' M. S. H. QURAISHI, J.-The main question arising in this petition is the true interpretation of section 145, Cr. P. C. It arises in the following circumstance:
2. Land measuring 2 kanals 2 marlas and 169 Sq. Ft. Situate in Chak No, 223/R. B., Samundri Road, Faisalabad, had been leased out by Abdur Razzaq, respondent No, 3, to one Riaz Ahmad on 25-11- 1976, for the purpose of building a factory thereon. Riaz Ahmad died on 11-8-1977, where after Fazal Haq and Javed Iqbal petitioners, who are father and brother, respectively, of Riaz Ahmad, set up the factory and are said to have been paying the annual lease money regularly until the night between the 9th and 10th October, 1982, when Abdur Razzaq, the owner of the land, along with respondents 1 and 2, allegedly forcibly took over possession of the factory, ousting the petitioners. A case was registered on 12-10-1982 with the police at the instance of the petitioners under sections 448/149 and 148, P. P C. A private complaint was also lodged under sections 382/448/149 and 148, P. P. C. Not content with this, the petitioners also moved an application on 11-11-1982 for proceeding under section 145, Cr. P. C., in which an interim order was passed on 29-12-1982 for attaching and sealing the property. After recording evidence of the parties, the Magistrate came to the view that the dispute was not such as was likely to cause a breach of the peace and that there was nothing in the evidence to justify a conclusion that a breach of the peace was likely to be caused by the dispute. He, therefore, by order, dated 9-1-1984 dismissed the application under section 145, Cr. P. C.
And directed the police to reseal the factory and to hand over its possession to the party from which it had been taken. On revision filed by the petitioners, the Additional Sessions Judge, Faisalabad, before whom the only question raised was as to which party was entitled to the restoration of possession of the property after its release from attachment, held that the petitioners had been in actual possession of the property till the night of 9th October 1982, when they were forcibly evicted and thus were entitled to the restoration of the property under subsection (4) of section 145, Cr. P. C. He, therefore, by his order, dated 1-3-1984, set aside the order of the Magistrate and directed that possession be restored to them.
3. This order was sought to be quashed by Abdur Razzaq and others (respondents Nos. .1 to 3) through Criminal Miscellaneous No, 66/Q of 1984. During the hearing of the petition, the parties agreed to refer the dispute to arbitration and an order to this effect was made on 17-9-1984 but it was recalled at the instance of the petitioners, upon the view that a reference to arbitration was not in keeping with the intent behind section 145, Cr. P. C. The finding given by the Magistrate that an apprehension of breach of peace did not exist, was not disputed by either party but it was urged on behalf of the petitioners that the Magistrate was, nevertheless, bound to decide on the basis of the evidence as to which of the parties was in possession when the initial order was made under subsection ,,1), or entitled to be treated to be in pc session if forcibly dispossessed within two months next before the date of such order and to direct the restoration of possession to that party.
This was repelled by the High Court and the view taken was:- "But where the Magistrate finds that there was no such dispute when he called upon the parties to submit their statements of the case, he has no jurisdiction to further decide under section 145(4), Cr. P. C. The question as to which party was in possession, for he can only drop the proceedings under section 145(5), Cr. P. C. And to pass such consequential order in order to restore status quo ante"
' Consequently the order passed by the Additional Sessions Judge was quashed and that of the Magistrate was restored.
4. Under the scheme of section 145, Cr. P. C., a Magistrate can act only if he is satisfied that "a dispute likely to cause breach of the peace exists" and it is on such satisfaction alone that he shall make a preliminary order under subsection (1) and thereafter make an inquiry under subsection
(4) for deciding whether any and, if so, which of the parties was at the date of the order in possession and for this purpose, according to the first proviso to this subsection, he may treat the party which had, within two months next before the date of the order, been forcibly and wrongfully dispossessed as if he had been in possession at such date, and if in the result of the inquiry he decides that one of the parties was or should be treated as being in such possession, he shall, under subsections (6), issue an order declaring such party to be entitled to possession until evicted therefrom in due course of law and if be proceeds under the first proviso A to subsection (4), may restore to possession the party forcibly and wrongfully dispossessed. It has to be kept in mind that the inquiry has to be limited to :.He question as to who was in possession in fact on the date of the preliminary order irrespective of the question as to the right to possession of the parties or to their title to the property.
5. Since the pre-condition for the applicability of section 145, Cr. P. C. Is the existence of a dispute likely to cause disturbance of the peace, subsection (5) requires the Magistrate, in case no such dispute exists or has existed, to cancel his order made and stay all further proceedings. It is thus obvious that an infringement of private rights or dispossession of any of the parties or the existence of a dispute relating to immovable property is per se not enough to attract the provision of section 145, Cr. P. C. The section is designed to meet an emergent situation posing threat to peace and cannot be used for settling the rights of the parties or their claim to title. This makes the import and purpose of subsection (5) clear. Where, therefore, the Magistrate finds that no breach of the peace exists, he has no jurisdiction to make an order regarding the subject of the dispute. There is plenty of case-law to support this view and a mention in this connection may be made to Noor Ahmed v.
Jamil Ahmed (1), Nawazish Ali v. The State (2), Gehlo v. Rehmatullah (3), All Hossain v. Sayedur Rahman (4), and Arabinda Bhattacharjee v. Abdur Rahman (5). This was also the interpretation put by this Court in Manzoor Elahi v. Bishambar Das (6), when it was observed:- "This subsection (5) clearly empowers any of the parties concerned in the dispute and even any other person interested to appear before the Magistrate and deny the existence of the dispute, and if the Magistrate upon enquiry is satisfied that no dispute likely to cause a breach of the peace exists or existed concerning any land or water or the boundaries thereof, then the Magistrate has no other alternative but to cancel his earlier preliminary order made under subsection (1) of section 145, of the Criminal Procedure Code and to stay all further proceedings subject to such cancellation."
' And further that: "the provisions of section 145, read as a whole clearly indicate that there should be a continuing danger of a breach of peace the time the final order is made. The use of the word 'exists' in the present tense in subsection (5) connotes that the dispute must continue to exist even at the time when the objection is raised. The main purpose of this section being the maintenance of public peace and the prevention of breaches thereof it would follow that where there is no danger at any point of time of any further breach of public peace taking place, then manifestly the invocation of the summary procedure provided by this section is no longer called for and should be put an end to."
6. Learned counsel relied on an Indian case R. H. Bhuttani v. Mani J. Desai (7), but that not being a case where subsection (5), had been applied has no relevance.
7. The above discussion makes it clear that the course adopted by the Magistrate was in conformity with the law and thus the High Court was fully justified in restoring the Magistrate's order. No case is made out for interference and as such leave to appeal is refused.
(1) 1975 P Cr. L J 75 (2) 1975 P Cr. L J 510
(3) 1974 P Cr. L J 345 (4) 1969 P Cr. L J 822
(5) 1969 P Cr. L J 338 (6) PLD 1964 SC 137