1992 M (PLP)

Date of hearing: 14th April, 1992 This petition under section 561‑A, Cr.P.C. has been filed for quashment of order of SDM Mansehra dated 23‑10‑1989 whereby the complaint of the petitioner filed under section 145, Cr.P.C. was dismissed and thereafter the revision petition under section 439‑A, Cr.P.C. against the aforesaid order was also dismissed by the learned Sessions Judge, Mansehra on 16‑9‑1990.

2. The petitioner filed a complaint under Section 145, Cr.P.C. in the Court of Magistrate Ist Class, Mansehra on 11‑6‑1987 against the respondents which was sent to SHO for inquiry and report. The S.H.O. submitted his report on 23‑7‑1987. After recording the evidence of both the parties the learned EAC dismissed the complaint under Section 145, Cr.P.C. on 23‑10‑1989 and directed the parties to approach the Civil Court for determination of the issues involved in the case. The petitioner dissatisfied from this order. filed revision petition under section 439‑A, Cr.P.C. before the Sessions Judge, Mansehra which was also dismissed on 16‑9‑1990. Hence the petitioner has filed this quashment application under section 561‑A, Cr.P.C.

3. The learned counsel for the petitioner contended that the petitioner is owner of 52 Kanals of land bearing Khasra No.284 according to jamabandi for the year 1981‑

82. The second party (respondents) on 12‑6‑1987 forcibly took the possession of the land situated towards the western side and as such caused breach of peace. He submitted that civil suits were fled by the respondents which have been dismissed, as such the property in dispute be attached under section 145, Cr.P.C.

4. The learned counsel for the respondents vehemently opposed this petition and submitted that having exhausted the remedies before the competent forums he could not invoke the inherent jurisdiction of this Court under section 561‑A, Cr.P.C. He submitted that the powers under Section 561, Cr.P.C. can neither be used as alternative nor additional and can only be invoked in the interest of justice for redress of grievance having no other procedure. He also referred to the statement of the complainant where he has stated that "the second party has no connection in the disputed land which is in his possession. He is in possession of 49 Kanals of land for the long time. There is a dispute in between him and the second party over the possession of 49 Kanals of land which is in his possession." He submitted that the petitioner's stand is self‑contradictory. On the one hand he claims that the possession has been taken over by the respondents whereas in the statement before the Court he claims to be in possession of the property in dispute. He referred to the plaint of the petitioner in Suit No.24/1 instituted on 21‑1‑1990 pending before the Civil Judge Ist Class Mansehra wherein he has sought the declaration to the effect that he is owner in possession of 30 kanals of land out of 88 Kanals 16 Marlas bearing Khasra No.284 Khata No.27/76. Here again his claim is in conflict with the present claim. He submitted that there has been protracted litigation both civil and criminal since 1984 between the parties over the property in question and the dispute being primarily of civil nature, the orders of the learned lower Courts are well founded and do not suffer' from any legal infirmity, therefore, this petition be dismissed.

5. I have heard the learned counsel for the parties at length and have gone through the record of the case.

6. The perusal of the record would show that the parties have been litigating since long both in Civil and Criminal Courts. The petitioner's claim appears to be quite contradictory as on the one hand his claim under section 145, Cr.P.C. is that he has been dispossessed by the second party, but in the Court he has stated that he is in possession of the suit property. On the other hand in the Civil Suit No.24/1 of 1990, he has sought the declaration that he is owner in possession of 30 kanals of land out of 88 kanals 16 marlas bearing Khasra No. 284, and on his application for temporary injunction, the status quo order has been passed by the Civil Judge Mansehra on 5‑12‑1989. He had earlier lodged a report under section 447/147, P.P.C. vide FIR No.48 dated 21‑5‑1986 in ,Police Station Phulra with regard to the property in question but the same was cancelled after inquiry and a case against him was registered by the police under section 182, P.P.C. as a result of which he was convicted by MIC Mansehra vide his order dated 22‑5‑1988. The dispute between the parties is primarily that of civil nature. Since the petitioner has already filed a Civil Suit No. 24/1 of 1990, wherein the Civil Court has passed status quo order, therefore, in view of the dictum laid down in case Mehr Muhammad Sarwar and others v. The State and others reported in PLD 1985 SC 240, the matter under section 145, Cr.P.C. falls outside the jurisdiction of the Magistrate. Para. 5 of the aforesaid judgment is reproduced below:‑‑ "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, so that the apprehended breach of peace is averted. But as held by this Court in Shah Muhammad v. Haq Nawaz and another PLD 1970 SC 470, 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." 1n view of the above rulings this quashment application being without any merit, is dismissed. N.O.H./1382/P Petition dismissed