PLJ 2022 Cr.C. 1137
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.
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.
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"
"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 "
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
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.
(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.
0 Comments