1989 P Cr (PLP)

Since common question of law is involved in both the above applications filed under section 561‑A, Cr.P.C. they are being disposed of by this consolidated judgment.

2. Applicant Muhammad lqbal Jafar is one of the partners of firm, being run in the name and style of `Messrs Farrukh and Brothers', having its place of business at L‑S/1, Sector 11‑I, North Karachi. The respondents Nos. 2 to 6 moved an application under section

145. Cr.P.C. before Assistant Commissioner and S.D.M. New Karachi, alleging therein that they had invested certain sums of money with the said firm which was likely to wind up its business and to dispose of the said business place and Property No. C‑18, Sector 11‑B, North Karachi, hence there was apprehension of breach of peace over the possession of the said property. The learned S.D.M. sent the applications to concerned police station and after receipt of a report passed order under section 145(4), Cr.P.C., without compliance with the mandatory provisions of section 145(1), Cr.P.C. Since different properties were involved in two different cases, the applicant has challenged the said orders dated 27‑6‑1988, by filing separate applications under section 561‑A, Cr.P.C.

3. I have heard Mr. Raja Qureshi, learned counsel for the applicant and Mr. Shakir Naqshbandi, learned counsel for the State, who has not supported the impugned order. I have also heard Muneer Ahmed Junlani, respondent No.2, in person.

4. Section 145(1), Cr.P.C., which empowers a Magistrate to draw proceedings of this nature lays down:‑ "(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: within the local limits of his jurisdiction, 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 the Court in person or by pleader, within a time to be fixed by such Magistrate, and to put in written statements of their respective claims as respects the fact of actual possession of the subject of dispute."

5. A bare reading of subsection (1) of section 145, Cr.P.C., would show that before a Magistrate can be said to have jurisdiction under section 145, Cr.P.C. he must indicate his satisfaction about an apprehension of a breach of peace concerning any land or water or the boundaries thereof. This is why an order under subsection (1) of section 145, Cr.P.C. is to be passed necessarily before any, further proceedings are taken. The making of such an order is absolutely necessary to the initiation of proceedings under section 145, Cr.P.C.

6. The perusal of the application made under section 145, Cr.P.C. by respondents Nos. 2 to 6, further reveals that there is no allegation that respondents Nos. 2 to 6 are asserting their right of whatever nature including the right of possession over the properties in question, causing apprehension of breach of peace. The dispute over the possession of business does not constitute the essential elements of subsection (1) of section 145, Cr.P.C. The mere existence of a dispute between the parties over business does not justify the exercise of jurisdiction conferred by section 145, Cr.P.C. on certain Magistrates.

7. All the dishonest acts in business dealings are not criminal. Likewise a dispute concerning the business is not a subject‑matter relating to proceedings under section 145, Cr.P.C. The Criminal Court cannot be used to settle a civil dispute. The proceedings taken against the applicant and his wife under section 145, Cr.P.C. are thus a clear abuse of the process of law. Accordingly both the applications filed under section 561‑A, Cr.P.C. are allowed and the proceedings against the applicant are quashed. As a result of this finding the impugned orders dated 27‑6‑1988, are also set aside. S.A./M‑720/K???????????????????????? Proceedings quashed.