1968 P Cr (PLP)

M. A. Farani for Respondent. M. M. Bhatti for the State. The dispute in this matter is with regard to Khokha No. 33-A situate on what is alleged to be Wakf Property in the Town of Bahawalpur. The reference dated 28th May 1967 by the learned S. J. Bahawalpur arises on of the following facts. On the 6th May 1967 Abdul Ghafoor who is alleged to be the owner of the Khokha made an application to the Thana Kotwali that Nawab Din had become a share-holder in the Khokha and had entered into tile possession of it four or five months previously and did not permit Abdul Ghafoor to enter the Khokha. On the basis of this application the S. H. O. of the Thane filed a report before the learned 1st Class Magistrate Mr. Muhammad Feroze Ahmad that there was likelihood of a breach of the peace between the parties owing to the dispute over this Khokha and request that action under section 145, Cr. P. C. be taken and the Khoklla be attached. On the same day the learned City Magistrate passed an order under section 146(1), Cr. P. C. for attachment of the Khokha. That order is detailed as follows: "Received from the S. H. O., Kotwali. From the police report it transpires that Nawab Din s/o Abdul Hakeem Sheikh of Islamnagar has passed a threat to the peace and tranquillity of the ilaqa by forcibly entering the shop and obstructing Abdul Ghafoor in the conduct of his business. Since there is an immediate danger of breach of peace it is ordered under section 146(1) that the shop be attached and Dr. Ahmad Hassan, B. D. Member of Union Committee No. 3 is hereby appointed the Receiver. Meanwhile it is ordered under section 145(1) that both the parties shall submit their written claims on 15-5-1967." The learned Sessions Judge in his reference to this Court has adverted to the written statement filed by Abdul Ghafoor and to the period for which Nawab Din has been in occupation of this Khokha and the rent which was due and has not been paid either to Abdul Ghafoor or to the Auqaf Department. The recommendation to this Court for the quashment of the impugned order is based on two grounds namely that in terms of the proviso to subsection (4) of section 145, Cr. P. C the period of possession of Nawab Din being admittedly over a period of two months with the definite assertion that it was for a period of over 4-5 months and that no orders could be passed under section 146(1) unless a final order under section 145, Cr. P. C. had been passed after deciding the question of posses sion that the impugned order be quashed.

2. The two legal points that then arise for examination are (1) whether the Court has jurisdiction to take action and proceed in the matter when the police report and the application of Abdul Ghafoor stated positively that Nawab Din had been in possession of the Khokha for four or five months before and (2) whether the order under section 146(1) for attachment was justified when there was no finding by the learned City Magistrate as to possession of the Khokha. It has also been urged and in my view quite rightly that the learned Magistrate has travelled beyond the scope of subsection (4) of section 145, Cr. P. C. and that the intention of the section is to declare and to give relief under the provisions of this section. There is no dispute as to possession of Khokha on the date when Abdul Ghafoor's report and the police report namely on the 6th May 1967 was made to the Magistrate concerned. The later report is based on the earlier report of Abdul Ghafoor and stated in para. 2 and quite assertively that Nawab Din had been in possession of the Khokha for four or five months. Subsection (4) of section 145, Cr. P. C. with its proviso reads as follows :- "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." Reliance has been placed on Ch. Muhammad Siddiq v. Sahibzada Sahibyar Khan (P L D 1963 B J 26) wherein Jamil Hussain Rizvi, J. as he then was in considering the provisions of subsections (1) and (4) of section 145, Cr. P. C. observed that if the petitioner was not found to be in possession of the property within two months before passing of the preliminary order proceedings under this section were not maintainable. In Debendra Chandra Sarkar v. Khodaram Sangma (P L D 1951 Dacca 59) to which reference has been made in P L D 1963 B J 26 it was observed that:- "In construing the proviso to section 145(4) the Court must follow the wording of the proviso literally, and if the party is found to have been forcibly and wrongfully dispossessed on a date outside two months next before the date of the order, the proceedings cannot be maintained." It was further observed that this view has been taken by several authorities of different Courts in this Sub-Continent and since the property in dispute was admittedly in possession of certain lessees and the petitioner did not mention the date of big possession or dispossession the matter should be contested and proceeded with in the Revenue or the Civil Courts which would be the proper forum in these circumstances. Ortcheson, J. in Sh. Shaukatali v. The State (P L D 1965 Lah. 312) observed that if in proceedings under section 145 of the Criminal Procedure Code possession of the party is established the Magistrate has no jurisdiction to enter into the question of title and to continue further proceedings. In Ghulam Mustafa v. Abdul Karim and others (P L D 1964 Lah. 9) Bashiruddin, J. again considering the relevant provisions of the Code of Criminal Procedure involved here observed that the period of two months mentioned in the first proviso of section 145 is to be computed from the date of the passing of the preliminary order under subsection (1) of section 145 and not from the date of the complaint and that the Magistrate concerned in deciding the question of possession should neither go into the question of title not rely on unproved documents. In the present case the position is quite clear and indeed obvious from the facts which led the City Magistrate into passing the impugned order and on the principles set out in the rulings, referred to earlier it is further manifest that Nawab Din having been admittedly in possession for more than two months from the date of the order of the learned City Magistrate -the impugned order was without justification. The next circumstance is whether the property can be ordered to be attached under section 146(1), Cr. P. C. In this respect a similar point was under consideration in Zain Khan v. Muhammad Jamil (P L D 1967 Pesh. 137) when Faizullah, J. formulated the question whether an order under section 146 with regard to attachment and appoint ment of a Receiver of the property which is the subject-matter of a dispute under section 145, Cr. P. C. can be made at a preliminary stage of the proceedings and before conducting an enquiry and taking evidence of the parties concerned. My learned brother was of the view that it was plain from the language of section 146 that proceedings under this section could only be invoked when the Magistrate had completed an enquiry under section 145 and recorded a finding under sec tion 145(4) "that none of the parties was then in such possession, or is unable to satisfy himself as to which of them was then in such possession of the subject of dispute". The object of attachment under section 146 is only to maintain status quo by keeping the property custodia legis so as to prevent the contesting parties 6 from creating a breach of the peace until the rights of the parties are effectively determined by a competent Court and that therefore, the impugned order of attachment and the appointment of Receiver was without jurisdiction no enquiry whatsoever as to possession of the parties having been made. This is precisely what has happened in the present case. Similarly in Mohibullah v. Usman Khan (P L D 1967 Pesh. 311) Faizullah, J., again observed that it was incumbent on a Magistrate to conduct an enquiry and to give clear finding as to whether any or which of the parties was in possession at a date o1' the preliminary order under section 145(1) and that an order passed by a Magistrate without passing a preliminary order and without recording a speedy order was vitiated. In Anwarullah Meah v. Muhammadun Nabi Chowdhury (P L D 1967 Dacca 542) a learned Single Judge went a little further in observing that even if the evidence of witnesses is recorded in proceedings under section 145, Cr. P. C. in the form of a memo randum it was necessary under section 356, Cr. P. C. that a Magistrate should record the evidence and not the substance of the evidence, that such an enquiry was vitiated and was not an irregularity curable under section 537, Cr. P. C. Learned counsel for the respondents argues on the basis of the case of Muhammad Ishaque Chowdhury v. Nur Mahal Begum and others (P L D 1961 S C 426) that there is a likelihood of the breach of the peace and that if the three elements necessary for an order under section 145 have been made out namely that a dispute is likely to cause a breach of the peace which dispute refers to land on water or boundaries thereof, that such land is situate within the limits of his territorial jurisdiction the learned City Magistrate had the jurisdiction to pass the impugned order. Learned counsel however, ignores the fact that the present order has been passed under subsection (4) of section 145, Cr. P. C. and the overriding circumstance is the period of possession of the opposite side which restricts the jurisdiction to pass such an order. The proviso to subsection (4) of section 145, Cr. P. C. governs the entire aspect of the present case and for these reasons I am quite clear my mind that the impugned order cannot be sustained and tha t the recommendation that it should be quashed should be accepted. The reference is answered accordingly in these terms. The parties must if they have dispute with regard to the ownership of the Khokha and the rent to be derived from it approach the Civil Courts which are the proper forum for such matters. Reference answered.