' MUHAMMAD BASHIR JEHANGIRI, J.---This petition for special leave to appeal is directed against the order of the Peshawar High Court in Cr. Misc. No,37 of 1998, dated 6-11-1998. By this order, a learned Single Judge of the High Court dismissed the application under section 561-A, Cr.P.C. For quashment of the order, dated 26-2-1998 of the learned Izafi Zilla Qazi, Dir, remanding the case under section 145, Cr.P.C. To the Ilaqa Qazi.
2. The dispute between the parties is in respect of a piece of land situate in Village Tarpatar, District Dir. Muhammad Ziar and another, respondents herein, filed a complaint under section 145, Cr.P.C.
Against Hazrat Muhammad Khan and six others before Haqa Qazi Foujdari, Dir, asserting therein that they were owners-in-possession of the disputed land but respondents had illegally trespassed into a portion of land in dispute and started raising construction of a 'Kotha' therein which was likely to cause a breach of peace between the parties. By order dated 13-4-1995 the learned Ilaqa Qazi Foujdari ordered that "preliminary injunction be issued and summoned the parties for 4-5-1995".
Nonetheless the copy of notice to the parties reveals that formalities of subsection (1) of section 145, Cr.P.C. Were substantially complied with wherein he was said to have been satisfied that a dispute as mentioned in the section existed and required the parties in the dispute to attend his Court on a specified date and time and besides putting in their written statement attached the property as well. The parties put in their written statements and adduced evidence in support of their respective pleas. By order dated 2-4-1997, the learned Ilaqa Qazi Foujdari, dismissed the said application holding that the disputed land was in possession of the second party, namely, Hazrat Muhammad etc. And that first party, namely, Muhammad Zair Khan etc. Had "got it attached with intent to get possession thereof illegally".
3. Zair Muhammad etc. Challenged the order in a criminal revision before the learned Izafi Zilla Qazi Dir, who accepted the petition and remanded the case to Illaqa Qazi Foujari on the ground that he had decided the case "merely on recording of statements of the witnesses produced by the parties without either referring the complaint to the local police for reporting or inspecting the spot and further that under it was essential that in proceedings under section 145, Cr.P.C. The proceedings under sections 107/151, Cr.P.C. Should have been taken between the parties which were not taken which steps shall be initiated.
4. Dissatisfied with the order of the Izafi Zilla Qazi, the petitioners Hazrat Muhammad etc. Filed Cr.Misc. Q.No,37 of 1998 in the Peshawar High Court, Peshawar. A Single Judge, who was seized of the matter, observed that the learned Illaqa Qazi had failed to enquire into the matter in accordance with sub-section (4) of section 145, Cr.P.C. And had also failed to furnish reasons for his satisfaction with regard to the dispute over the property and also with regard to the factum of apprehension of breach of peace over the dispute and while upholding the order of the learned Izafi Zilla Qazi dismissed the petition and declined the quashment of the impugned order vide order dated 6-11-1998.
5. In support of this petition, Mr. Mazullah Barkandi, learned counsel for the petitioners, has contended that there was no legal warrant for the learned Izafi Zilla Qazi to have set aside the order dated 2-4-1997 passed by the learned Ilaqa Qazi Foujdari merely on the ground that the complaint had not been marked to the local police or that the learned Illaqa Qazi had not enquired into the matter on the spot or had not deputed any official to do the job or for that matter if the police had not initiated the proceedings under section 107/151, Cr.P.C., there was any legal requirement of reporting the matter to the police.
6. Mr. M. Zahoor Qureshi Azad, learned Advocate-on-Record for respondents No, 1 and 2 and Mr. Imtiaz Ali, learned Additional Advocate-General, N.-W.F.P. On notice, were also heard in support of the impugned orders of the learned revisional Court and the learned High Court.
7. Section 145, Cr.P.C. Is self-contained and self-explanatory and the Magistrate has to confine himself to the section itself only. In the instant case we find that the learned Ilaqa Qazi Foujdari was satisfied that a dispute as mentioned in the section existed, therefore, he had passed a preliminary order under subsection (1) and afterwards had in fact made an inquiry under subsection (4). The inquiry is limited to the question as to who was in possession on the date of the order, irrespective of the question as to the rights of the parties and the title to the property. This requirement appears to have been substantially complied with by the learned Illaqa Qazi Foujdari. The learned Izafi Zilla Qazi, to say the least, had fallen into a grave error of law in setting aside the impugned order of the learned Ilaqa Qazi merely on the ground that the complaint had not been marked to the local police or for that matter the learned Illaqa Qazi had not gone to the spot to conduct an inquiry or had entrusted this duty to any official functionary of the State. A bare reading of section 145(1), Cr.P.C. Would reveal that the Magistrate concerned under the specified clause (1) of section 145, Cr.P.C. Is competent to initiate the proceedings if he is satisfied from a police report or other information that a dispute likely to cause a breach of peace exists concerning any land....Within the local limits of his jurisdiction". There is no such requirement that if the complaint is not sent to the local police for report or that the Magistrate is under a bounden duty to go to the spot and conduct an inquiry or get it done through a State functionary. The Magistrate empowered to initiate the proceedings under the section should be satisfied either from a police report or other information.
In the instant case the Illaqa Qazi Foujdari was satisfied from the complaint itself which falls within the phraseology 'other information" employed in subsection (1) of section 145, Cr.P.C. We are therefore, constrained to observe that the learned Izafi Zilla Qazi was not justified in law to have set aside the order of the learned Ilaqa Qazi Foujdari and remanded the case to him for sending the complaint to the local police and also direct the initiation of the proceedings under sections 107/151, Cr.P.C. Likewise, it may be said so with all respect in affirming the aforesaid conclusion of the lzafi Zilla Qazi, the learned Single Judge had not correctly comprehended the true import of section 145, Cr.P.C. The law is settled by this Court in S.M. Jaffar v. A.Q. Shaukat and another (PLD 1969 SC 53) that section 145, Cr.P.C. Confers summary powers on a Magistrate enjoying a certain status not lower than the rank of the Magistrate 1st Class, to take action with regard to a dispute concerning land or water including building etc, within the limits of his jurisdiction, to prevent a breach of peace taking place over that dispute. In these proceedings that are initiated under this section, the Magistrate has to decide as to which of the parties was on the date of initial order or within two months next before that order in actual possession of the subject-matter of the disputed property without any reference to the merits or the claims of any such party to a right to possess it. The learned Izafi Zilla Qazi appears to have been misled by the brief order dated 13-4-1995 recorded on the complaint itself which has been noticed in para.2 ante that "preliminary injunction be issued and the parties summoned for 4-5-1995". In point of fact, the same day a notice to the parties within the contemplation of section 145(1), Cr.P.C. Was issued to the parties indicating therein that the learned Magistrate was satisfied that a dispute likely to cause a breach of peace existed concerning the disputed land within the local limits of his jurisdiction and; made an order in writing stating the ground of his being so satisfied ard required the parties concerned to attend his Court within a specified time and date and directed them to put in their respective claims as regards the factum of actual possession of the subject-matter of the dispute. Thereafter, the parties not only put in their written statements but had also adduced their respective evidence both ocular and documentary and then the learned Illaqa Qazi Foujdari passed the impugned order, dated 2-4- 1997 wherein the disputed land was held to be in possession of the petitioners and the respondents-complainants were held to have attempted to take possession thereof in the garb of the complaint and got it attached.
8. It would be seen that no legal infirmity of the kind which would have vitiated the proceedings was either asserted or pointed out before the revisional Court as also the learned High Court warranting their interference. We are, therefore, of the considered view that the grounds which weighed with the learned revisional Court in passing the impugned order duly affirmed by the learned Single Judge were extraneous to the mandatory formalities to be adhered to by the learned Illaqa Qazi in these proceedings.
9. In our view, therefore, the learned Single Judge of the High Court was in error in upholding the order of the learned Izafi Zilla Qazi to remand the case to the Illaqa Qazi for making over the complaint to the local police for report and for personal inspection of the Illaqa Qazi and to conduct an inquiry. In so far as the proceedings under sections 107/151, Cr.P.C. Are concerned, it is for the Magistrate or local police to determine as to whether the proceedings under section 107/151, Cr.P.C. Ought or ought not to be initiated depending upon the severity of apprehension of the breach of peace.
9. In the result, this petition is converted into appeal and while accepting it we set aside the impugned orders of the learned Izafi Zilla Qazi as also the learned High Court and the orders of the learned Illaqa Qazi are restored. Any one of the parties, if it had already not done so, if so advised, may approach the competent Civil Court to decide either the title to the disputed land or their entitlement to possession thereof. The parties are, however, left to bear their own costs.