1. ' This application under section 561-A of the Cr. P. C. Has been filed to challenge proceedings under section 145, Cr. P. Code initiated against the applicant and respondent Juma, by the Additional Commissioner and S. D. M , Nazimabad, Karachi, upon receiving a complaint from the S. H.
2. 0., Gulbahar P. S. The complaint was filed on 13-5.1976, and was stated to be filed on the basis of a letter dated 3-5-19-6 from the Superintendent of Police (N). It was alleged that the applicant and respondent No, 2 Juma Khan were constructing a commercial factory in the graveyard of Doda Village near Usmania Colony. Since this place had been left open/vacant by the residents of that village for the purpose of graveyard, in which some graves had also been built for the burial of the dead, and that it had a compound wall which had been dismantled by the petitioner and respondent No, 2 to cover the area within their own boundary wall, there was apprehension of a breach of peace at any time. This complaint ended in the prayer "That till the decision of the Hon'ble High Court the opponents may be bound down and/or ordered not to raise any construction. The sealing of factory may please be ordered because there is imminent breach of peace."
3. ' Names of six persons including the Sub-Inspector himself, were also mentioned as witnesses. The S. D. M., Nazimabad passed an order under section 145 (1) of the Cr. P. C., directing the applicant and respondent No, 2 to appear in his Court on 24-5-1976 and file their written-statements in respect of their claim on the above land, and further if they objected to do so, they may appear and have the order set aside or modified. This order has been filed, and is dated 15th of May, 1976.
4. At the foot of this order, one more order has been passed, which is in these terms "Apprehending immediate breach of peace it has been ordered that the construction raised over the land on the graveyard be immediately attached under section 145 (4), Cr. P. C."
5. ' The applicant has produced in this Court, an agreement dated the 29th November 1975, by which he purhcased a plot of land bearing No, 161, Survey Sheet No, 57 situated at Doda Village, Golimar, Karachi, alongwith construction which consisted of two rooms and a boundary wall. This purchase was made from respondent No, 2, Juma Khan, for a total consideration of Rs, 2,0(0, who gave him possession thereof. It is the case of the applicant that he used the property as godown for storing goods and continued to be in peaceful possession of the same. Respondent No, 2 Juma Khan is alleged to be the son of Doda Khan in whose name this village originally stood. The agreement shows that this property Le. Survey No, 161, Survey Sheet No, 57 in Doda Village was the private property of Juma Khan son of Doda who sold it to the applicant. In the agreement a Letter No, CT : S. 613/54 of the City Deputy Collector, Karachi has been referred to by which the property was shown to be in the possesssion of respondent No 2, Juma Khan in the year 1954. In para. No, 6 of this Agreement, the vendor i,e, respondent Juma Khan declared the vendee applicant to be the future lawful owner and that no other person had any right, title and interest in the said property who would enjoy the same and receive all benefits therefrom without any obstructions of whatsoever nature.
6. ' The applicant has also produced photographs of the place to show that there is no graveyard round about the property, which seems to be a completely constructed building. There are other residential and commercial buildings all around the plot in question. He has produced documents to show that this property was assessed for the purpose of Taxation by the concerned Excise & Taxation Department and the applicant paid the said taxes. The documents further show that there was electric installation in the property from January 1976, and that water connection had also been allowed by the K. M. C. With this factual background, the learned counsel for the applicant contended that the complaint and the action taken were misconceived as in the first place no dispute is alleged as between the applicant and any other person or party, over the actual possession of the property and further that no emergency for passing an order under section 145 (4), Cr. P. C. Is shown to exist. If any graves had been dismantled the applicant could be prosecuted for that specific offences, but if there were no such graves and only a vacant plot had been occupied, then too proper legal proceedings could have been taken instead of sealing his lawfully owned factory. ' This action was -causing tremendous loss to the applicant. Now section 145, clauses (1) and (4) under which action has been taken in this case 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 pit in written statements of their respective claims as respects the fact of actual possession of the subject of dispute, and..........................
7. 44) 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, persue 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 further 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 party 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 bad 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."
8. ' The contents of the complaint do not at all disclose the existence of any dispute over the land in question which may be likely to cause a breach the peace. Graveyard is a public place. If the Police Officer was apprehensive that a breach of the peace, was likely, he could take preventive measures or even resort to proceedings under section 107, Cr. P. C. Apparently the complaint was filed ten days after the letter of the Superintendent of Police and nothing had happened during this period. This it shows that there was no imminent danger of a breach of the peace. Significantly also the Magistrate while taking action under the second proviso to section 145 (4) has failed to state as to how the case was one of emergency, such as to justify the attachment of the premises in occupancy of the applicant. The documents produced by the applicant disclose that he had come into possession of the land from November 1975 and had been paying property tax for the same as duly assessed, by the K. M. C. And the Taxation Department. Evidently his possession cover the premises has been for more than two months prior to the date of the order while is May 15, 197e.
9. ' The learned counsel for the applicant has referred to the case of Nawabuddin v. Abdul Ghafoor (1) in which the learned Single Judge, after {{FOOT NOTE}}
(1) 1968 P Cr. L J 335 {{FOOT NOTE}} reviewing case-law had held that if a person was in possession for more than two months from the date of the order passed under section 145 (4) the proceedings taken were without jurisdiction.
10. ' Similar view was taken in PLD 1963 B J 26 wherein it was held that in construing the proviso to section 145 (4), the Court must follow the wording of the proviso literally and if the party is found to have been forcibly and wrongfully dispossessed on a date outside two months next before the date of the order, the proceedings cannot be maintained.
11. In the circumstances of this case it is obvious that neither proceedings under section 145, Cr. P. C.
12. Nor an order under clause (4) of this section was warranted and if there was a dispute about the graveyard, the best forum was the civil Court to get it decided. Similarly if the breach of the peace was apprehended the Police Officer could have taken steps himself or moved the Magistrate under section 107, Cr. P. C.
13. Mr. Nooruddin Sarki, the learned counsel for the State also supported the applicant and stated that the impugned proceedings and order, were not warranted under the relevant provisions of law and deserved to be set aside. This application is therefore allowed and the proceedings taken under section 145 and order under section 145 (4), Cr. P. C. Are quashed, as prayed.