2023 PLP 1108 (MLD)

MUHAMMAD IJAZ KHAN, J.

Through the instant petition, petitioners are seeking the quashment of order and judgment passed by the learned Additional Sessions Judge/Izafi Zila Qazi Dir Lower at Chakdara dated 18.11.2021 and that of order and judgment of the Worthy Assistant Commissioner Chakdara dated 27.09.2021. Precisely the facts necessary for the disposal of this quashment petition are that the present petitioners filed an application to the Assistant Commissioner, Tehsil Adenzai at Chakdara purportedly under section 145, Cr.P.C. for initiation of necessary action against the respondents/accused on 25.08.2021, which was marked to the SHO of Police Station Ouch for necessary legal action as per law and for submission of his report. The record further shows that on 01.09.2021 the present petitioners filed an application for appointment of an independent local commission apart from the local police and accordingly the learned Additional Assistant Commissioner appointed Qazi Sahib and Public Prosecutor Sahib and Reader Sahib as commission to furnish their opinion, however, the Worthy P.P Sahib refused to join the aforesaid commission, therefore, the Muhavin Qazi furnished his report highlighting the nature of dispute between the parties regarding the use of water for irrigation of their agriculture land. His report further shows that he has not recorded any definite opinion regarding the solution of the dispute between the parties, however, the worthy A.A.C. vide the impugned order and order dated 17.06.2021 ordered that for the use of water from the natural spring the petitioners would request them or would send Jirga to them and would try to settle the dispute amicably.

3. The record further shows that instead of challenging this order by the present petitioners before the learned revisional Court they filed a review petition, in which again mediators were appointed who submitted their award, however, the review petition of the present petitioners was dismissed vide order dated 27.09.2021 being not maintainable. The aforesaid order and judgment dated 27.09.2021 was challenged before the learned revisional Court, however, their revision was also dismissed vide the second impugned order and judgment dated 18.11.2021. Petitioners have now approached to this Court for the quashment of the aforesaid two orders and judgments of the fora below respectively dated 27.09.2021 and dated 18.11 2021 by filing the instant petition.

4. Arguments of learned counsel for the parties as well as learned Assistant A.G. for the State were heard and the record perused with their able assistance.

5. The contents of the initial complaint would show that the petitioners/complainants have agitated a controversy with respect to the use of water from the natural spring for the irrigation of the, property. The contents of the complaint also discloses that there were serious allegations of threats to the petitioners from the respondents/accused. The contents of the complaint also speaks of extreme kind of apprehension of breach of peace amongst the parties as well as breach of public peace, therefore, the said complaint fully qualify all the ingredients of the complaint filed under section 145, Cr.P.C, therefore, mere non-mentioning of sections of law or mentioning of wrong sections of law would not make any difference as it is settled since long that it is the piths and substance of the application which are to be considered and mere wrong section of law or title of application would have no bearing on the merits of the case. In the case of "Olas Khan and others v. Chairman NAB through Chairman and others" reported as PLD 2018 Supreme Court 40, the Hon'ble apex Court has held that merely citing or relying on wrong provision of law to assume jurisdiction over a lis is of no consequence, provided the Court otherwise has jurisdiction under the Constitution, statue or any other provision of law to pass an order as has happened in the instant case. Similarly, in the case of "Mst. Safia Bibi v. Mst. Aisha Bibi" reported as 1982 SCMR 494 it was observed by the Hon'ble apex Court that it cannot be denied that mention of a wrong provision of law in an application would not deprive the Court of the power and jurisdiction if otherwise the same is available to it under the law.

6. The record also shows that after entertaining of the aforesaid complaint by the worthy A.A.C. he has adopted a novel procedure which is totally alien to the provisions of Cr.P.C. or any other law of the land as in the earlier round he on the very first day marked the said application/complaint to the SHO for necessary legal action as per law and report, whereas on another application he straight-away constituted a commission comprising of Qazi Sahib, P.P Sahib and Reader Sahib and out of whom the Qazi Sahib has submitted his report and the same was made a base for passing of one of the impugned order i.e. 17.06.2021 and again when the review petition was field on this time again sent mediators, however, the review petition of the petitioners was dismissed being not maintainable vide order and judgment dated 27.09.2021, therefore, on each and every occasion the procedure adopted by the worthy A.A.C. is not backed by any law, rather a self-designed procedure has been carried-out, therefore, such procedure could not be allowed to sustain.

7. It may be noted that a complaint filed under section 145, Cr.P.C. the Worthy A.A.C. or the Magistrate, as the case may be has to adopt a procedure which is fully reflected in section 145 to section 149, Cr.P.C, however, the approach which was adopted by the worthy A.A.C. in this case does not find mentioned in the aforesaid provisions of the law, though, section 145, Cr.P.C. itself provide a complete; exhaustive and comprehensive procedure to deal with the complaint filed under section 145, Cr.P.C., the said procedure could be categorized in five steps, which are as under:- "Step No. 1: When a competent Magistrate or A.A.C. as in the present case, on receiving information from a party or from a police report that the matter relates to land or water or boundaries of land within his jurisdiction and a dispute thereof has raised the apprehension of the breach of peace and as such if the concerned Magistrate/AAC is satisfied that the two conditions precedent are spelling out from the information/police report, he would pass an order stating his reasons of being so satisfied. Step No. 2: After the satisfaction of concerned Magistrate as stated hereinabove regarding the existence of the pre-conditions for initiating proceedings under section 145, Cr.P.C., he would seek written replies from both the parties about their respective stances qua the possession of the disputed property, which has to be submitted within a period specified by the Magistrate. Step No. 3: After submitting their replies, both the parties are to produce their respective evidence in respect of their claims relating to the possession of the disputed property. Step No. 4: In case, where the concerned Magistrate who has received the information and who has recorded his satisfaction about the existence of a dispute with respect to the land, water and boundaries, then he has to determine that as to who was in possession of the disputed property on the day when he took the cognizance of the matter. Step No. 5: In case the adjudicating Magistrate comes to the conclusion that a party before him was wrongly or forcibly dispossessed of the disputed property within two months prior to the filing of the complaint or when he took cognizance, then possession is to be restored to the said party and that party is to retain the same until he is evicted by order of a competent civil Court." The aforesaid prescribed and statutory procedure requires the Additional Assistant Commissioner that when he receives a complaint, he will satisfy itself regarding the existence of two conditions precedent i.e. dispute relates to water or laid or boundaries of land and that such dispute is likely to cause breach of peace and then he will issue notices to the respondents for their reply and then he will ask both the parties to produce their respective evidence in support of their possession two months prior to the taking of cognizance or issuance of preliminary order and as such after completion of pro and contra evidence, the Additional Assistant Commissioner would hand over the possession to the party who has been succeeded to prove his possession qua the disputed property two months prior of passing of the preliminary order or taking of cognizance as the case may be. It is relevant to mention here that proceedings under section 145, Cr.P.C. have no concern whatsoever to determine the title of the parties with respect to the disputed property. The only duty of the learned Additional Assistant Commissioner/Magistrate is to determine the factum of possession of either of the party and to hand over the same to the party who establishes his possession qua the disputed property, however, if during the course of evidence or after recording of evidence, the worthy A.A.C. comes to the conclusion that the present dispute does not cover by the provisions of section 145, Cr.P.C. then he may direct either of the party to approach the civil Court but in no way the worthy A.A.C. could proceeds in a complaint filed under section 145, Cr.P.C., was done in the present case.

8. In this case, the learned Additional Assistant Commissioner has not exercised his authority and jurisdiction in a proper manner as vested in him as he has resorted to the procedure which does not find mentioned anywhere in the Statute book. He has not applied his mind to the complaint filed before him as instead of proceeding with the case as per the aforesaid procedure he has indulged himself in an unnecessary and uncalled for exercise after appointing mediators and commission and as such he has not discharged his statutory duty as required from him by the law of the land and as spelling-out from section 145 to section 149, Cr.P.C. This procedure was somewhat beyond its domain and authority as the law does not bestowed upon him such powers on him and as such the whole exercise carried-out by the worthy A.A.C. from the very inception is illegal, unlawful and such the same could not sustain in the eyes of law. Same was the case with the order and judgment of learned revisional Court who too has perpetuated the aforesaid illegality committed by the worthy A.A.C. for no valid reasons. In the case Mukhtiar Ahmad and others v. Haji Muhammad Saleem and another reported as 2013 SCMR 357, the Hon'ble Apex Court has held that 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 firing 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.

9. Accordingly, this petition is allowed the impugned orders and judgments of both the fora below dated 27.09.2021 and 18.11.2021 are set aside and the complaint filed by the present petitioners shall be deemed pending before the worthy Assistant Commissioner Adenzai at Chakdara who shall proceed with the same in accordance with the procedure as highlighted hereinabove and shall thereafter, decide the same in accordance with law. MH/73/P Case remanded.