Through this petition under section 561-A,, Cr.P.C. The petitioner wants the quashment of the order, dated 8-5-1991., passed by the learned Additional Sessions Judge, Lahore, in proceedings urnder section 145, Cr.P.C. With respect to plot of land measuring 3 Kanals and 4 Marlas bearing Khasra No.622, situated in Village Leel, Tehsil and District Laahore.
2. The brief facts essential for the disposal (of this petition are that S.H.O. Police Station Kahna submitted the complaint on 19-11-1990, under section 145, Cr.P.C., with respect to the aforesaid land which was lying vacant being Shamilat Deh and over the possession of which the petitioner and the respondent had a dispute, as according to the S.H.O., it was likely to lead to the breach of the peace. On receipt of the said complaint, the learned Magistrate summoned the parties for 25-11- 1990. On the said date, he recorded the statements of the parties and passed an order under section 145(4), Cr.P.C. Attaching the disputed property and directed the parties to file their written statements, without specifying the period within which they are required to do so.
Respondent No.1 challenged the said order of the learned Magistrate, dated 25-11-1990, in revision before the Sessions Court, on various grounds. He inter alia, pleaded that the learned Magistrate without applying his mind to the facts of the case and coming to the conclusion that there is imminent danger of breach of the peace, summoned the parties and asked them to file written statements and without waiting for the written statements passed the impugned order attaching the property, hence the said order is without jurisdiction and illegal.
The learned Additional Sessions Judge vide his order, dated 8-5-1991, accepted the petition and remanded the case to the learned Magistrate for proceeding with the case afresh in the light of the observations made by him; hence this petition under section 561-A, Cr.P.C. As second revision petition is not competent in view of section 439, Cr.P.C.
3. The learned counsel for the petitioner has contended that the learned Magistrate after persuing the police report and recording the statements of the parties, came to the conclusion that there existed dispute which is likely to cause breach of the peace; so he deemed it fit to attach the property as an interim measure while directing the parties to file their written statements, hence the said order could not be termed as an order without lawful authority, illegal or unjust and was not open to the revisional jurisdiction of the Sessions Court. He next contended that in view of section 145(4), the learned Magistrate as an interim measure in case of extreme emergency was competent to attach the property, hence the impugned order of the learned Additional Sessions Judge accepting the revision petition and remanding the case to the trial Court is unjust and has led to miscarriage of justice and therefore, it may be set aside.
4. The learned counsel for the respondent has taken up a legal objection that the impugned order cannot be assailed through this petition, because section 561-A, Cr.P.C. Is not meant for creating a new remedy under the law, and this power can only be exercised by this Court to procure the ends of justice and not to give remedy to a party which is otherwise debarred from bringing his cause to the High Court. He further submitted that section 145, Cr.P.C. Lays down a comprehensive procedure for the determination of dispute over immovable property which is primarily of civil nature, but in which the order of the criminal Court is necessary in view of there being likelihood of the breach of peace and in the present cast, the learned Mate without coming to the conclusion that there is imminent: danger of breach of peace, passed the order which was contrary to section 145(1), Cr.P.C., hence the learned Additional Sessions Judge was justified in remanding the case vide impugned order.
5. I have heard the learned counsel for the parties at length. The objection of the learned counsel for the respondent regarding the competency of this petition is repelled. Reference in this connection be made to PLD 1988 Kar. 85 and 1990 P Cr. L J 643 and I hold that this petition is competent in the present form.
6. Section 145, Cr.P.C. Is intended only to provide speedy remedy for the prevention of breaches of peace arising out of disputes relating to immovable property by maintaining one or the other party in possession and the mode of inquiry is completely given in section 145, Cr.P.C. A bare reading of section 1450), Cr.P.C. Shows that the Magistrate will have jurisdiction only when he is satisfied from the police report or other information that a dispute likely to cause breach of peace exists concerning any land or water or the boundaries thereof within the local limits of his jurisdiction, in the absence of this finding, 13 the Magistrate has no jurisdiction to pass any order under the provision of section 145, Cr.P.C. Unfortunately, in the present case, the learned Magistrate on perusal of police report, dated 19-11-1990, did not deem it fit to come to the conclusion that the facts mentioned in the police report would lead to the breach of peace, so he directed the parties to appear before him on 25-11-1990 for further proceedings. On 25-11-1990, the learned Magistrate recorded the statements of one Hurmat and respondent No.1. Even after this, the learned Magistrate was not clear in his mind whether there exists such dispute between the parties regarding the possession of land in question, which would lead to the breach of peace as is apparent from the following portion of his order:-- "The parties were asked to file their written statements in the Court in order to adjudge the apprehension of breach of peace over the disputed land."
Without giving such finding that he is satisfied that there exists apprehension of the breach of peace, with respect to the dispute concerning the property, the learned Magistrate could not assume jurisdiction to take cognizance of the case under section 145(1), Cr.P.C., hence subsequent proceedings of the learned Magistrate attaching the property under section 145(4), Cr.P.C. Are wholly without jurisdiction. The learned Additional Sessions Judge was legally justified to set aside this order, as condition precedent for taking cognizance by the learned Magistrate was lacking in the present case, and the remand order cannot be termed as unjust, illegal or without lawful authority, hence there is no force in this petition which is accordingly dismissed.