1. HAMOODUR RAHMAN, C. J.-These two petitions have been filed for Special Leave to Appeal from a consolidated order of a learned Single Judge of the High Court at Lahore whereby two criminal revisions and two criminal miscellaneous applications in connection therewith were dismissed.
2. These applications arose out of proceedings commenced under section 145 of the Code of Criminal Procedure in respect of a dispute relating to godowns bearing Nos. 733-A/732-A situated on City Sadar Road, Rawalpindi. The petitioner Noor Mohammad claimed that he was the owner in possession of godown No. 733-A having acquired the same under Settlement Scheme No. VIII ofthe Displaced Persons (Compensation and Rehabilitation) Act, 1958. Godown No. 732-A was, according to him, transferred to one, Mirzi Muhammad Beg who, in his turn, sold it to respondent Malik Chiragh Din. The petitioner alleged that a dispute arose between him and Chiragh Din regarding a small portion of a shop on the south of his godown which was being falsely claimed by Chiragh Din to be a part of his own property. Chiragh Din forcibly took possession of this shop on which the petitioner lodged a report on 8-10-68 with the `A' Division Police, Rawalpindi, under section 448 of the Pakistan Penal Code.
3. Chiragh Din, on the other hand, claimed that the entire godown, which originally bore Nos. 732-A and 733-A, was transferred to Mirza Muhammad Beg and he purchased the same from Mirza Muhammad Beg in 1924 by a registered deed of sale. A part of the property was then let out to one, Makhan Khan, an elder brother of the petitioner Noor Muhammad, who subsequently attempted to take forcible possession of the entire godown.
4. It appears that the police, after investigating the case, submitted a report to the Magistrate on the 18th of October 1968, for the drawing up of proceedings under section 145 of the Code of Criminal Procedure, as due to bitter enmity between the two parties which had arisen over their rival claims to the godown in question there was a serious "danger of breach of peace at any time." On perusal of this report the Magistrate on the 22nd of October 1968, recorded the following order : "This kalandra has been received today. Report of the police has been examined. Both the parties should be summoned through notice for 25-10-68 to produce their written statements."
5. In compliance with this report the petitioner filed his written statement on 1-11-68 claiming that godown No. 733-A had been transferred to him by the Settlement Department and that he was in possession thereof since 1958. The dispute, according to him, related only to a small shop situated in the said godown which had been forcibly end wrongfully taken possession of by Chiragh Din and his son, Malik Mohammad Riaz, on 8-10-68. Hence the possession of the shop in dispute should be restored to him. In this written statement no objection was taken to the jurisdiction of the Magistrate. During the pendency of this proceeding the police also submitted another kalandra under sections 107/150 of the Code of Crimal Procedure for binding down the petitioner Noor Muhammad, his brother Makhan Khan, and one Raja Muhammad Aslam, who claimed to be the special attorney of the petitioner Noor Mohammad and had in fact lodged the information against the respondent Chiragh Din and his son Muhammad Riaz under section 448 of the Pakistan Penal Code. This kalandra was discharged on 23-8-69 on the ground that since the initiation of proceedings under section 145 of the Code of Criminal Procedure no incident had occurred nor was there any danger of breach of peace. Subsequently another proceeding under section 107 was drawn up against these very persons for an alleged attempt to take forcible possession of the disputed shop on 18-11-69. In this proceeding the Magistrate on the 28th of April 1970, bound them down but on appeal the order was set aside.
6. In the meantime, the petitioner on the 21st of November 1969, applied for transfer of the case to the Court of some other Magistrate on the ground that instead of recording evidence on the date fixed in the proceedings under section 145, which had been pending then for over a year, the Magistrate had obtained an ex parte report from the police and wanted to seal the premises. On this application the case was transferred by the District Magistrate on the 26th of November 1969, to the Court of Raja Muhammad Ashraf, another Magistrate of the First Class at Rawalpindi. An application, it appears, was also moved at about the same time for dropping the proceedings on the ground that there was no longer any apprehension of the breach of peace and in this application for the first time it was contended that the initial order was bad, as the Magistrate had not recorded that he was satisfied that there was apprehension of breach of peace. The proceedings were not, however, dropped. The petitioner came to the High Court in revision without any success. The High Court remanded the case back for disposal. The case was taken up by another learned Magistrate, Mr. Roy Anwar Kalyar. He after hearing the parties and noticing how bitterly they were opposed to each other, took the view that "the parties are bound to cause a breach of peace if both of them are allowed to remain in partial possession of the disputed premises" during the pendency of the proceedings. Hence to prevent the possibility of blood-shed between the parties and to preserve public peace he on the 21st of September 1970, in exercise of the powers under the second proviso to subsection (a) of section 145 directed the attachment of both the godowns Nos. 732-A and 733-A. It is against this order that the petitioner Noor Mohammed came to the High Court in revision, being Criminal Revision No. 988 of 1970. Before that he had filed Criminal Revision No. 6 of 1970 under section 561-A of the Code of (criminal Procedure for quashing the proceedings under section 145 pending before the Magistrate, on the ground that they were in abuse of process of Curt. The High Court dismissed both the petitions with the direction that the Magistrate should dispose of the proceedings within two months.
7. It appears that the petitioner Noor Muhammad has since also filed a civil suit, being No. 782 of 1970, on the 24th of July 1970, for possession of the disputed shop, on the allegation that it is a part of property No. 733-A which was transferred to him by the Settlement Department and in respect of which he holds a P. T. D.
8. It is now sought to be contended on behalf of the petitioner that the High Court had failed to notice that the entire proceeding were without jurisdiction, as the initial order which has been quoted earlier, does not disclose that the Magistrate was satisfied that there was apprehension of breach of peace. This went to the root of the jurisdiction of the Magistrate, for, until he was so satisfied he could not issue the preliminary order. The High Court has rejected this contention on the ground that the petitioner never took this objection at an early stage but stood by and allowed the Magistrate to proceed with the proceedings for nearly 14 months before taking up this objection.
9. Apart from this, it appears to us that this objection cannot be sustained in view of the decision of this Court is the case of Muhammad Ishaq Chowdhury v. Nur Mahal Begum arid others (PLD 1961 SC 426), where it was pointed out that if the elements necessary for the founding of jurisdiction did in fact exists, then even if the Magistrate "does not strictly comply with the other requirements of tine section as to the form of the order and does not state the ground of his being so satisfied", the order, though defective in form, is not without jurisdiction. In the present case, the necessary elements existed. There was no question, therefore, of want of jurisdiction. The most that could be said in such circumstances was that the Magistrate had been guilty of non-compliance with a rule of procedure but this cannot amount to an illegality vitiating the entire proceedings.
10. The next contention advanced is that the learned Judge of the High Court has recorded findings which will adversely affect the case of the petitioner in the Court below. Having carefully examined the judgment of the High Court we find no such observations therein which can be construed as findings on the merits of the case. All that the learned Judge has said is that there is no evidence before him on which he can come to any definite conclusion: There is nothing in the judgment of the High Court, therefore, which is likely to adversely affect the petitioner's case in the original Court.
11. In any event, this is not a fit case to which any interference is called for. The petitioner having already approached a Civil Court should get his title decided there and whatever order the criminal Courts make under section 145 of the Code of Criminal Procedure must necessarily be subject to the order of the Civil Court. It is clear from the plaint in the civil suit itself that the petitioner is out of possession of the disputed shop. Therefore, until his title is declared he cannot get back possession. So far as the order for sealing the entire godown is concerned, he may apply to the Magistrate for revising his order if he is admittedly in possession of any portion of the godown with respect to which there is no dispute.
12. With these observations we dismiss these petition.