2001 P Cr (PLP)

Nemo for Respondents Nos. 2 and

3. Date of hearing: 25th October, 1999. The necessary facts giving rise to the present Constitutional petition are that on 21-4-1998 Soba Khan respondent No. 1 herein, had filed an application before the learned Ilaqa Magistrate, Mianwali for initiation of proceedings under section 145, Cr.P.C. in respect of a turbine (tube-well) which was jointly owned by respondent No. 1's brothers and Alain Sher petitioner. The main basis disclosed in the said application for initiation of proceedings under section 145, Cr.P.C. was that on 23-3-1998 a brother of respondent No. 1 had been murdered by the petitioner's, party over a dispute of water and F.I.R. No. 26 of 1998 stood registered in that regard at Police Station Musa Khel, District Mianwali. The learned Magistrate 1st Class, Mianwali seized of that application of respondent No. 1 recorded preliminary evidence in that connection and also called for a report from the Station House Officer of Police Station Musa Khel in that respect. In his report submitted by the Station House Officer he recommended that the turbine in question should be attached and sealed. However, vide order, dated 9-5-1998 the learned Magistrate 1st Class, Mianwali dismissed the said application of respondent No. 1 through a detailed order. Respondent No. 1 filed a revision petition against the said order which was accepted by the learned Additional Sessions Judge-III, Mianwali vide order, dated 5-11-1998 and the learned Magistrate concerned was ordered to immediately attach the turbine in question. That order passed by the learned Additional Sessions Judge has been assailed before this Court by Alam Sher petitioner through the present Constitutional petition.

2. I have heard the learned counsel for the parties and have gone through the record with their assistance.

3. It has been argued by the learned counsel for the petitioner that the order passed by the learned Magistrate in this case was a detailed and exhaustive order and the learned Additional Sessions Judge was not justified in interfering with the same in the exercise. of his revisional jurisdiction. As against that the learned counsel for respondent No. 1 has maintained that while accepting the revision petition the learned Additional Sessions Judge had advanced cogent reasons which did not call for interference by this Court in the exercise of its Constitutional jurisdiction. The learned counsel for respondent No. 1 has also maintained that the petitioner had not approached this Court with clean hands and, therefore, he was not entitled to an exercise of discretion by this Court in his favour.

4. After hearing the -learned counsel for the parties and going through the record it has been noticed that while dismissing respondent No. 1's application under section 145, Cr.P.C. it had been observed by the learned Magistrate 1st Class, Mianwali that the turbine in question was a joint property of .the parties; Alam Sher was not even named in the F.I.R. in question and the motive set up in the F.I.R. had nothing to do with the turbine in issue; the murder of Soba Khan's brother had not taken place because of any dispute over that turbine; the report submitted by the local police in that regard was based only on the statements of Soba Khan's party and the said report did not disclose any reasonable justification for attaching and sealing of the turbine in issue; a civil suit filed by Alam Sher against Soba Khan and others in respect of the same turbine was already pending before the learned Senior Civil Judge, Mianwali and a stay order had already been issued in that regard by the said learned Court on 25-4-1998; the turbine was situated on Alam Sher's land, there was no dispute about the land, the turbine was jointly owned by the parties, Alam Sher was not directly connected with the criminal litigation between the parties and the turbine was not the issue over which criminal litigation had ensued; and the turbine in issue was the only source of irrigation water for so many persons living in the said village and, therefore, there was no justification for taking proceedings under section 145, Cr.P.C. in that regard. It has further been noticed by this Court that while setting aside that order passed by the learned Magistrate the learned Additional Sessions Judge-III, Mianwali had observed that the local police had reported in favour of initiation of proceedings under section 145, Cr.P.C.; the murder feud between the parties called for sealing and attaching of the turbine in issue; and pendency of a civil suit was not an absolute bar to taking of proceedings under section 145, Cr.P.C.

5. After going through the orders passed by the learned Courts below in the present case it has been felt by this Court that the order passed by the learned Magistrate on 9-5-1998 had much to commend itself. It was a detailed order which took care of the preliminary evidence on the record as well as all the other relevant factors connected with the issue at hand. The learned counsel for respondent No. 1 has failed to point out any misreading or non-reading of the record by the learned Magistrate in that connection. Even otherwise, this Court has failed to find any jurisdictional infirmity, illegality of approach, irregularity of procedure or perversity of reasoning on the part of the learned Magistrate in passing the said order. Thus, it was not open to the learned Additional Sessions Judge to interfere with the said order in the exercise of his revisional jurisdiction. Apart from that the reasons advanced by the learned Additional Sessions Judge for passing the revisional order were not sufficient for interference in the proper and lawful order passed by the learned Magistrate. The impugned order passed by the learned Additional Sessions Judge mainly proceeded on generalized considerations without appreciating all the relevant aspects of the matter.

6. It is common ground between the parties that a civil suit filed by the present petitioner against respondent No. 1 and others in respect of the turbine in question is already pending before the learned Civil Court at 8 Mianwali and possession as well as working of the said turbine are presently regulated by a stay order issued by the said learned Civil Court. It is settled law that where the subject-matter of an. application under section 145, Cr.P.C. is already regulated by a stay order issued by a Civil Court then proceedings under section 1.45, Cr.P.C. are generally not to be encouraged on the same issue.

7. It has further been noticed by this Court that while dismissing respondent No. 1's application for proceedings under section 145, Cr.P.C. the learned Magistrate had directed the local police to proceed under section 107/151, Cr.P.C. if breach of peace was apprehended between the parties. That surely sufficiently took care of the apprehensions of respondent No. 1 expressed in his application under section 145, Cr.P.C.

8. Apart from what has been observed above it may be pertinent to point out that it has been admitted before this Court by both the parties that after passage of an interim order by this Court on 11-11-1998 suspending the operation of the impugned order passed by the learned Additional Sessions Judge on 5-11-1998 the turbine in question has remained fully functional eversince and no breach of peace or untoward incident has happened eversince till today. This admitted fact has gone a long way in taking the wind out of the apprehension expressed by respondent No. 1 regarding breach of peace in his application dated 21-4-1998. This fact further fortifies the conclusions arrived at by the learned Magistrate in his order, dated 9-5-1998 to the effect that the turbine in question was not the real bone of contention between the parties.

9. For the foregoing reasons I have felt no hesitation in concluding that the learned Additional Sessions Judge-III, Mianwali had- no lawful or factual justification to interfere with the order passed by the learned Magistrate 1st Class, Mianwali on 9-5-1998. This writ petition is, therefore, allowed and the impugned order passed by the learned Additional Sessions Judge-III, Mianwali on 5-11-1998 is hereby declared to be without lawful authority and of no legal effect. The net result of the same is that the order, dated 9-5-1998 passed by the learned Magistrate 1st Class, Mianwali stands restored and the application submitted by respondent No. 1 on 21-4-1998 for initiation of proceedings under section 145, Cr.P.C. stands dismissed.

11. There will be no order as to costs. N.H.Q./A-114/L????????????????????????????????????????????????????????????????????????????????? Petition accepted.