This is a reference by the learned Sessions Judge, Kalat, that the order passed by the Assistant Commissioner and Magistrate First Class, Upper Jhallawan, Khuzdar, be quashed as the proceedings were in disregard of the mandatory provisions of section 145, Cr. P. C.
2. The reference arises out of a dispute about land in Khuzdar and on 16-1-1972, the respondent filed an application before the Tehsildar Khuzdar under section 145, Cr. P. C. Against the petitioner. Mr. Muhammad Akbar states that this was in accordance with the practice in Khuzdar, therefore the Tehsildar has examined witnesses and then submitted a report to the Assistant Commissioner and Magistrate First Class, Khuzdar, who on 19-1-1972, passed an order for notice to the petitioner. The next day the learned Magistrate wrote a letter to the District Magistrate on which at one stage, Mr. Muhammad Akbar relied. Thereafter, presumably in accordance with the instructions of the District Magistrate, the Assistant Commissioner and Magistrate 1st Class, Khuzdar (to whom I shall refer as the Magistrate) heard the parties and decided the respondent's application in the respondent's favour by his order dated 27-3-1972. The petitioner therefore challenged this order in the Sessions Court, Kalat, on the ground that as the Magistrate had not passed the preliminary order under subsection (1) of section 145, Cr. P. C., recording his satisfaction that there was an apprehension of the breach of the peace the entire proceedings were null and void ab initio. On examining the record, as the learned Sessions Judge found that no preliminary order had been passed as alleged by the petitioner, he accepted his applica--petition and has therefore referred the case to this Court for quashing the Magistrate's order of 27-3-1972.
3. Mr. Muhammad Akbar admitted that the Magistrate had not passed a preliminary order under subsection (1) of section 145, Cr. P. C. However, he first submitted that the Magistrate's satisfaction under this subsection was established through letter written by him the next day to the District Magistrate. Mr. Hanafi submitted that correspondence of this nature could not become part of proceedings under section 145, Cr. P. C. As these proceed--ings were of a judicial nature. Mr. Muhammad Akbar was not able to explain how this correspondence is on the record, nor was he able to show me how it was admissible. Additionally, the Magistrate appears by this letter to have attempted to obtain instructions about the respondent's application from the District Magistrate, therefore the question which disturbed me was whether, in these circumstances the impugned order was fit to be treated as an order by the Magistrate under section 145, Cr. P. C. When I pointed out to Mr. Muhammad Akbar the consequences of his reliance on this correspondence between the Magistrate and the District Magistrate, learned counsel immediately dropped his reliance on it and stated that the correspondence should not be treated as a part of the judicial proceedings in the case. I agree that this correspondence is not fit to be treated as apart of the record of this case, and the result is that the Magistrate had not passed any preliminary order under section 145 (1), Cr.
P. C. Therefore Mr. Muhammad Akbar referred me to the evidence recorded by the Magistrate and the final order passed by him. On the basis of the evidence and the final order the submission was that as the evidence proved that there was an apprehension of the breach of the peace, this was sufficient proof of the Magistrate's satisfaction that the provisions of sub--section (1) of section 145, Cr. P. C. Had been established. Now, if this had been so, the Magistrate should have stated, whilst ordering notice that there was an apprehension of the breach of the peace. As he has not, how can his satisfaction, be proved by subsequent events? If the satisfaction of the Magistrate of an apprehension of the breach of the peace is a condition of his jurisdiction then, obviously, that, satisfaction cannot be proved by evidence subsequently recorded. In order to overcome this difficulty, Mr. Muhammad Akbar stated that the failure of the Magistrate to record his satisfaction under subsection (1) of section 145, Cr. P. C. Was only an irregularity, which was curable under section 537, Cr. P. C. And in support ofthis submission he referred me to the judgment of a learned Single Judge in Gujarkhan-Rawalpindi Muslim Transport Co. v. Asghar A.I (PLD 1966 Lah. 435) and the judgment of another learned Single Judge of East Pakistan High Court in Noor Muhammad v.
Rajab A.I (PLD 1965 Dacca 410). As I shall presently show, the Dacca case does not support Mr. Muhammad Akbar's submission. However, the Lahore case fully supports learned counsel's submission, but as I have dissented from it in Muhammad Bakhsh v. Haji Muhammad (PLD 1969 Kar. 22), I would point out that the learned Single Judge in the Lahore case followed an earlier judgment of the Lahore High Court reported in Ratan and others v. Tika (AIR 1939 Lah. 233), therefore I would first examine this judgment.
4. In Ratan's case the learned Single Judge of the Lahore High Court pointed out that there was a conflict of authority whether non-compliance with the provisions of subsection (1) of section 145, Cr. P. C. Rendered subsequent proceedings void or whether that non-compliance was a curable irregularity under section 537, Cr. P. C. The learned Single Judge held without giving reasons, that non-compliance with subsection (1) of section 145, Cr. P. C. Was a curable irregularity, and on the basis of this view, the learned Single Judge in Gujarkhan Transport Co.'s case went to the length of holding that the objection about jurisdiction was a mere matter of "hair splitting". I demur to the view that an objection to jurisdiction, and that in a matter affecting the liberty of the subject, can be brushed aside as hair splitting, but in my humble opinion that is the consequence of the view taken in Ratan's case. I would therefore repeat here that there was a conflict of authority in the Lahore High Court on the construction of sub--section (1) of section 145, Cr. P. C. And Ratan's case left this conflict unresolved as it was a Single Bench judgment. However, the conflict of authority must now be resolved in the light of the judgment of the Supreme Court in Muhammad Ishaque v.
Nur Mahal Begum (PLD 1961 SC 426), but before I consider their Lordships' judgment, I would point out here that the learned Single Judge in Ratan's case appears to have resolved the conflict of authority in his own Court by reference to the view of the Allahabad High Court in Barmha Singh v.
Emperor (AIR 1932 All. 681), a view which was reaffirmed in Kapoor Chand v. Suraj Prasad (AIR 1933 All. 264), However, it is significant that this view was considered but not followed in Abdul Aziz v.
Badri (AIR 1948 Oudh 184 ) on the ground that the Magistrate's apprehension of a breach of the peace was a condition of his jurisdiction, therefore all subsequent proceedings were void in the absence of an order recording such satisfaction.
5. I now turn to the judgment of their Lordships in Muhammad Ishaque's case. There, the Magistrate had stated in his order that "there is a serious apprehension of breach of peace and immediate measures are necessary." As, contrary to the provisions of subsection (1) of section 145, Cr. P. C., the Magistrate had not stated the grounds of his satisfaction, the proceedings before him were challenged on the ground that this defect rendered all subsequent proceedings void. In repelling this contention, Hamoodur Rahman, J. (as he then was, now the Chief Justice) drew a distinction between the elements "which are essential for the foundation of the Magistrate's Jurisdiction and the mode in which such jurisdiction has to be exercised". Then, after specifying the three elements which were the foundation of the Magistrate's satisfaction, his Lordship observed: "If these elements exist they are sufficient to vest the Magistrate with the Jurisdiction to make the preliminary order . . . . .". Then, as the jurisdiction had been proved, his Lordship went on to observe that the Magistrate's failure to specify the grounds of his satisfaction was a curable irregularity. In my humble opinion, in view of the distinction drawn by their Lordships between the Magistrate's Jurisdiction and the manner in which that jurisdiction was exercised after it had been validly assumed, I am of opinion that a defect in the assumption of jurisdiction is fatal to all subsequent proceedings and cannot be cured under section 537, Cr. P. C. But in Ratan's case, the defect related to the assumption of jurisdiction because the Magistrate had not recorded his satisfaction, therefore, with respect, this case is no longer good law in view of their Lordships' judgment in Muhammad Ishaque's case.
6. I am fortified in my opinion by the subsequent judgments of the High Courts. In State v. Abdul Sattar (PLD 1965 Kar. 305), a learned Single Judge held "section 145 (1), Cr. P. C. Makes an imperative provision requiring the Magistrate to state the grounds of his being satisfied that a dispute likely to cause a breach of peace exists . . . . . . The criminal Courts are not expected to decide disputes of civil nature relating to possession over immovable property . . . They acquire jurisdiction only when there is apprehension of breach of peace. That being so it must appear from the order of the Magistrate that he had applied his mind to the question as regards the breach of peace because it is the existence of such a dispute which gives him jurisdiction to entertain the matter." And as the impugned order did not contain a statement recording the Magistrate's satisfaction under section 145 (1), Cr. P. C. It was quashed. Thus, the question of a Magistrate's failure to record his satisfaction under section 145 (1), Cr. P. C. Again came up for consideration before a Division Bench of the West Pakistan High Court in Gul Muhammad v. Kubra Begum (PLD 1961'Pesh. 76), and Ortcheson, J, who delivered the judgment of the Court observed at page 79, "that it is not sufficient that a Magistrate should have received information that a breach of the peace is apprehended, it being further imperative that he should be satisfied that the information is true. If it can be ascertained from the material on the record that the Magistrate was so satisfied, the mere absence of a preliminary order would, no doubt, not render his subsequent proceedings illegal, but the difficulty is that unless a preliminary order is recorded stating that the Magistrate is satisfied of the existence of an apprehension of a breach of the peace and giving his reason for being so satisfied, it is not easy for a superior Court to discover whether this essential, condition for the assumption of jurisdiction has been fulfilled. The mere fact that a Magistrate issues notice to the parties to attend his Court and put in written statement by no means necessarily implies recognition on his part that his jurisdiction depends on the existence of a danger of a breach of the peace." I respectfully agree with these observations, but I would add that save in some very unusual and exceptional circumstances, a Magistrate's satisfaction under section 145 (1), Cr. P. C, cannot be proved in the absence of an express statement in that respect in his order. I have therefore followed this judgment in Muhammad Bux v. Haji Muhammad, and the same view was taken by a learned Single Judge of the Lahore High Court in Noor Muhammad v. The State (PLD 1971 Lah. 766) therefore the judgment of the learned Single Judge in the Gujarkhan---Rawalpindi Muslim Transport Company's case is contrary to the trend of authority in the High Courts.
7. I now turn to the judgment of the East Pakistan High Court in Noor Muhammad v. Rajab A.I. The facts of this case were very unusual. On a complaint under section 145, the Magistrate concerned had only ordered notice to the petitioner without directing him to file his written statement as required under subsection (1) of section 145, Cr. P. C. This order was passed on 11-10-1963. The Magistrate thereafter heard the parties and issued a fresh order on 8-11-1963 directing the petitioner to file his written statement, and in the notice thus sent to the petitioner, the Magistrate further stated "whereas it appears to me from the petition . . . And on hearing that a dispute is likely to induce a breach of peace between the parties . .. . . . .". On these facts, the Sessions Judge recommended that the proceedings should be quashed as the Magistrate had assumed jurisdiction without passing an order recording his satisfaction about an apprehension of a breach of the peace. In rejecting the reference, the learned Single Judge referred to the Magistrate's order on the notice, which I have quoted, and pointed out that the order passed on the same day as contained in the order-sheet, did not mention any apprehension of a breach of the peace. In this context, the learned Single Judge observed ", . . . The omission to do so is merely an irregularity". I respectfully agree with this view, therefore the judgment cited is distinguishable on the facts, the more so as the learned Single Judge referred to the Magistrate's order of 11-10-1963, as a notice on the petitioner to show cause why proceedings should not be drawn up". Further in my opinion, on the facts of this very peculiar case, the Magistrate assumed jurisdiction when he passed his second order in November, so that the judgment is not relevant to the instant case. However, as the observations of the learned Single Judge are wide, Mr. Muhammad Akbar submitted that the view taken by the learned Single Judge was that the defect in the order of October was also a curable irregularity. I have to state with regret that the judgment is not very clear on this point, but if it holds that the Magistrate assumed jurisdiction by his order of notice to the petitioner in October 1963, then with respect, I am not able so agree with the judgment, and in my humble opinion it is not good law.
8. In this view of the matter, I have no hesitation in accepting the reference. However, Mr. Muhammad Akbar further submitted that even if the proceedings before the Magistrate were void the petitioner was estopped from pleading the bar of jurisdiction in this Court, because he had appeared in the proceedings and taken his chance of success before the Magistrate. The submission overlooks two considerations. The first is that the petitioner was the defendant in the proceedings before the Magistrate. The second is that proceedings under section 145, Cr. P. C. Are of a criminal nature and, in my humble opinion, an accused has never been estopped from pleading the s bar of jurisdiction in criminal cases. Mr. Muhammad Akbar however relied on a judgment of the Lahore High Court which in turn follows a judgment of the Supreme Court in Ghulam mohyuddin v. The Chief Settlement Commissioner (PLD1964SC829).
9. In Mohyuddin's case, the petitioner challenged an order passed by the Settlement Commissioner on the ground that it was patently without jurisdiction. Although the impugned order was without jurisdiction, it was passed by an appeal filed by the petitioner himself, therefore their Lordships held that the petitioner was barred from invoking the discretionary relief of a constitutional petition because of his conduct. There is nothing in the judgment to support the view that the principle laid down in it was applicable to petitions for the liberty of the subject. Nor did their Lordships observe that the principle would be applicable to a situation in which the petitioner had been a respondent before the Tribunal which had usurped jurisdiction. On the other hand, the question of an estoppel was again considered by their Lordships in Muhammad Afzal v. Board of Revenue (PLD1967SC314).
There the petitioner challenged an order of the Board of Revenue on the ground that it was without jurisdiction. He had not raised this plea before the Board of Revenue, but he had been the respondent before the Board of Revenue. In allowing his petition Cornelius C. J. Observed at page 316; "Like the law-and-order administration, the revenue administration, in its impact on the cultivator has all-pervading authority which the individual cannot be expected to confront, on allegations of illegality on his own strength. The usual and the wise course, that he takes is to submit for the time- being, and seek his redress through the more powerful agency of the Superior Courts. These Courts have now been specially empowered to provide such relief. They cannot be permitted to diminish that authority by the imposition of such a condition as that which the learned Judges have applied in the case . . . . . . . . By mere submission. In the capacity of a respondent, to the authority of a respondent, to the authority of the member, the appellant could not be thought to have conferred a jurisdiction on the Member which he did not possess, or to have waived his right to challenge the Member's power to interfere with the order of the commissioner."
I had occasion to consider both these judgments in Khena Ram v. Commis--sioner F. C. R. Quetta (PLD 1969 Quetta 24). There, the petitioner had challenged his conviction by a F. C. R. Court, and the contention was that on various grounds the respondent's order was without jurisdiction. The State had attempted to resist this plea on the basis of the judgment of their Lorships in Mohiuddin's case. I had examined that case and Muhammad Afzal's case, and pointed out that Mohiuddin's case related to a civil dispute. In this connection, I had observed "Under the Common Law, there is a distinction between a writ of certiorari and a writ of habeas corpus, the former is a discretionary writ so that the conduct of the petitioner is relevant, whilst the latter affect the liberty of the subject and is issued of right as soon as the detention of the petitioner is proved to be illegal. In their judgment their Lordships have note said anything which would suggest that this distinction of the Common Law between the two types of writs does not exist." Therefore, as Article 98 had not abolished this distinction between the two types of writs and in view of Muhammad Afzal's case, I had held that the petitioner Khena Ram was not estopped from challenging the jurisdiction of the F.
C. R. Courts merely because he had not advanced this objection before those Tribunals. And as criminal matters also affect the liberty of the subject, I would follow my view in Khena Ram's case in this reference, the more so as the petitioner was the defendant in the proceedings challenged by him.
10. Mr. Muhammad Akbar however referred me to a judgment of the Lahore High Court in Noor Muhammad v. The State. There, as I pointed out earlier, a learned Single Judge held that the failure of a Magistrate to record his satisfaction under section 145 (1), Cr. P. C. Was not a curable irregularity. However, as the petitioner had acquiesced in this illegality, the learned Single Judge held, on the basis of the judgment of their Lordships in Mohiuddin's case, that the petitioner was estopped from challenging the Magistrate's orders against him. In coming to this conclusion, the learned Single Judge equated a writ of certiorari with criminal proceedings. But, in my humble opinion, there is an analogy between a writ of habeas corpus and criminal proceedings but not between a writ of certiorari and criminal matters. Unfortunately, the attention of the learned Single Judge was neither drawn to this distinction nor to the later judgment of their Lordships in Muhammad Afzal's case. In these circumstances, with the utmost respect, I have to state that, in my humble opinion, the view of the learned Single Judge was erroneous and as no authority of this Court was cited, I would extend to the present case, the principle followed by me in Khena Ram's case.
11. No other argument was advanced, I would therefore accept the reference and quash the Magistrate's orders. However, the parties would be free to prosecute their remedies in the civil Courts if they so wish.