2005 PLP 1630 (SCMR)

SARDAR MUHAMMAD RAZA KHAN, J.

Mst. Zama Bibi wife of Arbab Noor Muhammad Khan of Tehkal Bala, Peshawar seeks leave to appeal against the judgment dated 26-4-2004 of a learned Judge in Chambers of Peshawar High Court whereby, on the application of Saadat Khan son of Mohabat Khan of the same village, the learned Judge invoking inherent jurisdiction under section 561-A, Cr.P.C., quashed the proceedings under section 145, Cr.P.C., concurrently decided by the two Courts below.

2. On the application dated 31-7-2002 of Mst. Zama Bibi, the local police, after investigation, filed a complaint under section 145, Cr.P.C. before the Magistrate on 11-8-2002. The learned Magistrate passed preliminary order under section 145(1), Cr.P.C. on 13-8-2002 and invited written statements from the parties which were submitted by the parties on 9-9-2003 and 11-9-2003. The delay in such submission occurred because at one time the complaint was dismissed in default which consumed almost a year in restoration. It seems from the conduct of the parties that though initially the dispute referred to a much larger block but subsequently as well as presently it is confined to Khasra No.3280 measuring 26 Kanals.

3. After recording evidence of the parties qua the factum of possession, the learned Magistrate felt unable to satisfy himself as to physical possession of the parties at relevant time but as the apprehension of breach of peace existed, he proceeded under section 146, Cr.P.C., A and passed an order, dated 21-10-2003. The same was upheld by the learned Additional Sessions Judge, Peshawar with slight modification and dismissed the revision petition on 10-1-2004. The learned High Court quashed such proceedings under section 561-A, Cr.P.C.

4. We have gone through the evidence of parties on record. After examining each and every witness minutely, it was observed that the conclusion drawn by the learned Magistrate and the learned Additional Sessions Judge was perfectly in accord therewith. We could have discussed the evidence in minute details as well but such exercise is avoided lest it adversely affects any of the parties in civil suit filed by Saadat Khan, respondent on 3-10-2003 for Specific Performance of Contract and for Permanent Injunction etc. In the given circumstances, it was not in the fitness of the things for the learned Judge in Chambers of the High Court to have quashed the proceedings under section 561-A, Cr.P.C.

5. A perusal of the impugned judgment would indicate that the learned Judge has based his findings on the grounds firstly, that the petitioner had failed to prove the exact date of possession by the respondent. Secondly, that a civil suit already stood instituted and hence the matter could finally be decided therein and thirdly, that because of prolonged litigation, there remained no apprehension of breach of peace. Having given our considered thought to the matter, we feel that all the three grounds were unfounded.

6. So far as the question of proof qua the possession is concerned, the situation was such that it persuaded the learned Magistrate to pass an order not under section 145, Cr.P.C., but under section 146, Cr.P.C. The reason advanced by the learned High Court would have prevailed only if the order had rightly or wrongly, been passed under section 145, Cr.P.C.

7. The second ground regarding the pendency of the civil suit is also immaterial because a civil suit ultimately decides the entitlement of the parties and not the immediate dispute over possession leading to imminent danger of breach of peace. Agni Kumar Das v. Mantazuddin AIR 1928 Cal. 610 was cited as a precedent where the actual dispute over possession was considered to be of prime consideration despite the fact that the question as to right to possession, in that case, had already been decided by the Civil Court.

8. The question of prolonged litigation was not relevant in the instant case because even a period of three years is not completed with effect from the passage of preliminary order, dated 13-8-2002. On the other hand, this Court in case of Abdul Aziz v. Mian Ziauddin 1983 SCMR 928 had ignored a period of pendency for 11 years, holding that mere prolongation of dispute cannot be pressed into service as an absolute rule for holding conclusively that no apprehension of breach of peace exists.

9. Last but not the least, is the question as to whether the learned High Court was justified in invoking the provision of section 561-A, Cr.P.C. In the circumstances of the present case, we reiterate that such inherent jurisdiction was unjustifiably invoked. We are fortified in this conclusion by a recent judgment of this Court in case of Salim-ur-Rehman v. Faqir Hussain PLD 2003 SC 578 where interference under inherent powers by the High Court was deprecated where the evidence was held to be reasonably appreciated by the learned Sessions Judge. This case is rather placed at better footings because here there are concurrent findings of two Courts exercising regular jurisdiction. The findings did not at all require to be reversed simply because the learned Judge in the High Court held some different view of the evidence. At the cost of repetition, it may be stated once again that we ourselves are in a position to appreciate the evidence but the same is avoided, firstly, that the concurrent findings are not perverse and secondly, that the expression might not affect the course of trial in the civil suit.

10. As a sequel to the above discussion, the instant petition after conversion into appeal is hereby accepted, the impugned judgment dated 28-5-2004 of the learned High Court is set aside and the concurrent findings of the learned Magistrate dated 21-10-2003 and the learned Additional Sessions Judge dated 10-1-2004, are hereby restored. hi view of the interim arrangements, the learned Civil Court is directed to decide the civil suit not later than six months. N.H.Q./Z-37/S Petition accepted.