2003 PLP 1742 (YLR)

(1) PLD 1966 (W. P) Lahore 16. (2) PLD 1964 SC 236. (3) PLD 1994 SC 879. (4) 1995 SCMR 429. (5) PLD 1959 (W.P) Lahore 264. (6) 1986 CLC (Karachi) 288. (7) 1994 MLD (Karachi) 871 (8) 1988 CLC (Karachi) 2063.

3. Conversely Mr. Mehmood A. Qureshi, learned counsel has urged that the present application is not maintainable in law as the applicant has failed to show any illegality committed by the Additional Sessions Judge, Karachi East while passing the impugned order dated 29-2-2000. It is further contended that the order under section 145(1), Cr.P.C. was passed on 30-3-1995 and the alleged dispossession took place on 25-7-1994 as such the order was passed for more than 60 days next before the date of alleged dispossession. In such circumstances, the S.D.M. had no other alternate to drop the proceedings of the case under section 145(5), Cr.P.C. It is further contended that the applicant got condonation of delay from the learned S.D.M. by tiling the application but there is no provision in the Cr.P.C. for condonation of delay. It is further argued that the civil litigation is pending between the applicant and the respondent No.2 regarding the same property in the Court of Senior Civil Judge in the High Court as well as before the Hon'ble Supreme Court of Pakistan bearing Suits Nos.948 of 1994, 432 of 1994 and 1937 of 1998 respectively and the Civil Court had already seized of the matter in the shape of status quo order. It is further pointed out by the learned counsel for the respondents that S.D.M. visited the site and enquiry was conducted in presence of both the parties as per directions of this Court and during this visit it was found that the applicant was in exclusive possession of one room in the said house, and having from access to the room which was given to the respondent No.2 by the applicant. In the inspection report it is observed by the S.D.M. that there is no apprehension of breach of peace as both the parties are staying in different houses. In view of the inspection made by the learned S.D.M. the proceeding was dropped under section 145(5), Cr.P.C. against the respondents Nos.2 and 3 by an order dated 28-11-1998. Learned counsel for the respondents has relied upon 2001 PCr.LJ 1515.

4. I have heard the learned counsel for the respective parties and the case-law cited by them and also perused the entire documents available on record. It will be advantageous to reproduce the observations made in Criminal Miscellaneous Application No.40 of 1997, observed by his Lordship Mr. Justice Hamid Ali Mirza, J.:-- "However, in the present case S.D.M. has yet to determine the two points required for proceeding further in the matter as required by provision of section 145, Cr.P.C. The conclusions of Additional Sessions Judge as per impugned order without evidence having been recorded by the S.D.M. cannot be said to be legal and proper. Accordingly, the impugned order of the Additional Sessions Judge is set aside and case is remanded to the S.D.M. concerned to proceed as required by subsection (4) of section 145, Cr.P.C. and in case, if after recording evidence, he comes to the conclusion that there is no likelihood of breach of peace and no imminent danger, he could recall the earlier order passed, otherwise proceedings could be disposed of as required by law. The Magistrate is directed to record the evidence and dispose of the matter within two months from the date of receipt of this order. The application stands disposed of in terms of the above order. "

5. From the perusal of the application filed by the applicant under section 145, Cr.P.C. against the respondents Nos. 2 and 3 before the learned S. D. M., Jamshed Quarters, Karachi and according to his version on 19-9-1994 regarding the alleged dispossession dated 25-7-1994 from the property in question. The respondents Nos. 2 and 3 after receiving the order under section 145 (1), Cr.P.C. dated 30-3-1995 filed their written statement and also moved an application under section 145(5), Cr.P.C., which was rejected by the learned S.D.M., Jamshed-Quarters, Karachi by an order dated 8-1-1996 the respondent filed revision application bearing No.3 of 1996 which was allowed by the learned Vth Additional Sessions Judge, Karachi East by an order dated 10-7-1996. The said impugned order was challenged before this Court and the matter was remanded to the learned S.D.M., Jamshed Quarters, Karachi with directions to dispose of the matter within two months on the two points (sic) No. 1 regarding likelihood of breach of peace and dispossession of the applicant within two months next before the date of order dated 6-3-1997. The learned S.D.M., Jamshed Quarters, Karachi after receipt of the directions of this Court tried to record the statement of the applicant and the objections from the respondents but no evidence was adduced. It was pointed out to the parties that there are directions of this Court that the matter may be disposed of within two months. The parties thereafter filed their affidavit-in-evidence and the applicant was delaying the matter as per case diaries, the matter was delayed by the applicant. The respondent also filed their affidavit-in-evidence. The disputed house was inspected in presence of both the parties as well as their counsel on 28-5-1998. It is admitted position that the order under section 145(1), Cr.P.C. was passed by the learned Assistant Commissioner/S.D.M., Jamshed Quarters, Karachi East on 30-3-1995 and the date of allowed dispossession is 25-7-1994, as such it is very clear that the order under section 1450), Cr.P.C. was not passed within two months and which is mandatory requirement of proceedings under section 145, Cr.P.C. The order under section 145(1), Cr. P. C. was passed on 30-3-1995 after about 8-1/2 months from the date of alleged dispossession but the applicant filed application before learned Assistant Commissioner/S.D.M., Jamshed Quarters, Karachi East on 19-4-1994 and presumed that he had got condonation of delay by filing the application dated 5-12-1994. Definition of section 145, Cr.P.C. is reproduced herein-below:-- "

145. Procedure where dispute concerning land, etc. is likely to cause breach of peace.

(1) Whenever a [Magistrate of the First Class] is satisfied from a police report or other information that a dispute likely to cause breach of- 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 being so satisfied, and requiring the parties concerned in such dispute to attend his Court in person or by pleader, within a time to be fixed by such Magistrate, and to put in written statement of their respective claims as respects the fact of actual possession of the subject to dispute. (2) For the purposes of this action expression 'land or water' includes buildings, markets, fisheries, crops or other produce of land, and the rents or profits of any such property. (3) A copy of the order shall be served in manner provided by this Code for the service of a summons upon such person or persons as the Magistrate may direct, and at least one copy shall be published by being affixed to some conspicuous place at or near the subject of dispute. (4) Inquiry as to possession.

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, persue the statement so 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 dispos6essed, 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."

6. It is admitted position that there is no provision in law for any condonation of delay in criminal procedure and the learned Assistant Commissioner/S.D.M., Jamshed Quarters, Karachi East was not empowered to condone the delay. It is admitted position that the applicant had filed Civil Suit No.432 of 1994 for declaration of title before this Court which is pending between the parties and the respondent No.2 has filed petition for leave to appeal which was granted bearing No.477-K of 1998. The learned Senior Civil Judge vide order dated 30-5-1996 has already passed an order of status quo. The parties are indulging themselves in multiplicity of the proceedings particularly dispossession of the other party in respect of the existence of breach of peace. It is 'further stated that there is no likelihood of any breach of peace between the parties and during the course of enquiry made by the police at the directions of learned Assistant Commissioner/S.D.M., Jamshed Quarters, Karachi East, it was reported that there is no violation or disturbance of the public tranquility in respect of breach of peace between the parties. The applicant is not residing at the alleged disputed property although the applicant has possession of one room in the said house. At present there is no material that any apprehension of breach of peace arising between the parties. The provisions of section 145, Cr.P.C. is designed to meet an emergent situation only pausing threat to the peace and cannot be used for settling the rights of the parties on their claim of title. The civil litigation is already pending between the parties and the Civil Courts seized the matter in the shape of status quo and after passing of the said order there is no evidence available on record that there is any apprehension of breach of peace. In the absence of same proceedings under section 145, Cr.P.C. oust the jurisdiction of the Magistrate. The direction of this Court was carried out by the learned Assistant Commissioner/S.D.M., Jamshed Quarters, Karachi East to conduct the enquiry under section 145(4), Cr.P.C. in respect of claim about the possession of each party. On enquiry in presence of both the parties it was found that the applicant was in exclusive possession free access to that room and while the respondents Nos. 2 and 3 are in possession of the rest of the house. In the light of the said joint possession the Magistrate has no jurisdiction to initiate the proceedings under section 145, Cr.P.C. The applicant and the respondent No. 2 are brother inter se and the respondent No.3 is wife of the respondent No.2. Learned Assistant Commissioner/S.D.M., Jamshed Quarters, Karachi East after verifying the evidence of the parties it was observed that this is a fit case for dropping the proceedings against the respondents Nos. 2 and 3 under section 145(5), Cr.P.C. as there was no likelihood of any breach of peace and notice under section 145(1), Cr. P. C. was not issued within two months next before the date of alleged dispossession.

7. In view of foregoing reasons the Proceeding was rightly dropped by the learned Assistant Commissioner/S.D.M., Jamshed Quarters, Karachi East. The impugned order is a speaking order and the order passed by the learned Sessions Judge is also based on proper appreciation of facts and law no illegality and infirmity in the impugned order has been placed on record. In view of the above, the order passed by the learned Assistant Commissioner/S. D. M., Jamshed Quarters, Karachi East and by the learned Additional Sessions Judge, Karachi East, there seems no justification to set aside the impugned order. The Civil Courts had already taken cognizance of the matter and status quo order has been passed. Consequently, Criminal Miscellaneous Application No.289 of 2002 is dismissed. N.H.Q./H-97/K Petition dismissed.