MUHAMMAD AFZAL ZULLAH, J.--This appeal through leave of this Court is directed against judgment dated 16-7-1983 of the Baluchistan High Court, whereby an order of dismissal of ,applications under section 145, Cr.P.C. Was upheld in a criminal revision filed by the appellants under section 439, Cr.P.C.
2. There have been several proceedings about lands in dispute (Kordan, Korki and Jungle (Gowan) in different forums between to tribes. Murad Shahi and Mirwari, under different names of the individual tribesmen. The records of all of them have not been placed before us therefore the facts to be narrated herein and the decision rendered, together with the observations, shall be read strictly as relatable to the cases under section 145, Cr.P.C. For the same reason all facts about the disputes are not being stated here. And only the circumstances relevant for this appeal are being noticed from the memo of the petition for leave to appeal.
3. An application was moved by the appellants under section 145, Cr.P.C. Before an Assistant Commissioner and Magistrate Ist Class on 26-6-1980. Proceedings under section 145 (1) were duly conducted. Parties submitted their written statements. The learned Magistrate pending decision attached the property under section 145(4) proviso (2). The respondents challenged the attachment before the District Magistrate who set it aside without hearing the appellants on 17-3- 1981. The appellants' revision in the High Court succeeded with a remand order by the High Court as it put it, on "technical ground" of lack of hearing, otherwise, the decision on merits in the judgment dated 30-9-1981, as it appears from paras. 4 and 5 (part) would have been in favour of the respondents. During the remand proceedings a prosecution was launched under section 447, by the appellants. The parties were also bound down under section 107, Cr.P.C. The parties had also previously entered into an agreement for arbitration by a sole arbitrator, namely, the Qazi of Sohrab. Be that as it may, the District Magistrate "referred the case" to the Assistant Commissioner MIC. In the meanwhile another application under section 145, Cr.P.C. Was moved by the appellants before the District Magistrate on 9-4-1981 which was also sent to the Assistant Commissioner, MIC.
It is further asserted in the petition for leave to appeal that the learned Magistrate 1st Class has on "receipt of both the applications without recording any evidence merely on the presumption that the arbitrator's award was against the petitioners and relying on the photo documents produced by the parties, dismissed both the applications under section 145 on 5-8-1982.
4. In, fact while dismissing the applications the learned Magistrate took several circumstances into consideration including the aforementioned to and held also that "applicants are adopting various tactics in order to occupy the lands in dispute". The reference perhaps was to criminal, civil and other proceedings and actions taken by the appellants to secure the object of taking possession, but there was no success, therefore, a resort to 145, Cr.P.C. Was made to obtain possession easily.
The appellants revision petition in the High Court this the failed on merits. In the impugned judgment dated 16-7-1983 it was held that there was some basis for the Magistrate to come to the conclusion that the respondents were in possession of the land in dispute and further that in their own application dated 26-6-1980 it was admitted that the respondents had already taken possession without specifying the date of dispossession. It is also mentioned in the impugned judgment that the counsel for the appellants then admitted that they were "neither owners of the property nor in possession thereof." And that in view of these statements all "these proceedings are exercise in futility". This last part of the proceedings in the High Court has not been denied by the learned counsel for the appellants who himself had appeared for them in the High Court.
Leave to appeal was granted to examine the following argument of the learned counsel:- "that the High Court has ignored the fact that learned Assistant Commissioner had not acted in accordance with the mandatory procedure laid down in section 145 of the Code, and had rather erroneously based his judgment on the decisions in some other cases which cannot be treated as evidence in the cases under consideration. "
4-A. Section 145, Cr.P.C. In its subsection (4) clearly ,provides that it does not relate to an enquiry about the ownership of or even the right to possess, the property. It concerns itself with the possession at certain points of the, except that the former, to considerations might indirectly become relevant in the particular circumstances of a case, to determine the question of possession.
5. The same provision read with section 148 prescribes the mode of procedure in these proceedings. It is essential to take the following steps: -
(i) The initial satisfaction under section 145 (1) on the relevant information about the dispute mentioned in section 145 (1), Cr.P.C. And other proceedings there under. On this part see Muhammad Ishaq Chowdhury v. Noor Mahal Begum, PLD 1961 SC 426 for essential requirements.
(ii) Perusal of the statement (if any) put in writing by virtue of the opportunity afforded under subsection (1) with regard to the claim about actual possession.
(i.e) Hearing to be afforded to the parties in contradistinction to the admission of evidence which is a separate and distinct step. Hearing in this context would, amongst others, also include oral hearing explaining and supplementing the above-referred statements and material referred therein as also, the admissions and conduct of concerned persons together with other material placed on record on various hearings. Inspection of other records and places if need be as is justified by the facts of case shall also be permissible, though not mandatory.
(iv) Affording a fair opportunity to the parties to produce and in this context receiving of evidence which might be produced by them, subject of course to the normal rule of fair play that it will not be received if the purpose to adduce the same is vexation, delay or defeating the ends of justice.
(v) Taking of such additional evidence if the Presiding Officer himself considers this step necessary.
(vi) It is essential for the Magistrate to drop the proceedings ;as, envisaged by section 145 (5) if "no such dispute existed". 'A' party or person interested can show this in any manner appropriate in the circumstances. The existence /continuance of such dispute is always necessary for passing the final orders under section 145, Cr.P.C. See Malik Manzoor Elahi v. Lala Bishambar Dass PLD 1964 SC 137.
None of the parties, it is clarified, can be coerced to exercise a right in all circumstances. It is enough if a fair opportunity is afforded for the exercise of the same. In appropriate case where a party is not represented by a counsel it would be in the interest of justice that the Presiding Officer should be satisfied in any manner suitable in the circumstances that the said party is also aware of the right. In these proceedings, e.g. It would be conducive to ends of justice to ask the parties to produce evidence if they so desire. Though depending upon circumstances of each case together with its consequences as to whether substantial justice has been done or not, mere absence of recording of an order showing the affording of this opportunity, if otherwise afforded, would not vitiate the proceedings.
(vii) In cases where local inquiry is necessary it can be directed under section 148. Though scope of this inquiry nor its procedure is prescribed in any detail in section, nevertheless, the result of this inquiry in the form of a report, can be read as evidence in the case.
6. It is not possible in all cases launched under section 145, it is very important to note, to give a decision on the disputed question of fact about actual possession, because in some cases the Magistrate despite normal effort may not be able to satisfy himself as to which of the parties was in possession at the relevant the or otherwise may discover that none of them was in such possession. He should not then decide the question of possession in a half hearted uncertain manner. It, instead of advancing, would stifle justice. It would then become a case for proceeding under section 146, provided the specified dispute persists. In that eventuality in particular and otherwise to the guiding principles laid down by this Court in Shah Muhammad v. Haq Nawaz and another PLD 1970 SC 470 in so far as the effect of the orders passed by the civil Court on the proceedings by the Magistrate under sections 145 and 146, is concerned, shall have to be kept in mind. It is however clarified that the power of the Magistrate to proceed under section 107, Cr.P.C.
Would in any case remain unaffected, as is also envisaged by subsection (10) of section 145.
7. In the light of the foregoing discussion it is to be seen whether the steps essential to be taken under section 145 were taken by the learned Magistrate in this case. It was necessary for him to be satisfied under subsection (1) of section 145 that a dispute of the type mentioned therein did exist. It seems this initial satisfaction was there in so far as the present proceedings are concerned. None has disputed this aspect before us. But dispute can always be raised by any of the parties whether in the right or in the wrong. However the Magistrate it seems took the necessary measures at the initial stage, the ones prior to the inquiry under subsection (4) of section 145.
The controversy raised is whether all steps were taken under subsection (4). It is on record that the parties were afforded opportunity of putting in the written statements and they did avail of it. They also were afforded hearing on several dates at which they made oral submissions and placed on record old documents copies including Sanads as also agreements between the parties and arbitration award the existence of which was not denied by any party. None indeed objected to the placing on record of all this material. All of it, together with the admission of the appellants in their application dated 26-6-1980 which was part of material on record, to the effect that the respondents were in possession of the land in dispute without asserting the date of dispossession, was sufficient for the learned Magistrate to dismiss the appellants' application. He was right in observing that the appellants' have failed to obtain possession had resorted to this method of obtaining possession under section 145. It is obvious misuse of the provision.
8. It needs to be mentioned here that the learned Magistrate despite his findings on the appellants' claim about possession being in the negative, made salutary observation in accord with the principles underlying section 146, Cr.P.C. As also the rule laid down by this Court in the case of Shah Muhammad (supra). It is to the effect that if the appellants and others of Murad Shahi tribe still have any claim whatsoever, over the lands in dispute, they may seek civil remedy in accordance with the law.
9. It also needs to be observed that the reliance of the learned Magistrate on the 'material' placed on record by both the parties (to which none objected) together with the admission in the application of the appellants, is also unexceptionable). The observations by this Court with regard to the word 'proved' as defined in section 3 of the Evidence Act in State v. Habibur Rahman PLD 1983 SC 286 and Habibullah v State PLD 1983 SC 401, and use of 'material' placed before a Magistrate under section 145, Cr.P.C. As demonstrated in the case of Muhammad Ishaque Chowdhury (supra) would support him in this behalf.
10. Moreover the perusal of the original record, has revealed that the learned Magistrate recorded the statements in Court of several persons including those of the parties. Not only this it also needs to be, mentioned that the learned counsel for the appellants made admission in the High Court about ownership and possession which would show the, motive for the proceedings under section 145, Cr.P.C. Thus the dismissal of the appellants' applications by the learned Magistrate and) the dismissal of the Criminal Revision by the High Court was justified on facts and law both.
11. No justification is made out for interference by this Court. Accordingly the appeal is dismissed.