P L D 1965 (W (PLP)

6. On the 15th of December the petitioner applied to the District Magistrate, Lahore, for transfer of the case under section 145, Cr. P. C., from the Court of Mr. Rashid Ahmad to that of the Circle Magistrate. The application was sent to the Additional District Magistrate for disposal. Before him the petitioner repeated his request for the return of the key of the house and the removal of the police guard. The case was adjourned to the 16th of December on which date respondent No. 2 and Mst. Zahida Sultana appeared. It was then again adjourned to the 17th of December when Mst. Zahida Sultana informed the learned Additional District Magistrate that she intended to move this Court for transfer. The hearing was accordingly postponed to the 4th of January 1965, but it may here be pointed out that it was admitted at the Bar that no applica tion for transfer has yet been filed in this Court.

7. The petitioner further states that on the 15th of December he filed a revision petition under section 435, Cr. P. C., against the orders of Mr. Rashid Ahmad dated the 5th and 15th of December respectively, and that on the 17th of December he again applied to the Additional District Magistrate for the return of the key and the removal of the police guard. Hearing of that application was adjourned to the 21st of December and a report was called from the A. I. G. Crimes, West Pakistan. According to the petitioner the respondent urged that the report should be called, not from the A. I. G. Crimes but from the Inspector General of Police, the guard having been posted under the latter's orders, but the prayer was not acceded to.

8. On the 19th of December the petitioner filed the present petition. It was prayed that the proceedings taken by Mr. Rashid Ahmad be quashed on the following main grounds:‑ (1) That action under section 145 (1), Cr. P. C., could be taken only by a Magistrate within the local limits of whose jurisdiction the property is situated and that as Mr. Rashid Ahmad was not the Circle Magistrate, Civil Lines area, his orders were illegal. (2) That the learned Magistrate had failed to give. the grounds on which he was satisfied that a dispute likely to cause a breach of the peace existed, thus violating a mandatory provision of law. (3) That as the police had reported that the petitioner was in possession of the property and that there was no likelihood of a breach of the peace, the learned Magistrate was bound to cancel his order dated the 5th of December and could not have proceeded with the case. (4) That in failing to order the removal of the police guard the learned Magistrate had refused to exercise his jurisdiction, the police having no legal authority to post the said guard. (5) That the preliminary order dated the 5th of December 1964 referred only to a dispute regarding title to the property and that such a dispute does not attract the provisions of section 145, Cr. P. C.

9. In his petition the petitioner also prayed that the police be required to show cause under what order or authority they are staying on his premises. In conclusion he sought the following reliefs :‑ (1) That the orders of Mr. Rashid Ahmad dated the 5th and 15th of December 1964, be quashed. (2) That the police be ordered , to remove the guard from the house. (3) That the key of the building and the movable property be returned.

10. By order dated the 21st of December 1964, the learned Chief Justice sent the case to me for disposal. The learned Additional District Magistrate was asked to report. He confirmed the petitioner's account of the proceedings before him, and further stated that on the 31st of December 1964, Mr. Muhammad Saeed, Prosecuting Inspector, had stated verbally before him that the Police guard had not been posted on the request of either of the parties but under the order of the D. S. P., Civil Lines. It was, however, stated at the Bar before me that the Senior Superintendent of Police had informed the petitioner that the guard was the responsibility of the Crimes Branch. In view of these conflicting statements Mr. Daud Khan. D. S. P., and Mr. Muhammad Azam Qazi A. I. G. Crimes. were directed to appear personally.

11. In the course of his statement Mr. Muhammad Azan Qazi admitted having seen the report of the Inspector Crime dated the 14th of December 1964, (endorsed by the Prosecuting Inspector) to the effect that there was no dispute over the possession of the property and that he himself had agreed that the proceedings under section 145, Cr. P. C., should be withdrawn It further emerged that on Friday, the 8th of January the guars had been withdrawn under the orders of the Senior Superintendent of Police, but that it was reposted under his (Mr. Qazi's) order the following morning. He admitted having informed the Inspector‑General of Police that the guard had been withdrawn though he denied that it was reposted under the latter's order, When asked whether he had protested to the Inspector‑General of Police against the removal of the guard, Mr. Qazi gave no reply. He admitted that the report of the Inspector (Crimes), dated the 14th of December, was correct and that he himself had made no further report of an apprehension of a breach of the peace after that date. According to him the only reason for continuing the guard was that Mr. Rashid Ahmad had decided that the proceed ings under section 145, Cr. P. C., should continue. When asked to quote any police rule or other law authorising the posting of a police guard in such proceedings he was unable to do so.

12. As several matters had to be elicited from Mr. Rashid Ahmad, he was also called and examined. He admitted being aware that if there is no dispute over the possession of immovable property, a Magistrate has no jurisdiction under section 145, Cr. P. C., but stated that he misunderstood the word as meaning possession. When asked on the basis of what material on the record he had disagreed with the report of the police dated the 14th of December 1964 that the possession of the property in dispute was established to be that of the present petitioner, he admitted that there was none. He also conceded that it had come to his notice unofficially that proceedings under section 145, Cr. P. C., had been commenced before the Ilaqa Magistrate, but according to him those were the present proceedings and stated: "what I learnt was that the Crimes Branch had taken this case to Mr. Zar Muhammad and he told them that as Mr. Rashid Ahmad is the Crimes Branch Magistrate, this case should be taken to him." On the question of his jurisdiction Mr. Barkat Ali Saleemi put the following question:‑ "You had jurisdiction over the whole district for the Crimes Branch and otherwise also you are a Magistrate and you had jurisdiction to try cases sent to you falling within the local limits of the Lahore district." Mr. Rashid Ahmad, however, admitted with regard to the last portion of the question that he could only try cases falling within the local limits of the Lahore district if they were trans ferred to him by the higher authorities, namely, the District Magistrate or the Additional District Magistrate. In this con nection it is interesting to note that the application dated the 5th of December 1964, for proceedings under section 145, Cr. P. C., made by Mr. Muhammad Hanif Khan, Inspector (Crimes), was first endorsed to the Ilaqa Magistrate and that an attempt has obviously been made to tamper with the word "Ilaqa". The contention that Mr. Rashid Ahmad, as Magistrate (Crimes), cannot deal with cases relating to the Crimes Branch throughout the district appears, however, to be correct.

13. Dealing first with the proceedings before Mr. Rashid Ahmad, the position is that on the 14th of December 1964, a report was made by the Inspector (Crimes) and endorsed by the Prosecuting Inspector to the effect that as a result of the investigation it had been found that the possession of the property in dispute was that of the petitioner, and Mr. Rashid Ahmad was unable to give any reason for having disagreed with that report. In Biaram v. Kamta (A I R 1945 Oudh 62) it was observed: "But in the present case there is the further fact to be taken into consideration that 'the Magistrate referred the complaint to the police for inquiry and that the police report showed that there was no apprehension of a breach of the peace. The question for consideration is whether on these facts the Magistrate was justified in ignoring this report and accepting the complaint and affidavit of the applicant without giving any reason therefore * * * * * * * * * * * * * * * * * * * * * Ordinarily, a police report is accepted in cases of this kind unless there is any reason to the contrary. No reason to the contrary appears in the present case and if the Magistrate had any reason for preferring the statement of the complainant to the opinion of the police after inquiry, it was incumbent upon him, I consider, to give reasons in his subsequent order for not accepting the opinion." I respectfully agree with this view. It is true that in the present case the report of the Inspector (Crimes) was to the effect that the possession of the property was established to be that of the petitioner, but the principle laid down above is clearly applicable, and Mr. Rashid Ahmad was compelled to admit that if the possession of a party is established, a Magistrate has no jurisdic tion to continue proceedings under section 145, Cr. P. C. He also conceded that in the circumstances he should have accepted the report. Further, although it is correct that the earlier report of the police dated the 5th of December alleged that the dispute related not only to ownership but also to possession, the order of the learned Magistrate, reproduced in para. 4 above, shows that what he called upon the parties to do was to adduce proof, not of their possession, but of their title to the property. The view that a Magistrate has jurisdiction under section 145, Cr: P. C., to enter into questions of title is, in a Magistrate of Mr. Rashid Ahmad's experience (he has exercised first class powers for nine years, as surprising as it is regrettable. It is clear, therefore, that as the learned Magistrate never applied his mind to the question of the possession of the parties, even his earlier order of the 5th of December 1964, was without jurisdiction. Moreover, the endorsement of the Prosecuting Inspector, cited in para. 5 above) on the report of the Inspector (Crimes) was to the effect that there was no dispute with regard to the property, as established on the completion of the investigation. Another essential condition fur the assumption of jurisdiction by the learned Magistrate, namely, that a dispute likely to cause a breach of the peace should exist, was thus also lacking. Reference may be made in this connection to Dulla v. The State (A I R 1953 All. 341) in which it was observed: "Once it is found that there is no danger of a breach of the peace, the foundation for action under section 145, Criminal P. C., disappears. The Magistrate has no jurisdictions to proceed further and must immediately stay his hand. He cannot convert himself into a civil Court and go on to decide the case on merits or to give a finding either on the question of title or on the question of possession for any ulterior or subsidiary purpose. The only course open to him is to cancel his initial order and to quash all proceedings under section 145, Criminal P. C." For the above reasons I hold that the proceedings of the learned Magistrate were wholly without jurisdiction. They are accordingly quashed.

14. So far as the posting of the police guard is concerned, if the statement of Mr. Qazi that it was continued only pending the final order of the learned Magistrate under section 145, Cr. P. C., is correct, it will now be automatically removed. Since, if its posting was over justified (a matter which, in view of Mr. Qazi's inability to cite any law or police rule, is open to very serious doubt) that justification no longer exists. By way of abundant caution, however, it is directed that it be removed immediately. The key to the building must be forthwith returned, and if any movable property has been removed by the police from the building, it should also be immediately replaced. K. B. A. Proceedings quashed.