2001 P Cr (PLP)

Mehr Muhammad Sarwar and others v. The State and others PLD 1985 SC 240; Shah Muhammad v. Haq Nawaz and another PLD 1970 SC 470 and Shah Muhammad v. The State and 5 others 1983 SCMR 1173 ref. Tahir Hussain Lughmani for Petitioners. Muhammad Ayub Khan, A.A.‑G. for the State. Qazi Muhammad Ghazanfar for Respondent No.2. Date of hearing: 26th February, 2001. Sher Afzal Khan and 5 other petitioners all residents of Banda Bala, District Batagram have filed instant petition under section 561-A, Cr.P.C. for quashing the proceedings carried out by Sub‑Divisional Magistrate, Batagram and Sessions Judge, Batagram, under sections 145, Cr.P.C. and 439 thereof respectively and orders, dated 20‑4‑2000, 15‑5‑2000 and 13‑7‑2000 passed by them in pursuance thereto.

2. Shah Rozan Khan respondent No.2 herein, made a complaint under section 145, Cr.P.C. against the petitioner to the effect that there exists eminent danger of breach of peace between the parties with regard to joint landed property bearing Khasra No.1418 measuring 72 Kanals, 15 Marlas situate in the area of Mauza Maira District Batagram and as such the local police be directed to attach the property in dispute in order to avoid any untoward incident. The S.D.M. forwarded the complaint to S.H.O., Police Station Kosa Banda for inquiry who after conducting the inquiry submitted his report on 8‑4‑2000 alongwith his request for attaching the property. Thereafter the property in question was attached through an interim order, dated 20‑4‑2000 with direction to the parties to appear before S.D.M. Batagram on 9‑5‑2000 regarding submission of their respective claims. Pursuant to his order, dated 20‑4‑2000, S.D.M. Batagram after hearing the parties made an order on 15‑5‑2000 confirming his previous order dated 20‑4‑2000. This order was challenged by the petitioners before the Sessions Judge Batagram by means of revision petition which was dismissed through order, dated 13‑7‑2000, which has given rise to the filing of instant petition.

3. I have heard Mr. Tahir Hussain Lughmani, Advocate for the petitioners and Mr. Muhammad Ayub, A.A.‑G. for State. Shah Rozam Khan respondent No.2 did not appear in Court despite having been served personally.

4. The only grievance of learned counsel for the petitioners is that in view of Civil Suit No.29/1 of 2000 instituted by Shah Rozam Khan and his wife Mst. Shamus Nisa against Sher Afzal Khan etc. petitioners herein, concerning the property in suit, Criminal Courts are not competent to proceed with the matter and pass the impugned order which are patently illegal and liable to cancellation in view of decisions reported in PLD 1970 SC 470; NLR 1999 (Criminal) 112; PLD 1967 Pesh. 359 and 1999 MLD 863 (Lahore). The learned A.A.‑G. has not been able to meet the legal objections raised by learned counsel for the petitioners.

5. In the instant case a declaratory civil suit as stated above, has already been instituted by Shah Rozam Khan respondent No.2 herein against Sher Afzal Khan and others, petitioners herein relating to the property in question. The institution of the suit has been concealed by Shah Rozam Khan for reasons not far to seek. I find myself in agreement with the learned counsel for the petitioners that a Magistrate cannot under section 145 of Criminal Procedure Code, act in violation of the orders passed by a Civil Court during the trial of a suit. It needs no reiteration that the proceedings initiated under section 145, Cr.P.C. are subordinate to a decree or order passed by a Civil Court in respect of the property in dispute before the Magistrate. The primary concern of the proceeding under the Criminal Procedure Code is to prevent breach of peace arising out of a dispute concerning land. These proceedings though concerning 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. The order passed by a Magistrate for attachment of the subject‑matter of dispute are, therefore, of a transitory nature. Section 145, therefore, proceeds on the premises that the Magistrate will cease to deal with the possession of disputed property before, him as soon as the Civil Court is seized with the matter and has passed an order therein. In such a case, if apprehension of breach of peace prevails, the Magistrate can take action under sections 1071151, Cr.P.C. and bind down the party threatening to act in violation of the order, of the Civil Court.

6. Since the Civil Court of competent jurisdiction has already taken cognizance of the matter Criminal Court had no jurisdiction to proceed under the provisions of section 145 (ibid). Mehr Muhammad Sarwar and others v. The State and others PLD 1985 SC

240. Shah Muhammad v. Haq N2waZ f and another PLD 1970 SC 470 and Shah Muhammad v. The State and 5 others 1983 SCMR 1173. The jurisdiction under section 145, Cr.P.C. is exercised to prevent the parties from fighting over possession of immovable property and to shed blood and disturb peace. Thus, decision of title of parties over the disputed land was never attended in proceedings under section 145, Cr.P.C.

7. For the aforesaid reasons, the petition is accepted and the impugned order of District Judge, Batagram dated 13‑7‑2000 is quashed accordingly. The previous proceedings carried by S.D.M., Batagram resulting to orders, dated 20‑4‑2000 and 15‑5‑2000 are also quashed and the complaint of respondent No.2 is resultantly dismissed. No order as to costs. H.B.T./266/P Petition accepted.