The petitioner in this case challenges the order of the learned Sub---Divisional Magistrate, Nazimabad, whereby at the application of the first respondent, Jamil Abroad, he passed an order under section 145, Criminal Procedure Code, awarding the possession of certain premises which were disputed to the opponent and the order also of the learned First Additional" Sessions Judge who dismissed the application in revision filed by the petitioner against the order of the learned Magistrate. Inasmuch as the expression applicant and --opponent" or -respondent" refers to different stages of this litigation I propose hereafter to refer to the parties by their names instead of such appellations.
2. The premises in question undoubtedly belong to Noor Ahmed and there is, equally un- disputably, an agreement between him and Jamil Ahmad dated the 3rd November 1966, and it is common ground between the parties that at least until May 1970, Jamil Ahmad ran a hair cutting saloon in these premises. I deliberately refrain from saying that he was in possession, for it is clear that a great deal of controversy has taken place between the parties both in the Courts below and before me as to the nature of the right of Jamil Ahmad in these premises. This agreement clearly provides that the premises in question are being taken on hire by Jamil Ahmad but certain peculiar terms of the agreement show that efforts were made, I do not now wish to decide whether successfully or not, to exclude the arrangement between the parties from the applicability of the law relating to landlord and tenant. In particular three of such terms are worth noticing:- "(3) That the second party shall carry on his business from 7-00 a. m. To 9-00 p. m. And in case of a day is close as holiday to be observed on National Basis, he shall not carry on the business to the exposure or risk to the property or on such other day as the first party shall prohibit him to. ,
(7) That the second party shall, cease to occupy the said property with the termination of the day but by virtue of this agreement his occupation on the next day will be a renewal to occupy afresh the said premises for that day only.
(12) That the parties specifically agree that for this transaction the Transfer of Property Act and the West Pakistan Urban Rent Restric--petition Ordinance, 1959 shall not be applicable particularly because there exists no relation as the landlord and the tenant between the parties."
On the 23rd October, 1971 Jamil Ahmad presented an application in Court of the Assistant Commissioner (who is the same officer who acts as the Sub---Divisional Magistrate) in which he alleged that Noor Ahmad had forcibly dis. Possessed him from the shop and that there was great danger about the dispute of the shop in question. Upon this application the learned Magistrate passed an order which bears the date 23rd October 1971 and which is in these terms:-- "Affidavit filed. As there is imminent danger of breach of peace over possession of the shop order under sections 145 and 146 passed. Register the case."
Parties were thereafter given notice and their evidence duly taken and, at the end of the proceedings, that is on the 29th November 1972, the learned Magistrate passed an order, holding that Jamil Ahmad was dispossessed without due process of law and ordering that he be put back in possession of the property. An application in revision was filed but was dismissed by the learned first Additional Sessions Judge, Karachi.
3. Now the case of Noor Ahmad was that Jamil Ahmad was never, in the eye of the law, in possession of the shop at all but that in any case, his occupation by whatever legal name it might be described, continued only till May, 1970 when he abandoned the shop and thereafter his, that is to say --Jamil Ahmad's uncle Mohammad Shafi came to Noor Ahmad and entered into an arrangement with him whereby the said Mohammad Shafi started to run the hair-dressing saloon on the same terms and conditions as were applicable to Jamil Ahmad. This Muhammad Shafi also in the month of September 1971 stopped payment of the hire charges and took away even the equipment which belonged to Noor Ahmad and, when Noor Ahmad discovered this, he reported the matter to the police. According to Noor Ahmad the key of the premises had been returned to him in accordance with the arrangement between the parties by Allah Bux, the servant of Mohammad Shafi, and therefore Noor Ahmad started renovating the premises with the intention of running the business himself.
4. On the evidence led by the parties the learned Magistrate came to that conclusion that the version put forward by Jamil Ahmad was the correct one and upon that basis made the order in question. I must confess that I should have been happier if the order which the learned Magistrate passed had given a little more reasoning; as it is somewhat laconic and the real discussion is contained in one very short paragraph which read thus: "I have gone through the statements of the witnesses and the documents produced and I am of the opinion that Muhammad Jamil was dispos--sessed without due process of law. The only witness who could contradict the same namely Allah Bux has not been produced and it could nowhere he established that Muhammad Shafi the uncle of --Jamil Ahmad, who was in joint possession of shop had voluntarily surrendered the possession to Noor Ahmad."
Nevertheless it does appear from this paragraph that the mind of the learned Magistrate was duly focussed upon the real question in the case, namely, as to who was in possession at the material date and whether there had been any, forcible dispossession.
The learned Additional Sessions Judge's order, although also brief, is in my view, far more satisfactory. Clearly before him it was argued first that there was no application which showed a breach of the peace and that the matter was really of a civil nature. On the first point he held that the com--plainant did show such an apprehension and on the second, dealing with the terms of the agreement, he held that Jamil Ahmad was the tenant and that he could not be dispossessed without due process of law. It seems obvious that the learned Judge was not impressed by the attempts made in the drafting of the agreement to keep the arrangement between the parties outside the law applicable to landlord and tenant. He goes on to observe that, whatever the -- rights of the parties under civil law might be, they are not affected by an order under section 145, Criminal Procedure Code and, in that view of the matter, he dismissed the application.
6. Besides certain other points which have been taken up before me and to which I shall presently refer, these matters were essentially questions of fact and rested upon an appreciation of evidence and I am not at all persuaded that there is any special reason why in this case I should interfere with concurrent findings of fact by two Courts in the exercise or, revisional jurisdiction. This Court undoubtedly has the authority so to do but it is only where it is convinced that the interests of justice so require it that it will do so. In the present case I not only do not think that there is any such cause but after having been taken at very great length by learned counsel through the evidence, I have not come to the conclusion that the findings of fact reached by the Courts below were in fact wrong. In regard to the question whether Jamil Ahmad was a tenant or not, I do not wish to say anything which might prejudice the parties before a civil Court and, there--fore, refrain from deciding the point. In any case the criminal Court is not concerned with the question whether Jamil Ahmad was truly a tenant or note but only with the question as to who was in possession. The Court is not even concerned with the question whether he was lawfully in possession or not except to the extent that if there has been a forcible dispossession within two months of the date of the application then, for the purpose of the proceedings under section 145, Criminal Procedure Code, the party who was so disposses--sed must be treated as the one who was in possession. On these matters then it seems clear to me that the Courts below have come to the right conclusion and I, therefore, see no reason to interfere.
7. It was however argued by learned counsel for Noor Ahmad that there was no evidence before the learned Magistrate of such danger of a breach of the peace as is required by section 145, Criminal Procedure Code. I am wholly unable to accept this argument. I have already stated the substance of the application made by Jamil Ahmad and indeed even the case of Noor Ahmad before the learned Magistrate shows that there was some such danger as he had himself reported to the police.
8. It was then argued that at any rate it was not shown that there con--tinued to exist such a danger up to the end of the proceedings and that there--fore the order in question was not justified. In connection with this contention reliance was placed on the case of Manzoor Elahi v.
Bishamberdas (PLD 1964 SC 137) particularly the following passage in the judgment:- "It further seems to us that the provisions of section 145 read as a whole clearly indicate that there should be a continuing danger of a breach of peace till the time the final order is made. The use of the word `exists' in the present tense in subsection (5) connotes that the dispute must continue to exist even at the time when the objection is raised. The main purpose of this section being the maintenance of public peace and the prevention of breaches thereof it would follow that where there is no danger at any point of time of any further breach of public peace taking place, then manifestly the invocation of the sum--mary procedure provided by this section is no longer called for and should be put an end to."
I am of course in entire and respectful agreement with these observations by which I am in any case bound. Quite clearly if at any time during the pendency of the proceedings under section 145, Criminal Procedure Code the danger ceases to exist the proceedings must be terminated. The very existence of the jurisdiction under section 145, is dependent upon the continued existence of such an apprehension as is spoken of in the section. The section is not intended by any means to decide civil rights but merely to prevent, breaches of the peace and it is, therefore, quite understandable that once such an apprehension disappears the criminal Courts should not exercise any further jurisdiction. The position is, as their Lordships have pointed out-, made abundantly clear by subsection (5). I am unable however to regard thin subsection or the judgment of the Supreme Court as laying down that a, every hearing of the proceedings the learned Magistrate must enquire afresh into the question whether there is a continued apprehension or not and record a finding to that effect. The initial finding required by subsection (1) suffices to give jurisdiction and all that subsection (5) says is that a person interested in the dispute or required to attend may at any time show that no such dispute exists or has existed and in such a case the Magistrate shall cancel his order. I think that even if it otherwise appears to the Magistrate that no such dispute any longer exists he should cancel his order but that is not the same thing as saying that he must go on recording such a finding at every stage, for that appear to me merely to be a formality without meaning and, moreover, a formality which the law does not require. I, therefore, do not see any force in this contention either.
9. In the result I dismiss this application for revision.