' Applicant Imtiaz Ahmed Chatha has moved this application under section 561-A, Cr.P.C. For quashment of two orders, one passed on 26-1-1988, by Assistant Commissioner and S.D.M. Civil Lines, Karachi, directing delivery of possession of disputed premises to respondent No,1, after desealing it, and the other passed on 20-3-1988 by the Sessions Judge (South) Karachi, remanding the case to Assistant Commissioner and S.D.M. Civil Lines, Karachi, with direction to pass a preliminary order, if he so thinks fit and then to proceed afresh.
2. Applicant, an Advocate by profession claims to be in lawful occupancy of office premises, namely, Room No,304, Panorama Centre, Saddar, Karachi, as tenant of respondent No,1. The applicant worked as legal adviser of some companies of which respondent No,1 is the Managing Director. However, around the end of the month of December, 1987, a dispute arose between the parties over the payment of bill of professional fee. It is alleged that on 2-1-1988, the respondent No,1 with the help of others criminally trespassed into the said office and evicted the applicant forcibly. The matter was reported to S.H.O. Artillery Maidan Police Station, who took up the investigation and on 21-1-1988, submitted a report to Assistant Commissioner and S.D.M. Civil Lines, Karachi, for taking action under section 145, Cr.P.C. The learned Magistrate passed a common order under subsection (1), and under second proviso to subsection (4) of section 145, Cr.P.C,, directing the attachment of the disputed premises. By the said order the parties were also directed to file their written statements regarding their respective claims about the fact of actual possession. On 26-1-1988, the learned Magistrate passed the impugned order with the following directions:-- "After hearing the arguments of the counsel for the second party (Kalimullah) I am of the view that on the basis of documents filed and after perusing the police report that there is no imminent danger of breach of peace between the parties and (that it is) in the interest of justice the premises is descaled and the possession of the said premises be handed over to company in whose possession the premises was sealed on 21-1-1988,"
3. The applicant challenged this ex parte order before Sessions Judge (South) Karachi by filing Criminal Revision No,12 of 1988, under section 435/439-A, Cr.P.C. Who vide order dated 20-3-1988 remanded the case with the following direction:- "Under the provision of section 145, Cr.P.C. The Magistrate can act only if he is satisfied that dispute exists likely to cause breach of peace and on such satisfaction alone he shall make a preliminary order under subsection (1) and thereafter he can pass an order under the proviso (2) of section 145(4), Cr.P.C. For attachment of the property if he is satisfied that it is a case of emergency for attachment of the disputed premises. This view gets support from the Rule laid down in case of Ali Baghan v. Ghulam Mohiuddin referred above particularly paragraphs 6 to 8 referred above. This Court can exercise the suo motu provisional power to correct the illegality committed by Magistrate. The order of attachment under section 145(4), Cr.P.C. Without the preliminary order under section 145(1), Cr.P.C. Is set aside and the case is remanded back to the S.D.M. With direction to pass a fresh preliminary order, if he so thinks necessary and then begin the proceedings fresh from the initial stage. Both the parties having appeared before the Magistrate, he will scrutinize the facts carefully before he comes to the conclusion whether the proceedings under section 145, Cr.P.C. Should be started in this case or not. If after hearing both the parties he comes to the conclusion that it is a case to which he should start an enquiry under section 145, Cr.P.C. He will pass proper preliminary order as required by law. After weighing the entire circumstances of the case may pass a proper and judicial order whether attachment in such circumstances was warranted or not."
4. It is in these circumstances that the applicant has filed the present application under section 561-A, Cr.P.C. Seeking quashment of both the above orders.
5. I have heard Mr. Mazhar Jafti, learned counsel for applicant and Mr. Hayat Qureshi, learned counsel for State. The latter has not supported the impugned orders.
6. While deciding Criminal Revision No,12 of 1988, the learned Sessions Judge was of the view that the order, dated 26-1-1988 passed by Assistant Commissioner and S.D.M. Civil Lines, Karachi, by which he directed the delivery of possession of disputed premises to respondent No,1, after desealing it, was not legal as according to him the proper remedy for the aggrieved party was to apply for cancellation of order of attachment under subsection (5) of section 145, Cr.P.C. Which was not done. He, however, remitted the case to Assistant Commissioner and S.D.M. Civil Lines, Karachi, mainly on the ground that the order under subsection (4) of section 145, Cr.P.C. Was passed before passing an order under subsection (1) of section 145, Cr.P.C. Which was an illegality thereby vitiating the entire proceedings.
7. Subsection (1) of section 145, Cr.P.C. Which is relevant in this case provides as follows:-- "Whenever a District Magistrate, Sub-Divisional Magistrate or Magistrate of the first class is satisfied from a police report or other information that a dispute likely to cause a breach of the peace exists concerning any land or water or the boundaries thereof, within the local limits of his jurisdiction, he shall make an order in writing, stating the grounds of his being so satisfied, and requiring the parties concerned in such dispute to attend his Court in person or by pleader, within a time to be fixed by such Magistrate, and to put in written statements of their respective claims as respects the fact of actual possession of the subject of dispute."
8. It is the preliminary order passed under subsection (1) of section 145 The parties should file their written statements regarding their respective Cr.P.C. That gives the Magistrate jurisdiction to proceed under section 145, Cr.P.C. And an omission to draw up a preliminary order renders all proceedings void. No specific form is, however, prescribed for drawing up a preliminary order. For such an order no type design, form or particular set of words has been prescribed. Therefore, all that the preliminary order must show is that the Magistrate is satisfied:-
(i) that there is a dispute concerning possession of land or water or boundaries thereof, and
(ii) that such a dispute is likely to cause a breach of peace.
9. Subsection (4) of section 145, Cr.P.C. Again lays down:- "The Magistrate shall then, without reference to the merits or the claims of any of such parties to a right to possess the subject of dispute, peruse the statements put in, hear the parties, produced by them respectively, consider the effect of such evidence, take such further evidence (if any) as he thinks necessary, and, if possible decide whether any and which of the parties was at the date of the order before mentioned in such possession of the said subject: ' Provided that, if it appears to the Magistrate that any party has within two months next before the date of such order been forcibly and wrongfully dispossessed, he may treat the party so dispossessed as if he had been in possession at such date: ' Provided also, that if the Magistrate considers the case one of emergency, he may at any time attach the subject of dispute pending his decision under this section."
10. Subsection (1) when read together with subsection (4) of section 145, Cr.P.C. Makes it clear that once the Magistrate assumes jurisdiction he is competent to attach disputed property 'at any time'.
It, therefore, follows that an order under subsection (1) of section 145, Cr.P.C. Can be combined with an order under subsection (4) of section 145, Cr.P.C. The order, dated 21-1-1988, passed by learned Magistrate on the order-sheet makes the entire position clear. It says:-- "Under section 145. Cr.P.C. 21-1-19.88_Policc report under section 145, Cr.P.C. Received today.
Register the case. From the perusal of the report of the S.H.O. Artillery Maidan Police Station, Karachi, there appears imminent danger of breach of peace and I am satisfied that the matter appears to be that of emergent nature. Issue attachment warrants under section 145(4), Cr.P.C. For sealing the office No,304 Panorama Centre, Karachi claims vis-a-vis the fact of actual possession of the subject of dispute. Case for 25-1-1988.
11. The warrant of attachment purported to have been issued under subsection (4) of section 145, Cr.P.C., reads as follows:-- "From the report of S.H.O. Artillery Maidan Police Station, Karachi, there appears imminent danger of breach of peace and I am satisfied that matter appears to be of that of emergent nature. I am of the considered opinion that pending the enquiry into the possession of the party under section 145(4), Cr.P.C. There appears reasonable justification for attachment of property under 145(4) proviso (2). 1, therefore, order that the property in question should he immediately attached pending the final decision.
' Accordingly, this is to authorise and require you the S.H.O. Artillery Maidan Police Station, Karachi to attach the Office No,304, Panorama Centre, Karachi and keep the possession thereof and to hold the same under attachment until the decision of the proceedings or any other decree or order from any competent Court and to return this warrant with an endorsement certifying the manner of its execution.
' The parties should file their written statements regarding their respective claims vis-a-vis. The fact of actual possession of the subject of the dispute. Case is fixed for 25-1-1988."
12. Besides the fact that a separate order was also passed by the learned Magistrate on the order- sheet, dated 21-1-1988, it is clear that in the aforesaid order of attachment the following ingredients of subsection (1) of section 145 and second proviso to subsection (4) of section 145, Cr.P.C. Are discernible:--
(i) Satisfaction of the Magistrate from police report that a dispute likely to cause a breach of peace exists concerning possession of the subject of dispute;
(ii) Magistrate's requiring the parties concerned, in such dispute to attend the Court on a specified date and to put in written statements of their respective claims, vis-a-vis the fact of actual possession of the subject of dispute;
(iii) Further satisfaction/consideration of the Magistrate from the police report that the dispute in question is of an emergent nature, as there is imminent danger of peace prompting him to exercise his discretion by deciding to attach/seal the disputed premises pending enquiry into the possession of the party under subsection (4) of section 145, Cr.P.C.
(iv) The order of the Magistrate requiring the S.H.O. Concerned to attach/seal the premises in dispute and to hold the same under attachment until the decision of the proceedings initiated by him under subsection (1) of section 145, Cr.P.C. Or any decree or order from any competent Court.
13. As observed by the Supreme Court in the case of Muhammad Ishaque Choudhry and another v.
Nur Mahal Begum and others reported in PLD 1961 SC 426, the Magistrates exercising jurisdiction under section 145, Cr.P.C. Are expected to comply strictly with the provisions of section, but to say that a failure to follow the prescribed mode must in every case render the exercise of the jurisdiction invalid and illegal is too wide a proposition. In the reported case the following order of the Magistrate (like the one under consideration) was the subject-matter of appeal:-- "Seen petitions and reports. I am satisfied that there is serious apprehension of breach of peace and immediate measures are necessary. Start proceedings under section 145, Cr.P.C. The property is attached and 0/C Kotwali appointed receiver. Let parties file written statements by 24-11-1959."
14. This question was again examined by the Supreme Court in the case of Noor Muhammad and another v. Malik Chiragh Din and 2 others reported in 1971 SCMR 245, wherein it was held:-- "It is now sought to be contended on behalf of the petitioner that the High Court had failed to notice that the entire proceedings 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 his 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.
Apart from this, it appears to us that this objection cannot be sustained in view of the decision of this Court in the case of Muhammad Ishaque Choudhry v. Noor Mahal Begum and others PLD 1961 SC 426, where it was pointed out that if the elements necessary for the founding of jurisdiction did in fact exist, then even if the Magistrate' does not strictly comply with the other requirements of the 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."
15. The order of the learned Sessions Judge remanding the case to Assistant Commissioner and S.D.M. Civil Lines, Karachi, with direction to pass fresh preliminary order, if he so thinks necessary, and to start the proceedings afresh and thereafter, upon hearing the parties, if he concludes that circumstances exist warranting the attachment of the disputed premises to pass a fresh order of attachment under subsection (4) of section 145, Cr.P.C. Has given rise to a legally inconsistent and anomalous situation in so far as the applicant is concerned. His above finding is again destructive to his finding that the order, dated 26-1-1988 passed by the Magistrate directing the delivery of possession of disputed premises after descaling it to respondent No,1, was illegal.
16. Having regard to the above legal position the order, dated 26-1-1988 passed by Assistant Commissioner and S.D.M. Civil Lines, Karachi, and the order, dated 20-3-1988 passed by Sessions Judge (South) Karachi, remanding the case to the Magistrate with the above directions are quashed and the original order of attachment, dated 21-1-1988 passed by Assistant Commissioner and S.D.M. Civil Lines, Karachi, is restored, with direction to the Magistrate concerned to dispose of the application made by respondent No,1, under subsection (5) of section 145, Cr.P.C. In accordance with law.
17. The application made under section 561-A, Cr.P.C. Is accordingly accepted in the above terms.