2008 PLP 974 (MLD)

MUHAMMAD ALAM KHAN, J.

Akram Khan and three others have filed this quashment petition against Nadir Khan etc. under section 561-A, Cr.P.C. for the quashment of the judgment, dated 22-2-2007 passed by the Court of learned Additional Sessions Judge-II, Mardan camp Court Takht Bhai vide which the judgment, dated 10-10-2006 passed by the Court of Judicial Magistrate-I, Mardan at Takht Bhai was set aside.

2. Briefly narrated the facts of the case are that Nadir Khan respondent filed a complaint against Akram Khan etc. under section 145, Cr.P.C. alleging therein, that he is in possession of his share in khasra No.1534 entered in khata No.421/753 as per jamabandi for the year, 2001-2002 situated in the revenue estate of Pirsadi Tehsil Takht Bhai, District Mardan, being his self cultivating possession that the respondent Akram Khan and others were trying to cut the sugar cane crops and were interfering in the possession of the petitioner, which was reported to the local police. It was further averred that due to this act of the respondents there is a danger to the breach of peace and the respondents Akram Khan etc. should be restrained from interfering in the possession of the petitioners.

3. The complaint was marked to the local police, and who after preliminary enquiry drafted a formal complaint under section 145, Cr.P.C. and submitted the same to the Judicial Magistrate-I Mr. Shahrukh Arjumand, who passed the preliminary order on 17-4-2004, as according to the learned Judicial Magistrate there existed a danger to the breach of peace.

4. That the learned Judicial Magistrate after recording of evidence of the parties and hearing their learned counsel perusing the data available on the record vide criminal complaint No.5/10 decided on 10-10-2006 came to the conclusion that the suit khata is the ownership of so many persons and the same is joint in nature and unless and until the land is officially partitioned, none of the parties, has proved its exclusive possession, dismissed the complaint on 10-10-2006. However, the amount of sugarcane crop which had been sold by Patwari Halqa amounting to Rs.7000 (Seven thousand) was ordered to be divided equally between the parties.

5. Feeling aggrieved Haji Nadir Khan, petitioner filed a revision petition bearing No.36 Cr. Neem of 2006 on 23-12-2006 in the Court of Mr. Muhammad Sabir, Additional Sessions Judge-II, Mardan camp Court, Takht Bhai who, after hearing the learned counsel for the parties and perusing the record came to the conclusion that although the property is joint and no official partition has taken place but every co-sharer is entitled to have a share in each and every number khasra and this may lead to bloodshed between the parties, thus, on assessment of evidence, the learned revisional Court came to the conclusion that although the land is joint and the parties being co-sharers and in joint possession, but the same may `lead to sudden flare-up between the parties, resulting in bloodshed, accepted the revision petition, set aside the order of the Judicial Magistrate and attached the land measuring 11 kanals 1-1/2 marla till the time when regular partition taken place between the parties vide judgment, dated 22-2-2007. The learned revisional Court also restored the order of the trial Magistrate, dated 17-4-2004, vide which Tehsildar Takht Bhai District Mardan had been appointed as a receiver for the standing crops and Management of the disputed land. It is the last mentioned order, which is impugned in this quashment petition.

6. Mr. Inayatullah one of the petitioners vehemently contended that the learned two Courts below were bound to have determined the exclusive possession of one of the party and ought to have declared him in possession of the disputed property. Elaborating his arguments it was submitted that the dispute was with respect to the land and the breach of peace was imminent.

7. Nadir Khan respondent No.1 who is present in person submitted that the proceedings under section 145, Cr.P.C. are not applicable to the Joint property and the learned two Courts below have not exercised the jurisdiction vested in them under the law it was contended that the proceedings initiated were ab initio illegal as the learned Courts below have come to the conclusion that the land was joint.

8. Sardar Ali Raza, learned Deputy Advocate-General took similar stance, that in view of the dictum laid in Abdus Salam v. Abdul Qadir' reported in PLD 1967 Dacca Page-715. and dictum returned in the case of Ghulam Masih alias Guman and others v. Ch. Abdul Rehman and 3 others PCr.LJ 1973 page 439, the proceedings under section 145, Cr.P.C. in joint khata were not maintainable and thus, the orders impugned are without jurisdiction.

9. I have given my anxious consideration to the facts and circumstances of the case, the arguments that the provisions of section 145, Cr.P.C. are not applicable to the joint ownership are without any substance, even in the nature of joint khata any party may be in exclusive possession of their respective share due to private partition, which can be ascertained from the revenue record. Otherwise too, the provisions of section 145, Cr.P.C. are applicable to the joint khata because the object of this section is the prevention of dispute of immovable property likely to cause a breach of the peace which covers all kinds of disputes, not only dispute as to the fact of the possession but also dispute as to the right to possess as held in the case of Malik Fateh Muhammad Tiwana v. The Crown and others PLD 1949 Lahore 397 and in the case of Muhammad Anwar v. Muhammad Aslam 1984, PCr.LJ Page 2394. So the provisions of section 145, Cr.P.C. are applicable even to a khata jointly owned by the parties.

10. The order of the learned Additional Sessions Judge-II Mardan at Takht Bhai, dated 22-2-2007 vide which he ordered the attachment of the land till the official partition of the joint holding is without jurisdiction, that the land subject-matter of dispute could be attached only when it is proved on the record that none of the parties have proved the actual physical possession on the spot under the provisions of section 146, Cr.P.C. and the learned Judicial Magistrate as well as the learned revisional Court were duty bound under the law to have determined as to which of the party was in actual and physical possession on the spot and if none could prove its possession and the breach of peace still existed, then could attach the property in dispute, under section 146, Cr.P.C. till a competent Court had determined the rights of the parties thereto or the person entitled to possession thereof.

11. In view of the facts and circumstances of the case narrated above, the petition' in hand is accepted, impugned order of learned Additional Sessions Judge, Mardan camp Court Takht Bhai, dated 22-2-2007, being without jurisdiction and against the provisions of section 146, Cr.P.C. is quashed and the revision petition filed by Nadir Khan petition against Akram Khan and others No.5/10 instituted on 8-4-2004 is remanded hack to the revisional Court, with direction to decide the same afresh after giving opportunity to the parties and their learned counsel of hearing. Keeping in view the observations recorded by this Court, the parties are directed to appear before the learned Additional District Judge, Mardan camp Court Takht Bhai on 25-2-2008 and it will be highly appreciated, if the learned revisional Court decide this matter as expeditiously as possible. H.B.T./44/P Petition accepted.