P L D 1969 Peshawar 77 (PLP)

Hence the omission on the part of the Magistrate to follow certain directions contained in the Code, although some of these directions may be more important than others, cannot be said to deprive him of jurisdiction." In case Municipal Committee, Kohat v. Mt. Piari it was held :‑ "mere omission to record preliminary order as required by section 145 (1), however, objectionable, is not sufficient to discharge the final order. The irregularity is cured by the provisions of section 537, if it does not in fact occasion a failure of justice. Hence it cannot be said that the trial Magistrate has no jurisdiction to proceed with .the matter in the absence of a preliminary order." In case The State v. Muhammad Azam it was held by Habib Ullah, J.: "An omission to record the preliminary order under section 145, Criminal Procedure Code, 1898, however objectionable is not sufficient to vitiate proceedings under the section and the defect is curable under section 537 oaf the Criminal Procedure Code, 1898." In case Muhammad Ishaque v. Nur Mahal Begum where the Magistrate without stating the grounds of his being so satisfied, passed the initial order under section 143 (1), Cr. P. C. the Supreme Court held :‑‑ That the order was not necessarily illegal or without jurisdiction." This authority does not apply, because in the present case no initial order under section 145 (1), Cr. P C. was passed In case Noor Muhammad v. Rajab Ali the order complained of did not disclose that there was any such likelihood of breach of the peace and the Magistrate while passing the order did not set out the grounds on which he was satisfied that the dispute was likely to cruse a branch of the peace existed. Relying on the aforementioned authority of the Supreme Court it was held :‑‑ "That this was a mere irregularity which was curable under section 537, Cr. P. C." In case Arshad Mahmood v. Masud Khan the learned Judge relying on the aforementioned authorities held "That non‑compliance of the provisions of section 145 (1). Cr. P. C. regarding the making of preliminary order per se did not vitiate proceedings and that such non‑compliance was an irregularity curable under section 537, Cr. P. C., unless it has occasioned miscarriage of justice."

4. In rebuttal the learned counsel for Khitab Gul relied on the cases : Emperor v. Sis Ram (A I R 1930 Lah. 895) Chanan Singh v. Emperor (A I R 1938 Lah. 345), Gadagamma Venkatapathi v. Baliarsimhuni Sanvasiraju (A I R 1932 Mad. 368), Ch. Muhammad Saddiq v. Sahibyar Khan (P L D 1963 B J 26), The State v. Abdul Sattar (P L D 1:965 Kar. 305), Mohibullah v. Usnzan Khan (P L D 1967 Pesh. 311), Gul Muhammad v. Mst. Kubra Begum (P L D 11961 Pesh. 76) and Muhammad Bakhsh v. Haji Muhammad (P L D 1969 Kar. 22). In case Emperor v. Sis Ram it was held "The provisions of section 145 (1) are mandatory and consequently if no notice is issued as required and there is no finding that there was a danger of breach of the peace, the order under section 145 becomes ultra vires." In case Chanan Singh v. Emperor it was held "Omission by a Magistrate in a complaint under section 107/145, to draw up the necessary original order under section 145 (1) and to affix its copy at the spot under section 145 (3) vitiates all the proceedings and the final order passed therein is liable to be set aside." In case Gadagamma Venkatapathi v. Baliarsimhuni Sanvasirju it was held :‑ It is obligatory on the Magistrate under section 145 (1) to state in writing the grounas for his being satisfied that on account of the dispute in respect of lands there is a likelihood of a breach of peace. On passing such order in writing he should require the parties concerned in such a dispute to attend his Court and put in written statements as regards their respective claims as regards the actual possession of the subject of dispute. In case Ch. Muhammad Siddiq v. Sahibyar Khan it was held :‑ "That a Magistrate before issuing process should record preliminary order stating grounds of his being satisfied that the dispute likely to cause the breach of the peace exists between the parties." It was further held :‑ That the preliminary order reading merely, issue notice to the other party , did not conform to the requirement of law " In case The State v. Abdul Sattar it was held :‑ "Section 145 (1), Criminal Procedure Code, 1898 makes imperative provision requiring the Magistrate to state the grounds of his being satisfied that a dispute likely to cause breach of ileac; exists. The reason for this is obvious. The Criminal Courts are not expected to decide disputes of civil nature relating to possession of immovable property. That is the function of the civil Court. They acquire jurisdiction only when there is apprehension of breach of peace. That being so, it must appear from the order of the Magistrate that he had applied his mind to the ques tion as regards the breach of peace because it is the existence of such a dispute which gives him jurisdiction to entertain the matter." In case Mohibullah v. Usman Khan it was observed :‑ "Subsection (4) of section 145, Cr. P. C., makes it incumbent on the Magistrate to conduct an enquiry and give a clear cut finding as to whether any and which of the parties was in such possession at the date of the preliminary order. Proviso (1) furnishes the solitary excep tion to this rule where it appears to the Magistrate that one of the parties has been forcibly and wrongfully dis possessed within two months of the date of the order, as the Magistrate may treat the party so dispossessed as if he had been in possession at such date. Where, there fore, the Magistrate conspicuously omitted to determine the specific question as to which of the party at the time of initiating the proceedings under section 145 (as no initial order was passed in the case) was in possession but decided the question of possession on the basis of title it was held "That since one of the most essential elements which is the foundation of conferring jurisdiction on the Magistrate to pass orders under section 145, Cr. P. C., namely, the possession of the party at the time of the order, had not at all been determined, the order was vitiated." In case Gul Muhammad v. Mst. Kubra Begum Ortcheson and Habibullah, JJ. observed :‑ "It is not sufficient that a Magistrate should have received information that a breach of the peace is apprehended, it being further imperative that he should be satisfied that the information is true. If it can be ascertained from the material on the record that the Magistrate was so satisfied the mere absence of a preliminary order would, no doubt, not render his subsequent proceedings illegal, but the diffi culty is that unless a preliminary order is recorded stating that the Magistrate is satisfied of the existence of an apprehension of a breach of the peace and giving his reasons for being so satisfied, it is not easy for a superior Court to discover whether this essential condition for the assump tion of jurisdiction has been fulfilled. The mere fact that a Magistrate issues notice to the parties to attend his Court and put in written statements by no means necessarily implies recognition on his part that his jurisdiction depends on the existence of a danger of a breach of the peace." From the above it is clear that Habibullah, J. while sitting with Ortcheson, J., reversed his view expressed by hire in case The State v. Muhammad Azam. In case Muhammad Bakhsh v. Haji Muhammad it was held "That an omission to comply with the provisions of section 145 (1), Cr. P. C. was not merely an irregularity, but an illegality which renders subsequent order illegal." From the above it is evident that there are preponderance of authorities in favour of the view that non‑compliance of section 145 (l), Cr. P. C. vitiates all the proceedings. Even from the reading of the provisions of section 145, Cr. P. C. it is clear that Magistrate has to give a finding as to which of the parties in dispute was in possession of the property in dispute at the date of the order passed under section 145 (1), A Cr. P. C. and if no such order is passed, then how can he give such a finding. In the present case the Magistrate neither complied with the provisions of subsection (1) of section 145, Cr. P. C. nor with the provisions of subsection (3) of section

145. I, accordingly, with due respect to the learned Judges, who have held that such an omission is an irregularity curable under section 537, Cr. P. C., disagree with them.

5. In the result I accept the reference of the learned Additional Sessions Judge and set aside the order of the learned trial Magistrate directing that the disputed site be handed over to Niaz Muhammad respondent. A. E. Reference accepted.