P L D 1985 Supreme Court 240 Present (PLP)
Mehr MUHAMMAD SARWAR AND OTHERS-Petitioners Versus THE STATE AND OTHERS-Respondents
| Citation | P L D 1985 Supreme Court 240 Present (PLP) |
| Forum / Court | -- O. XXVI, r. 1-Review by Supreme Court-Error crept in while Supreme 'Court recording finding which was patent on face of record-Finding reviewed suo motu and relevant portion of judgment deleted.-Review by Supreme Court. |
| Bench Members | Single Bench |
| Parties | Mehr MUHAMMAD SARWAR AND OTHERS-Petitioners Versus THE STATE AND OTHERS-Respondents |
Q1: What are the key laws and sections cited in P L D 1985 Supreme Court 240 Present (PLP)?
This judgment primarily cites: statutory provisions as referenced in Pakistani case law index.
Q2: Which judicial bench decided the case P L D 1985 Supreme Court 240 Present (PLP)?
The case was heard and decided by the -- O. XXVI, r. 1-Review by Supreme Court-Error crept in while Supreme 'Court recording finding which was patent on face of record-Finding reviewed suo motu and relevant portion of judgment deleted.-Review by Supreme Court. bench comprising: Honorable Judges.
Q3: What is the official citation format for this judgment on Pakistan Law Portal?
Cite this legal precedent as: P L D 1985 Supreme Court 240 Present (PLP) (Mehr MUHAMMAD SARWAR AND OTHERS-Petitioners Versus THE STATE AND OTHERS-Respondents). Read the full summary and cross-referenced laws free on Pakistan Law Portal.
Representation
- Hassan Ahmad Khan Kanwar, Advocate Supreme Court and Sh. Salahuddin, Advocate-on-Record (absent) for Petitioners.
- Nemo for Respondents.
- Date of hearing : 24th March, 1985.
Headnotes / Summary
(On appeal from the judgment dated 27-11-1984, of the Supreme Court of Pakistan in Cr. A. No. 103 of 1984). (a) Supreme Court Rules, 1980 -- O. XXVI, r. 1-Review by Supreme Court-Error crept in while Supreme 'Court recording finding which was patent on face of record-Finding reviewed suo motu and relevant portion of judgment deleted.-[Review by Supreme Court]. (b) Constitution of Pakistan (1973) -- Art. 185(3)-Criminal Procedure Code (V of 1898), Ss. 561-A & 369-Petition for leave to appeal-Order of High Court extremely short and facts leading to quashment application not ascertainable from judgment-Supreme Court fell back on facts as mentioned in quashment application filed by petitioner to ascertain relevant facts in circumstances.-[Judgment]. (c) Criminal Procedure Code (V of 1898) -- Ss. 145, 107 & 151-Inquiry under S. 145, Cr. P. C.-Magistrate is empowered to make inquiry under S. 145, Cr. P. C. to regulate possession of property in dispute for time being only to avert apprehension of breach of peace-Where possession of same property is regulated by a civil Court, even through a temporary injunction, matter falls, outside jurisdiction of Magistrate under S. 145, Cr. P. C.-[Jurisdiction]. Shah Muhammad v. Haq Nawaz and another P L D 1970 S C 470 mentioned. (d) Criminal Procedure Code (V of 1898) -- S. 249-A-Federal Laws (Revision and Declaration) Ordinance (XXVI1 of 1981), Ss. 2 & 7 read with First Sched. item 235-Effect of saving provisions made in S. 7 of Ordinance is to save provisions of S. 249-A, Cr. P. C.
Section 249-A, Cr. P. C., therefore, continues to remain on Statute Book.
Judgment & Decree
NASIM HASAN SHAH, J.-We find that an error has crept in while recording the finding in paragraph 5 of our order dated 27-11-1984 in A Criminal. Appeal No. 103 of 1984, which is patent on the face of the record; hence this motion for suo motu review. The finding that section 249-A is. no longer a part of the Criminal Procedure Code because of the repealing provisions of section 2 of the Federals Laws (Revision and Declaration) Ordinance, 1981 read with item No. 235 of the First Schedule, omits from consideration the effect of the e saving provisions made in section 7 of the Ordinance, Its consequence is to save the provisions of section 249-A. Hence section 249-A of the Criminal Procedure Code continues to remain on the Statute book. We would, therefore, direct that paragraph 5 of the order under review should be deleted and this order shall form part of the judgment earlier C passed on 27-11-1984. The judgement of the Court shall now, as reviewed, reads as follows :- NASIM HASAN SHAH, J.-The petitioner seeks leave to appeal against the order of a learned Single Judge of the High Court dated 30-10-1984, rejecting his quashment application filed under section 561-A, Cr. P. C.
2. Since the impugned order of the High Court is extremely short and] the facts leading to the quashment application are not ascertainable from it, we have had to fall back on the facts as mentioned in the quashment application (Criminal Miscellaneous No. 259/Q/84) filed by the petitioner to ascertain the relevant facts.
3. The facts, briefly stated, appear to be that there was a dispute between the parties over the possession of a certain piece of land. The petitioners filed a civil suit on 12-6-1984 against the respondents praying that they (i e. the respondents) be restrained from interfering with petitioners' possession of the suit land. Along with the suit they also filed an application for temporary injunction, whereupon an interim stay order was issued against respondents No. 2 and 3, on the same day (12-6-1984), to the effect that in case the petitioners are in possession their possession may not be disturbed. The respondents did not file an appeal against this order which therefore became final and is still in force.
4. Subsequently on 24-6-1984 the local S. H. O. initiated proceedings under section 145, Cr. P. C. against the petitioners in the Court of the Assistant Commissioner, Okara. Thereafter the petitioners filed an application under section 561-A. Cr. P. C. before the learned High Court, for quashment of the proceeding under section 145, Cr. P. C. pending against them in the Court of the Assistant Commissioner, Okara. The High Court dismissed it with the following brief order: "Petitioner should in the first instance make an application under section 249-A, Cr. P. C. before the trial Court." Feeling aggrieved, the petitioners have moved this Court for leave to appeal.
5. It requires to be mentioned that in an inquiry under section 145, Cr. P. C. all that a Magistrate is ultimately empowered to do is to regulate the possession of the property in dispute for the time being. sol that the apprehended breach of peace is averted. But as held by this Court in Shah Muhammad v. Haq Nawaz and another (PLD 1970SC470), where the possession of the same property has been regulated by a civil Court, even through a temporary injunction, the matter falls outside the jurisdiction of the learned Magistrate under section 145, Cr. P. C. The relevant portion of the said judgment reads as follows : "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 fall outside the jurisdiction of a Magistrate under section 145, Cr. P. C. Action can, of course, be taken always under sections 107 and 151 of the Criminal Procedure Code to prevent breach of peace in case of this nature, but no order for attachment of the property can be made."
6. In View of what has been observed above, the petition is converted into appeal and allowed and the case is remanded to the High Court fore adjudication of the quashment application afresh on merits. M.B. A. Case remanded.