2007 PLP 2617 (YLR)

MUHAMMAD AKHTAR SHABBIR, J.

This writ petition has been tiled to call in question the order dated 10-2-2005 passed by the learned Addl. Sessions Judge, Rawalpindi in its revisional jurisdiction.

2. Facts giving rise to the present writ petition are to the effect that the proceedings under section 145, Cr.P.C. had been pending before the Illaqa Magistrate of Police Station Cantt., Rawalpindi, with respect to the dispute over the possession of the Petrol Pump' named as Chawala Petrol Pump and Super Service Station, 13/A the Mall, Rawalpindi, along with Bungalow No.268/B, the Mall, Rawalpindi.. These proceedings were initiated on the receipt of the report, sent by the police along with Qalandara under section 145, Cr.P.C. on the written application of Nisar Ahmed Siddiqui the present petitioner. After receipt of the police report the parties were summoned and after hearing both the parties and having apprehending law and order situation the property in dispute had been sealed, the parties were directed by the Magistrate to produce their evidence. On 13-9-2003 both the parties appeared in person and got recorded their statements having effected a compromise between them. whereupon, the learned Magistrate vide order dated 13-9-2003 disposed of the proceedings and it was further directed as per terms of compromise, possession of Chawala Petrol Pump, the Mall, be handed over to the present petitioner Nisar Ahmed Siddiqui. Being aggrieved the respondents Nos.1 and 2 filed a revision petition before the learned Addl. Sessions Judge, Rawalpindi, who vide judgment dated 10-2-2005 accepted the revision petition and set aside the order passed by the Magistrate dated 13-9-2003 with the direction to the Magistrate to proceed in accordance with the provisions contained in section 145, Cr.P.C.

3. Learned counsel for the petitioner contended that before the learned Magistrate the petitioner and the respondents made their statement with regard to the compromise effected between them and the respondent Mohammad Ashraf Abbasi made a statement for de-seal of the Petrol Pump and handing over the possession of the petrol Pump to the petitioner. He further contended that the compromise in criminal cases once effected is effected for all and the party could not resile from the same. While on the other hand, learned counsel for the respondents vehemently opposed the arguments of the learned counsel for the petitioner contending that the proceedings under section 145, Cr.P.C. cannot be compromised nor these can be referred to the arbitration. He further contended that the Magistrate was under legal obligation to determine the fact and actual possession of the parties two months earlier and the question of title cannot be taken into consideration nor the order could be passed with regard to the future possession. He placed his reliance on the case of Gangadhar v. Balkrishna and others ATR 1929 Nagpur 285.

4. I have heard the arguments of the learned counsel for the parties and perused the record.

5. The police submitted a Qalandara under section 145, Cr.P.C. to the concerned Illaqa Magistrate for proceeding for determining the possession of the parties two months before the date when the dispute likely to cause the breach of peace existed between the parties. Admittedly during the proceedings a compromise between the parties has been effected and the statements of the parties Nisar Ahmad Siddiqui present petitioner, Muhammad Ashraf Abbasi and Mushtaq Ahmad Siddiqui were recorded and on the basis of the statements of the parties, learned Illaqa Magistrate, vide order dated 13-9-2003 ordered for de-seal of the Petrol Pump and directed handing over the possession of the Petrol Pump to Nisar Ahmad Siddiqui present petitioner. The said order was challenged by Muhammad Ashraf Abbasi etc. the respondents through a revision petition, which came up "for hearing before Mr. Abdul Rehman Khan, learned Additional Sessions Judge, Rawalpindi, who on 10-2-2005 accepted the revision petition, setting aside the order of the Illaqa Magistrate remanding the case to the Illaqa Magistrate with the direction to proceed further in accordance with the provisions contained in section 145, Cr.P.C. Learned counsel for the writ petitioner has forcefully contended that." the respondents had made the statements before the. Magistrate with their own free consent and the respondents could not wriggle out of the same.

6. The proceedings under section 145, Cr. P. C. have been initiated on the application of Nisar Ahmad Siddiqui etc. the present petitioner and he himself made his statement to the effect that he does not want to continue the proceedings under section 145, Cr.P.C. and requested for de sealment of the Petrol "Pump and Muhammad Ashraf Abbasi respondent has also accepted/admitted the statement of Nisar Ahmad Siddiqui etc. and he also offered the Magistrate to de-seal the Petrol Pump and handed over the possession of the same to Nisar Ahmad Siddiqui and Mushtaq Ahmad Siddiqui. It is settled proposition of law that the proceedings under section 145, Cr.P.C. cannot be compromised nor can they be submitted to arbitration. All that can be done that there can be an agreement as to the mode of taking evidence as regards to the actual possession on the data of the preliminary order either by a commission or by arbitration. The question as to who is in actual possession would not be delegated even by consent of the parties. In this context reference can be made to the case of Gangadhar v. Balkrishna and others AIR 1929 Nagpur 285 in another case of AIR 1923 Allahabad 77, it has been laid down that the question of possession can be settled by the compromise but the question of title cannot be settled in proceedings under section 145, Cr.P.C.

7. Section 145 (5), Cr.P.C. provided that nothing in this section shall preclude any party, so required to attend, or any other person interested, from showing that no such dispute as aforesaid exists or has existed: and in such case the Magistrate shall cancel his said order gild all further proceedings thereon shall be stayed, but, subject to such cancellation, .the order of the Magistrate under subsection (1) shall be final. In the case in hand, the Magistrate "has directed the delivery of possession in favour of one party/the petitioner which is in violation of Clause (5) of section 145, Cr.P.C. In case of Sadhu Biswas and another v. Muhammad Ali Biswas 9 Indian Cases 167, the parties to a proceeding under section 145 of the Criminal Procedure Code compromised and tiled a petition of compromise, and according to its terms the Magistrate ordered that the land would be in the possession of both sides as stated in the petition. It was held that the order fell under Clause (5) of section 145 and not one under Clause (6)". If the Magistrate decides that one of the parties was in such possession of the said subject, he shall issue an order declaring such party to be entitled to possession thereof until evicted therefrom in due course of law, and forbidding all disturbance of such possession until such eviction. In the case in hand the parties made statements before the Court and assured that no such dispute is in existence as they had compromised. In such circumstances the Magistrate is only 'competent to discharge the proceeding but he cannot pass any order with regard to the delivery of the possession under sub-clause (6) of section 145, Cr.P.C. and he was not competent to proceed beyond the scope of sub-Clause (5) of section 145, Cr.P.C. as the Magistrate has not recorded any evidence with regard to the possession of the parties and on mere statements of the contestants passed the order dated 13-9-2003. From perusal of the record, it reveals that the dispute with regard to the breach of peace at the said petrol pump ceased to exist, therefore, the Magistrate should have stayed the proceeding any further. As stated earlier the proceeding under section 145, Cr.P.C. have been initiated on the- application of the present petitioner Nisar Ahmad Siddiqui and he made the statement that the matter has been resolved, therefore, the position will be the same as was on the date of filing of the application. This aspect of the case has not been adverted to by the Magistrate as well as by the learned Addl. Sessions Judge, Rawalpindi, who while accepting the revision petition, setting aside the order of the Magistrate and declared that the proceedings under section 145, Cr.P.C. would be deemed to be pending before the learned Magistrate.

8. In view of the above discussion and following the dictum laid down in the cases referred to above, it is observed that the Magistrate is not competent to proceed further in the matter, handing over the possession of the property in dispute, beyond the scope of section 145(5), Cr.P.C. and the learned Additional Sessions Judge, Rawalpindi was also not competent to remand the case, as observed in the preceding paragraph, therefore, on this score alone, the impugned order is declared to have been passed illegally. Consequently, this writ petition .is disposed of with the modification that the order dated 13-9-2003 passed by the learned Magistrate shall be deemed to have been passed under clause (5) of section 145, Cr.P.C. and the proceedings before him shall be deemed to have been ended. As a result whereof, the position at site before the order dated 13-9-2003 passed by Magistrate shall also be deemed to have been restored. H.B.T./N-29/L Order accordingly.