The judgment will dispose of Criminal Revision No. 488 of 1970 as well as the suo niotu revision with regard to the correctness of the order dated 18th November 1968 of the Resident Magistrate, Dcpalpur ordering the scaling of the shops in question.
2. The facts of the ease briefly arc that Okara Bus Service Limited, the petitioner in Crl. Revision No. 488 of 1970, was the transferee of Khasra No. 87/15/2 including some other numbers measuring 2 kanals and 4 marlas. The Company had constructed four rooms on the land, for the use of the conductors and drivers etc. It is alleged that Jan Muhammad and Noor Muhammad respondents got two of the rooms allotted in their names (as shops) and took possession of the same under Settlement Scheme No. VII. A report under section 448, P. P. C. was, therefore, lodged against them by the Okara Bus Service Company Ltd., on 28-10-1968. Proceedings under section 145, Cr. P. C. were also drawn up by the local police on 9-11-1968.
3. The Okara Bus Service Company Ltd., preferred an appeal before the Assistant Commissioner, in his capacity as the D. S. C. (L), against the allotment of the two shops to Jan Muhammad aud Nur Muhammad, which was dismissed and the allotment in favour of Jan Muhammad and Nur Muhammad was upheld. The petitioner Bus Company then went up ill revision before the Settlement Commissioner. In the meanwhile on 18-11-1968, the learned Resident Magistrate, Depalpur, with whom the matter under section 145, Cr. P. C. was pending passed a preliminary order under subsection (1) of section 145, Cr. P. C. and also ordered the sealing of the shops in dispute. Jan Muhammad and Nur Muhammad respondents filed an application on22-9-1969 for the withdrawal of the attachment order, before the learned Magistrate. The same was rejected on 8-10-1969. The respondents then made an application for dcsealing of the shops, to the Assistant Commissioner, Depalpur, who by his order dated 9-4-1970 found that there was no dispute with regard to the title of the shops, because he had himself vide his order dated 20-3-1970, passed in his capacity as D. S. C. (L), upheld the validity of the allotment of the shops in favour of the respondents. He, therefore, ordered of the descaling of the shops and also ordered that the possession thereof should be given to the respondents.
4. The Okara Bus Company came up in revisiou (Cr. Revision No. 488 of 1970) against this order.
During the hearing of the revision petition the learned counsel for the respondents pointed out that the original order directing the sealing of the shops passed by the Resident Magistrate, was itself bad, because the said Magistrate had no material before him on which he could have been satisfied as to the existence of imminent danger of breach of peace. J, therefore, summoned the file of proceedings under section 145, Cr. P. C. from the Court of the learned Resident Magistrate, Depalpur, to examine the correctness and legality of his order dated 18-11-68, inter alia ordering the attachment of the shops.
5. I have heard the learned counsel for the parlies as well as the learned State counsel.
The State counsel informs me that during the pendency of this application the learned Settlement Commissioner accepted the Revision of the Bus Company and remanded the case to the D. S. C, (L)-Assistant Commissioner, Depalpur for fresh decision. The latter, thereupon, reversed his previous order, dated 20-3-1970, whereby he had dismissed the appeal of the Bus Company. He has not accepted the company's appeal and held that the allotment of the shops in favour of Jan Muhammad and Nur Muhammad respondents was based on fraud and forgery by the Patwari.
6. As already mentioned the basis of his earlier order dated 9-4-1970 by which he had ordered the desealing of the shops (the impugned order in Cr. Revision No. 488 of 1970), was that he {i.e. the Assistant Commissioner) had himself decided on 20-3-1970, as D. S. C. (L), that the allotment in favour of Jan Muhammad and Nur Muhammad respondents was valid and that there was no dispute, was therefore, left between the parties. That basis, itself, has now been removed by the Assistant Commissioner's fresh order whereby lie has reversed his previous view, that there was no dispute left between the parties. His order dated 9-4-70 is, therefore, no longer sustainable. The same is, accordingly, set aside.
7. I now advert to the order dated 18-11-1968 passed by the R. M. Depalpur whereby he ordered the sealing of the shops in question.
For a better understanding of the case it will bo appropriate to reproduce this order in extenso : U2-H 'i'JD' Ij 4 jA -L(jal (j-ail Acj Li" *S~ .
J*' 3* T A-1 l-TA yd" Li p5sa- r.bj yi y (Sd.) M. I. C. Ll I 18-11-68." ^ ^ It is apparent from a reading of this order that it is based entirely on the report of the police.
However, on perusing of the report in question (dated 11-11-1968), I find that the police has reported as follows:-- tjii sC-ij (jb eb,--i (j-l (j-aai 444,Aj I tSJJp 4 j.* " ** L5s- y ^ ^1 jjaal
8. The learned counsel for the respondents argued that the satisfaction of the learned Resident Magistrate is not based on any material before hint and in fact it is contrary to the report submitted to him by the police. The learned counsel for Okara Bus Company contended on the other hand that the proceedings under section 107/151, Cr. P. C., as well as a case under section 448 between the pat ties, were pending before the same Magistrate and he was entitled to rely on his personal knowledge about the pendency of the said cases, (besides the police report), for coming to the conclusion that there was an imminent danger of breach of peace. For this argument he relied on Alauddin Bhuia and others v. Anwar All (1) and Dilbaz Khan v. The State and another (2).
No doubt the learned Magistrate can base his satisfaction on any other information available to him, but it is clear from a reading of his order under consideration that he confined himself only to the police report submitted to him. No other factor was, it appears, taken into consideration by him.
It cannot, therefore, be said that his satisfaction was based on anything other than the police report. As already mentioned, the police report does not show that there was an imminent danger of breach of peace. I, therefore, feel that the learned Magistrate did not apply his mind to the police report before him and his satisfaction which purports to have been based upon the said report is not proper. His order dated 18-11-1968 is therefore set aside.
9. The two revisions are disposed of accordingly. .
(1) PLD 1956 Dtcca 253 (2) PLD 1959 Lah. 261