1993 PLP 374 (MLD)

Shah Muhammad v. State and 5 others 1983; Muhammad Sarwar and others v. State and others PLD 1985 SC 240 ref. (b) Criminal Procedure Code (V of 1898)

S.145

Where possession of property in dispute was regulated by a Civil Court even through a temporary injunction, matter would fall outside jurisdiction of Magistrate under S.145, Cr.P.C. Faiz-ur-Rehman for Petitioner. The relevant facts are that Maulvi Muhammad Bashir, respondent, was in possession of residential portion of a mosque being its Imam. On some dispute arising between the petitioners and Maulvi Muhammad Bashir, respondent, the parties filed civil suits against each other at Bhakkar. A criminal case, under sections 448 and 452, P.P.C. and sections 324 and 337 of Qisas and Diyat Ordinance was also got registered against the petitioners by Abdul Majid son of the respondent. Apprehending breach of peace between the parties, S.H.O. Police Station Sarai Mohajir made a report to Assistant Commissioner Bhakkar for initiating proceedings under section 145, Cr.P.C. against the parties. The learned Assistant Commissioner attached the disputed, party except the Mosque. Maulvi Muhammad Bashir respondent filed a ision petition in the Sessions Court contending that a temporary injunction I been issued in his favour by the Civil Court in the suit filed by him inspect of the disputed property and in the presence of the stay order, learned instant Commissioner had no jurisdiction to pass an order of attachment of disputed property. The learned Addl. Sessions Judge, Bhakkar agreed with his view point and vide order, dated 4-3-1992 accepted the revision petition and set aside the order of the attachment. Hence this writ petition.

2. It is contended that the learned Addl. Sessions Judge had failed to appreciate the factum of possession of the property in dispute and did not comprehend the scope of section 145, Cr.P.C.

3. Admittedly, civil litigation in respect of the property in dispute is . pending between the parties. A temporary injunction has also been issued in l;~vour of Maulvi Muhammad Bashir, respondent No.4. In the wake of these ircumstances, the learned Assistant Commissioner was not competent to ,)roceed under section 145, Cr.P.C. In this context a reference may be made to he cases titled Shah Muhammad v. State and 5 others reported as 1983 SCMR t73 and Mehr Muhammad Sarwar and others v. State and others PLD 1985 C

240. The legal position is that where possession of property in dispute is regulated by a Civil Court even through a temporary injunction, the matter 8 alts outside the jurisdiction of the Magistrate under section 145, Cr.P C:

4. In view of the above circumstances, the learned Addl. Sessions Judge had rightly interfered with the order of the learned Assistant Commissioner Ad acted quite legally in setting aside the order of attachment. Thus finding no substance in the writ petition, I dismiss it in limine. I.B.T./A-122/L???????????????????????????????????????????????????????????? Petition dismissed.