1980 P Cr (PLP)

Syed Afzal Haider for Petitioners. Muhammad Ali Naqvi for the State.; Date of hearing : 10th October, 1979. The petitioners have filed the present petition under section 561‑A, Cr. P. C. for quashment of proceedings initiated against them under section 145, Cr. P. C. S. H. O., Bhakkar, respondent No. 1, :filed. a calendar under section 145, Cr. P. C. against the petitioners contending that the petitioners be restrained through a prohibitory order from cons tructing an Imam Kot in Basti Bakhtawar as it was opposed by the Sunni residents of the village, who constituted ninety‑five ,or ninety‑six per cent. of the population of the village and that there was apprehension of breach of peace. A separate calendar under section 107/150, Cr. P. C, was also filed by the S. H. O. against the petitioners and one Hafiz Muhammad Isa, a Sunni resident of the village.

2. The S. H. O. gave the background of the dispute that Basti Bakhtawar was established by one Malik Bakhtawar Khan Randhawa. In the beginning the entire population of the Basti was, Sunni, but in 1917/18, after the death of Bakhtawar Khan, his grandson Muhammadu became Shia. He was followed try some other persons. In 1922 Muhammadu sought permission from the local authorities for taking out Zuljinah procession and holding of Majalis‑e‑Aza in the village but the same was refused. In 1952, however, his son Malik Amir, one of the petitioners, was permitted to hold Majalis‑e‑Aza within the boundary of his house. The Sunni population of the village, challenged the above permission and filed a civil suit in 1966 or‑1167, but the suit was dismissed. An appeal preferred against the judgment and decree of the trial Court was also .withdrawn as it was thought that there should be no objection to the holding of Majalis within the four walls of a house. But when the petitioners started constructing a regular Imam Kot, the Sunni residents of the village who constituted ninety‑six per cent of the population raised objection to the said construction. 2‑A. .On Sth August, 1978 the calendar was placed before the Assistant Commissioner, Bhakkar, . who made it over to Malik Shaukat Iqbal. M. I. C., Bhakkar for further action. After having recorded the above order of entrusting the calendar to Malik Shaukat Iqbal, M. I. C. the learned A. C. recorded another order on the file on the same day whereby he directed that notices be issued to the patties for 8th August, 1978, to appear and produce their evidence in support of their respective claims and that, in the event of non‑appearance of any party, ex parte proceedings would be taken against it. On 8th August, 1978 the file was put up before the M. I. C. who after noting .down the presence of the parties counsels adjourned the case to 10th August, 1978. The parties filed their written statements on 30th. August, 1978 but before any evidence could be recorded, the petitioners filed the present petition for quashment of proceedings.

3. The petitioners contended that even the facts stated by the S. H. O. respondent No. 1 in the calendar do not warrant any action under section 145, Cr. P. C as there is no dispute regarding possession of any property. The Illaqa Magistrate, who is seized of the matter has no, jurisdiction to proceed under section 145, Cr. P. C. and even the Assistant Commissioner who passed the order for issuing notices to the parties had acted without jurisdiction.

4. Notices were issued to the State, the S. H. O., Bhakkar, res pondent No. 1 and the Illaqa Magistrate, Mr. Shaukat Iqbal Malik, respondent No.

2. Mr. Muhammad Ali Naqvi, Advocate appeared to represent the State in this case.

5. After hearing the learned counsel for the petitioners and going through the record it has been found that the proceedings under sec tion 145, Cr. P. C. before Malik Shaukat Iqbal, M. I. C. are liable to be quashed on the short ground that the learned Assistant Commissioner, after having recorded the order of making over the case to Malik Shaukat Iqbal, M. I. C., Bhakkar on 5th August, 1978 for disposal, had no jurisdic tion to record another order on the same day. Whereby, he issued notices to the parties, requiring them to file written statements and produce evidence in support of their respective pleas on 8th August, 1978. It is not clear from the aforementioned second order recorded by the A. C on 5th August, 1978 as to whether the parties were directed to appear in his Court or in the Court of Malik Shaukat Iqbal, M. I. C. because in the order it was recorded whereas the parties appeared in the Court of Malik Shaukat Iqbal, M. I. C. on 8th August, 1978 who adjourned the case to 10th August, 1978. It has been rightl3 pointed out by the learned counsel for the petitioners that after passing the order for issuing notices to the parties, the learned Assistant Com missioner could not transfer the case to Malik Shaukat Iqbal, M. I. C. because, after having taken cognizance of the matter, the case could be transferred only by the Sessions Judge under section 528, Cr. P C. The second order passed by the A. C, on 5th August, 1978 was an order under section 145 (1), Cr. P. C. and as such the subsequent proceedings in the case should have been taken by him. Malik Shaukat Iqbal, M. I. C. who is dealing with the case has no jurisdiction to proceed with the case. The learned counsel appearing on behalf of the State has also conceded that Malik Shaukat lqbal, M.

1. C. has no jurisdiction to proceed with the case, which has not been legally transferred to him.

6. For the foregoing reasons, I allow this petition and quash the proceedings before Malik Shaukat Iqbal, M. I. C. and direct that the same be terminated forthwith.