P L D 1999 Peshawar 70 (PLP)

Through the instant petition under section 561‑A, Cr.P.C., the petitioner seeks the quashment of proceedings under section 145, Cr.P.C. initiated by Sub‑Divisional Magistrate Bannu (respondent No.2), at the instance of Superintendent District Jail Bannu, (respondent No.3), pending in the Court of respondent No.2.

2. The brief background of this case, as encompassed in the memo of petition, is that the petitioner purchased a plot of land measuring 2‑1/2 Marlas situated near Gaoshala inside Bannu City, from one Eid Akbar, son of Ghulam Rasool (the original owner) for Rs.75,000, through a registered sale‑deed dated 5‑12‑1996.

3. Respondent No.3 at some time wanted to construct a wall over the said land due to which the petitioner was compelled to file a suit in the Civil Court at Bannu. This suit was contested by respondent No. 3 which was decreed on 9‑2‑1998. This decree was, however, set aside by the appellate Court and the case was remanded to trial Court for arraying the Provincial Government etc as defendants and also for appointment of some revenue expert as a local Commissioner for the purpose of demarcation of the plot on the spot.

4. On remand, the requisite amendment was done and the Provincial Government was also added as defendant and the District Qanungo Bannu was appointed as Local Commissioner for preparation of site plan, measurement of disputed property and separation thereof as per shares of the parties. The District Qanungo, however, expressed his inability to carry‑out the assignment due to his official pre‑occupation, therefore, with the mutual consent of parties, one Raqibaz, A.D.K. Bannu was appointed as Local Commissioner for the above job.

5. The said Local Commissioner, in presence of Deputy Settlement Commissioner Bannu, Deputy Superintendent Jail, Abdullah Khan Advocate, Special Government Pleader, the parties, and Rehman Gul Moharrir of Civil Judge Bannu with judicial record, carried out the necessary measurement and separated one Kanal and 14 Marlas owned by the District Jail, Bannu and two Marlas owned by the petitioner as their respective shares. This demarcation/separation was assented to by the parties as is evident from the written acceptance dated 25‑1‑1999 by the representative of respondent No.3 and also by special Government Pleader. The possession of two Marlas was handed over to the petitioner on the spot and as the matter was settled between the parties, therefore, this legal combate was brought to an end by the Civil Judge vide his order dated 25‑1‑1999.

6. After the termination of this legal fight, the petitioner got approved a site plan from the Administrator of Municipal Committee Bannu and constructed five shops over the land as per his approved site plan.

7. After the completion of shops, respondent No.3 wrote the Deputy Inspector General of Police Bannu Range on 24‑3‑1999 asking him thereby to issue direction to the local police for initiating proceedings under section 145, Cr.P.C. regarding the shops constructed by the petitioner and resultantly a. complaint was filed by an A.S.I. on 25‑3‑1999 before the S.D.M. Bannu (respondent No.2 herein), for initiating proceedings under section 145, Cr.P.C. giving reference therein of Letter No.401‑2 of 24‑3‑1999 issued by respondent No.3. This complaint was made on the sole ground that respondent No.3 claimed that the shops were constructed on Government land.

8. The respondent No.2 on 25‑3‑1999 while taking cognizance of matter issued notice to the petitioner and both the parties were directed to submit their replies on 10‑4‑1999 arid the said shops of the petitioner were also sealed.

9. Learned counsel for the petitioner voceferously assailed the impugned proceedings under section 145, Cr.P.C. and called it a sheer highhandedness and demonstration of nacked force by the mighty State functionary. He argued that the impugned proceedings under section 145, Cr.P.C are unwarranted unjustified and illegal on the following grounds:‑‑ (i) That the subject‑matter of proceedings under section 145, Cr.P.C., i.e. the land measuring two Marlas, which according to the claim of the petitioner was 2‑1/2 Marlas but to settle the matter, he surrendered and withdrew from his claim regarding 1/2 Marla, remained subjudice in the Court of Civil Judge which was by mutual consent decided and the rights of ownership of petitioner qua two marlas was admitted by respondent No.3 and the possession was also handed over to the petitioner over which he subsequently constructed five shops. (ii) That the Commissioner was appointed on the written application of respondent No.3 duly signed by the Special Government Pleader made to the Civil Judge Bannu on 16‑12‑1998 which is a part of record of the lower Court. In that application, respondent No.3 had admitted the ownership of petitioner up to the extent of 2‑1/2 Marlas by saying as follows:‑‑ (iii) That the report of Local Commissioner was admitted correct vide written application dated 25‑1‑1999 submitted by the Special Government Pleader wherein it was requested that the Court should decide the matter on the basis of report of Local Commissioner, which was accordingly done, and (iv) Lastly that the complaint‑‑‑ made by an A.S.I. also does not disclose any justification warranting the initiating of proceedings under section 145, Cr.P.C. In support of his aforesaid submissions, reliance was placed on the cases reported as Qazi Gran v. Muhammad Jan and another PLD 1996 Supreme Court 541, Bismillah Khan v. Kamaluddin and another (1997 PCr.LJ 1745) and Muhammad Yaqoob Shah v. Maulana Hafiz‑ur‑Pehman and others (1997 PLD Peshawar page 51).

10. Learned counsel _for the. State, however, ,,opposed the. aforesaid intentions and supported the impugned proceedings.‑

11. I have given my anxious consideration, to the respective arguments advanced at the bar and thoroughly surveyed the entire record of the case. However, before dilating upon other facts of the case and the contentions ‑raised on either side, it would be more appropriate to discuss the essentials of section 145, Cr.P.C., upon which depends the assumption of jurisdiction of a criminal Court under section 145, Cr.P.C.

12. It is now well‑settled that jurisdiction of a criminal Court under section 145, Cr.P.C. can only be invoked on the ground of likelihood of breach of peace and for such a purpose, the Court intending to take cognizance of matter must consider objectively the facts and circumstances of the case and to satisfy himself whether likelihood of breach of peace exists or not.

13. In the instant case a plain reading of the complaint, which too has been filed by an A.S.I. of police who is not even a patty in the case, nor has any claim over the property which is the subject‑matter of the impugned proceeding shows clearly that there is no mention of the likelihood of breach of peace. No untoward incident ever took place between the parties. Learned counsel for respondents when confronted with this situation has not been able to point out any evidence for establishing the likelihood of breach of peace, which of course, is a sine qua nod for initiating proceedings under section 145, Cr.P.C. No peace was ever breached between the parties.

14. The record clearly shows that the. matter remained under judicial process, respondent No.3 through his representative and counsel, i.e. Special Government Pleader who were presumptively acting under his instructions, and such presumption was never dislodged or controverted by respondent No.3 till the arguments before me in the case, had accepted the claim of petitioner qua 2‑1/2 Marlas in their application dated 16‑2‑1998 for the separation of their respective shares.

15. It is a matter of record that respondent No.3 through representative and Special Government Pleader accepted the proceedings and demarcation of land by the Local Commissioner. The contents of their written acknowledgement dated 25‑1‑1999 are reproduced below:‑‑ In such state of affairs, the matter was amicably settled between the parties and no bone of contention was left thereafter. The Court was requested to decide the matter which was decided accordingly.

16. The learned counsel for respondents tried to defend the impugned proceedings simply on the ground that the title of petitioner was defective and the P.T.D. issued in the name of Eid Akbar, the original owner, was fraudulent and as the petitioner has purchased the property from the said Eid Akbar, his title is also defective and, as such, petitioner's claim is illegal. This contention of the learned counsel for respondents is devoid of force, as they had proper and ample opportunity of pleading such a point in the Civil suit filed by the petitioner if it was available to them, but before the Civil Judge not only that such a point was never raised, the defendants rather admitted the claim of petitioner. Even now if the respondent No.3 feels aggrieved and sustain any grudge qua the P.T.D. in favour of Eid Akbar, or for that matter about the title of petitioner, he can seek his remedy, if available to him, in the Civil Court.

16. As a result of above discussion, I am of the considered view that the dispute between the parties being totally of civil nature, could not be made a ground for proceedings under section 145, Cr.P.C. and such proceedings would mean nothing but to harass the petitioner. The primary object and scope of section 145, Cr.P.C. is the prevention of breach of public peace arising in C respect of dispute relating to immovable property. Settlement of dispute relating to property, which is not likely to lead to a breach of peace is within the exclusive jurisdiction of Civil Court. Where there is no imminent danger, as in this case, to the public peace, Magistrate need not take cognizance of an application under section 145, Cr.P.C. In holding such a view, I am fully supported by the judgment of Supreme Court in case of Qazi Gran v. Muhammad Jan reported in PLD 1996 SC 541.

17. Resultantly by accepting this petition, I order the quashment of proceedings under section 145, Cr.P.C. pending against the petitioner in the Court of respondent No.2. N.H.Q./412/P Proceedings quashed.