1990 P Cr (PLP)

(i)???????? that there is a dispute concerning possession of land or water or boundaries thereof, and (ii)??????? that such a dispute is likely to cause a breach of peace.

9. Subsection (4) of section 145, Cr.P.C. again lays down: "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 put in, hear the parties, 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 that, if it appears to the Magistrate that any party has within two .months next before the date of such order been forcibly and wrongfully dispossessed, he may treat the party so dispossessed as if he had been in possession at such date: 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."

10. Subsection (1) when read together with subsection (4) of section 145, Cr.P.C. makes it clear that once the Magistrate assumes jurisdiction he is competent to attach disputed property `at any time'. It, therefore, follows that an order under subsection (1) of section 145, Cr.P.C. can be combined with an order under subsection (4) of section 145, Cr.P.C. The order, dated 21‑1‑1988, passed by learned Magistrate on the order‑sheet makes the entire position clear. It says: "Under section 145 Cr. P C 21-1-1988. Police report under section 145, Cr.P.C. received today. Register the case. From the perusal of the report of the S.H.O. Artillery Maidan Police Station, Karachi, there appears imminent danger of breach of peace and I am satisfied that the matter appears to be that of emergent nature. Issue attachment warrants under section 145(4) Cr.P.C. for sealing the office No.304 Panorama Centre, Karachi. The parties should rile their written statements regarding their respective claims vis‑a‑vis the fact of actual possession of the subject of dispute. Case for 25‑1‑1988:

11. The warrant of attachment purported, to have been issued under subsection (4) of section 145, Cr.P.C., reads as follows: "From the report of S.H.O. Artillery Maidan Police Station, Karachi, there appears imminent danger of breach of peace and I am satisfied that matter appears .to be of that of emergent nature. I am of the considered opinion that pending the enquiry into the possession of the party under section 145(4), Cr.P.C. there appears reasonable justification for attachment of property under 145(4) proviso (2). I, therefore, order that the property in question should be immediately attached pending the final decision. Accordingly, this is to authorise and require you the S.H.O. Artillery Maidan Police Station, Karachi to attach the Office No.304, Panorama Centre, Karachi and keep the possession thereof and to hold the same under attachment until the decision of the proceedings or any other decree or order from any competent Court and to return this warrant with an endorsement certifying the manner of its execution. The parties should file their written statements regarding their respective claims vis‑a‑vis. the fact of actual possession of the subject of the dispute. Case is fixed for 25‑1‑1988:'

12. Besides the fact that a separate order was also passed by the learned Magistrate on the order‑sheet, dated 21‑1‑1988, it is clear that in the aforesaid order of attachment the following ingredients of subsection (1) of section 145 and second proviso to subsection (4) of section 145, Cr.P.C. are discernible: (i)???????? Satisfaction of the Magistrate from police report that a dispute likely to cause a breach of peace exists concerning possession of the subject of dispute; (ii)??????? Magistrate's requiring the parties concerned, in such dispute to attend the Court on a specified date and to put in written statements of their respective claims, vis‑a‑vis the fact of actual possession of the subject of dispute; (iii)?????? Further satisfaction/consideration of the Magistrate from the police report that the dispute in question is of an emergent nature, as there is imminent danger of peace prompting him to exercise his discretion by deciding to attach/seal the disputed premises pending enquiry into the possession of the party under subsection (4) of section 145, Cr.P.C. (iv)?????? The order of the Magistrate requiring the S.H.O. concerned to attach/seal the premises in dispute and to hold the same under attachment until the decision of the proceedings initiated by him under subsection (1) of section 145, Cr.P.C. or any decree or order from any competent Court.

13. As observed by the Supreme Court in the case of Muhammad Ishaque Choudhry and another v. Nur Mahal Begum and others reported in P L D (96; SC 426, the Magistrates exercising jurisdiction under section 145, Cr.P.C are expected to comply strictly with the provisions of section, but to say that a failure to follow the prescribed mode must in every case render the exercise of the jurisdiction invalid and illegal is too wide a proposition. In the reported case the following order of the Magistrate (like the one under consideration) was the subject‑matter of appeal: "Seen petitions and reports. I am satisfied that there is serious apprehension of breach of peace and immediate measures are necessary. Start proceedings under section 145, Cr.P.C. The property is attached and O/C Kotwali appointed receiver. Let parties file written statements by 24‑11‑1959."

14. This question was again examined by the Supreme Court in the case of Noor Muhammad and another v. Malik Chiragh Din and 2 others reported in 1971 S C M R 245, wherein it was held: "It is now sought to be contended on behalf of the petitioner that the High Court had failed to notice that the entire proceedings were without jurisdiction, as the initial order which has been quoted earlier, does not disclose that the Magistrate was satisfied that there was apprehension of breach of peace. This went to the root of the jurisdiction of the Magistrate, for, until he was so satisfied he could not issue the preliminary order. The High Court has rejected this contention on the ground that the petitioner never took his objection at an early stage but stood by and allowed the Magistrate to proceed with the proceedings for nearly 14 months before taking up this objection. Apart from this, it appears to us that this objection cannot be sustained in view of the decision of this Court in the case of Muhammad Ishaque Choudhry v. Noor Mahal Begum and others P L D 1961 SC 426, where it was pointed out that if the elements necessary for the founding of jurisdiction did in fact exist, then even if the Magistrate' does not strictly comply with t he other requirements of the section as to the form of the order and does not state the ground of his being so satisfied', the order, though defective in form, is not without jurisdiction. In the present case, the necessary elements existed. There was no question, therefore, of want of jurisdiction. The most that could be said in such circumstances was that the Magistrate had been guilty of non‑compliance with a rule of procedure but this cannot amount to an illegality vitiating the entire proceedings:'

15. The order of the learned Sessions Judge remanding the case to Assistant Commissioner and S.D.M. Civil Lines, Karachi, with direction to pass fresh preliminary order, if he so thinks necessary, and to start the proceedings afresh and thereafter, upon hearing the parties, if he concludes that circumstances exist warranting the attachment of the disputed premises to pass a fresh order of attachment under subsection (4) of section 145, Cr.P.C. has given rise to a legally inconsistent and anomalous situation in so far as the applicant is concerned. His above finding is again destructive to his finding that the order, dated 26‑1‑1988 passed by the Magistrate directing the delivery of possession of disputed premises after dieseling it to respondent No. 1, was illegal. W 46,

16. Having regard to the‑ above legal position the order, dated 26‑1‑1988 passed by Assistant Commissioner and S.D.M. Civil Lines, Karachi, and the order, dated 20‑3‑1988 passed by Sessions Judge (South) Karachi, remanding the case to the Magistrate with the above directions are quashed and the original order of attachment, dated 21‑1‑1988 passed by Assistant Commissioner and S.D.M. Civil Lines, Karachi, is restored, with direction to the Magistrate concerned to dispose of the application made by respondent No.l, under subsection (5) of section 145, Cr.P.C. in accordance with law.

17. The application made under section 561‑A, Cr.P.C. is accordingly accepted in the above terms. SA./I‑97/K ???? ???????????????????????????????????????????????????????????????????????????????????????????Orders quashed.