P L D 1979 Quetta 154 (PLP)

(ii) that the learned trial Court has also omitted the fact that the parties have already chosen civil Courts to determine their rights and it was admitted by the parties that the case on civil side has been decided and an appeal is pending before the Commissioner, Quetta; (iii) that it is observed that no change in the case has come after the quashment of the order by the High Court.

3. Mr. Haji Muhammad Sarfraz Khan, the learned counsel for the petitioners frankly 'does not support the first and third around of the reference of the Additional Sessions Judge, Quetta. He has rightly done so.

4. Additionally it is an admitted fact, borne by the record, that the preliminary order was passed by the learned Magistrate on 7th December, 1972. Besides some evidence was recorded by the Magistrate, after the remand of the case by the High Court. These facts might have not been brought to the notice of the learned Additional Sessions Judge during the proceedings of the case.

5. The only crucial point requiring consideration of this Court is whether mere institution of a civil suit or filing of an appeal against its dismissal in respect of the same subject‑matter, is by itself sufficient to oust jurisdiction of a Magistrate for taking proceedings under section 145 of the Criminal Procedure Code.

6. Haji Muhammad Sarfraz Khan, the learned counsel for the petitioner argues that by institution of a suit the jurisdiction of the Magistrate ceases. Thereafter the Magistrate has to stop his hands to proceed further with the case or pass any order. ???????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????

7. Mr. Khawaja Safdar Rashid, repudiates this contention of Mr. Muhammad Sarfraz Khan, he draws' my attention to case of Shah Nawaz and 3 others v. Sub‑Divisional Magistrate Nausheio Feroze and 6 others (P L D 1974 Kar. 124) wherein it is held that the mere fact that a civil suit in respect of the same subject matter of the dispute is pending before a civil Court is not by itself sufficient to oust jurisdiction of the Magistrate for taking action under section 145, Cr. P. C.

7. In another case Dilbaz Khan v. The State and others (P L D 1959 Lab. 264) it is held; "I have no doubt in my mind that the mere fact that a civil suit is filed in respect of the subject matter of the dispute is by itself not sufficient to oust the jurisdiction of the Magistrate. By the filing of the civil suit, the dispute between the parties does not cease to exist and the likelihood of a breach of peace is not in any way lessened"

8. In case of Motahar Khalifa v. Madhab Chandra Kapall and others (P L D 1967 Dacca 541), it has been held that mere institution of civil suit is no reason for dropping proceedings under section 145 of the Criminal Procedure Code.

9. However, the learned counsel for the petitioner is unable to produce any authority to the contrary.

10. In view of such circumstances I am of the definite view that mere filing of civil suit would not by itself deprive a Magistrate of his jurisdiction from taking action under section 145, Cr. P. C. unless there is some specific order in shape of interim or final issued by the civil Court.

11. Indeed mere pendency of a suit in civil Court is wholly irrelevant circumstance ; it would not take away the dispute which had necessitated the proceeding under section 145, Cr. P. C.; the possibilities of breach of peace would still continue to exist. If mere institution of the suit in a civil Court is held to be sufficient factor to deprive the Magistrate of having jurisdiction" over the disputed matter certainly anomalous results would follow.

12. In result I 'see no merit in the reference, it is rejected. S. A. H. ???????????????????????????????????????????????????????????????????????????????????????????????????????? Reference rejected.