' This is a reference under section 433/438, Cr. P. C. By learned Sessions Judge, Quetta (vide in order dated 7th July, 1973) recommending quashing of the order dated 9-1-1973, of Assistant Commissioner and Magistrate First Class, Pishin-Quetta and proceedings under section 145, Cr. P.
C.
2. One Malik Abdul Hag had filed an application under section 145, Criminal Procedure Code in the Court of Assistant Commissioner and Magistrate Pint Class Pishin, claiming that the Government is Malik-e-Ally of the land in dispute and the applicant is Malak-e-Adns, as such the respondents were cultivating the applicants' land as tenants and they had misapropriated the produce of the land without giving share to him. He next stated that the produce of Tobacco was ripe for harvesting and the respondents wanted to take away the whole produce without giving half share to him and they are threatening him when he claims his share and it was requested that the respondents may be bound down not to take produce till disposal of the application and the crop may be kept in custody.
3. The Magistrate, it appears, examined the applicant and on the same day passed an order that the respondents be summoned for 6-9-1972 for evidence. The case was adjourned thereafter on two dates and the Magistrate In meanwhile instead of conducting the proceedings himself or recording the evidence of the parties sent the file to Tehsildar for submitting Ms report with regard to ownership of the Tobacco in the light of the Revenue record. Tahsildsr on 26-9-1972 reported that the respondents had cultivated the Tobacco in the disputed land and the applicant Malik Abdul Haq is a Morusi Basghar enjoying the right as owner. The respondent on 3-10-1962 filed written-statement saying that the Government is the owner of the land in dispute and the applicants are in possession of the land for 110 sears as "Morusi tenants" and that notice issued to them be withdrawn and that there was no apprehension of breach of peace.
4. The Magistrate it appears neither read section 145, Cr. P. C. Nor unferstood the import of the same. He, therefore, in clear disregard of the mandatory provision of section 145, Cr. P. C. Passed the impugned order on 9.1-1973, holding that Malik Abdul Hague, the applicant, was owner in possession of the land in dispute and that the respondents should not Interfere in the land and at the same time observed that: {{URDU TEST}}
5. I have heard Mr. Aaizullah Memon, Advocate, for the applicant Mr. S. H. Iafri, Advocate for respondent No, 1, Malik Abdul Haque, an Mr. Basharat Ullah, Advocate for the State. It was contended by the counsel in support of the reference that the impugned order and the proceed ings are wholly void and in contravention of mandatory provision o section 145, Cr. P. C. As held by both the lower Courts because prelimina order under section 145(1), Cr. P. C. Showing satisfaction of the Magistrate to proceed with the case that there is apprehension of breach of peace is missing' besides no opportunity was afforded to the applicants to produce evidence in the case and the impugned order has been made without any enquiry by the Magistrate himself which he was bout d under the law'A On the other hand be based his order on the report of the TehsilDar which latter officer has no power, whatsoever, under section 145, Cr. P. C. To take up investigation even on order of the Magistrate: Over and above, the provisions of section 145 (4) has not been followed at all yet the Magistrate proceeded to bind down the other side for non-interference with the crop which according to his own statement since is no more Mr. Lard learned counsel for the respondent No, 1 which found himself with difficulty to advance any cogent argument to oppose the reference conceded that the Magistrate should have stayed his hands when he came to the conclusion that the crop already three months earlier had been removed by the other side.
6. It was held in Muhammad Ishuque Choud.Hary v. Nur Mahal Begum and others ( t) that:- "there can be no doubt that Magistrates exercising jurisdiction under section 145, Cr. P. C., 1898 are expected to comply strictly with the provisions of the section but to say that a failure to follow the {{FOOT NOTE}}
(1) PLD 1961 SC 426 {{FOOT NOTE}} prescribed mode must in every case render the exercise of the jurisdiction invalid and illegal is too wide a proposition. There is a distinction between the elements, which are essential for the foundation of jurisdiction and the mode in which jurisdiction has to be exercised. The elements necessary for the foundation of jurisdiction under section 145 of the Criminal Procedure Code, 1898 are that the Magistrate must be satisfied-
(a) that a dispute likely to cause breach of the peace exist'
(b) that the dispute refers to land or water or the boundaries thereof, and
(c) that such land or water is situated within the limits of his territorial jurisdiction. If these elements exist, they are sufficient to vest the Magistrate with the jurisdiction to make the preliminary order in the mode prescribed therein. If the Magistrate after having acquired jurisdiction does not strictly comply with the other requirements of the section as to the form of the order and does not state the ground of his being so satisfied, the order is no doubt defective, but this does not mean that the order is also without jurisdiction. The jurisdiction to make the order upon the existence of the elements necessary for founding the jurisdiction. Once depends the Court has validly acquired that jurisdiction, it cannot be said that it has only the jurisdiction to make a correct order in the prescribed form and that whenever the order is incorrect or defective, the order must also be held to be without jurisdiction. Therefore, to hold that the mere omission to state the grounds, upon which the Court is so satisfied in the initial order under section 145 of the Criminal Procedure Code, 1898 does not necessarily make the order also without jurisdction. The most that can be said is that the failure to do so is a non-compliance with a rule of procedure and mere non-compliance with a rule of procedure generally is not an illegality vitiating the entire proceedings. In such cases the important thing is to see "whether there were materials on the record upon which the satisfaction of the Magistrate could be at all grounded. If there exist .Such materials, then the mere omission to state the grounds of satisfaction will not vitiate the order. In such a case it must be held that there has been substantial compliance with the requirements of the provisions of section 145 of the Code and that the defect is merely technical defect."
' In The State v. Mirza Mohyuddln Ahmed and 15 others (1) it was held that "a complaint under section 145, Cr. P. C. Can be dismissed either for nomprosecu don or non-existence of apprehension of breach of peace. It is Court's duty also to make declaration as regards possession of opposite-party in terms of subsection (6) of section 145, if apprehension of breach of peace is found to exist.
7. I, therefore, accept this reference and hold that the impugned order dated 9-1-1973 of Assistant Commissioner and Magistrate First Class, Pishin and the entire proceedings under section 145, Cr. P.
C. Are illegal which are hereby set aside.
8. As is obvious it has been repeatedly observed by their Lordships of the Supreme Court as well as this Court that the Magistrate while exercising power under section 145, Cr. P. C. Must be very cautious and before {{FOOT NOTE}}
(1) 1971 P Cr. L 412 {{FOOT NOTE}} 1978 FAQIR MOHD. V. STA taking any step must comply with the mandatory provisions of this section. Unfortunately this section had been misused repeatedly due to ignorance of law by the Magistrates particularly in this part of the country where most of the Magistrates have not the benefit of legal education yet at the same time they are empowered to exercise jurisdiction under the notorious Frontier Crimes Regulation of 1901 as well as Pakistan Penal Code, hence the tendency to treat the clear and strict provisions of Cr. P. C. As flexible as F. C. R. Which results invariably in passing of wholly illegal orders under section 145, Cr. P. C. Which causes great hardships and unnecessary expenses to the litigant public and unnecessary work to the Sessions Courts aswell as to this Court to rectify patently illegal orders of the Magistrate. Let a copy of this judgment be sent to Home Secretary, Government of Baluchistan to be circulated amongst the Magistrates who are exercising first class powers for their furture guidance.