2002 PLP 697 (YLR)

(b) Criminal Procedure Code (V of 1898)‑‑‑ ‑‑‑‑S. 145‑‑‑Provisions of S.145, Cr. P. C., nature of‑‑‑Civil Court seized of the matter, proceedings before the Magistrate under S.145, Cr. P. C. could not be held abated‑‑ Decision by the Civil Court was binding on the parties and that had precedence over any order passed under S.145, Cr. P. C. ‑‑‑Any order passed under S.145, Cr. P. C. was always tentative in nature and the same could not conclusively determine the question of ownership or possession‑‑‑If the Civil Court passed any order as regards title or possession over the disputed land then the same had to prevail and will hold the field. Zahid Hussain Khan for Petitioner. Masood Mirza and M. Bilal Khan, Addl. A.‑G. for Respondents. Date of hearing: 1st November, 2001. The order dated 21‑4‑2001 passed by Mian Muhammad Anwar, Additional Sessions Judge, Chiniot, District Jhang, has been assailed through this writ petition on the grounds firstly that the proceedings before the learned Magistrate under section 145, Cr.P.C. were not competent and secondly that the findings recorded by the learned Magistrate that the petitioner was in possession was unexceptionable and the same should not have been interfered with. It is further supplemented that the parties have already gone to the civil Court, therefore, in view of the pendency of the matter before the civil Court, the proceedings under section 145, Cr.P.C. are uncalled for and should stand abated.

2. I have gone through the impugned order. 'The learned Additional Sessions Judge, in para No.6 of the order observed that the learned Magistrate is legally bound to inquire into the matter as to who was in possession within two months next before the proceedings initiated. As the learned Magistrate had not adverted to this aspect of the case, it was, therefore, observed that mere holding that one of the parties was in possession was not sufficient. It has to be inquired into whether the possession with the party was for more than two months next before initiation of the proceedings. The direction made therein is in consonance of the provisions of section 145, Cr.P.C. The same, therefore, cannot be held as illegal or without any lawful authority.

3. As regards the argument that the t matter is pending before the civil Court, therefore, the proceedings before the Magistrate should stand abated is concerned, I am afraid the same cannot be done. However, whatever decision is given by the civil Court is binding on the parties and has precedence over any order passed under section 145, Cr.P.C. and also any order passed under this section is always tentative in nature and the same cannot conclusively determine the question of ownership or possession. If the civil Court passes any, order with regard to title or possession over the land in dispute then the same has to prevail and will hold the field. This writ petition is disposed of with these observations. There shall be no order as to costs. H.B.T./M‑1407/L Order accordingly.