1. This is an application filed under section 561-A, Cr. P. C. For quash--ment of proceedings under section 145, Cr. P. C. Now pending in the Court of S. D. M. Liaquatabad, Karachi. The circumstances leading to the filing of the application are as follows :- On 2nd January, 1980 the S. H. O. Gulberg submitted a report to S. D. M. Liaquatabad that respondent No. 1 who was having his factory in bungalow No. 20-B, Block 10, Federal B Area, Karachi had been disposed of the same between 27th December, 1979 and 29th December, 1979, and the applicant had occupied the same with his family. Respon--dent No. 1 had therefore filed F. I. R. With the Police alleging that the applicant had committed criminal trespass into the bungalow.
2. However, since the goods and stuff of the factory were lying outside the bungalow S. H. O. Had made the report apprehending breach of peace between the parties.
3. On receiving the report the S. D. M. Liaquatabad simply ordered issue of notice under section 145 (1), Cr. P. C. And. For registering the case. He did not make an order in writing stating the grounds of being satisfied that a dispute likely to cause breach of the peace existed c9ncern--ing the property. It is further the case of the applicant that the notice, as required by section 145, Cr. P. C.
4. Was never issued or served upon him.
5. On 7th January, 1980 the owner/landlord of the bungalow in question, one Dr. Zafrullah filed an application before the Magistrate stating that respondent No. 1 had handed over the vacant possession of the bungalow to him and that there was also a civil suit pending in respect of the afore--said premises and the Civil Court had passed order of stay in respect of the premises against respondent No. 1. On the other hand, respondent No. 1 also filed an application under section 145 (4), Cr. P. C. Before the learned Magistrate.
6. The applicant being aggrieved by the orders of the Magistrate with regard to registration of the proceedings and issue of the notice without first recording his order under section 145 (1), Cr. P. C.
7. Filed Criminal Revision Application No. 44 of 1980 which came for hearing before the Second Additional District and Sessions Judge who allowed the same and set aside the order for registration of report ; but he further directed the Magistrate to pass order under section 145 (1), Cr.
8. P. C. Adding the following words : "and proceed with the proceedings from day to day in view of the urgency of the matter."
9. Mr. M. M. Pirzada, the learned counsel for the applicant has made the following contentions in support of the application :-
(1) That in view of the omission of the Sub-Divisional Magistrate stating the ground of his being satisfied that dispute likely to cause a breach of the peace existed concerning possession of the bungalow, .The initiation of the proceedings was illegal.
(2) That the order of the learned Second Additional District and Sessions Judge dated 8th June, 1980 on the Criminal Revision No. 44/1980 was illegal to the extent of the directive that the Magistrate should record proper order under section 145 (t), Cr. P. C. And proceed with the proceedings from day to day. The Additional Sessions Judge rightly set aside the order with regard to registering of the proceedings ; but since he had given a directive of recording an order under section 145 (1), Cr. P. C. And also of further pro--ceedings in, the matter, he had usurped the jurisdiction of the Sub-Divisional Magistrate in exercising the discretion under sec--tion 145, Cr. P. C.
10. Stating whether he was satisfied or not satisfied for reasons in writing that there was a dispute likely to cause a breach of peace existing concerning the property. Being the direc--tive of a higher authority no scope was left for the S. D. M. To exercise his discretion in the matter.
(3) That in view of the fact which was brought to the notice of the Sub-Divisional Magistrate that not only a suit was pending in the Civil Court in respect of the property about the dispute, but that proper and legal orders had been passed by the Civil Court in respect of possession of the property, there remained no jurisdiction under section 145, Cr. P. C., in respect of the attachment of the property ; and if there was any apprehension of a breach of a peace action should have been taken under section 107, Cr. P. C.
11. With regard to ground No. 1, the legal position was considered by the Supreme Court in Muhammad Ishaq Chaudhury, and another v. Noor Mahal Begum and others (PLD 1961 SC 426).
12. After considering the tenor of subsection (1) of section 145, Cr. P. C. It was observed as under:- "It is necessary according to the tenor of the section, that before an order thereunder can be issued the Magistrate must be satisfied with regard to the matters therein specified, and then after being so satisfied, he shall make an order in writing stating the grounds of his being so satisfied. This statutory provision, therefore, does prescribe the mode for the exercise of jurisdiction conferred by it and there can be no doubt that Magistrates exercising the said juris--diction are expected to comply strictly with the provision of law. But to say that a failure to follow the prescribed mode must in every case render the exercise of jurisdiction invalid and illegal is in our opinion, too wide a proposition. In our view, there is a distinction between the elements, which will be essential for the foundation of jurisdiction, and the mode in which such jurisdiction has to be exercised. The elements necessary for the foundation of jurisdiction under section 145 of the Criminal Procedure Code are that the Magistrate must be satisfied--
(a) that a dispute likely to cause a breach of peace exists ;
(b) that the dispute refers to land or water or the boundaries thereof ; and
(c) that such land or water is situated within the limits of his terri--torial jurisdiction."
13. In the instant case it is apparent from a perusal of the record that at the time of receiving the report by the learned S. D. M. There was dispute over the bungalow within the jurisdiction of the Magistrate and already First Information Report bad been lodged alleging that possession had been taken of the bungalow after criminal trespass and throwing out the goods. The dispute therefore should be considered likely to cause breach of the peace. The elements necessary for the foundation of jurisdiction under section 145 of the Criminal Procedure Code were very much in existence. In the Supreme Court decision already referred to it was further observed as under "In our opinion, when a Court exercises a jurisdiction not strictly in accordance with the mode prescribed by the statute, the question must necessarily arise as to whether the defect amounts merely to an irregularity or an illegality and the answer to this question must necessarily depend upon the character of the object of the rule which has been contravened. In a case falling under this section it is patent that the object of the rule requiring the Court to state the grounds of its satisfaction in the initial order is merely to inform the parties against whom proceedings are- sought to be initiated of the reasons which have induced the Court to take action, and thus, enable them to put up a proper defence. If the initial order recorded does not state these reasons and the party against whom it is directed finds it difficult to prepare his defence by reason of the vagueness of the order, he can always apply to the Court for demand of grounds. On the other hand, if the parties do not feel any difficulty owing to the omission of the grounds and adduce evidence in support of their respective cases it is difficult to appre--ciate upon what principle it can be said that the defect in the order amounts to an illegality vitiating the entire proceedings."
14. It was, therefore, observed that in such a case it must be held that there has been substantial compliance with the requirement of the provisions of section 145 of the Code and the defect is merely a technical defect.
15. In the instance case, as already stated, it is apparent that there was a civil suit filed in a Civil Court and that Court had issued order of status quo with regard to the possession of the bungalow which was the property to dispute. In the decision of the Supreme Court in Shah Muhammad v. Haq Nawaz and another (PLD 1970 SC 470) the ambit of jurisdiction of criminal Courts to attach under section 145 (4), Cr. P. C. Property which is already subject matter of an order of Civil Court regulating its possession during the pendency of the suit was considered. After considering the case law on the point, the Court observed as under :- ---The provisions of the two Codes set out above a material bearing on the question whether a Magistrate can, under, section 145 of the Criminal Procedure Code act in violation of a decree, or the terms of an order passed by the Civil Court during the trial of a suit. It becomes apparent at one that the proceedings initiated under sec--tion 145, Cr. P. C. Are subordinate to a decree or order passed by a Civil Court in respect of the property in dispute before the Magistrate. The preliminary concern of the proceedings under the Criminal Procedure Code is to prevent breach of the peace arising out of a dispute concerning `land' or water'. These proceedings though concerning the subject matter of dispute between the contending parties, do not concern themselves with the adjudication of their rights in the property. Resolution of the disputes lies exclusively in the realm of a Civil Court. The orders passed by a Magistrate for at--tachment of subject matter of dispute are therefore of a transitory nature. That is why a Magistrate will not appoint a Receiver if the property in dispute is already in possession of a Civil Court through a Receiver appointed by it, and the Receiver appointed by a Magistrate must make over possession to the Receiver appointed by a Civil Court subsquently. Section 145 therefore, proceeds on the premises that the Magistrate will cease to deal with the possession of 'land' or 'water' in dispute before him as soon as a Civil Court is seized with the dispute and has passed a decree declaring the rights of the parties there in or has passed an order regulating possession of the subject matter of the suit. In such a case if appre--hension of breach of peace prevails, the Magistrate can take action under sections 107 and 151, Cr. P. C. And bind down the party threa--tening to act in violation of decree of the Court or the terms of an interim order appointing a Receiver or requiring the parties to main--tain status quo. A contrary position will indeed lead to anomalous results."
16. The conclusion reached in the authoritative decision of the Supreme Court quoted above was that a case in which a Civil Court is seized of the matter of dispute and has passed an order regulating possession thereof will fall outside the jurisdiction of a Magistrate under section 145, Cr. P. C. And action can be taken under sections 107 and 151, Cr. P. C. To prevent breach of peace; but no attachment of the property can be ordered. In the instant case as already stated, the IVth Civil Judge and Assistant Sessions Judge, Karachi had granted status quo in the matter and the aforesaid order was passed on 6 January, 1980.
17. As already discussed, the mere omission to state the grounds upon which the Court was satisfied did not make the order of the learned S. D. M. To be without jurisdiction, and Mr. Syed Ali Nazir Advocate A for respondent No. I has also referred to the Supreme Court decision in Surgm Shah and others v. Jafar Shah and others (1972 SCMR 562) in which it was held that one the Court had validly acquired the jurisdiction it cannot be said that it has jurisdiction to make a correct order in the prescribed form, only and whenever the order is incorrect or defective the order must be held to be without jurisdiction. The conclusion reached is in accordance with the earlier decisions of the Supreme Court already referred to. The aforesaid principle of law enunciated by the Supreme Court was also referred to in the decision of this Court in Muhammad Nawaz v. Ghulam Kadir and three others (1975 P Cr. L J 80) and it was held that regardless of the fact that the Magistrate had not recorded satisfaction in regard to the like--lihood of breach of peace since the application under section 145, Cr. P. C. Indicated with clarity the circumstances in regard to likelihood of a breach of peace the mere omission of the recording of satisfaction in such regard would be a irregularity which would not vitiate the proceedings. Similarly, in Anwar Javed and others v. Ikramul Haq and others (PLD 1976 Lah. 1378) a decision of the Lahore High Court it was held that a civil suit filed in respect of subject-matter of dispute by itself was not sufficient to oust the jurisdiction of Magistrate, the Civil Court not having passed any order regulating posses--sion of disputed property. It was further held in that decision that satis--faction of the Magistrate as to apprehension of breach of peace concerning possession of immovable property conferred upon him jurisdiction to make order under section 145, Cr. P. C. And satisfaction need not be stated in express words.
18. In view of the above discussion it is apparent that the order of th4 learned S. D. M. Under section 145
(1) was not illegal and without juris--diction; but in view of the further fact that there was order of the Civil Court in respect of the possession of the aforesaid property pending decision of the suit for observance of the status quo, in view of the deci--sions of the Supreme Court reported in PLD 1961 SC 426 and F L D 1970 SC 470, it was no longer necessary to hold any enquiry or to issue 8 orders of attachment of the property which under the circumstances stated would amount to an abuse of the process of the Court. There has been no breach of the peace and if the interim order of the Civil Court with regard to observing the status quo is infringed, it would be punish--able as contempt of Court. To that extent therefore the application under section 561-A, Cr. P. C. Is allowed and the order of the Sub-Divisional Magistrate and the order of Second Additional District Judge in Revision No. 44/ 1980 are quashed.