' AFTAB AHMED GORAR, J.---Through this application, applicant seeks quashment of the order, dated 6-9-2012 passed by the learned IInd Additional Sessions Judge Hyderabad in Criminal Revision Application No,61 of 2012 whereby the order dated 24-8-2012 passed by the learned IInd Civil Judge and Judicial Magistrate Tando Muhammad Khan on an application under section 145, Cr.P.C. Directing for taking over the possession of land bearing S.No, 75/1, 75/2, 75/3, 76/1, 76/3, 76/4, 63/3 and 64/4 total admeasuring 30-05 acres situated in Deh Singh Tapo Tando Saindad Taluka and District Tando Muhammad Khan, from the applicant and putting the respondent No,3 into possession thereof, was maintained.
2. The facts leading to this application are that on 7-2-2012 respondent No,3 filed an application under section 145, Cr.P.C. In respect of aforesaid land claiming the same to have been gifted to him(respondent No,3) by his father and that now the applicants are claiming the ownership of the land in question and also filed an application to the Deputy Commissioner Tando Muhammad Khan so also lodged F.I.R. Against applicants and forcibly occupied the land, therefore, there was great apprehension of breach of peace.
3. It appears from the record that on the application of the respondent No,3, learned Magistrate called report from Mukhtiarkar concerned as well as SHO P.S. Shaikh Bhirkio. After hearing the parties, learned Magistrate passed order to put the respondent No,3 into possession of the land in question vide order dated 24-8-2012, which was assailed by the applicant before learned Sessions Judge, Hyderabad by filing Criminal Revision Application No,61 of 2012, which was transferred to the learned IInd Additional Sessions Judge Hyderabad, who has dismissed the Revision Application and maintained the order of the Magistrate.
4. Learned counsel for the applicant argued that orders of the learned two courts below are against law as well as equity, therefore, are not sustainable in law; there was a civil dispute between the parties and such civil litigation is going on, therefore, learned Magistrate was not justified to pass such order; there was no question of breach of peace but the respondent No,3 managed false story in collusion with police just to take possession of the land in question from the applicants by illegal means, who are owners thereof since 1939 the alleged sale-deed in favour of respondent No,3 is false and manipulated document having no value in the eyes of law; the respondent No,3 is trying to convert civil dispute into criminal but the learned two courts below did not consider such aspect of the matter; the impugned order as well as order of the Magistrate are the result of misreading and non reading of the material available on record. Learned counsel further contended that neither learned Magistrate recorded evidence of the parties nor afforded opportunity to the applicants to file their written statement which was mandatory requirement for exercising powers under section 145, Cr.P.C. Learned counsel submitted that when the SHO had submitted report, the learned Magistrate was bound to publish a notice in daily newspapers but he failed to do so. In support of his arguments, learned counsel for the applicants has relied upon the cases of Saleem-ur-Rehman v. Faqir Hussain and others (PLD 2003 SC 578), Qazi Gran v.
Muhammad Jan and another (PLD 1996 SC 541), Akram Khan and 3 others v. Nadir Khan and another (2008 MLD 974), Umardin v. Muhammad Ali and others (1992 PCr.LJ 804), Noveed Khan and another v. Muhammad Aslam (PLD 1991 Azad J&K 60), Haji Gulzar Ahmad Gulshan v. Muhammad Iqbal and 6 others(2010 YLR 948), Raziullah Qureshi v. The State and another (1989 PCr.LJ 1354), Muhammad Sadiq v. Muhammad Rafiq and others (2006 SCMR 1470), Muhammad Afzal v.
Muhammad Bashir 2 others (2007 MLD 1535) Lahore), Ikhtiar Muhammad and another v. Haji Abdullah Jan and 4 others (PLD 2008 Quetta 7) and Muhammad Khurshid Khan v. Asif Raza Mir and another(sic.).
5. On the other hand, learned counsel for respondent No,8 contended that there is dispute between the parties over the land and proceedings under section 145, Cr.P.C. Are summary in nature and it is not mandatory upon the Magistrate to record statements or evidence or to provide opportunity to the applicants to file their written statement. He further contended that when the report was filed by the SHO as well as Mukhtiarkar, the learned Magistrate came into motion and passed proper order. He further contended that the learned Magistrate has recorded evidence of both the parties.
He supported the orders of both the courts below. He has relied upon the case of case of Khuwaja Fazal Karim v. The State and another (PLD 1976 SC 461), Mst. Zama Bibi v. Saadat Khan and another (2005 SCMR 1630) and Saleem-ur-Rehman v. Faqir Hussain and others (PLD 2003 SC 578).
6. Learned Assistant Prosecutor-General did not support the impugned order and contended that the learned Magistrate neither recorded evidence of the parties nor afforded them opportunity to file their statements, therefore, he prayed that the matter may be remanded back to the learned Magistrate to pass proper order after recording evidence of the parties and hearing them. He relied upon the case of Muhammad Rafiq v. Muhammad Siddique and another (2001 PCr.LJ 1515).
7. I have considered the respective submissions of learned counsel for the parties and examined the material available on record. For the sake of convenience relevant provisions of section 145, Cr.P.C. Are reproduced as under:-- "145. Procedure where dispute, concerning land, etc., is likely to cause breach of peace. (1)
Whenever a Magistrate, of the 1st Class is satisfied from a police-report or other information that a dispute likely to cause breach of 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 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 statement of their respective claims as respects the fact of actual possession of the subject of dispute.
(4) Inquiry as to possession. The Magistrate shall then, without, reference to the merits or the claims of any such parties to a right to possess the subject of dispute, peruse the statements so put in, hear the parties, receive all such evidence as may be produced by them respectively, consider the effect of such evidence, take such further evidence (if any) as he thinks necessary, and, if possible, decide whether any and which of the parties was at the date of the order before mentioned in such possession of the said subject; ' Provided that, if it appears to the Magistrate that any party has within two months next before the date of such order been forcibly and wrongfully dispossessed, he may treat the party so dispossessed as if he had been in possession at such date; The perusal of the aforesaid section shows that it confers powers upon the Magistrate on his satisfaction as to take preventive measures to ward off endangered disruption and maintain peace and tranquility. The requirement for exercising jurisdiction is that there should a dispute likely to cause breach of peace. This section further provides that the Magistrate shall, without reference to the merits or the claims of the parties or right to possess the subject property, peruse the statements so put in, hear the parties and receive all such evidence as may be produced by the parties respectively and take further evidence if necessary and then decide question of possession and treat the party so dispossessed to be in possession of the subject property. In the present case, it appears that the learned Magistrate did not properly comply with the aforesaid provision of law and without recording evidence passed the impugned order. Before passing the order, the learned Magistrate has to satisfy himself that the dispute between the parties is likely to cause breach of peace and for such satisfaction, he has to record evidence of the parties and without referring the merits or the claims of the parties as to right to possess, hear the parties and proceed with the matter in accordance with law but it appears that the Magistrate without fulfilling such mandatory requirements has passed the impugned order. Learned Assistant P.-G. Therefore, did not support the impugned order.
8. For the foregoing reasons as well as case law relied upon by the learned counsel for the parties, I am of the considered view that the impugned order passed by the learned Magistrate and maintained by the learned IInd Additional Sessions Judge Hyderabad is not sustainable in law, which is, therefore, set aside and matter is remanded back to the learned Magistrate with directions to afford ample opportunity to the parties, record their evidence, if necessary record further evidence and after hearing the parties, pass speaking order afresh in accordance with law.
' The Criminal Miscellaneous Application stands disposed of along with listed application.