FAZAL AMIN vs MIR REHMAN and another
This criminal quashment petition challenges the order of the Additional Sessions Judge-IV, Swabi, which set aside the Judicial Magistrate's dismissal of a complaint under Section 145 of the Code of Criminal Procedure 1898 and remanded the case for a decision on merits. The core legal question was whether a complaint under Section 145, Cr.P.C. can be dismissed at the initial stage solely because the complainant is an absconder. The Peshawar High Court held that proceedings under Section 145 are semi-civil in nature, do not strictly require the personal presence or formal complaint of the complainant, and are primarily aimed at preventing a breach of the peace over land or water disputes. The court ruled that technicalities regarding complainants are secondary to the Magistrate's duty to prevent breaches of the peace, thereby upholding the remand order. The key principle laid down is that the primary object of Section 145, Code of Criminal Procedure 1898 is to avert breaches of the peace and potential violent clashes, rendering technical objections about a complainant's status as an absconder insufficient to dismiss such proceedings at the threshold.
- Can proceedings under Section 145 of the Code of Criminal Procedure 1898 be dismissed at the initial stage solely on the ground that the complainant is an absconder?
- Whether the personal presence of a complainant is strictly mandatory for the initiation and continuation of proceedings under Section 145 of the Code of Criminal Procedure 1898?
- What is the primary object and scope of inquiries conducted under Section 145 of the Code of Criminal Procedure 1898?
- Section 145, Code of Criminal Procedure 1898
- Section 145(1), Code of Criminal Procedure 1898
- Section 145(4), Code of Criminal Procedure 1898
- Section 561-A, Code of Criminal Procedure 1898
' SYED YAHYA ZAHID GILLANI, J.---The complaint of Mir Amin respondent against Fazal Amin petitioner under section 145, Cr.P.C. Was dismissed at initial stage by the Judicial Magistrate, Swabi on 24-9-2008 on the main ground that the complainant was since absconder, he could not get relief from a Court of law. In revision, the learned Additional Sessions Judge-IV, Swabi held in his judgment dated 20-11-2008 that it is clearly mentioned in subsection (1) of section 145, Cr.P.C. That in the aforesaid proceedings the parties concerned can appear in person or by pleader. Since these are semi civil proceedings, the complaint could not be dismissed and by setting aside the order of the Magistrate, he remanded the case for decision on merits.
2. Petitioner Fazal Amin got aggrieved by the order of revisional Court A and he has challenged the same through this quashment petition under section 561-A, Cr . P. C .
3. I have heard Mr. Jan Muhammad Khan, Advocate, for the petitioner at length. Record has been consulted.
4. The plain reading of section 145, Cr.P.C, would clarify that proceedings under this section do not always demand the presence of a complainant and existence of a formal complaint. The primary object of section 145, Cr.P.C, is "to prevent breach of peace because of a dispute over land or water." Needless to mention that the word 'land' includes movable property too. The Magistrate can take action on the basis of complaint by a person, report of police or any other information received by him from any source. The inquiry under subsection
(4) of section 145, Cr.P.C, is with the object to safeguard the possession of the person under threat, or to put in possession the person who has been dispossessed of the property within two months prior to the dispute or attach the same if possession of none of the parties over the disputed property could be ascertained. All this is a legal arrangement to temporarily save the society from criminal clashes and apprehended losses, which can extend to the formidable loss of human lives.
5. Since the prime object of the whole proceedings is to thwart breach of peace, the technicalities relating to complaints and the complainants are of secondary importance. The paramount significance is of apt action of Magistrate at appropriate time, to shield the breach of peace.
Therefore, the revisional Court has rightly remanded the case to the concerned Magistrate to pass a proper order on merits fully paying attention towards the likelihood of breach of peace which, if not properly paid attention, may result in armed clashes and irreparable losses.
6. The impugned order is not suffering from any illegality, material irregularity or any jurisdictional defect. Hence, no force is seen in this petition, which is dismissed in limine.