Said Muhammad and others Vs Yar Muhammad and others

JUDGMENT SHEET

IN THE PESHAWAR HIGH COURT,

MINGORA BENCH (DAR-UL-QAZA), SWAT

(Judicial Department)

Writ Petition No. 45-M/2025

Said Muhammad and others Versus.

Yar Muhammad and others

Date of hearing: 03.09.2025

Present: Mr. Asghar Ali, Advocate for petitioners.

Muhammad Yar Malezai, Advocates for respondents No. 1 to 6.

Muhammad Mustafa, Advocate for respondents No.

ORDER

QAZI JAWAD EHSANULLAH, J.- This petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 has been filed by petitioners Said Muhammad and others with the prayer for setting aside the judgment dated 04.12.2024 of the learned Additional Sessions Judge-II, Bajaur whereby their criminal revision petition was dismissed and order dated 14.02.2024 of the learned Senior Civil Judge/Judicial Magistrate, Bajaur was maintained vide which application of the petitioners for their impleadment in proceedings under Section 145, Cr.P.C had been dismissed.

2.Brief facts of the case are that respondents No. 1 to 6 (hereinafter referred to as complainants) filed a complaint under Section 145, Cr.P.C against respondents Tajamul/CS | SB: Hon’ble Mr. Justice Qazi Jawad Ehsanullah

No. 7 to 11, seeking attachment of the disputed property for maintaining peace with further request for taking protective measures against respondent 7 to 11 for remaining peaceful. The matter was referred to the local police for inquiry. After doing the needful, the police submitted its report before the trial Court on 29.08.2022.

Respondents No. 7 to 11 submitted their written statement and the complaint was held to be maintainable vide order dated 07.06.2023, hence the case was fixed for recording of evidence. On 14.11.2023, the present petitioners filed an application before the learned trial Court for their impleadment as respondents to the proceedings under Section 145, Cr.P.C on the ground that the disputed property was their ownership in possession. After hearing both sides, the trial court, vide order dated 14.02.2024, dismissed the application. That order was assailed by the petitioners by way of filing revision petition, however, the same was also dismissed vide judgment dated 04.12.2024, hence the present petition.

3.Learned counsel for the petitioners mainly contended that under Section 145 Cr.P.C, it is not only the parties to the dispute who must be heard by the Magistrate during the course of inquiry, but also all persons having Tajamul/CS | SB: Hon’ble Mr. Justice Qazi Jawad Ehsanullah

an interest in the subject matter of the proceedings are required to be afforded an opportunity of hearing.

4.Conversely, learned counsel for the respondents opposed the contention raised by the petitioners’ counsel, arguing that the dispute between the original parties is not of a civil nature and that the Code of Criminal Procedure, 1898 contains no provision permitting impleadment of an additional party in proceedings under Section 145, Cr.P.C.

He further relied upon the report of the local police, submitting that the inquiry report does not indicate any interest of the present petitioners in the disputed property.

Accordingly, per his contention, both the Courts below have rightly dismissed the petitioners’ application for impleadment.

5.Arguments heard and record perused.

6.In order to know the scheme and significance of Section 145, Cr.P.C. for the purpose of resolving the present controversy, said provision is reproduced herein below:

“145. Procedure where dispute concerning land, etc., is likely to cause breach of peace. (1) Whenever a Magistrate of the 1st Class is satisfied from police-report or other information that a dispute likely to cause 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 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 statement of their respective claims Tajamul/CS | SB: Hon’ble Mr. Justice Qazi Jawad Ehsanullah

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)Inquiry as to possession. The Magistrate shall then, without reference to the merits or the claims of any such parties to a right to possess the subject of dispute, pursue 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 had 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.

(5)Nothing in this section shall preclude any party so required to attend, or any other person interested, from showing that no such dispute as aforesaid exists or has existed; and in such case the Magistrate shall cancel his said order, and all further proceedings thereon shall be stayed, but, subject to such cancellation, the order of the Magistrate under sub- section (1) shall be final.

(6)Party in possession to retain possession until legally evicted. If the Magistrate decides that one of the parties was or should under the first proviso to sub- section (4) be treated as being in such possession of the said subject, he shall issue an order declaring such party to be entitled to possession thereof until evicted therefrom in due course of law, and forbidding all disturbance of such possession until such eviction and when he proceeds under the first proviso to sub-section (4), may restore to possession the party forcibly and wrongfully dispossessed.

(7)When any party to any such proceeding dies, the Magistrate may cause the legal representative of the deceased party to be made a party to the proceeding and Tajamul/CS | SB: Hon’ble Mr. Justice Qazi Jawad Ehsanullah

shall thereupon continue the inquiry, and if any question arises as to who the legal representative of a deceased party for the purpose of such proceeding is, all persons claiming to be representatives of the deceased party shall be made parties thereto.

(8)If the Magistrate is of opinion that any crop or other produce of the property, the subject of dispute in a proceeding under this section pending before him is subject to speedy and natural decay, he may make an order for the proper custody or sale of such property, and, upon the completion of the inquiry, shall make such order for the disposal of such property, or the sale-proceeds thereof as he thinks fit.

(9)The Magistrate may, if he thinks fit, at any stage of the proceedings under this section, on the application of either party, issue a summons to any witness directing him to attend or to produce any document or thing.

(10)Nothing in this section shall be deemed to be in derogation of the powers of the Magistrate to proceed under section 107. (Emphasis supplied)

The object of Section 145, Cr.P.C. is to prevent breaches of the peace arising out of disputes concerning land or water by determining the factum of actual possession, independent of the merits or title to such property. Once the Magistrate, under sub-section (4), determines which party was in possession within two months preceding the preliminary order, he is empowered to declare such party entitled to possession until eviction in due course of law. In the present case, the situation is a bit stark. The complainant sought attachment of the disputed property by way of filing their complaint under Section 145, Cr.P.C. seeking respondents No. 7 to 11 to be restrained from illegal interference and to remain peaceful qua the disputed property. The present petitioners intervened with the Tajamul/CS | SB: Hon’ble Mr. Justice Qazi Jawad Ehsanullah

claim that actually they were owners in possession of the disputed property and based on their above claim, they sought their impleadment in the proceedings which was turned down by both the Courts below. Sub-section

(3)reproduced above mandates both personal service (in the manner of a summons) on such persons as the Magistrate directs and public notice by affixing a copy of the preliminary order at a conspicuous spot at or near the property. This dual mode of notification is not a mere formality; it secures actual as well as constructive notice so that all stakeholders become aware of the proceedings in time to participate. Proper service and posting supports the jurisdictional fairness of the process, minimises prejudice and lends legitimacy to any preventive measures that follow. The Magistrate should, therefore, identify and serve all readily ascertainable persons who have some interest in the subject matter and ensure prompt affixation of the notice on site. Likewise, sub-section (5) correspondingly widens participation: beyond the named parties, ‘any other person interested’ may appear to show that no such dispute exists or has existed. If that showing succeeds, the Magistrate must cancel the preliminary order and stay all further action, the order under sub-section (1) being final only subject to such Tajamul/CS | SB: Hon’ble Mr. Justice Qazi Jawad Ehsanullah

cancellation. Read with sub-section (3), this enjoins that the inquiry under Section 145 must not be confined to the original litigants; where circumstances warrant, other interested claimants to possession should be taken on board so the Court can reach a just, peace-preserving conclusion without trenching upon questions of title.

7.The combined effect of sub-sections (3) and (5) of section 145, Cr.P.C. is to secure notice and a real opportunity of hearing to all “persons interested” in the subject-matter: public affixation under sub-section (3) is designed to reach those who may not have been individually named, while sub-section (5) expressly enables “any other person interested” to appear and show that no such dispute exists or has existed, i.e. to be heard before preventive orders are passed. The purpose of this exercise is limited yet vital: to allow anyone asserting present possession to put forth their claim to entitlement to possession over the disputed property so that, after hearing, the Magistrate may determine, without touching title, whether the claim to actual possession is made out within the meaning of section 145, Cr.P.C. Consequently, the outright rejection of the petitioners’ prayer for impleadment was a misdirection, as it foreclosed the very participation contemplated by those provisions. Reliance Tajamul/CS | SB: Hon’ble Mr. Justice Qazi Jawad Ehsanullah

is placed on “Shahzada and another v. Shamsuddin and another”1, where the Supreme Court discussed impleadment of interested parties in section 145 proceedings and held:

“It follows, therefore, that for a proper adjudication of the proceedings initiated under section 145, Cr. P. C., the parties in actual possession or claiming to be so should be before the Court.......

The trend of judicial authorities clearly appears to be that for the purpose of effective adjudication of the proceedings contemplated by section 145 of the Code, all the parties concerned in the dispute as to actual possession should preferably before the Court, but that it is not necessary that the true owners or proprietors must be personally present or impleaded, and that such proceedings can be competently maintained by their agents of managers claiming to be in actual possession on behalf of their masters or principals. The position of a mere servant has not been held to qualify him for this status for the reason that he cannot claim to be in actual possession on behalf of the master, which possession remains with the master himself during the employment of the servant.” (Emphasis supplied)

Regarding omission to implead a necessary party, the Court further observed:

“One other aspect of the matter may also be noticed at this stage, namely, that the omission to implead all the necessary parties would at best amount to an irregularity which would be curable under section 537, Cr. P. C., unless it be shown that the omission has in fact occasioned a failure of justice.”

PLD 1977 S.C. 384

Tajamul/CS | SB: Hon’ble Mr. Justice Qazi Jawad Ehsanullah

Likewise, in “Malik Fateh Muhammad Khan

Tiwana v. The Crown and Mst. Bhag Pari”2, with reference to ILR 30 Calcutta 155 (F.B.), participation of all interested persons in section 145 proceedings was underscored in the following terms:

“It cannot be doubted that section 145, Criminal Procedure Code, draws a clear distinction between "actual possession" and the right to possess. I L R 30 Calcutta 155 (F. B.) is clear on the point. At page 190 it was observed that “though the jurisdiction of a Criminal Court to deal with questions of dispute, possession under section 145, of the Criminal Procedure Code is of a limited character, and arises only when the dispute is likely to cause a breach of the peace, and though in the exercise of such jurisdiction the Magistrate must, to prevent any breach of the peace, act with all possible promptness, yet, when once the existence of such a dispute is made out to the satisfaction of the Magistrate, and he acquires jurisdiction to entertain the case, such jurisdiction cannot be said to be limited to calling upon the parties actually engaged in the dispute, but must extend to his calling upon all parties interested in the dispute, that is, claiming actual possession of the subject of dispute, to appear in person or by pleader------------------ if the facts disclosed show such appearance to be necessary”.

(Emphasis supplied)

From the above dicta, it is clear that

impleadment and/or hearing of interested and/or necessary parties in pending proceedings under section 145, Cr.P.C.

is consistent with procedural framework; refusal to bring such persons on record is an error which, in the absence of demonstrated prejudice, is treated as a curable irregularity PLD 1949 Lahore 397 Tajamul/CS | SB: Hon’ble Mr. Justice Qazi Jawad Ehsanullah

under section 537, Cr.P.C. In the present context, therefore, the courts below ought to have permitted the petitioners to be heard on their asserted actual possession rather than non-suiting them at the threshold; the statutory scheme and the cited precedents both favour inclusion and adjudication, not exclusion.

8.No doubt, the object of section 145, Cr.P.C. is not to adjudicate title; its focus is the factum of possession. The petitioners have specifically pleaded that the proceedings have commenced behind their back; they have produced partition deeds and assert that they had entrusted the disputed land to respondents No. 7–9 for protection. In these circumstances, the trial Court ought to have permitted their joinder so the limited issue of actual possession could be tested albeit without trenching upon questions of title.. This approach also aligns with the statutory scheme: public affixation under section 145(3) and the express right of “any other person interested” to appear under section 145(5) are meant to ensure that all interested claimants to possession are are to be heard before preventive orders are finalized. Equally, the Magistrate is not obliged, in every case, to deliver possession under section 145(6). Where he cannot, on the material produced, determine which party was in Tajamul/CS | SB: Hon’ble Mr. Justice Qazi Jawad Ehsanullah

possession on the date of the preliminary order (or where the evidence is evenly balanced or unreliable), he may, rather than in undue haste declare one side in possession, resort to section 146, Cr.P.C. and attach the property until a competent Civil Court settles the parties’ rights. In addition, in a case of emergency pending the inquiry, an interim attachment may be made under section 145(4).

The proviso to section 145(4) also allows a party shown to have been forcibly and wrongfully dispossessed within two months prior to the preliminary order to be treated as in possession at that date 3.

9.As a sequel to the foregoing discussion, the proper course for the trial Court, in the attending circumstances, was to implead the petitioners and afford them an opportunity of hearing, confining the inquiry to the factum of actual possession. Resultantly, this petition is allowed, the impugned orders of the two courts below are hereby set aside; and the trial Court is directed to implead/hear the petitioners as respondents in the pending proceedings under Section 145, Cr.P.C. and thereafter decide the matter in accordance with law.

An n o u n c e d Dt:03.09.2025 Sd/-

JUDGE

Muhkhtiar Ahmad and others V. Haji Muhammad Saleem and another (2013 SCMR Tajamul/CS | SB: Hon’ble Mr. Justice Qazi Jawad Ehsanullah