1989 P Cr (PLP)

4. Dissatisfied with this order, Haji Ghulamuddin filed a criminal revision in the Court of Sessions Judge, D.I. Khan which, was however, heard by the Additional Sessions Judge, D.I. Khan. The revisional Court while dismissing the revision petition of the petitioners on 5‑7‑1988 had observed that the trial Court had provided ample opportunities to both the parties but they not only failed to avail such opportunities but also delayed the matter for unreasonable time. He was of the view that the trial Court in the given circumstances and on the material available on the record had rightly passed the impugned order as is envisaged by section 146(1), Cr. P. C. and that, therefore; there was nothing to interfere with the said order.

5. Still feeling aggrieved, the petitioners have filed the instant application for quashing the orders of both the learned Courts below. Arguments of the learned counsel for the parties have been heard and record of the case scrutinized thoroughly with their assistance.

6. Mr. Sanaullah Khan Gandapur, Advocate, appearing for the petitioners contended that the learned Magistrate was not competent to have passed the impugned order under section 146(1) Cr. P. C. unless he had recorded evidence and had come to the conclusion that neither of the parties has been able to prove its possession over the disputed piece of land. He further argued that the statement of even the S.H.O. who had lodged the complaint as to the likelihood of breach of peace over the possession of the property in dispute was not recorded. Reliance was place on Zain Khan and others v. Muhammad Jamil P L D 1967 Pesh. 137 to argue that the order of attachment could be recorded only when the Magistrate, on the evidence brought on the file, had recorded a finding 'that one of the parties was then in such possession, or is unable to satisfy himself as to which was then in such possession of the subject of dispute."

7. Mr. Muhammad Khan, Advocate, appearing on behalf of the State has conceded that the learned Magistrate has erred in law in passing an order under section 146(1), Cr. P. C. without resorting to the mandatory provisions of section 145, Cr. P. C.

8. In repelling the contentions referred to above, S. Zafar Abbas Zaidi, Advocate representing the respondents argued that the Magistrate having Proceeded with the complaint lodged by the police was competent to have passed the impugned order when despite more than 25 adjournments had been given in the case and both the parties had failed to file their written statements as required under subsection (1) of section 145, Cr. P. C.

9. The question involved in, the case and requiring determination is as to whether an order under section 146, Cr. P. C. with regard to the attachment of property which is subject‑matter of dispute under section 145, Cr. P. C. can be passed without conducting an inquiry as required under subsection (4) of section 145, Cr. P. C.

10. This case is typical of a good number of case under section 145, Cr. P. C. and others of its kind that are pending for a number of years after service of preliminary orders under that section. Though the provision of law under this section is intended for quick disposal of such cases, the reason for the tendency of such cases for an unduly long time is partly due to the lack of understanding as to what the Court has to do when the parties do not help in quick disposal of cases of this nature. The decisions on the point are sometime conflicting as can be seen from any commentary on the Code of Criminal Procedure under section

145. Some decisions go to the extent of holding that the Magistrate is bound to record some evidence before any final order under section 145, cc. or under section 146, Cr. P. C. could be passed though the parties may not have adduced any evidence. It is desirable to analyse sections 145 and 146, Cr. P. C. and consider how the Magistrate has to proceed in case the parties fail to co‑operate in the speedy disposal of cases of this nature. Subsections (1) and (4) of section 145, Cr. P. C. are as follows:‑ "(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. (4) Inquiry as to possession. The Magistrate shail 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, receive all such evidence as may be 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."

11. Section 146, Cr. P. C. states that `if the Magistrate is unable to satisfy himself as to which of them was then in possession of the subject‑matter of dispute he may attach it. In the first place it will be noticed that the Magistrate shall in the preliminary order in writing state the grounds for being satisfied that a dispute likely to cause a breach of the peace exists and shall require the parties, concerned in such dispute to attend his Court in person or through counsel, within a time to be fixed by him and to put in writing statements of their respective claims. The action does not authorise the Magistrate to issue warrant to compel the attendance of a party. He is, however, bound to issue a notice calling upon them to appear before Court and to file written statements within a time fixed by him. He may in proper cases give more time to file written statements. The discretion to extend time, must however be exercised judicially. The parties have no right under this section to obtain time indiscriminately.

12. In the instant case it has been conceded at the bar that conduct of both the parties in the proceedings under section 145, Cr. P. C. has been one of indifference. Nonetheless the conduct of the Magistrate to allow indiscriminate adjournments to file written statements has also not been above board. He seems to have been pacified after passing an order under subsection (1) of section 145 ibid. The crucial question is if the parties fail to put in their written statements of their respective claims as respects fact of the actual possession of the dispute whether the Magistrate would be competent to ignore the inquiry as to possession as required under subsection (4) of section 145, Cr. P. C. The law, however, lays that it is only if the Magistrate decides that none of the parties was then in such possession or is unable to satisfy himself as to which of them was in such l possession, he can attach the property, and it is perfectly clear that he cannot say he is unable to satisfy himself if he has never made the slightest effort to do so. In the instant case the learned Magistrate has not taken any concrete steps to satisfy himself as to which of the parties was in possession or that none of them have been able to satisfy him as to its possession.

13. In the circumstances Magistrate should have taken evidence at least in proof of the complaint lodged by the police as to the likelihood of the breach of peace.

14. For the reasons stated above, I am inclined to accept this petition, quash the orders impugned of both the two Courts below and remand the case to the Magistrate concerned for proceeding afresh under section 145, Cr. P. C. in accordance with law. H.B.T./744/P Petition accepted