P L D 1969 Karachi 515 (PLP)

(a) Criminal Procedure Code (V of 1898), S. 145(1), (4) Attachment‑Satisfaction of Magistrate from police report for other information that dispute likely to cause breach of peace exists or existed‑Condition precedent, to exercise of jurisdiction under section Complainant nowhere alleging in complaint that dispute likely to cause breach of peace exists or existed‑Magistrate, in circumstances, held, could not take cogniz ance of case nor could he pass attachment order under subsection (4)‑Magistrate would still have no jurisdiction should ,allegations be not supported by evidence. Before entering upon his jurisdiction the Magistrate is required to be satisfied from a police report or other informa tion that a dispute likely to cause the breach of the peace exists or existed. This was a condition precedent to the exercise of his jurisdiction whereafter alone he could competently make an order in writing stating the ground of his being so satisfied and requiring the parties to the dispute to attend his Court en specified date. By going through the complaint it was noted that it nowhere alleged that any dispute likely to cause the breach of the peace exists or had existed and consequently it must be held that the Magistrate could not take cognizance of the case nor could he pass the impugned order under section 145(4), Criminal Procedure Code. This position would not alter in the least even if allegations of this nature were made in a complaint but not supported by any evidence as required by subsection (4) of section 145, Criminal Procedure Code or admitted by the opposite‑party. Admittedly no evidence was produced before the Magistrate to show that either a dispute likely to cause the breach of the peace existed or that the applicants had forcibly trespassed into the mill subject- matter of dispute) and taken its possession. In this view obviously the Magistrate exceeded his jurisdiction in passing the impugned order. Malik Manzoor Elahi v. Lala Bishambar Dass and another P L D 1964 S C 137 ref. (b) Criminal Procedure Code (V of 1898), S. 145(1)‑Police officer only required to make report and not to give his findings against one of parties‑Police‑report containing conclusions of police officer in regard to guilt of a party and asking Magistrate to take action under S. 146 as there existed dispute between parties likely to cause breach of peace Police officer, held, overstepped bounds of his duty prescribed by S. 145(1)‑Conduct of police officer, in circumstances, deprecated‑ Magistrate, held, should' not have taken such report into consideration. (c) Criminal Procedure Code (V of 1898), S. 145‑Possession: of disputed premises changing hand twelve days before lodging of complaint by party allegedly dispossessed‑Party dispossessed not making any grievance of fact that dispute likely to cause breach of peace existed‑Party dispossessed, held cannot, in circumstances be permitted to take law into their own hands, so as to create a dispute within meaning of S.

145. Arbab Muhammad Khan and another v. Arbab Muhammad Hasham Khan and another P L D 1959 Pesh. 193 ref. S. M. Raza with Ahmedullah Farooqi and I. A. Hashmi for Applicants. Manzoor Hussain for the State. This application under section 561‑A, Criminal Procedure Code is directed against the impugned order dated 12‑2‑1969) passed by the Sub‑Divisional Magistrate, Nazimabad, Karachi under section 145 (4), Criminal Procedure Code whereby he attached the Royal Roller Flour Mills Ltd., of which the appli cants are admittedly the owners.

2. Briefly stated the facts giving rise to the filing of this application are these:

3. According to respondents the applicants forcibly took the possession of the said Mill by breaking open the locks while the case of the applicants was that the possession of the Mill had been handed over to them on 13‑1‑1969 by the respondents. However, the date o 13th January 1969 is common between the parties, the respondents contending that on this date they were dispossessed while the applicant's case is that the possession of the Mill had been handed over to them by the respondents on that date.

4. On 21st January 1969, i.e., after about 8 days when the possession of Mill changed hands, respondents 2 and 3 filed a First Information Report against the applicants at Liaquatabad Police Station for offences under section 448/34, P. P. C. It thus happened that on the 24th of January 1969, the Station House Officer of Liaquatabad Police Station sent to the learned Sub‑Divisional Magistrate, what he described as information, that dispute existed between the parties in regard to the possession of the Mill which was likely to end up in disturbing and breach of peace. In the ending part of his so‑called report the Station House Officer recommended to the learned Magistrate that action was required to be taken under section 146, Criminal Procedure Code. Following this report respondents 2 and 3 also filed a complaint before the same Magistrate on the 25th of January 1969 and prayed for the same action which was recommended by S. H. O., Liaquatabad.

5. Upon the said report of the Station House Officer, Liaquatabad and the complaint of the respondents, the Sub- Divisional Magistrate, Nazimabad issued notice to the applicants under section 145 (1), Criminal Procedure Code directing them to appear before him on the 11th of February 1969 along with their written statement and evidence. In obedience to that notice the applicants appeared before the learned Magistrate on that date and prayed for a day's time to file their written statement which was granted. Accordingly the applicants filed their written statement on the 12th of February 1969, whereafter the learned Magistrate passed the impugned order exercising jurisdiction under the second proviso of section 145 (4), Criminal Procedure Code. Since the con sideration of this order would be material for the disposal of this application it would be proper to reproduce it. It reads:‑ "I have heard the counsel for both the parties at length and I am satisfied that this is a fit case to which Second Proviso of subsection (4) of section 145, Cr. P. C. applies and I hereby order that the Mill which is the subject -matter of the dispute shall be attached, pending this case. A copy of this order shall go to the Civil Supplies Depart ment who shall arrange to remove the wheat which is lying in the said Mill and to transfer it to some other Flour Mill in the area." In these proceedings the short question which required determination is if upon the materials produced by the parties before the learned Sub‑Divisional Magistrate, Nazimabad he was competent to pass the impugned order exercising jurisdic tion under tha second proviso of section 145 (4), Criminal Procedure Code? Before proceeding to answer this question it would be proper to reproduce the relevant provisions of that section which read:‑ "145.‑(1) Whenever a District Magistrate, Sub‑Divisional Magistrate or Magistrate of the First Class 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 the boundaries thereof . . . .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 to be fixed . . . . and to put in written statements of their respective claims as respects the fact of actual possession of the subject of dispute. (2) (3) (4) 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 . 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. (5) Nothing in this section shall preclude any party so required to attend, or any other person interested, from showing that no such dispute as aforesaid exists or has existed; and in such case the Magistrate shall cancel his said order and all further proceedings thereon shall be stayed, but, subject to such cancellation, the order of the Magistrate under subsection (1) shall be final. (6) . (7) (8) .. (9) The Magistrate may, if he thinks fit, at any stage of the proceedings under this section, on the application, of either party, issue a summons to any witness directing him to attend or to produce any document or thing." It will have been noted that according to the require ments of section 145 (1), Criminal Procedure Code, before a Magistrate enters upon his jurisdiction he must make an order in writing stating the grounds of his satisfaction that upon a police report or other information laid before him a dispute existed which was likely to cause breach of peace. After the Magistrate has complied with this requirement he is then required to give notice to the parties to appear before him on specified date and to put in written statements of their respective claims in proof of the fact of actual possession of the subject‑matter of dispute. Then comes subsection (4) of section 145 according to which, when the parties appear before the Magistrate and have put in their written statement and adduced whatever evidence they wished to rely upon, the Magistrate is to decide whether any and which of the parties was in possession of the subject‑matter of dispute at the date, when he made his initial order under subsection (1) of section 145, Criminal Procedure Code. While determining this question the Magistrate is required not to refer to the merits of the rival claims of the parties. According to the second proviso appearing after this subsection if the Magis trate considers the case one of the emergency he may at any time attach the subject‑matter of dispute, pending his decision under that section but if one of the parties before him or any other person interested successfully shows that no such dispute exists or has existed he must cancel his earlier order and stay all further proceedings.

6. This being the extent of jurisdiction of a Magistrate under section 145, Criminal Procedure Code. Let us now examine the facts of the present case to see if for the exercise of that jurisdiction under section 145 (4), Criminal Procedure Code there existed sufficient basis. The learned counsel for the parties stated at the Bar that no evidence had been led by them in support of their respec tive cases before the learned Magistrate and that the only material upon which the impugned order was passed were their written statements. By going through the copy of the complaint of respondents 2 and 3, which was filed before the learned Sub‑Divisional Magistrate, Nazimabad, it no doubt alleges that the applicants had forcibly trespassed into the Mill by breaking open the locks and had taken its illegal possession but this fact was denied by the ‑applicants in their written statement. In the present proceedings also the applicants have taken the same stand in their various affidavits but no counter‑affidavit was filed by the respondents in rebuttal. In this view, the impugned order of the learned Sub‑Divisional Magistrate was clearly without jurisdiction as admittedly there was no evidence before him in support of the respon dents' allegation that the applicants had forcibly trespassed into the Mill apart from the bare allegation contained in their written statement which was denied by the applicants.

7. It appears that the learned Sub‑Divisional Magistrate, Nazimabad failed to appreciate the policy of law contained in section 145 (1), Criminal Procedure Code inasmuch as before entering upon his jurisdiction he was required to be satisfied from a police‑report or other information that a dispute'', likely to cause the breach of the peace exists or existed. This was a condition precedent to the exercise of his said jurisdiction whereafter alone he could competently make an order in writing stating the ground of his being so satisfied and requiring the parties to the dispute to attend his Court on specified date. By going through the complaint of respon dents 2 and 3 it was noted that it nowhere alleged that any; dispute likely to cause the breach of the peace exists or had existed and consequently it must be held that the learned Sub‑Divisional Magistrate could not take cognizance of case nor could he pass the impugned order under section 145 (4) Criminal Procedure Code. This position would not alter the least even if allegations of this nature were made in a complaint but not supported by any evidence as required by subsection (4) of section 145, Criminal Procedure Code or admitted by the opposite‑party. Admittedly no evidence was produced before the learned Magistrate to show that either a dispute likely to cause the breach of the peace existed or that the applicants had forcibly trespassed into the Mill and taken its possession. In this view obviously the learned Sub- Divisional Magistrate exceeded his jurisdiction in passing he impugned order.

8. Assuming for the sake of argument that in a given case a Magistrate competently enters upon his jurisdiction and passes an order under the provisions of section 145 (4), Cr. P. C., even then under subsection (5) of that section the opposite- party or any person interested might appear before him and successfully show that no dispute exists or has existed res pecting the subject‑matter of complaint. In such an event the Magistrate has no option but to cancel his earlier order and stay all further proceedings in the matter. In support of this conclusion reference may be made to a judgment of the Supreme Court of Pakistan Malik Manzoor Elahi v. Lala Bisharnbar Dass and another (P L D 1964 S C 137) which was brought to my notice by Mr. I. A. Hashmi, the learned counsel for the applicants. The following observations of their Lordships which relate to the construction of section 145, Criminal Procedure Code, are instructive "After considering all the evidence adduced in the case and hearing the arguments advanced on behalf of each side, the Magistrate in an "elaborate and well‑reasoned judgment came to the conclusion that there was no proper evidence on the record to suggest that any likelihood of breach of peace exists or that either of the parties in the past behaved in a manner suggestive of a likelihood of the breach of peace or that there was any genuine fear in the minds of the disputants. This subsection clearly empowers any of the parties con cerned in the dispute and even any other person interested to appear before the Magistrate and deny the existence of the dispute, and if the Magistrate upon enquiry is satisfied that no dispute likely to cause a breach of the peace exists or existed concerning any land or water or the boundaries thereof, then the Magistrate has no other alternative but to cancel his earlier preliminary order made under subsection (1) of section 145 of the Criminal Procedure Code and to stay all further proceedings subject to such cancellation. It further seems to us that the provisions of section 145 read as a whole clearly indicate that there should be a continuing danger of a breach of peace till the time the final order is made. The use of the word "exists" in the present tense in subsection (5) connotes that the dispute must continue to exist even at the time when the objection is raised."

9. Reference may now be made to the so‑called report of the Station House Officer, Liaquatabad which was taken into consideration by the learned Sub‑Divisional Magistrate in passing the impugned order. (That report which is in Urdu language) in fact contains the conclusions of the Station House Officer in regard to the guilt of the applicants. In the end of that report the Station House Officer has asked the learned Magistrate to take action under section 146 Cri minal Procedure Code as there existed a dispute between the parties which was likely to cause a breach of peace. The, least that can be said in this connection is that the learned Sub‑Divisional Magistrate should not have taken this report into consideration not only because the Station House Officer was not examined before him in support of it but also for the fact that according to section 145 (1), Criminal Procedure Code he was only required to make a report to the Magistrate and not to give his findings against one of the parties. There is no doubt that in submitting his conclusions in regard to the guilt of the applicants, to the learned Magistrate, the Station House Officer had clearly overstepped tile bounds of his duty as prescribed by section 145 (1), Criminal Procedure Code and his conduct must be deprecated. It is equally regrettable that, the learned Magistrate should have been influenced by that report in passing the impugned order in a case which involved the valuable rights of the applicants who were admittedly the owners of Mill.

10. Mr. S. M. Raza, the learned counsel for the appli cants pointed out that the complaint of the respondents, which was filed one day after the S. H. O., Liaquatabad submitted his so‑called report to the learned S. D. M., was clearly mala fide inasmuch as the possession of the Mill had changed hands on the 13th of January 1969 and for 8 days thereafter they made no grievance that they had been wrongly dispossessed. According to Mr. S. M. Raza the object of the respondents in filing the belated complaint was to coerce the applicants in some sort of compromise as the respondents owed them Rs. 56,000.00 as arrears of rent of the Mill respecting which Suit No. 60 of 1969 had been filed on the original side of this Court. The contention has considerable force. As already pointed out, after the expiry of the original term of lease the respondents failed to exercise the option of renewal in terms of clause 3 of the lease agreement and consequently it must be presumed that they bad decided not to continue with the operation of the Mill any longer. Furthermore Mr. Abdul Qayyum Shaikh their learned counsel produced a copy of their notice served upon the applicants according to which they claimed Rs. 1,13,000.00 on the ground that they had been wrongly dispossessed. By going through the notice in question no allegation was found in it that as a result of the said dispossession there existed a dispute between the parties or that the respondents had attempted to regain possession but their design was frustrated. Therefore, the conclusion becomes inescapable that the complaint of the respondents, which was filed 8 days after the possession of the Mill had changed hands, was clearly mala fide and in abuse of the process of the Court. This position would not alter in the least if after the expiry of 8 days the respon dents unilaterally tried to create a dispute within the meaning of section 145, Criminal Procedure Code for the simple reason that in such an event resort to self help is not countenanced by law. For this conclusion reference may be made to a judgment of this Court Arbab Muhammad Khan and another v. Arbab Muhammad Hashimi Khan and another (P L D 1959 Pesh. 193) where upon the analogous facts his Lordship, who decided that case, observed "If the delivery of possession was unlawful, the proper course for the judgment debtor was to have recourse to the appropriate authority for the redress of his grievance and not to take the law into his hands and interfere with the decree‑holders' possession." It is true that in that case the determination of the question of possession arose as a result of the decree passed by a Court but nevertheless the principle laid down in that judgment appears to be fully applicable to the fact of this case. Admittedly the possession of the Mill in the present case had changed hands on the 13th of January 1969, but until the 25th of January 1969, the respondents did not make any grievance of the fact that dispute likely to cause breach of the peace existed between the parties. Consequently after the lapse of that time they could not be permitted to take the law into their own hands so as to create a dispute within the meaning of section 145, Criminal Procedure Code.

11. Even upon the merits the impugned order of the learned Sub‑Divisional Magistrate is clearly without jurisdic tion inasmuch as he has simply reproduced the words of the section that he was satisfied without giving any reasons in support of his required satisfaction. In point of fact the learned Sub‑Divisional Magistrate could not have been satisfied to pass the impugned order as admittedly no evidence was led before him by the respondents in support of their only allegation that they had been wrongly dispossessed by the applicants. Furthermore, the impugned order could only be passed under the second proviso of section 145 (4), Criminal Procedure Code if the case was one of emergency but it does not indicate if any such emergency existed. In fact the learned Sub‑Divisional Magistrate was not even conscious of this requirement of law. In view of these conclusions the present application is allowed and the impugned order is quashed including the proceedings pending before the learned Sub‑Divisional Magistrate, Nazimabad. In the result it is ordered that the Mill shall be unsealed and its possession handed over to the applicants along with all items which were taken over by the S. H. O., Liaquata bad in pursuance of the impugned order. A. E./S. A. H. Application allowed.