SHAUKAT ALI And Another vs MUHAMMAD YUSUF SHAH And Other
This matter concerns a petition for leave to appeal against a judgment of the Lahore High Court, which dismissed a writ petition arising from proceedings initiated under Section 145 of the Code of Criminal Procedure 1898 regarding a property dispute. The core legal question was whether a Magistrate is empowered to initiate or continue proceedings under Section 145, Cr.P.C. when there is no evidence of an apprehension of a breach of the peace. The Supreme Court affirmed the findings of the High Court and the revisional court, noting that the Investigating Officer explicitly testified that no such apprehension existed. Consequently, the Court held that the Magistrate lacked the necessary foundation to invoke jurisdiction under Section 145, Cr.P.C. The ratio of the decision is that the summary procedure under Section 145 is strictly contingent upon the existence of an apprehension of a breach of the peace; absent this, the dispute must be resolved through civil litigation. The petition was dismissed as frivolous with costs awarded to the respondents.
- Can a Magistrate initiate proceedings under Section 145 of the Code of Criminal Procedure 1898 if there is no apprehension of a breach of the peace?
- Is the existence of an apprehension of a breach of the peace a jurisdictional prerequisite for action under Section 145 of the Code of Criminal Procedure 1898?
- Should a property dispute be referred to civil courts when the requirements for Section 145 of the Code of Criminal Procedure 1898 are not met?
- Section 145, Code of Criminal Procedure 1898
ORDER
1. MUHAMMAD AFZAL ZULLAH, J.--Leave to appeal has been sought from judgment, dated 27-10- 1984 of the Lahore High Court; whereby a writ petition arising out of proceedings under section 145, Cr.P. C. Filed by the petitioners, was dismissed.
2. The petitioners had alleged in an undated complaint dispossession from the property in dispute.
3. Although the Police Officer who investigated it ' the matter later on deposed that there was no apprehension of breach of piece yet he reported the matter to the Magistrate who after having passed preliminary order, subsequently, in the final order directed restoration of possession to the petitioners. On revision filed by the respondent-side a learned Additional Sessions Judge remanded the case. On remand the learned Magistrate repeated the earlier order. The respondents again filed a revision petition which was accepted with a finding that there was no apprehension of breach of piece and the foundation for action under section 145 was lacking, the learned Magistrate should not have taken any action there under. The respondents then filed a writ petition which having been dismissed with the affirmation of findings of the revisional Court, the petitioners have now sought leave to appeal.
4. The case stands concluded by the findings of the fact by the revisional Court and the High Court that there was no apprehension of breach of piece. This point is supported, amongst other elements, in the case by the testimony of the Investigating Officer who stated that there was no apprehension of breach of piece. That being so, the learned Magistrate should not have acted under section 145, Cr.P.C. And the civil litigation between the parties should have been allowed to determine the dispute between them. This petition has no force and accordingly is dismissed as frivolous with costs of the respondents caveators which are fixed at Rs.1,000.