1. The applicant Nawabdin alias Baboo son of Merajdin, seeks quashment of the proceedings initiated by the Assistant Commissioner and Sub-Divisional Magistrate, Cantonment. Karachi, under section 145, Criminal Procedure Code, pursuant to the order dated 20th October 1971, which reads as follows: "Whereas from the police report submitted by S. H. O. P. S. Landhi, I am satisfied that there appears to exist imminent apprehension of breach of peace within the local limits of my jurisdiction over the possession of the Plot No. 130, Road No. 7, situated in Bhens Colony, between the applicant Mohammad Ishaque and Nawab Deen and others, which may disturb the public peace and tranquillity. The S. H. O., P. S. Landhi is therefore directed to seal the said disputed plot according to law pending disposal of the case, and report compliance."
2. The police report, on the basis of which the order was passed, is not on the file of the trial Magistrate, but its certified copy with English translation was produced by the learned counsel for the petitioner. The allegations therein and also on the record of the trial Court, are that the disputed plot in the Cattle Colony, Landhi, Karachi, was allotted to Mohammed Ishaque, who gave possession of a portion thereof to the petitioner and his relatives for keeping cattle. Subsequently, dispute arose between the parties as the petitioner trespassed on the whole area and refused to vacate, which conduct in the opinion of the learned Sub-Divisional Magistrate was grave enough to lead to imminent apprehension of breach of peace, necessitating drawing up of proceedings under section 145, Criminal Procedure Code.
3. Further steps in the proceedings by way of filing written statements, etc. have not yet been taken by the parties, and the petitioner has approached this Court for quashment of the proceedings.
4. It is contended, on the basis, of certain receipts of water- charges, ration card, etc., that the applicant has been in possession of the disputed plot ever since the year 1967, and the police report does not speak of dispossession of the complainant and, therefore, there was no material on which the learned Sub- Divisional Magistrate could pass an order under section 145, Cr. P. C. It was further contended that Mohammed Ishaq has not been forcibly and wrongfully dispossessed within two months from the date of passing the order by the Magistrate, and actually Mohammed Ishaq was never in physical possession of the plot in question, and the question of his dispossession therefore does not at all arise.
5. I am afraid, in these proceedings, I cannot take notice of or decide the respective contentions urged by the parties. All that is worth examining, however, is whether there was material before the learned Sub-Divisional Magistrate, Karachi, upon which action under section 145, Criminal Procedure Code, could be taken. It is well settled in law that if the Magistrate is satisfied from a police report or other information, that a dispute likely to cause breach of peace exists, and that dispute refers to water, land or boundaries thereof, and further that such land or water, etc. is situated within his jurisdiction, the order passed by him would not be open to challenge in proceedings of the type brought by the petitioner before this Court. There is no dispute in the present case as to the territorial jurisdiction of the Magistrate, and that the dispute, if at all, related to land. The question then is whether from the papers laid before the learned Magistrate in the shape of police report, etc., he could base a satisfaction that dispute, likely to cause breach of peace, existed.
6. The police report presented before the Magistrate does show that the petitioner and his party were prepared to fight because of which there was apprehension of breach of peace. It may be further said that separate proceedings under section 107/117, Cr. P. C. have also been drawn up against the applicant. It ;annot, therefore, be legitimately urged that there was no basis lt all upon which the learned Magistrate could have taken action rnder section 145, Cr. P. Code.
7. I may add that the learned counsel relied upon certain cases, 'iz. PLD 1964 Kar. 69, PLD 1958 Lah.
8. 738, 1969 P Cr. L J 259, PLD 1969, Pesh. 156 and PLD 1963 Kar. 585, for the intention that where no factual basis or material exists for taking cognizance of a criminal complaint, or if a criminal complaint discloses a dispute of a civil nature, these matters are to be left for determination of civil Courts, and the criminal proceedings should be quashed. There can be no exception to the views taken in these cases, but for the reason that I have held in this case that there was enough material before the learned Sub-Divisional Magistrate for drawing .up proceedings under section 145, Criminal Procedure Code, I am of the opinion that interference, at the present preliminary stage of the proceedings, would not be legitimate.
9. For these reasons,- the Miscellaneous Application is dismissed. .