' This application under sections 435/439 read with 561-A Cr. P. C. Is for quashment of pending proceedings under section 145, Cr. P. C. In the Court of S. D. M. Shandadpur as well as impugned orders passed by him and District Magistrate on various dates.
3. Briefly the facts are that one Ghulam Muhammad addressed the following undated application to the Deputy Commissioner Sanghar "To ' The Deputy Commissioner, Sanghar.
' Sir, ' I, Ghulam Muhammad s/o Muhammad Sulleman General Attorney of Mst. Bibi Wallo and Mst. Bibi Hullo of Bhit Shah state that we are the owners of the land shown in the attached statement.
' As the Khata was not changed in the names of the lady owners the land was leased out by our brother Ph Muhammad Bux Shah to Haji Muhammad Musa Wassan and others. In fact Pir Muhammad Bux Shah had no authority to lease out the land as it belonged to us and as such the contract is void. Despite our efforts the lessess forcibly encroached upon land.
' At present the lessees have deserted and the land is not being managed properly which has caused great loss to the lady owners. The land remains waste and barren.
' It is therefore prayed that the applicants may kindly be put in possession of the land according to law.
' We shall pay the Government Land Revenue and other charges which might accrue hereafter.
(Sd.)
Ghulam Muhammad Khan ' Dated Applicant".
3. On 19-11-1973, District Magistrate, Sanghar forwarded the application to Sub-Divisional Magistrate, Shandadpur for disposal according to law. The very next day on 20th November 1973, the Sub-Divisional Magistrate Shandadpur not only passed preliminary order under section 145k1), Cr. P. C. But at the same time by same order proceeded to and attached the property and appointed one Tapedar Jaman as receiver of the land and standing crops, this was done ex parte and without any notice to the respondent. The relevant portion of the order is as under :- "Prom the facts mentioned in the application of the applicant and the statement of the applicant recorded on oath it appears that there exists dispute between the applicant and the opponents over above S. Nos. Of deh Kumb Daroon and it is very likely of breach of peace and disturbance of public tranquility over the possession of the above-said land. It is also very likely that the dispute may result in commission of some major cognizable offence if no prompt action is taken.
' I am therefore satisfied that it is a fit matter for proceeding under section 145. Cr. P. Code. Issue notices to the opponents to attend in person on 12-12-1973, and submit their written statement of their respective claims as respect the fact of actual possession of the subject of dispute.
' The applicant has given application that now sowing of wheat is in full swing and the opponents are preventing from sowing the wheat. He has, therefore, requested for appointment of receiver till the decision of this application.
' Since the case is of serious nature and occurrence of breach of peace between the parties is to be avoided, I order attachment of the above land in question with standing crops thereon if any and appoint Tapedar Jaman as a Receiver of the land to get the possession of the land and the custody of the standing crops thereon and to manage the land for ensuing crops till decision of this application."
4. From the record of the case (page 39) it appears that a second order was passed by the same Sub-Divisional Magistrate, Shandadpur on 23rd January 1914, requiring the respondent to attend and submit written statement in respect of fact of actual possession of subject of dispute on 7-2- 1974, as well as attaching the property and appointed (for the second time) Tapeddr Jumman as receiver. Surprisingly both the orders dated 20th November 1973, and 23rd January 1974, are verbatim except for the date of appearance of parties in former order it was fixed for 12-12-1973 and the later for 7-2-1974.
5. At page 43 of record there is an application dated 18-4.1974, on behalf of Advocate for respondent for adjournment on the ground that parties are not in attendance. It has a Court fees stamp of Re. 0-50 which is dated 30-3-1974. This application has the following order of the Magistrate :- "Adjournment allowed. Put off to 18-3-94.
(St )
5-444."
' After seeing this order I have to consult the case diary where on 5.4-1974, following order is made :- "The advocate for the applicant is present and has submitted the adjournment application. Put off to 18-4-1974."
6. The order-sheet shows that on 18-4-1974, only Advocate for the applicant was present. Case was put off to 2-5-1974 with order for repeating the process and clearly there is no mention for application for adjournment by the advocate dated 8-4-1974, stated earlier.
7. Now comes the turn of District Magistrate, Sanghar before whom respondent Ghulam Muhammad moved an application on 5.6-1974, with the prayer to discharge the receiver Munshi Muhammad Yaqoob and instead appoint some impartial neutral person because he had been won over by the opponents. This application is purported to have been supported by affidavit of the same date but on this occasion contrary to his previous signatures in Urdu applicant Ghulam Muhammad happened to sign himself in English. It may be noted 'here that up to this time out of 4 opponents only Mir Muhammad remained unserved. Surprisingly no notice was issued on this application by the District Magistrate to the opponents, but he chose to discharge receiver Munshi Muhammad Yactoob Tapedar and straightaway appointed one Mr. Lal Dino Nizamani as receiver of the land and crops. However after the above order instead of sending back the R & P of the case to the Sub-Divisional Magistrate, Shandadpur who has taken cognizance of the complaint, the District Magistrate put off the case to 19-6-1974, when an application was moved by Counsel for Mir Muhammad with a certified copy of the order of Civil Judge, Shandadpur dated 2-4-74 maintaining status quo passed under section 39 Rules 1 and 2, C. P. C., praying that proceedings be stopped as the dispute about the land is sub judice before Civil Judge, and that none of the lessees of the land has been served and that in view of the above order of the Civil Judge appointment of the receiver was neither necessary nor warranted by law, parties may in allowed to pursue their remedy in Civil Court. He passed no order on it and instead put off the case without fixing any date of hearing with the direction to issue notice to other party.
8. One cannot make out the purpose of this order when no date for next hearing of case was fixed, and how and when the parties could be expected to attend the Court and how notices could he issued to the parties ? In case diary in place of next date of hearing two straight lines are drawn and following entry is made :- "Complainant present. D/A absent. Put of two 29-71974. Inform the D/A. Complainant directed to attend.
(Sd.)
D. M. Sanghar."
' To say the least, it is pitiable for the two judicial officers the way record and the case diary of this case is maintained because according to the letter of District Magistrate No, J. B. 1990 of 1974 dated Sanghar 29-7-1974 R & P of the case was submitted to this Court but at the same time an undated last order on the case diary by the same District Magistrate purported to have put off the case to 29-7-74. In view of his own letter of submitting R & P to this Court on the same, date how he could fix the case for 29-7-1974. The only conclusion one can reach is that no hearing at all was fixed and none of the parties could be present and that entry was an afterthought when he received the order of this Court.
9. I have heard Mr. Azizullah K. Shaikh, Advocate for the applicant and Mr. Imdad Ali Agha Advocate for the respondents. It was argued by learned counsel for the applicant amongst others that the first application moved by Ghulam Muhammad the alleged attorney does not even suggest any dispute over the land or possession of the land and that the contents of the application at the most will amount to dispute of civil nature for which the proper remedy was a civil Court and that power of attorney was neither asked for nor produced by Ghulam Muhammad who filed application under section 145, Cr. P. C. On behalf of his employers and that the entire matter is cooked up and that except for complainant attorney, no witness was examined by the Magistrate so as to satisfy himself that there existed a real apprehension of breach of peace and that emergency order therefore, was necessary for attachment of the property and appointment of receiver, and that the Magistrate has no power to pass both the orders under section 148(1)(4) for attachment and receiver by same order without service of notice and hearing of the present applicant who has suffered at the hands of learned District Magistrate Sanghar as much as he was detained under D.
P. R. In various cases and he was seriously prejudiced against him and his cousin Mir Muhammad Wassan, and that the District Magistrate has passed the impugned order to get the standing crops removed from the lands of the applicant to put him to heavy losses and that under the garb of the impugned order the so-called receiver has taken away about 5000 maunds of wheat and banana crop of about 10 acres. Counsel for the State Mr. Quershi Muhammad Raman submitted that he will not support the impugned orders as well as the proceeding drawn up by the Magistrate under section 145, Cr. P. C., particularly so, when no witnesses were examined, the applicant was neither served nor heard before attachment and appointment of receiver and that the very application on the face of it goes to show that the compile-cants were not in possession of the land in dispute.
10. Mr. Imdad Ali Agha appearing for the respondents submitted in reply that even if the order of attachment and receivership dated 20th November 1973, are defective yet the same was curable under section 537, Cr. P. C. He however, failed to cite any case-law in this regard. As to the question where was evidence that the Magistrate came to the conclusion that there existed immediate apprehension of breach of peace to attach the property and appoint receiver, learned counsel submitted that although the initial application makes no such mention yet it shows that at least respondents were not in possession that is why a request was made to the Magistrate to put the complainants in possession of land. Learned counsel submitted that statement of complainant before the Magistrate shows that there was immediate apprehension of breach of peace and that it was sufficient for the Magistrate to come to the conclusion that emergency order was required. I am afraid these arguments of learned counsel are not convincing. He next submitted that this application is premature because the applicant still has a remedy before the Court below for cancellation of the impugned orders. In reply, learned counsel for the applicant submitted that they have moved an application on 19-6-1974 to the District Magistrate to cancel the previous order in view of the status quo order of the Civil Court dated 2-44974, certified copy of the same has been produced but no notice was taken by the District Magistrate, therefore, it cannot be said that any remedy was left to applicant except this Court.
11. To fully appreciate the arguments raised by counsel for the parties it is proper to revert for the present purpose to the relevant provisions of Section 145(1)(3)(4)(5) and (6) which are as under :- "145.-(1) 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.
(3) A copy of the order shall be served in manner provided by this Code for the service of summons upon such person or persons as the Magistrate may direct, and at least one copy shall be published by being affixed to some conspicuous place at or near the. Subject of dispute.
(4) 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 so put in, hear the parties, receive all such evidence as may be, produced by them respectively, consider the effect of such evidence, take such father 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 parry 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.
(5)Nothing in this section shall preclude any party so required to attend, or any other person interested, from showing that no such dispute as aforesaid exists or has existed and in such case the Magistrate shall cancel his said order and all further proceedings thereon shall be stayed, but, subject to such cancellation, the order of the Magistrate under subsection (1) shall be final.
(6)If the Magistrate decides that one of the parties was, or should under the first proviso to sub- section (4) be treated as being, in such possession of the said subject, he shall issue an order declaring such party to be entitled to possession thereof until evicted therefrom in due course of law, and forbidding all disturbance of such possession until such eviction and when he proceeds under the first proviso to sub-section (4), may restore to possession the party forcibly and wrongfully dispossessed."
12. A plain reading of the section 145, Cr. P. C. Goes to show that it is the Magistrate, and only that Magistrate who first takes cognizance of the complaint and passes preliminary order under section 145, Cr P. C. Be that District Magistrate, Sub-Divisional Magistrate or Magistrate of the First Class, to continue the proceedings to a conclusion. Strangely enough in violation of the provision of Section 145 Cr. P. C. In this case two learned Magistrates, namely Salim Ahmad Memon Assistant Commissioner and Sub-Divisional Magistrate Shandadpur as well as Imdadullah Umar District Magistrate, Sanghar at the same time and simultaneously purported to exercise powers under section 145, Cr. P. C. For better understanding of the case the sequence of various orders and powers exercised by the two Magistrates briefly be given under :- (1)On 19-11-1973 initial application by applicant Ghulam Muhammad attorney addressed to Deputy Commissioner, Sanghar was entertained by Mr. Imdadullah Umar, District Magistrate, Sanghar who forwarded this application to Sub-Divisional Magistrate, Shandadpur for disposal according to law as the order says.
(2)On 20-11-1973 Mr. Salim Ahmad Memon, Sub-Divisional Magistrate, Shandadpur passed the impugned orders referred earlier by which he not only passed preliminary order under section 145 (1), Cr. P. C. But also passed emergency order under subsection (4), attached land and crops and appointed one tepedar Jumman as receiver under subsection (8). Over and above, by the same order he added three other respondents namely Muhammad Ibrahim, Akkan and Ali whose names find no mention in the original application.
(3) On 23rd January, 1974 the same Sub-Divisional Magistrate passed the second order under section 145, Cr. P. C., the contents of which are the same as of the earlier order of 20th November 1973, except for the date of attendance of the appellant which was fixed 7-2-1974. How this second order was necessitated and under what law it was passed, one is at a loss to comprehend particularly so when this second order was also passed prior to the examination of respondents Ali, Akkan and Mohammad Ibrahim and complainant Ghulam Mohammad, who were examined on 2- 7-1974. (Page 24 of the original file). The second order apart from being a copy of the previous order having no legal basis could not have been passed on the basis of statements of a later date of three respondents and complainants. These statements are in Siadhi, unfortunately no English translation has been filed by Counsel for the parties. The only unescapable assumption can be that the Magistrate had advance knowledge although not permitted by law that certain facts would be mentioned by certain parties on a later date yet there is no mention of that knowledge even in this order of 23rd January 1974.
(4) Now comes the turn of the District Magistrate to interfere because on 5-6-1974 he entertained another application by complainant Ghulam Mohammad praying for discharge of then acting receiver Munshi Mohammad Yakoob and for appointment of some impartial person. I may point out here that there is no order on the record before me of Courts below as to what happened and by whose order Tapeder Jumraan who is supposed to have been acting up to 23rd January, 1974 as a receiver was removed and as to how and by whom in his place Mohammad Yaqoob was appointed as receiver. However on the very date i,e,, 5-6-1974 the District Magistrate without issuing any notice or giving any opportunity of hearing to any of the respondents passed an order discharging receiver Munshi Mohammad Yagoob and appointed Mr. Lal Dino Nizamani in his place pending the final decision of the case. How the learned District Magistrate and under what law could pass this order, it is difficult to understand.
(5) It is also interesting to note that on the same date i,e,, 5-6-1974 the same Distrait Magistrate not only entertained an appeal filed by Ahmed and S others against Kirmachi and 7 others the contesting tenants of the land against an order of same S. D. M. Dated 10-5-1974 which was passed in favour of Kirmachi and others by holding that they were the red tenants in possession against Ahmed and others, but he proceeded to and in fact decided the same appeal naturally as weal without any notice or bearing the other side, and set aside the order ot S. D. M. And held that the second group of the tenants 1,e,, Ahinad and others were tenants in possession of the land in dispute. This appeal is purported to have been filed and entertained under Tenancy Act (Pages 103 to 113 of the original file). As is apparent from the order the elementary and basic principle of appeal that the respondent be given notice and heard which every judicial officer is expected to know has palpably been ignored by the District Magistrate. Incidentally the same disregard of the legal provisions ,has beee shown by Mr. Salim Ahmed Memon Sub-Divisional Magistrate Shelidadpur by his order dated 10-5-1974. When he entertained the application of Kirmachi and others v. Ahmad and others, whereby without any notice to the respondents he gave a decision in favour of Kirmachi and party, however, he took care to base his order on a purported report of Munshi Mohammad Yagoob Tapedar the receiver of the land in dispute, who reported that Kirmachi and his party were tenants in possession and they have cultivated cotton crops during Kharif 1973-74 and they were being forcibly dispossessed by Ahmed and others from their tenancy rights. The alleged report of tapedar Mohammad Yagoob the receiver finds no place on the record of this case. Assuming the order passed by Sub-Divisional Magistrate Shandadpur dated 10-5-1974 was a legal order wherein tapedar the receiver found Kirmachi and others as tenants in possession and have cultivated certain crops naturally they would be tenants on behalf of present applicant Ali Muhammad and no body also because it was complainant Ghulam Mohammad who brought the proceeding under section 145, Cr. P. C. And wanted to replace them by his tenants to show that they were in physical possession of the land in dispute. Even then the Sub-Divisional Magistrate should have vacated his previous orders of attachment and receivership and should have held that the applicant is a landlord who through his tenants was in possession of the land in dispute because the Sub-Divisional Magistrate was by then seized of the matter and except for passing the attachment order no progress in case was made. It was a crucial point for decision of the case because he could come to the conclusion as to who was on the date of application i,e,, 19-11-1973 or two months prior to the date in physical possession of the land. In Muhammad Ali and two others v. The State and 2 others PLD 1973 Late 529 it was held that preponderant judicial view is that the possession of tenant is the possession of the landlord or any person having that status."
13. For the reasons given above I am of the view that all orders passed by Mr. Imdadullah Unar, District Magistrate in this case are totally void and without jurisdiction as he ceased to exercise jurisdiction on 19-11-1973 when he forwarded the initial application under section 145, Cr. P. C. To Sub-Divisional Magistrate Shandadpur. He, therefore, was independently left with no powers or jurisdiction to interfere with the proceedings of this case except for his revisional jurisdiction and that also he could do on an application of an aggrieved party and after hearing the parties but that is not the case here. His orders, therefore, are hereby quashed.
14. Now coming to the orders passed by Mr. Salim Ahmed Memon, Sub-Divisional Magistrate referred earlier I am of the view that his orders equally are illegal, void and liable to be quashed.
15. As to possession of land and crops in dispute the tenor of initial application of applicant Ghulam Mohammad goes to show that they were not in possession of land but it was otherwise, that is why, a prayer was made in the application that "they kindly be put in possession of the land according to law". Proceedings under section 145, Cr. P. C. Are of a transient nature, the moment question of physical possession on the date of application or two months prior to that date is once settled the matter ends there. Perhaps the main purpose of proceedings under these sections is to prevent breach of peace. In the present case admittedly it was the present applicant who is in possession of the land in dispute, therefore, in absence of sufficient evidence to the contrary the very application was liable for dismissal. Here the impugned orders neither give the grounds and reasons for being satisfied with regard to breach of peace because no witness was produced by Ghulam Mohammad the applicant. It was held in Muhammad Akram v. Mir Baz (1) that the Magistrate of area attaching the entire property without following usual procedure laid down in section 145 and without giving any reason as to why he considered case one of emergency only action called for in the circumstances was one of starting proceedings under section 107 and not 145, Cr. P. C." . It was held in Abdul Hague v. The State (2), that "section 145 applies when each one of two opposite parties claim "actual physical possession" of property in dispute, where parties doing business in disputed shop together but falling out on question of profit and shop in dispute in possession of petitioner and respondent not claiming any such possession, provision of section 145 not applicable as a result proceedings were quashed.
16. The continuance of proceedings by Court below suffers from another defect to the effect i,e, on 19.6-1974 an order of learned Civil Judge, Shandadpur was produced before the District Magistrate dated 2-4-1974 for maintenance of status quo, he should have stopped his hand but apparently no notice was taken of this order and the proceedings was allowed to continue until the file was called by this Court. In M. A. Farooq v. National Bank of Pakistan Muzzafarabad and others (3) the dispute between the parties arose with regard to possession of 8 marlas of land each of the party claimed to be in possession. When the respondent bank started construction of a wall petitioner filed an application in the Court of Sub-Judge and obtained an emergency order restraining the bank from entering upon the land in dispute. In the meanwhile the Respondent Bank made an application before the District Magistrate under section 145, Cr. P. C. Requesting that the unauthorised construction by the petitioner may be demolished and the land cleared. The District Magistrate Wrote on 7th January 1970 to the Superintendent of Police to stop construction immediately. The petitioner then moved for cancellation of the same order and the District Magistrate on 28-2-1970 after issuing notices to the parties and hearing them passed the order in dispute wherein he stated that he passed the above order of stay just to save a clash between the parties and it had nothing to do with the determination of the rights of the parties and that in the circumstances he felt that he had no authority under law to maintain his order passed on 7-1-1970 which he cancelled, and the parties were directed that they will not take law and order in their own hands, but they will proceed in due process of law regarding getting the possession of land. The petitioner feeling aggrieved by this order on the ground that he having been dispossessed by the District Magistrate, the latter was bound to restore possession to him after he had no authority to pass it. He challenged that order in revision before High Court wherein it was held that "the District Magistrate did not deem fit to proceed further in the matter and as a civil case between the parties was already pending in Court of competent jurisdiction, he rightly came to the conclusion that the parties should get their dispute settled there but then he had no right whatsoever to prevent the petitioner from entering into or upon his land till the disposal of this civil case. A Magistrate certainly can pass such an order but that is to be done after a proper proceeding as required by section 145, of the Cr. P. C. He did not proceed to decide the case in accordance with law and did not come to any finding that the petitioner was not in possession of the property or that the possession of both the parties was doubtful and as such he should not have passed such an order.
Even under section 145 the Criminal Court has just to decide {{FOOT NOTE}}
(1) 1973 SCM R 236 (2) 1973 P Cr. J 945
(3) 1973 P Cr. L J 135 {{FOOT NOTE}} ' who was in possession of the property either on the date the application was made or two months before that and if it comes to finding that one of the parties was in such possession, the Criminal Court has to maintain his possession till such time as the parties may get their dispute adjudicated upon by a Civil Court it has been prima fade established that the petitioner was in possession f the plot in dispute on the day the first order was passed by the D.M. And as there is no evidence that the National Bank was in possession of this lot either on that day or at any time, during two months before, it is he that the petitioner was in possession of this plot and it is ordered that the same shall be restored to him by the District Magistrate himself".
17. In the present case as I have observed earlier the very first application goes to show that complainant Ghulam Mohammad and his party were not in possession of land in dispute, and no evidence was produced to the effect that present applicant Muhammad Ali was not in possession as the impugned order is quite silent on that point and no notice was given by the Court below to pass the impugned order of attachment and receivership. Another interesting feature of this case is that after first ex parte order of attachment and receivership dated 20th November, 1973, the matter was fixed for recording statements of respondents on 12-12-1973 On that date according to order sheet out of 4, three opponents, namely Muhammad Ibrahim, Akkan and Ali were present but their statements were not recorded and no opportunity was given to their, therefore, they were deprived of opportunity to show that they were in possession of the land yet the case was adjourned to another date, which continued as referred up to the present day without any decision of the question as to who was in possession of the land on date of application or prior to two months thereof. Had the statements of only three opponents been recorded who were all along present and an opportunity given to them by the Court below to show that they were in possession or otherwise of the land, the Magistrate could have rectified his order of 23rd January, 1973 and saved the parties from unnecessary lengthy litigation and expense but unfortunately the clear provisions of law were ignored by the Courts below. Therefore, for the reasons given above I am of the opinion that the impugned orders are void and illegal. I hereby quash pending proceeding against the applicant.