Nature of proceedings under section 145 of the Cr.P.C. are more in the nature of an executive function because the right of ownership nor that of possession is adjudicated.

 Nature of proceedings under section 145 of the Cr.P.C. are more in the nature of an executive function because the right of ownership nor that of possession is adjudicated. The exercise of the powers are subject to fulfilment of the jurisdictional pre-conditions, particularly the satisfaction of the Magistrate that the dispute is likely to cause a breach of the peace. This Court has interpreted section 145 of the Cr.P.C. in various judgments.

The main object and purpose of the powers vested under section 145 of the Cr.P.C. is to prevent a likely breach of the peace and to maintain the status quo. The parties are provided an opportunity to resolve the dispute regarding the title or right of possession before a competent forum. The most crucial factor for undertaking the proceedings is the likelihood of breach of the peace because of the dispute. The dispute must be in respect of land or water or boundaries thereof and the subject matter must be situated within the limits of the territorial jurisdiction of the Magistrate who has to exercise the powers. The existence of these factors is a prerequisite for making a preliminary order under sub-section (1) of Section 145 of the Cr.P.C. and the grounds required to be stated in the order must justify the satisfaction of the Magistrate. The mere existence of a dispute is not sufficient to put the powers in motion. There must be sufficient material giving rise to an imminent danger or a breach of the peace. In the absence of such an apprehension of a breach of the peace the exercise of the power would not be lawful. Moreover, the exercise of powers under section 145 will not be justified if the factor of breach of the peace can be prevented by resorting to powers vested under section 107 of the Cr.P.C. While conducting an inquiry under section 145 of the Cr.P.C. the Magistrate does not have the power or jurisdiction to decide either the question of title of property or the lawfulness of the possession. It merely empowers the Magistrate to regulate the possession of the property in dispute temporality in order to avert an apprehension of breach of the peace. The attachment of the property under the second proviso of section 145 (4) is subject to the satisfaction of the Magistrate that a case of emergency has been made out. The Magistrate, while exercising powers under Section 145 of the Cr.P.C, is merely required to declare which one of the parties is entitled to remain in possession because, as already noted, the proceedings do not empower undertaking an inquiry relating to ownership or the right to possess.

C.P.116/2020
Aminullah & others v. Syed Haji Muhammad Ayub & others
Mr. Justice Athar Minallah
Announced in open Court on 07.12.2023 at Islamabad