2019 P Cr (PLP)

RAZA ALI KHAN, J.

The captioned application has been filed under section 561-A, Cr.P.C. whereby following relief is prayed for:- "It is therefore, most respectfully prayed that by accepting this petition, proceedings under sections 107/150, 145, Cr.P.C. initiated by respondent No.3 regarding house along with shops land measuring 3 marlas out of 10 marlas situated in Khasra No.1421 (old), new No.1402(4 kanal 14 marlas) 12 marlas out of 1 kanal 12 total land measuring 15 marlas situated in No. Khasra 1427 old, new No.1402/1, Khewat No.4, Khata No.392 min/573, 390/594 village Sanghot, Tehsil and District Mirpur may kindly be quashed and respondent No.3 may kindly be directed to handover the possession of above stated property to the petitioner and pro forma respondents. Any other relief permissible under rules may also very kindly be granted with cost." Precise facts narrated in the supra titled application are that land comprising survey No.1421 renumbered as 1402, 3 marlas out of 10 marlas, Khasra No.1427 renumbered as 1402/1, 12 marlas out of 1 kanal 12 marlas, Khewat No.4 Khata No.392 along with house and shops constructed over it was in possession of petitioner and pro forma respondents. Respondent No.2, herein, filed an application before respondent No.4 on 05.11.2009 stating therein that petitioner and proforma respondents have dispossessed her from disputed property. Respondent No.4 SSP, forwarded the matter to respondent No.5 SHO who presented a complaint under sections 107/150 and 145, Cr.P.C. before respondent No.3, Additional District Magistrate, who has attached the property from the possession of petitioner and pro forma respondents. It is contended that petitioner and pro forma respondents filed objections on the complaint and respondent No.1 also filed application for cancellation of attachment proceedings before respondent No.3, who after hearing the parties cancelled the attachment order but did not restore the possession of the petitioner-pro forma respondents and on application of respondent No.2 for possession of the property, respondent No.3 handed over the possession of the property to respondent No.1. It is further contended that order of respondent No.3 was challenged before Sessions Judge Mirpur who accepted the revision petition and remanded the matter to respondent No.3 for fresh decision after hearing the parties. It is contended that proceedings under section 145, Cr.P.C. in presence of civil litigation were not competent but respondent No.3 has failed to understand the controversy and is bent upon to decide the matter finally. The learned counsel for the petitioner argued that both the parties filed separate suits against each other, which are still pending in shape of appeal before this Court. The learned Advocate further argued that as civil litigation is pending before the Court therefore, proceedings under section 145, Cr.P.C. are illegal and without lawful authority. The learned Advocate submitted that this fact was brought into the notice of respondent No.3 but illegally and without lawful authority, he is bent upon to adjudicate upon the matter finally. The learned Advocate further contended that official respondents illegally while proceeding under section 145, Cr.P.C. have handed over the possession of property, which was lying with petitioner and proforma respondents, to respondent No.1, hence, the proceedings under section 145, Cr.P.C. in presence of civil litigation are liable to be dropped and possession is liable to be restored with petitioner and pro forma respondents. The learned Advocate in support of his submissions placed reliance on following case law:- 1. 2004 PCr.LJ 1096, 2. 2013 SCR

115. Ms. Ghazala Haider Lodhi, the learned counsel for respondents Nos. 1 and 2 argued that the disputed property was in the ownership and possession of Muhammad Siddique, deceased, husband of respondent No.1, who had transferred the same in her name through gift deed. The learned Advocate further argued that respondent No.1 resides in England and in her absence petitioner and pro forma respondents have occupied the property and were threatening respondent No.1 for dire consequences whereupon she filed application and after necessary proceedings under section 145, Cr.P.C. possession was restored to her name. The learned Advocate further argued that civil litigation is yet not finalized and appeal is pending before this Court and there was likelihood for breach of peace, hence, the proceedings under section 145, Cr.P.C. have rightly been initiated and are liable to be finalized because no interim injunction has been issued by the Civil Courts nor the possession of disputed property has been regulated by the Civil Courts. I have heard the learned counsel for the parties and gone through the record of the case. The sole stand of the petitioner is that in presence of civil litigation, proceedings under section 145, Cr.P.C. cannot be initiated. Under section 145, Cr.P.C. whenever Magistrate is satisfied that a dispute likely to cause breach of peace exists regarding any land and considers it a case of emergency, he may attach the subject and may make an order for proper custody of such subject. In section 145, Cr.P.C. it is nowhere provided that in presence of civil litigation the Magistrate shall not exercise his powers conferred on him under this section, however, the superior courts have laid down principles that when the Magistrate can proceed and when he cannot proceed under section 145, Cr.P.C. in presence of civil litigation. In case titled Gul Khan v. Muhammad Hafeez Khan and 9 others (1992 MLD 2105) it has been held by the learned Judge of High Court of Azad Jammu and Kashmir that mere filing of civil suit would not stand in the way of Magistrate to exercise powers under section 145, Cr.P.C. and make attachment of subject of dispute. The relevant observation recorded at page 2109 in para 11 of the report is as under:- "The other aspect of the proposition is that once the Civil Court took the cognizance of the subject of dispute and issued interim injunction or appointed its receiver, or passed a decree, such orders of the Civil Court were to be given complete effect. Whenever any dispute in respect of such property arose between the parties, the Magistrate or the police, as the case may be, was empowered to take measures in order to maintain the peace, under section 107, Cr.P.C. It was not permitted to proceed under section 145, Cr.P.C. and to pass the order in derogation to the order of the Civil Court. Of Course, when mere civil suit was instituted and no interim injunction was issued or receiver was appointed or decree was finally passed, the institution of the civil suit would not stand in the way of Magistrate to exercise powers under section 145, Cr.P.C. and make attachment of the subject of dispute. This was an exception to the aforesaid rule. This principle finds approval of the Supreme Court of Azad Jammu and Kashmir in Suleman's case (1983 PCr.LJ 2590), Muhammad Ashraf Khan's case (1981 PCr.LJ 1018) and Mst. Fatima's case (1971 SCMR 449). In case titled Abdul Aziz and others v. Mian Rafiuddin (1983 SCMR 928) it was argued that in presence of civil suit, proceedings under section 145, Cr.P.C. cannot be initiated. The apex Court of Pakistan while attending the argument at page 931 observed as under:- "If the dispute relating to possession is likely to cause a breach of the peace, but that jurisdiction will cease if a decree declaring the right of the parties in the property has been passed or an order regulating its possession had been made. In the present proceedings, however, no such decree or order is shown to have been passed by the Civil Court and as such the contention has no force. The same principle has been laid down in case titled Muhammad Siddique and another v. Muhammad Rashid and 3 others (2004 PCr.LJ 1096) and the apex Court of Azad Jammu and Kashmir in para 9 of the report observed as under:- "

It may be stated that proceedings under section 145, Cr.P.C. are subordinate to a decree or order passed by the civil Court in respect of the property in dispute before the Magistrate. The primary concern of the proceedings under the Criminal Procedure Code is to prevent breach of peace arising out of a dispute concerning the land or water. These proceedings though concern the subject matter of dispute between the contending parties do not concern themselves with the adjudication of their rights in the property. The resolution of the dispute lies exclusively in the realm of a civil Court, therefore, if the civil Court finally decides or through any interim injunction regulates to the possession of the subject matter of dispute in such case if apprehension of breach of peace prevails the Magistrate can take action under sections 107 and 151, Cr.P.C. but he cannot take action under section 145, Cr.P.C. The proceedings under section 145, Cr.P.C. in such situation are illegal and without jurisdiction." The same principle, that if the civil Court has regulated the possession of land by issuing interim injunction the Magistrate cannot proceed under section 145, Cr.P.C., has been laid down in case titled Saleem Akhtar v. Abdul Waheed and 6 others (2013 SCR 115). The relevant observation is reproduced as under:- "

12. It is clear that proceedings under section 145, Cr.P.C. are not maintainable in presence of a civil suit where the civil Court has already regulated the possession." After survey of case law, it has become clear that Magistrate can proceed under section 145, Cr.P.C. if there is a likelihood of breach of peace concerning property or water etc. and mere filing of suit will not debar the Magistrate to proceed under this section unless no interim injunction was issued or receiver was appointed or decree was finally passed, in other words possession has been regulated by the Civil Court. In view of above clear cut rule of law, now it is to be considered by this Court that whether the possession of disputed property has been regulated by the civil Court or not. A perusal of record reveals that the parties filed counter suits before the Senior Civil Judge Mirpur regarding the same land in 1998. The trial Court at the conclusion of proceedings decreed the suit filed by Muniza Begum, respondent No.1, herein, and dismissed the counter suits. On appeal before District Judge Mirpur the case was remanded to the trial Court for fresh decision vide judgment dated 15.08.2008. Respondent No.1, herein, filed appeal before this Court, which was dismissed on technical ground vide judgment dated 13.02.2011. On appeal the apex Court set aside the judgment of this Court and remanded the case for fresh decision on merits of the case. The learned counsel for the petitioner has not brought on record any proof regarding interim injunction issued by this Court in appeal pending before this Court. Even otherwise, the trial Court vide judgment and decree dated 21.02.2007 observed that respondent No.1, herein, is in possession of the disputed property. Though the said judgment and decree has not attained finality, however, from the said judgment prima facie it can be ascertained that respondent No.1 was in possession of the property and has right to hold the possession of property until she is dispossessed in accordance with law. Though civil litigation is pending between the parties but up till now the possession has not been regulated by the civil Court neither appointed any receiver nor decree was finally passed by the Civil Court, therefore, in my considered view the proceedings initiated by the Magistrate under section 145, Cr.P.C. are not illegal and proceedings initiated in accordance with law cannot be cancelled in exercise of powers under section 561-A, Cr.P.C. I have no quarrel with the rule of law laid down in the cases referred to by the learned Advocate for the petitioner, but same are not helpful to him in the circumstances of this case. In view of above finding no substance in this application, it is hereby dismissed. SA/39/HC(AJ&K) Application dismissed.