This is a reference by the Additional Sessions Judge, Quetta recommen--ding quashment of the order dated 23rd April, 1980 passed by the Assistant Commissioner and Magistrate First Class, Pishin in proceedings under section 145, Cr. P. C.
2. Briefly the facts are that the respondent 'Abdul Sattar submitted an application under section 145, Cr. P. C. To the Assistant Commissioner and Magistrate, First Class, Pishin on 5th March, 1980 stating that the disputed land (described in the impugned order) was mutated in the revenue record in his name and was also in his continuous possession. It was also alleged that the petitioners were trying to forcibly dispossess him as such there was danger of imminent breach of peace. The. Assistant Commissioner- recorded the statements of the respondent and his witnesses and referred the case to the Tehsildar for further inquiry. The latter transmitted the file to the Patwari who also gave his report, confirming the possession of the respondent and explaining that for some time, these lands were not cultivated by him. He also stated that this stood in his father's name in .The revenue records, but the petitioners herein were trying to enclose these lands to their lands by raising a boundary wall. In view of the material so collected, the Assistant Commissioner recorded preliminary order on 11th March,. i980 and called upon the petitioners through a notice to submit their written statements.
They appeared and filed their written statements stating that they owned these land and were in their occupation for a` long time, whereaftbr the evidence of the applicant was recorded-and an opportunity was also given to the petitioners to adduce evidence in support of their claim if any, which, they failed to do. Finally the order dated 23rd April, 1980 was passed by the Assistant Commissioner restraining the petitioners from interfering in these lands. The order clearly states that the respondent was in occupation of the property and some decisions made by competent Courts of law also held him to be the owner of this property. He also 'observed that the petitioners were trying to forcefully evict him therefrom by raising a wall which created an apprehension of imminent breach of peace. '
3. This order was challenged before the Sessions Judge, Quettamtlder section 435, Cr. P. C. Who referred it to the Additional Sessions Judge, Quetta who has made the pre--bnt reference.
4. The Additional Sessions Judge, Quetta has recommended the quash--ment of the order passed by the Assistant Commissioner mainly on two grounds The first ground being that an order under subsection (1) of section 145, Cr. P. C. Was not: passed in accordance with law and that no opportunity had been given to the petitioners to cross-examine the witnesses produced by the respondent. It is also remarked in the judgment .That instead of deciding the case in view of the possession and danger of the breach of peace, unnecessary emphasis was laid on the title to the property, as such assumption of jurisdiction under section 145; Cr. P. C. Was illegal to and consequently it called for an order of quashment of the proceedings.
5. Mr. Arshad Choudhry, Advocate supporting the reference in the first place contended that no - preliminary order as required by law having been passed, the assumption of jurisdiction was illegal : and subsequent proceedings were liable to be quashed Among others, he relied upon Muhammad Bakhsh and others v. Ha/ Muhammad and another (PLD 1969 Kar. 22to support his contention. I agree with the learned counsel in so far as the proposition 4 law that the preliminary order should take into account such facts on the basis of which theagistrate felt satisfied that if no actionwas taken by him, the breach of peace might be the result. This order should normally state such facts so that it may come to light that he did not act mechanically. rest. , But this is not a case in which preliminary order. Has not at all been passed or that the circumstances justifying the taking of cognizance did not exist. The Assistant Commissioner also did not act mechanically. As observed by me above, he collected sufficient evidence to satisfy himself as to the possession and could very well conceive of the consequences, if he did not immediately step in to ward off the likely dispute. It was on the basis of overwhelming material that he issued notices to the. Petitioners. These notices give details of the circumstances, in which proceedings under section 145, Cr. P. C. And issue of notice in persuance thereof, had become necessary in his opinion and in my view this is enough to satisfy the ends of law. In these circumstances, lack of application of mind to the case of non-availability of material to support subsequent action etc. Is an argument for the sake of argument. Mr. Ta,hir Muhammad Khan, appearing for the respond; nt controverted this objection and placed before me Muhammad Ishaque ehoudhry and another v. Nur Mahal Begum and others (PLD 1961 SC 426) in which it is beld that Magistrate's initial order not stating ,the grounds of his being satisfied that the apprehension of the breach of peace existed, would not call for` the quashment of the proceedings. He also relied upon Noor Muham,nad and another v. Malik Chiragh and 2 others (1971 SCMR 245) to support his contention that even if the Magistrate in his order under section 145, Cr. P.
C. Did not describe in so may words that there was an apprehension of breach of peace, the order would not essentially be termed as an illegal order demanding quashment of the proceedings. I have already said above that, although the requirement of a perfectly worded preliminary order is and the Magistrate should briefly state the material upon which he relied so that it may become evident as to what were the grounds which satisfied him t proceed in the matter, but at the same time, a defence order can also b maintained if the Court examining the case could see for itself that circumstances existed to justify assumption of jurisdiction. This is what substantial justice demands and if I am not wrong this is what is the crux of the judg--ments cited by Mr. Tabir Mohammad Khan, Advocate. I am satisfied by reading the preliminary order with notices issued to the petitioners that the Magistrate acted justly, though lacked, in. Passing a well-worded preli-- minary order. The objection to the assumption of jurisdiction, is therefore, repelled being devoid of force.
6. It was next contended by the learned counsel that the trial Court failed to give a finding as to which of the contestants was in possessing of the property in dispute, as without coming to, a finding on that point, he could not pass the order in question. He referred to Mohammad Usman v.
The State and another.(1978 PCrLJ 76), Mushtaq Ahmed and another v. Shafiqullah Khan and 2 others (1979 PcR L J 1971). The- proposition does not admit of two views, but I do not find any substance in this argument as far as the present case is concerned for the reason that the Magistrate had before him the evidence referred to above on the basis of which he ascertained the factum of possession and in fact what has been criticized=to be a finding on the title of the property is actually the discussion on the evidence on the basis of which the fact of continuous physical possession has been adjudged by the Magistrate and in my opinion this evidence was enough to convince a person of average prudence as to who was in possession of the disputed lands for two months before.The making of the order. This contention is equally devoid 917 force.
7. Mr. Arshad Choudhary also contended that the impugned order Was also not proper and valid because the petitioners were not given opportunity to lead evidence. The final order of the Magistrate says that opportunity to lead evidence was given to them but they did not avail the same. I have no reason to disbelieve this observation. More so when nothing to sub--stantiate this allegation has been placed before me. '
8. Mr. Ar.Shad Choudhary lastly contended that the evidence was not recorded in accordance with law. He is true as it cannot be ignored that opportunity of cross-examination was not given to the petitioners when respondent examined his witnesses. This is also one of the grounds upon which the quashment of proceedings has been recommended by the Additional Sessions Judge, Quetta and I find weight in the reference only with regard to this finding but this flaw should not vitiate the entire proceedings, rather as suggested by the learned Assistant Advocate-General thread should be picked up from the stage where it missed the legal treatment. It was necessary that evidence should have been recorded in accordance with law. I would, therefore, allow this reference on this limited point and remand back the case to the concerned Magistarte with directions to examine parties evidence afresh in accordance with law and decide the issue finally.
M. X. M.