PLJ 2022 Cr.C. 1137
[Lahore High Court, Multan Bench]
Present:
Sohail Nasir, J.
FAIZ
MUHAMMAD--Petitioner
versus
STATE
and 3 others--Respondents
Crl.
Misc. No. 611-M of 2021, decided on 28.2.2022.
Criminal Procedure Code,
1898 (V of 1898)--
----S. 145--Determine the fact of actual physical possession on
the relevant date--Question of entitlement of property is beyond the
jurisdiction of Magistrate while exercising the powers under section 145 Cr.P.C
who is confined to determine the fact of actual physical possession on the
relevant date--There must exist not merely apprehension of breach of peace but
the same shall emanate from a dispute concerning any land or water or
boundaries thereof--Parties are already fighting for their rights in the court
of competent jurisdiction from where there will be the ultimate resolution of
controversy--Application/complaint u/S. 145, Cr.P.C is hereby dismissed. [Pp. 1140 & 1141] A, B, C, D, E
Mr. Tahir Mehmood and Sardar Mehboob Advocates for
Petitioner.
Mr. Muhammad Khalid Ashraf Khan and Malik Sohail Iqbal Advocates
for Respondent No. 3.
Mr. Muhammad Afzal Shahid Advocate for Respondent No. 4
Mr. Adnan Latif Sheikh Deputy Prosecutor General for
Respondents Nos. 1 and 2.
Date of hearing: 28.2.2022.
Judgment
Muhammad Younas/Respondent
No. 3 (contesting respondent), on 26.02.2015, had filed an application for
proceedings under Section 145, Cr.P.C. against Faiz Muhammad (petitioner) and
five others. He maintained that he got the land measuring 9-Marlas and 12½ Yards
on the basis of a gift deed; he constructed a building comprised of 20 shops by
making expenses of Rs. 3.5 millions; he rented out his shops to petitioner @
Rs. 52000/- (fifty two thousands) per months; in 2015 he came to know that
petitioner and others having connivance with each other had prepared some forged
documents which included the Sale Deeds Nos. 16013 to 16015; on 19.02.2015
petitioner along with 10/15 others being armed with firearms had taken the
forcible possession of the property (disputed
property) belonging to contesting respondent. He had prayed for possession
and sealing the disputed property.
2. Vide an order dated 07.09.2016 passed by the learned Special
Judicial Magistrate Multan (SJM) the application was dismissed. Contesting
respondent being aggrieved from that order filed a criminal revision which too
was dismissed vide an order dated 30.05.2017 passed by the learned
Additional Sessions Judge Multan. Thereafter contesting respondent approached
this Court through criminal miscellaneous (6370-M-2017) and with the
concurrence of both sides it was allowed vide an order dated 02.11.2020
and the matter was remanded back to the learned trial Court with direction to
decide the application afresh while passing an elaborate and exhaustive order
in accordance with law after hearing all the concerned and perusing the
material available on record.
3. In post remand proceedings, contesting respondent got the
success as evident from order dated 24.12.2020 passed by the learned SJM. The
application was accepted and a direction was issued for sealing the disputed
property. Petitioner being aggrieved from that decision preferred a criminal
revision which was dismissed vide an order dated 23.01.2021 passed by
the learned Additional Sessions Judge Multan.
4. Being aggrieved from the decisions of two Courts below now
petitioner has approached this Court through the instant criminal miscellaneous
filed under Section 561-A, Cr.P.C.
5. Learned counsel for petitioner contended that proceedings
under Section 145, Cr.P.C. can be initiated only when there is apprehension of
breach of peace which ingredient in the case in hand is completely missing. He
further argued that parties were already in civil litigation before the
complaint was filed by contesting respondent hence both the Courts below
committed serious illegalities while ignoring this fact.
6. On the other hand, learned counsel
for contesting respondent contended that his client is the owner of the
disputed property and its possession was forcibly taken by petitioner along
with others hence there is every apprehension of breach of peace and for that
reason the learned SJM rightly directed the sealing of disputed property and
the said order has rightly been upheld by the learned Court of revision.
7. HEARD
8. Section 145, Cr.P.C. for effective discussion is reproduced
as under:
"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 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 his 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 " (Emphasis supplied)
9. Above provision makes it clear that
there are two conditions for invoking the jurisdiction, one dispute
relates to land and the other it likely to cause breach of
peace. Undisputedly both the conditions must be in existence
simaltanously.
10. In the case in hand the second
condition has not been satisfied. What is 'apprehension of breach of
peace' that is not defined under any of the provisions of Cr.P.C.
The ordinary meaning of the word apprehension[1]
is:
"Anxiety or fear that something bad
or unpleasant will happen"
11. Similarly the ordinary meaning
of the words Breach of peace[2]
is that:
"Any act which disturbs the public or
even one person. It can include almost any criminal act causing fear of
attempting intimidation."
"The crime of behaving in a
disorderly fashion causing harm likely to cause harm or generally disturbing
the peace"
12.
It is the settled proposition of law that question of entitlement of property
is beyond the jurisdiction of a Magistrate while exercising the powers under
Section 145, Cr.P.C. who is confined to determine the fact of actual physical
possession on the relevant date. The Honorable Supreme Court of Pakistan in Mukhtar
Ahmad's case[3]
on the question of jurisdictional requirements was pleased to hold as under:
"The provisions of Section 145,
Cr.P.C. clearly envisage apprehension of breach of peace as a jurisdictional
requirement. The issue of possession of a party could only be gone into by a
Magistrate after his jurisdictional requirement is satisfied. The purpose of
this section is to prevent imminent apprehension of breach of peace over the
immovable and or movable property. This provision does not authorize a
Magistrate to exercise jurisdiction in mere existence of a dispute relating to
an immovable property "
13.
In National Highway Authority case[4]
it was observed by the apex Court that for a Magistrate to take the cognizance
under Section 145, Cr.P.C., there must exist not merely apprehension of breach
of peace but the same shall emanate from a dispute concerning any land or water
or boundaries thereof.
14. In the case in hand the dispute started in 2015 and right
now it is 2022. Till today there is not a single instance to show that
there
was any apprehension of breach of peace. Parties are already fighting for their
rights in the Court of competent jurisdiction from where there will be the
ultimate resolution of controversy.)
15. Both the Courts below did not apply their judicial minds to
the facts and circumstances of the case and completely ignored the ingredient
of missing of apprehension of breach of peace hence the impugned orders cannot
sustain.
16.
Resultantly, this Criminal Miscellaneous is allowed. Impugned
orders are set aside and the application/complaint under
Section 145, Cr.P.C. is hereby dismissed.
(K.Q.B.) Application dismissed
[1]. https://www.google.com/search?q=apprehension+definition&oq=apprehension
+defin&aqs=chrom.0.0i324j69i57j 014joi 22 i3014.7000jljl 5&sourceid= chrome&ie=UTF-8
[2]. https://legaldictionary.thefreedictionary.com/breach+of+the+peace
[3]. Mukhtar Ahmad & others vs. Haji
Muhammad Saleem & another 2013 SCMR 357.
[4]. National Highway Authority, Islamabad vs.
The State & others 2012 SCMR 569.