' SARDAR SAID MUHAMMAD KHAN, C.J.--- This appeal has been directed against the judgment of the High Court, dated 13-3-2001, whereby the reference made on revision by the Sessions Judge, Poonch, was rejected and the order of the Sub-Divisional Magistrate, Rawalakot, passed under section 145, Cr.P.C. Was maintained.
2. The brief facts of the case are that the appellants and the respondent jointly purchased land measuring 16 Kanals, 5 Marlas comprising Survey Nos.930, 867 and 763, situate in village Koyan, Tehsil Rawalakot; in subsequent settlement the said survey numbers were re-numbered as 1279, 1254 and 1300. It is stated that after purchasing the said land, the appellants herein, and the respondent, jointly constructed 16 shops over the land purchased and subsequently site plan was also got approved from the Pearl Development Authority. It is further alleged that as the aforesaid property was jointly owned by the parties, a code of conduct was adopted by the parties for smooth exercise of the ownership rights, the copy of which is attached to the memorandum of appeal. Afterwards, a dispute arose between the parties in consequence of which a Punchayat Nama also came into existence, the copy of Punchayat Nama is Annexure "AE" to the memorandum of appeal; the same was signed by the parties and the members of the Punchayat.
In the latest settlement, the aforesaid 16 shops were shown to have been constructed over Survey No,376, situated in village Bermang Khurd, and is shown in the ownership of Ch. Abdullah in the Revenue Record. Consequently, litigation between the present rival parties on one hand and Ch. Abdullah and his son, Muhammad Azam, on the other, started. Thus, a compromise was entered into between them which is marked as Annexure "AF" and is placed at pages 29 and 30 of the paper book. The said compromise took place between the contesting parties in the present litigation on the one hand and Ch. Abdullah and Muhammad Azam son of Ch. Abdullah on the other; it was agreed upon that the shops in question which have been shown in the latest settlement to have been constructed over Survey No,376 are in the joint ownership and possession of the parties, i,e,, the present appellants and Muhammad Khurshid, respondent; compromise was signed by Muhammad Rahim 4nd others, appellants, and Muhammad Khurshid, respondent, the contesting parties in the present litigation and by Ch. Abdullah and Muhammad Azam son of Ch. Abdullah. In consequence of that compromise an order was passed by the Additional Commissioner Revenue on 29-9-1997 that in view of the said compromise, there was no more need for the correction of the Revenue Record. According to the case of the appellants, the said compromise deed shows that Muhammad Khurshid, respondent, accepted the case of the appellants, herein that the shops in question were jointly owned by him and the appellants and were in their joint possession. Thereafter, Muhammad Khurshid, respondent, allegedly joined hands with Ch. Abdullah and his son Muhammad Azam, and got the land measuring 16 Marlas under Survey No,376 transferred in his favour through an illegal gift-deed without the knowledge of the appellants; they came to know about the same when Muhammad Khurshid, respondent, started constructing second story on the aforesaid shops which were in the joint ownership of the parties.
Consequently, the appellants, herein, moved an application under sections 145/107, Cr.P.C. Before the concerned police who submitted a report to the Sub-Divisional Magistrate. The learned Sub- Divisional Magistrate, after spot inspection, made the order of interim attachment of the property under section 145, Cr.P.C. And appointed one Muhammad Sharif Khan, the real cousin of Muhammad Khurshid, respondent, as receiver. Thereafter, allegedly Muhammad Khurshid, with the connivance of the receiver, broke the locks of the shops in dispute and occupied the same.
Consequently, the appellants were obliged to make applications to the Sub-Divisional Magistrate and other authorities which are at pages 37 to 46 of the paper book but no action was taken against the receiver or the respondent. The Sub-Divisional Magistrate, after recording the evidence of the parties, held that the shops were in the possession of Muhammad Khurshid, respondent, and passed order restoring the possession of the same to him. The appellants, herein, filed a revision petition before the Sessions Judge who accepted the same and made a reference to the High Court recommending a further inquiry by the Sub-Divisional Magistrate. The High Court rejected the reference made by the Sessions Judge and held that the shops in question were rightly found in possession of Muhammad Khurshid, respondent, as such, the order of the Sub-Divisional Magistrate was upheld.
3. We have heard the arguments advanced by the learned counsel for the parties. As has been stated above, the High Court did not accept the reference made by the Sessions Judge and maintained the order passed by the Magistrate. There is no difference of opinion between the learned counsel for the parties that the evidence produced by the parties in the case was recorded by the learned Magistrate under section 145 of Cr.P.C. And passed final order restoring the possession of Muhammad Khurshid Khan, respondent. It is not ascertainable from the reference made by the learned Sessions Judge as to why he has ordered for taking fresh proceedings in the case. However, with the help of the learned counsel for the parties, we traced out the order purported to have been made by the learned Magistrate under subsection (1) of section 145, Cr.P.C.
The learned counsel for the parties agree that the order, dated 16-5-1999 would be deemed to be a preliminary order in the present case. It may be observed that jurisdiction of the Magistrate in proceedings under section 145, Cr.P.C. Depends upon the passing of preliminary order in conformity with the provisions of under subsection (1) of section 145, Cr.P.C. If the order is violative of said provisions whole of the proceedings vitiate. We are constrained to observe that in the instant case the order passed by the learned Magistrate dated 16-6-1999 is not in conformity with the requirements of the said provisions. For convenience preliminary order, dated 16-5-1999 and the relevant provisions of section 145, Cr.P.C. Are reproduced as under:- {{URDU TEXT}} "145. Procedure where dispute concerning land etc., is likely to cause breach of peace.--- (1)
Whenever a District Magistrate, or Sub-Divisional Magistrate or an Executive Magistrate especially empowered by the Provincial Government in this behalf 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.
(2) For the purposes of this section the expression 'land or water' includes buildings, markets, fisheries, crops or other produce of land, and the rents or profits of any such property.
(3) A copy of the order shall be served in manner provided by this Code for the service of a 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)..
4. If we judge the validity of the aforementioned order passed by the Magistrate in the light of abovementioned provisions that does not conform to the requirements of law; the law enjoins upon the Magistrate to give reasons in support of his "satisfaction" that there is likelihood of breach of peace; he has to mention the identity of the disputed property and a copy of the said order is to be affixed at some conspicuous place near the subject of dispute as required under subsection (3) of section 145, Cr.P.C.. Thereafter, he has also to call upon the contending parties to put up their written statements as required under section 145, Cr.P.C. The order of the learned Magistrate does not fulfil the aforesaid conditions; he proceeded to make interim attachment of the property in dispute under subsection (1) of section 145, Cr.P.C. Without following correct procedure. It may be impressed that before proceeding under section 145, Cr.P.C. The procedure laid down therein is to be strictly complied with.
5. It is also pertinent to point out that the High Court has expressed the view in the impugned order that there was no danger to peace and thus, the order passed by the learned Magistrate does not call for any interference. This was nobody's case before the High Court that there was danger of breach of peace. We may observe that the condition precedent for the restoration of possession is that the Magistrate has to ascertain from the evidence as to which of the rival parties was in possession of the disputed land two months prior to passing of the preliminary order. However, the learned Magistrate did not give any such finding and passed the order of restoration of possession to Muhammad Khurshid Khan, respondent, observing that the property was transferred to him by way of gift. Needless to say, the question of title to the property is immaterial in proceedings under section 145, Cr.P.C. Thus, we are of the opinion that the learned Sessions Judge has rightly observed that the learned Magistrate did not give any finding with regard to the factum of possession two months prior to passing of preliminary order.
6. It has also been contended on behalf of the appellants that the learned Magistrate has relied upon the statements of two Patwaris but no opportunity was provided to the appellants to cross- examine them. However, as we are of the opinion that the preliminary order being defective, all the subsequent proceedings taken by the Magistrate stand vitiated. It may be observed that under section 145, Cr.P.C. The Magistrate is competent not only to record evidence produced by the parties but if he feels necessity, he may record statement of any person which in his estimation is essential for reaching the correct conclusion. But it is essential that an opportunity for cross- examination is given to the concerned parties.
7. Before parting with the case we may emphasise that provisions of subsection (1) of section 145, Cr.P.C. Are mandatory and the violation of the same is fatal to the proceedings subsequently taken.
A reference may also be made to the following authorities in support of the view:--
(1) Muhammad Ishaque Chowdhury and another v. Nur Mahal Begum and others PLD 1961 SC 426,
(2) The State v. Abdul Aziz and another 1977 PCr.LJ 192,
(3) Khitab Gul v. Niaz Muhammad PLD 1969 Pesh. 77 and
(4) Muhammad Bakhsh and others v. Haji Muhammad and 2 others v. The State PLD 1969 Kar.
22.
8. In the light of what has been stated above, we accept the appeal, set aside the impugned orders of the Courts below and direct the Magistrate concerned to pass preliminary order under subsection (1) of section 145, Cr.P.C. In the light of observations made above and thereafter, proceed afresh according to law. It may also be observed that if the Magistrate comes to the conclusion that there is immediate danger of peace, he may pass a fresh order of interim attachment and hand over the possession of the disputed shops to any independent person as receiver. Appeal stands accepted as indicated above.