' MUHAMMAD MUNIR KHAN, J.---This appeal by leave of the Court arises from the facts that on 19-5- 1991, Qazi Gran appellant filed application for proceedings under section 145, Cr.P.C. Against Muhammad Jan respondent, in the Court of 4ssistant Commissioner, Dir, alleging that he was in possession of a plot, situate near Metrological Building, Dir and Muhammad Jan respondent wanted to dispossess him forcibly from the plot and as such there was apprehension of breach of peace. The application was entrusted to Extra-Assistant Commissioner/Magistrate, Dir, who sent it to the S.H.O. Concerned for inquiry and report. The S.H.O. Submitted his report on 21-5-1991. The Extra-Assistant Commissioner vide order dated 30-7-1991 directed the parties to file written statement with regard to their claim in the plot. On 12-11-1991, Muhammad Jan filed written statement denying the correctness of the application under section 145, Cr.P.C. He pleaded that the plot was allotted to him and was in his lawful possession and that he had started construction on it whereas Qazi Gran applicant/appellant was never in possession of the plot and there was no apprehension of breach of peace. He prayed that the application under section 145, Cr.P.C. Be dismissed. Instead of dismissing the application, the Extra-Assistant Commissioner, Dir asked the applicant to produce evidence. On this the respondent filed Revision against the orders of Extra- Assistant Commissioner before the Sessions Judge Dir, who vide order dated 7-11-1992 accepted the same. He found that the plot was a State property. It was allotted to the respondent and possession was given to him by the D.C. There was sufficient material on record coupled with the report of S.H.O. Concerned suggesting that there was no dispute as to the possession of plot. It was further observed by the learned Sessions Judge that the dispute between the parties did not warrant to invoke the provisions of section 145, Cr.P.C. Feeling aggrieved thereby Qazi Gran filed petition under section 561-A, Cr.P.C. In the Peshawer High Court, Peshawar which was dismissed vide impugned order. Feeling still not satisfied, the appellant filed petition for leave to appeal in this Court. Leave was granted on 30-10-1993 to consider whether proper procedure as required under the law has been followed by the lower forum in the exercise of their jurisdiction and whether they have not failed to exercise jurisdiction vested in them by not determining the factum of actual physical possession of the disputed land.
2. Learned counsel for the appellant has argued that the learned Sessions Judge was not justified in dismissing the application of the appellant under section 145, Cr.P.C. Without first having determined the factum of actual physical possession of the disputed land; and that by the fact that the S.H.O. Had proceeded against the parties under security measures as reported by him would show that there was an apprehension of breach of peace. Learned counsel for the respondent No,1 has defended the impugned order.
3. We have considered the submissions made by the learned counsel for the parties. We do not persuade to agree with the learned counsel for the appellant. It is well settled that jurisdiction of a Criminal Court under section 145, Cr.P.C. Could be invoked except on the ground of likelihood of breach of peace. Learned counsel for the appellant has frankly admitted that since 1991 till today no untoward incident took place between the parties and the peace never breached. The record of the case does not suggest any imminent danger of peace necessitating continuation of proceedings under section 145, Cr.P.C. In this case, the proceedings remained pending for a long time but there was no breach of peace. Section 145, Cr.P.C. Deals with the procedure where dispute concerning immovable property is likely to cause breach of peace. It does not suffice for proceedings under this section that there should be a dispute but it is necessary also that there should be a dispute likely to cause a breach of peace. The primary object of provision is the prevention of breach of public peace arising in respect of dispute relating to immovable property.
The settlement of dispute relating to property which is not likely to lead to a breach of peace is within the exclusive jurisdiction of the Civil Court. If there was/is no imminent danger to the public peace, the Magistrate need not take cognizance of an application under section 145, Cr.P.C. And , also need not determine the factum of actual physical possession of the disputed property/land.
The provisions of section 145, Cr.P.C. Have to be strictly followed when action is taken under it. In the instant case, we feel that the appellant has resorted to Criminal Court under section 145, Cr.P.C.
Only to harass the other party although the dispute, if any, between the parties was purely of civil nature.
4. Submissions made by learned counsel for the appellant are devoid of force and substance. No exception can be taken to the impugned judgment. The appeal is, therefore, dismissed.