2013 PLP 357 (SCMR)

AMIR HANI MUSLIM, J.

Material facts of the case, for the purpose of deciding the present petition, are that on 18-8-2003, the respondent No.1 filed a complaint under section 145, Cr.P.C. against the petitioners before the Judicial Magistrate Tangi. It was averred in the complaint that the respondent acquired ownership and possession of the disputed property through sale deed dated 13-2-2002 from one Shahzad Gul son of Rehman Gul and through gift deed dated 11-11-2000 from Mst. Sabzul Wara. It was further pleaded that he put one Lal Wahid in the disputed property as tenant, who was evicted forcibly by the petitioners in the mid night between 15 and 16 August 2008. The case was fixed for 28-8-2003 and the S.H.O of the Police Station Tangi was directed to submit report within 10 days positively. The police neither conducted any inquiry nor took steps to comply with the order of the Judicial Magistrate.

2. Feeling aggrieved, the respondent filed constitution petition before the learned Peshawar High Court praying therein for issuance of direction to the local police/Magistrate to inquire into and take legal action on his complaint. A learned Division Bench of the Peshawar High Court, on 30-3-2004, disposed of the petition with the direction to the Magistrate to consider the complaint dated 18-8-2003 under section 145, Cr.P.C. of the respondent as pending and record the statement of the respondent. The parties were also directed to appear before the Judicial Magistrate on 7-4-2004. Accordingly, the parties appeared before the Magistrate on the said date and on receiving the report of the police, the Judicial Magistrate passed the order of the attachment of the subject property in dispute on 12-4-2004. This order was challenged by the petitioners but without any success.

3. The Judicial Magistrate recorded evidence of the parties and decided the compliant of the respondent on 31-7-2004 and passed final order by which it ordered attachment of the property in dispute till the final decision by the civil court in regard to the title of the parties. However, the Magistrate failed to decide the factum of possession of subject property on the crucial date i.e. between the night of 15/16 August, 2003. The order dated 31-7-2004 of the Judicial Magistrate was challenged by both the parties before the learned Additional Sessions Judge, Tangi, who remanded the case back to the Judicial Magistrate on 6-10-2004 with the specific direction to hold a thorough probe and inquiry and record finding as to which of the parties was in actual physical possession of the subject property in terms of the order dated 30-3-2004 of the learned Peshawar High Court. The petitioners again challenged both the orders of Judicial Magistrate dated 3-7-2004 and learned Additional Sessions Judge-IV, Charsadda dated 6-10-2004 through M.A. No.266 of 2004 before the learned Peshawar High Court. The learned High Court, by its order dated 15-1-2007, upheld the orders of the learned Additional Sessions Judge and directed the parties to appear before the trial Magistrate on 23-1-2007. The learned Peshawar High Court directed the Judicial Magistrate to allow the parties to adduce further evidence, if they so desire in order to prove their possession of the subject property in terms of section 145, Cr.P.C.

4. On remand, the respondent No.1 produced three more witnesses while the petitioners examined only one witness. The trial Magistrate, by its order dated 12-9-2007, again passed the order for attachment of the property without determining the issue of possession. This order was again challenged by both sides before the learned Additional Sessions Judge, Tangi, who, by its order dated 4-7-2009 allowed the application of the respondent No.1 and directed the SHO, Police Station, Tangi, to put him in possession of the shop constructed on the subject property and protect his possession till he is legally evicted. Revision filed by the petitioners was however dismissed. The petitioners challenged both the orders by filing Criminal Miscellaneous (Q). No.174 of 2009 with Criminal Miscellaneous No.18 of 2010, which were dismissed, by the impugned judgment dated 14-5-2010. Hence this petition.

5. The contention of the learned counsel for the petitioners was that the order of the learned High Court affirming the order of the learned Additional Sessions Judge was erroneous and against the language of Ist proviso to subsection (4) of section 145, Cr.P.C. According to the learned counsel, the respondent No.1 has filed complaint on 18-8-2003 and order of attachment was passed on 12-4-2004 by the Judicial Magistrate. In the complaint, it was stated by the respondent No.1 that he was dispossessed in the night between 15/16 August, 2003 and under the 1st proviso to sub section (4) of section 145, Cr.P.C., the Judicial Magistrate or for that matter the learned Additional Sessions Judge could only pass the order of restoration of possession if preliminary order under section 145(4) was passed by the Judicial Magistrate within two months of the complaint. He contended that the preliminary order in terms of section 145(4), Cr.P.C. in the case was passed by the Judicial Magistrate on 12-4-2004 after lapse of 8 months of the filing of the complaint, which order according to the learned counsel was against the spirit of section 145 Cr.P.C. He submits that since the order of attachment in terms of section 145(4) was not passed within two months as contemplated under Ist proviso of the aforesaid section, the restoration of possession in terms of subsection (6) of section 145, Cr.P.C. cannot be ordered.

6. On the other hand, the learned counsel for the respondent No.1 and the learned Law Officer supported the impugned judgment.

7. We have heard the learned counsel for the parties and have perused the record. The provisions of section 145, Cr.P.C. clearly envisage apprehension of breach of peace as a jurisdictional requirement. The issue of possession of a party could only be gone into by a Magistrate after his jurisdictional requirement is satisfied. The purpose of this section is to prevent imminent apprehension of breach of peace over the immovable and or movable property. This provision does not authorize a Magistrate to exercise jurisdiction in mere existence of a dispute relating to an immovable property. The Magistrate on receipt of application from a party has to pass order under section 145(1), Cr.P.C. He is required to call the report from the police and after perusal of the same, if he is satisfied from such report or from any other information that there exists a dispute between the parties in respect of the land, which is likely to cause breach of peace, he may pass interim order in terms of section 145(4), Cr.P.C. and or proceed to record evidence of the parties to determine which party was in possession of the property in dispute two months prior to its dispossession.

8. In the case in hand, it is an admitted position that the respondent No.1 within two to three days of his dispossession, on 18-8-2003, filed complaint under section 145, Cr.P.C. before the Magistrate. The Magistrate called the report in terms of this section but no report was submitted by the police. The respondent No.1 claims that the non-submission of report by the police was on account of influence of the petitioners. The petitioners, it is claimed, had demolished the subject property after dispossession and raised construction during pendency of 145, Cr.P.C. proceedings. The respondent No.1 kept on approaching the high-ups as well as the Courts of Law for redressal of his grievance and ultimately, the learned Peshawar High Court, by its order dated 30-3-2004 directed the Magistrate to proceed with the matter under section 145, Cr.P.C. The parties were directed to appear before him on 7-4-2004. The Magistrate sought report of the police and after satisfying himself that there was imminent danger of breach of peace had passed interim order of attachment of property.

9. In the proceedings under section 145, Cr.P.C., the Magistrate has to take cognizance on an application/complaint by a party/or report by the police on his satisfaction of imminent danger of breach of peace, and if there is sufficient material, he may pass preliminary orders in terms of section 145(4), Cr.P.C., in case, however, if the material is not sufficient requiring him to pass an interim order, he may hold inquiry as provided under section 145, Cr.P.C. by examining the parties and pass final order restoring possession to a party which was dispossessed two months prior to its wrongful dispossession under section 145(6), Cr.P.C. and or in case, if after inquiry, the material brought on record is not sufficient to record a finding over possession, he may order attachment of the property in terms of section 146(1), Cr.P.C. The section 145, Cr.P.C. does not curtail the powers of the Magistrate to pass final order under section 145(6), Cr.P.C. after holding inquiry, in case of his failure to pass preliminary order under section 145(4), Cr.P.C. within two months. The only restriction imposed is that the party to whom possession is restored must have been dispossessed within two months of the complaint. The Magistrate while conducting inquiry is not competent to decide either title of the property or its right to possession. Section 145, Cr.P.C. only empowers the Magistrate to make enquiry under section 145, Cr.P.C. to regulate possession of the property in dispute for the time being to avert apprehension of breach of peace.

10. The contention of the learned counsel that the order of restoration was passed by the learned Additional Sessions Judge in violation of 1st proviso to subsection (4) of section 145, Cr.P.C. is not correct. In the first place the Magistrate on 18-8-2003 passed order under section 145(1), Cr.P.C. by calling report from the police. The police did not submit the report and the matter thereafter on remand came to the Magistrate, who again passed order under section 145(1), Cr.P.C. and after the police submitted the report and once he was satisfied that there exists imminent danger of breach of peace, he passed interim order under section 145(4), Cr.P.C., thereafter the parties were examined. The respondent No.1 examined himself as D.W.4 and also produced Mushtaq Ahmed SHO, Police Station Tangi as C.W.3, who deposed that he received the complaint from the Magistrate on 7-4-2004 and he conducted the inquiry and confirmed that the premises in dispute were initially in the possession of the respondent No.1 and in the night between 15/16 August 2003 after his dispossession by the petitioners, the premises were demolished and shops were constructed. He further deposed on oath that there was a strong apprehension of breach of peace over the subject premises and both the parties were bound down in terms of sections 107 and 151, Cr.P.C. He has further stated in his cross-examination that the shops constructed on the demolished premises were ordered to be attached by the Magistrate. In the face of evidence of the S.H.O referred to hereinabove supported by the evidence of the respondent No.1, Additional Sessions Judge and the learned High Court rightly ordered restoration of possession. The petitioners throughout the proceedings which commenced on 18-8-2003 kept on attempting to defeat the proceedings. It has come on evidence that the petitioners demolished the subject property after dispossession of the respondent No.1 and raised new construction for ulterior motive. We have also noticed that the conduct of the Magistrate was of unbecoming a Judicial Officer, who inspite of the repeated directions of the learned Peshawar High Court and Additional Sessions Judge did not decide the issue of possession though there was sufficient evidence available on record. The learned High Court as well as the appellate Court were justified in restoring possession, which orders are in conformity with the provisions of section 145, Cr.P.C. and does not warrant interference by this Court.

11. For the aforesaid reasons, this petition is dismissed and leave refused. MWA/M-76/SC Petition dismissed.