish grounds for a civil action only, the protection of the section will extend to the person, and the authority of a Magistrate under this section can be used in defence of such rights.

11. In Rashid 411idina v. Jiwandas Khemji and another (A I R 1943 Cal. 35) it has been ruled:‑ "It cannot be said that section 144 (Cr. P. C.) Contemplates only acts which when allowed to be completed will constitute an offence. In view of the definition of `injury' in section 144, Penal Code, and the definition of illegal in section 43, adopted by the Criminal Procedure Code by its section 4 (2) whenever certain act or measure taken with certain property in possession of the offender is such as may amount to injury or risk of injury to any person, such person is entitled to have the protection of section

144. So even if the act or the measure complained of be not such as would amount to an offence when allowed to be completed, if these are only such as when completed would furnish grounds for a civil action only, the protection of the section will extend to the person"

12. In conclusion, this revision petition is dismissed. S. A. H. Petition dismissed.