1988 P Cr (PLP)

The learned counsel for the petitioner contended that the dispute being apparently that of a civil nature and falling within the exclusive jurisdiction of the Controller of Rents the Criminal Court has got no jurisdiction to entertain proceedings under section 145, Cr.P.C. which are in substance for ejectment of the petitioner from the rented premises at the instance of his landlord. It was further contended that in view of pendency of a civil suit involving the same issue proceedings could neither be entertained by thp Criminal Court and adjudicated upon nor a preliminary order of attaching-and sealing of the rented shop of the petitioner could be passed specially in the presence of a status quo order. It was lastly contended that the entire proceedings being collusive and mala fide in order to frustrate the normal law amounted to abuse of the process of Court and has led to miscarriage of justice. The learned counsel for the petitioner placed reliance on Shah Muhammad v. Haq Nawaz and another P L D 1970 S C

470. The learned counsel appearing for the contesting respondents Nos.2 and 3 in challenging the competency, of the petition argued that on the face of the record as well as from the contents of the petition it is evident that there was a dispute between the parties regarding the possession of the shop and the matter has attained such a serious turn that there was apprehension of serious breach of peace between the parties which necessitated taking of immediate action under section 107/151, Cr.P.C. as is evident from the copy of Roznamcha dated 27-9-1986 available in the file. Both the parties were bound down and proceedings under section 145 were initiated. The petitioner in order to pre-empt those proceedings collusively immediately rushed to the Civil Court and filed a civil suit seeking declaration and an injunction in respect of the suit shop. On 29-9-1986 without notice to the respondents he succeeded in getting an order of status quo on the same day which was to continue upto 10-7-1986. He pointed out that the said order expired on 10-7-1986 and the same has not been extended by the learned Civil Judge since then. The learned counsel further argued that the petitioner did appear before the learned Magistrate on 2-10-1986 and made an application, presumably under section 145(5) for vacation of the attachment order. This application was placed on file but the petitioner without waiting for an order on the application filed a petition under section 561-A, Cr.P.C. in the High Court it which he raised all the objections which are raised in the present petition. The learned Chief Justice did not consider these objections and rejected the petition on the ground that other proper remedy was available to the petitioner under the law. It was argued that in the circumstances when earlier the learned Chief Justice has in spite of the same allegation raised in that earlier petition refused to invoke his jurisdiction under section 561-A, Cr.P.C. this Court is not to sit on judgment of that order when no further development has taken place in the case on merits so as to be considered as a fresh ground. It was further argued that mere filing of a revision petition against the order of the Illaqa Magistrate and its rejection by the learned Sessions Judge in no way can be considered as a fresh ground which would entitle this Court to sit in review of the order of the learned Chief Justice when the basic order is the same. It was further argued that the remedy under subsection (5) of section 145, Cr.P.C. is available to the petitioner and he has already moved an application to avail it. However, the petitioner did not pursue his application, which is still pending and approached the High Court and then the Revisional Court. Both the matters, according to the learned counsel, were in the circumstances, premature. In support of his argument that no inter ference is required at this initial stage in exercise of extraordinary jurisdiction the learned counsel referred to the police report 'that prima facie, there was apprehension of breach of peace between the parties over the possession of the suit shop. For the view the learned counsel placed reliance on Muhammad Samiullah Khan and another v. The State P L D 1963 S C 237; Ghulam Muhammad v. Muzammal Khan and 3 others P L D 1967 S C 317 and Muhammad Sharif and 7 others v. Muhammad Munshi and another P L D 1987 Azad J & K

127. The learned counsel also tried to distinguish the judgment of Shah Muhammad v. Haq Nawaz and another on facts of the present case. It was lastly argued that the petitioner who in his earlier petition under section 561-A Cr.P.C. did not press the grounds raised and agreed to avail of his other remedy under the law on principle is debarred from raising the same grounds in the present petition. The learned Advocate-General appearing for the State in resisting the petition adopted the arguments of the learned counsel for the respondents Nos.2 and 3 and further relied on Mohsin Ali and another v. The State 1972 S C M R 229 and Ghulam Muhammad Shah v. Chashlum Contractors Chashma Barrage, Colony Kundian, District Mianwali 1973 P Cr. L J

548. After hearing the learned counsel for both the parties and perusal of the relevant record I find great force in the arguments of the learned counsel appearing for the respondents. It is admitted by the petitioner in his petition that there was a dispute between the parties over the shop in question which gave rise to a serious apprehension of breach of peace between them and resultantly both the parties were bound down under section 107/151, Cr.P.C. as is admitted in para 3 of the petition. It is also evident that while proceedings under section 145, Cr.P.C. were being initiated the petitioner herein rushed to the Civil Court and got an ex parte order of status quo on the day when the complaint under section 145, Cr.P.C. was also under process. As there was no notice of the status quo order and the Magistrate on the receipt of the complaint filed by the police was satisfied from it that there was apprehension of breach of peace between the parties over the possession of the shop, entertained the proceedings under section 145, Cr.P.C. and passed the order under subsection 4 of section 145, Cr.P.C. It was further ordered under subsection 1 of section 145, Cr.P.C. that both the parties are to submit their written statements regarding their respective claims on 9-10-1986 positively and that they are to appear before him either in person or through their pleaders. The petitioner having come to know of the proceedings taken in the matter made an application on 2-10-1986 for vacation of those orders but did not pursue his application and without getting any order on it approached the High Court for quashment of the proceedings. When the matter came up for hearing before his Lordship Mr. Justice S. Usman Ali Shah, the then Chief Justice, His Lordship after making reference to the application dated 2-10-1986 filed by the petitioner observed as under:- "The petitioner has now filed this application under section 561-A, Cr.P.C. before this Court for the quashment of proceedings under section 145, Cr.P.C. pending before the Magistrate or any other remedy as may be available to him according to law. I have heard the learned counsel for the petition. The learned counsel was pointed out that instead of moving this Court in the present application, he could seek his remedy before the District Magistrate. He conceded this position. It may be observed that if in law remedy is available to a party before another forum, it will be gratuitous on his part to seek that remedy before this Court. As in the present case, legally the petitioner can file a revision before the District Magistrate this application merits no consideration and is dismissed in limine." The petitioner accordingly approached the Sessions Judge Peshawar in revision and it appears that it was argued before him that due to the pendency of a civil suit the Criminal Court has got no jurisdiction to proceed in the matter or pass an order under subsection 1 of section 145, Cr.P.C., but the learned Sessions Judge repelled these arguments and held that the jurisdiction of a criminal Court under section 145, Cr.P.C. is purely of an emergency nature and to be invoked with a view to prevent the breach of peace. In that view of the matter the learned Sessions Judge dismissed the revision petition. The question whether the petitioner has exhausted his remedy under the law and as to whether the order passed and the proceedings taken by the Magistrate on the face of it are such which would require interference under section 561-A, Cr.P.C. can be answered in the negative keeping in view the facts and circumstances of the case. Admittedly the petitioner has in this petition presented one sided picture of the case and so far the case of the second party was neither before the learned Magistrate nor is it before this Court as far as the merit of the case is concerned. It was this reason that the learned Magistrate asked both the parties to submit their written statements with regard to the nature and cause of the dispute. But instead of appearing in Court on the date fixed and filing of his written statement the petitioner made an application for vacation of the attachment order. The relevant provision of law dealing with a situation in which one of the parties to the dispute wants to get speedy relief under subsection 5 of section 145, Cr.P.C. reads as under:- "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 subsection (1) shall be final." The petitioner did make an application which was still pending decision when the earlier petition was moved and then the revision petition. However, when the learned Magistrate formed his view, after his having satisfied himself from the police report, that there existed a dispute wherefrom an apprehension of breach of peace between the parties was expected, he was to pass an order. Such order being of a temporary nature was subject to reconsideration under the provision of the law. Reliance can be placed for this view on Muhammad Sharif and 7 others v. Muhammad Munshi and another (PLD 1987 Azad J & J 127) wherein it was held as follows:-- "Indeed, as a rule, the inherent jurisdiction of the Court to correct an abuse of process of Court or a patent injustice, cannot be invoked where there is an express provision in the Code under which the case can be adequately dealt with". Leaving aside the exceptional circumstances in which inter ference could be made under section 561-A, Cr.P.C. the general rule laid down by the superior Courts is otherwise. The facts of the case Muhammad Hameed v. Khushi Muhammad and another 1984 SCMR 804 on which reliance has been placed by the learned counsel for the respondent are that the petitioner purchased Mauroosi rights in an area measuring 90 Kanals and 9 Marlas in Mauza Moori Dakhli, Irriani, Tehsil Murree from Mahboob Hussain, vide Mutation No.870, dated 11-8-1972. On 25-5-1971 the petitioner, according to him, deposited the amount of Malikana as required by section 114 of the Punjab Tenancy Act and as such thereof he was conferred with the proprietary rights in the said land. On 10-8-1973 one Bari Sher brought a civil suit against the petitioner for possession of the land in dispute, through pre-emption. This suit was dismissed on 8-1-1976. However, the learned Civil Judge had earlier passed an interim order to the effect that the defendants in the suit were restrained from making any construction. Later on respondent filed an application under section 145 Cr.P.C. in respect of the land in question in the Court of the Resident Magistrate who vide order dated 28-8-1973 attached the property and stopped the parties from interfering in the said property. A petition under section 561-A Cr.P.C. in the circumstances, filed in the High Court for quashment of the criminal proceedings was dismissed. That order was challenged in a petition for leave to appeal in the Supreme Court on the following grounds: "The learned counsel for the petitioner contended that a suit for possession through pre-emption was filed prior to the institution of an application under section 145 Cr. P.C. and therefore, recourse to a Criminal Court ,under section 145 Cr.P.C. was incompetent and the impugned order is without legal justification; that the order of attachment was passed by the Criminal Court, subsequent to the order of Civil Judge sought by the respondent, was in itself an admission that the land was in possession of the petitioner; that the proceedings under section 145 Cr.P.C. are founded on the principle of maintaining peace and order in case of imminent danger of breach of peace". Their Lordships of the Supreme Court of Pakistan on facts and circumstances of the case ordered as follows:-- "The learned counsel now appearing before us could not point out any infirmity in the order of the learned High Court Judge, nor he could show that proceedings under section 145 Cr.P.C. were not competent. Hence we find no merit in this petition which is, accordingly, dismissed". It is, therefore, clear from the above that no hard and fast I rules can be laid down that the pendency of a civil suit in all eventualities would debar the Criminal Court from entertaining proceedings under section 145 Cr.P.C. The facts in case Shah Muhammad v. Haq Nawaz and another PLD 1970 S C 470 are somehow distinguishable from the facts of the present case. In that case their Lordships laid down the principle that in a case in which a Civil Court is already seized with the subject matter of dispute and has passed an order regulating possession thereof or a case in which a decree for possession has been granted or a permanent injunction granted restraining the opposite party from interfering with the possession of the decree holder falls outside the jurisdiction of a Magistrate under section 145 Cr. P.C. Action can of course be taken always under section 107/151 Cr.P.C. to prevent breach of peace in case of this nature, but no order for attachment of the property can be made. Their Lordships, however, on page 482 of the said judgment made the following observations:-- "Different considerations may of course arise in individual cases, for example in an action for possession, the decree might not have been executed within the time prescribed by law and the judgment-debtor thereby acquires a right to continue in possession. In such case a dispute may well arise as to possession and to attract the jurisdiction of a Magistrate under section 145 of the Cr.P.C.". In the instant case no doubt the petitioner has alleged in his plaint, filed in the civil Court, that he was in possession of the said shop and prayed for injunction restraining the defendants from inter ference in his possession but that suit was filed when the police had moved in the matter and had initiated proceedings against both the parties. Furthermore no order for injunction had been passed as prayed but only a status quo order was made upto 10-7-1986. It cannot therefore, be said at this stage that the petitioner was in actual possession of the shop under the order and decree of the civil Court so as to attract the principle laid down in the cited judgment. For the reasons stated above, and at the cost of repetition I feel that this petition is unmaintainable for the reasons given above. The petitioner has a remedy by filing his written statement in the Criminal Court in compliance with the order of the learned Magistrate and also by pressing his application, which has already been moved, under subsection (5) of section 145 Cr. P. C, There is no merit in this petition which stands dismissed. M.A.K.J637/P. Petition dismissed.