One Wahid Bakhsh lodged Report No. 35 dated 19th August 1961 at the Police Station Haram Gate in which he alleged the dispute over flour mill along with Toka machine with one Falak Sher resident of Kanjar Mohalla which was on lease with him for one year since 1-4-1961. He suffered a loss and handed over possession of the flour mill to Wahid Bakhsh in the last week of July 1961. Later on, Abdur Rahim and Falak Sher are alleged to have entered into a partnership which was resented to by the respondent. Abdur Rahim the partner of Falak Sher, lodged a report to the police claiming that he and his partner had obtained the posses--sion of the chakki from the respondent Wahid Bakhsh jointly on lease and have paid the rent of the land, on which the chakki is situated, to Ghulam Muhammad a brother of Wahid Bakhsh. They claimed to have paid a sum of Rs. 1,800 for which a document was executed by Ghulam Muhammad.
2. Haram Gate Police submitted report on 20-8-1961 under section 145, Cr. P. C. The Court issued notices to the parties for 28-12-1961. In response to the notices the parties appeared and put in their respective statements. At the intermediary stage an Official Receiver for the chakki was appointed.
3. 'The respondent in his report alleged a breach, of peace and on a report by the police proceedings under section 145, Cr. P. C. Were taken. It is also submitted by the learned counsel for the respondent, that the parties were proceeded against under section 107/151, Cr. P. C., which fact was not denied by the learned counsel for the petitioner. In support of the prosecution version, the learned Additional Deputy Commissioner (General) examined 10 witnesses, namely, Muhammad Ismail, Mehr Din, Muhammad Nawaz, Asghar Ali, Nazir Ahmad, Fida Hussain and the complainant himself as P. Ws. 1, 2, 3, 4, 8, 9 and 10 respectively. Counter-version was put by the respondent and in support of his view-point Falak Sher himself appeared as R. W. 1, Sadiq Muhammad Patwari as R.
W. 2 and Ghulath Muhammad brother of Wahid Bakhsh as R. W. 3.
4. On the question of possession the Additional Deputy Commissioner (General) came to the conclusion that Wahid Bakhsh was in possession of the same and the dispute arose between the parties. He drew this 'inference from the state--ments of Mehr Din P. W. 3, Asghar Ali P. W. 4, Malik Muhammad Yar P. W. 6; Muhammad Afzal P. W. 7 and Nazir Ahmad P. W.
8. The petitioner claimed that the chakki was in possession of Wahid Bakhsh and the building and, the land underneath was in possession of Ghulam Muhammad who had tented the same to them. Mutation No. 3302 disclosed that the ownership of khasra No. 210 vested in Ghulam Mohammad but there is no evidence on record to show that Ghulam Muhammad was in possession of the land and the building. On the other hand, the peti--tioner has already admitted that the chakki was in possession of Wahid Bakhsh while the land and the building were leased out by Ghulam Muhammad as owner.
5. It was vehemently argued by the learned counsel for the petitioner that there was no apprehension of breach of peace. The dispute at best could be described as a civil dispute, and therefore action under section 145, Cr. P. C. Could not be taken. It was next submitted that the preliminary order under section 145, Cr. P. C. Was not passed and in the absence of such an order the proceedings hive become a nullity in the eye of law and lastly that the Anal order does not disclose the factum of breach of peace at the the of passing the order therefore the order cannot be sustained.
6. There is hardly any force in the submission made about the absence of apprehension of breach of peace. Report No. 35 and the action of the police under section 107/151, Cr. P. C. Against the parties clearly shows that there was apprehension of breach of peace. Regarding the absence of the order under section 145(1,), Cr. P. C., there are three papers missing from the file. A notice mentioning apprehension of breach of peace was issued by the Additional District Magis--trate on 28-12-1961, a copy of which has been produced. Mr. Riaz Ahmad Advocate who conducted the case before the learned Additional Deputy Commissioner (General) has sworn an affidavit that this copy of the notice was in the handwriting of his former clerk Manzoor Ahmad. I have marked this paper as P.
1. This mentions fact of appre--hension of breach of peace between the parties over the possession of the disputed chakki. It clearly trasnpires that this notice was one of the three papers- missing from the file. These papers were missing when the record was received in this Court. In view of this, objection raised by the learned counsel falls to the grounds. Mr. Ijaz Hussain Batalvi frankly conceded that he had not inspected the file and all along he was under this impression that there was no such order: Actually at the the of admission, when this petition was heard, by Mr. Justice S. A. Mahmood, his Lordship directed the production of order passed .By the Magistrate under section 145 (1), Cr. P. C. And the case was adjourned. Later on, it came up before the former Chief Justice Abdul Aziz Khan, who issued notice but there is nothing on record to show that the order was ever produced. Be that as it may, it is obvious that there was an order by the Magistrate under section 145 (1), Cr. P. C. And the notice to the parties clearly mentioned this order. The absence of the papers from the file reflects the interest of the party in the loss of these papers.
7. I have already stated that there was an order under section 145 (1), Cr. P. C. Assuming for the sake of argument there were no such order the defect is curable by virtue of sec--tion 537, Cr. P. C. In this view, I am fortified by the Single Bench authority by Din Muhammad, J. In Rattan and others v.
Tika (AIR 1939 Lah. 233). Learned counsel for the petitioner cited at the bar Gul Muhammad v. Mst.
Kubra Begum (PLD 1961 Pesh. 76) and an unreported judgment of a learned Single Judge of this Court in Crl. Misc. No. 752 of 1963. In both these judgments AIR. 1939 Lah. 23 was not 'considered.
Moreover the learned Judges did not have the advantage of going through a Supreme Court judgment on the point in Muhammad Ishaque Chaudhry and another v. Nur Mahal Begum and others (PLD 1961 SC 426) In the Supreme Court Judgment cited above it was held that the absence of ground on the initial order of the Magistrate passed under section 145, Cr. P. C. Could not necessarily result in making the proceedings illegal and without jurisdiction. There is no prejudice caused to the petitioner. There is abundant evidence on the file to show that there was an apprehension of breach of peace. Lastly it is to be seen whether the absence of men--tioning the existence of apprehension of breach of peace in the final order has vitiated the order. Learned counsel for the petitioner cited in Municipal Committee, Kohat v. Mst. Piari (AIR 1947 Pesh. 8) where in the Judicial Commissioner held that the order was not justified. In Gurditta and others v. Taja (AIR 1939 Lah. 108) it was held by Ram Lal, J. As under :- "Wherein an inquiry under section 145, Criminal P. C. The Magistrate specifically records a finding in the preliminary order that the dispute is likely to cause breach of peace, it is not necessary for him to repeat in the final order that such an apprehension existed."
In AIR 1939 Lah 233, it was observed :-- "Failure to make an initial order as required by sub-section (1) of second 145, failure to serve notice on opposite-party according to law or to affix copy of order of Magistrate to some conspicuous place at or near the subject of dispute or even failure of a Magistrate to record a finding in the, final order that there is danger of breach of peace about the land. Are all defects which section 537 can cure and are not therefore sufficient to vitiate proceedings under section 145 if the parties are not thereby prejudiced in any manner."
In my view, therefore, if assuming for the sake- of argument submissions of the learned counsel for the petitioner have some foundation, there can hardly be any detect of jurisdic--tion and the proceedings cannot be said to be vitiated. An irregularity in these proceedings of the nature 'mentioned of above a curable by virtue of section 537. The Supreme Court judgment cited above is the last word on the subject. Their Lordships have discussed this question in detail in their judgment:
8. Mr. Ijaz Hussain Batalvi and Sardar Abdul Jabbar appearing on behalf of the parties argued their view points with eminence. Their assistance on this intricate question of law is appreciable. Sardar Abdul Jabbar at last submitted that a civil suit is pending between the to brothers Ghulam Muhammad and Wahid Bakhsh regarding the ownership of the land and the building. It would be harsh. If the petitioner is put into possession after nine years because he claims possession through Ghulam Muhammad whose title is under scrutiny before the civil Court.
9. In view of the above discussion, this petition is dismissed.