P L D 2026 Federal Constitutional Court 134 (PLP)

ALI BAQAR NAJAFI, J.

This petition under Article 185(3) of the Constitution of Islamic Republic of Pakistan, 1973, [Constitution], since omitted by the Constitution (Twenty Seventh Amendment) Act, 2025 stood transferred under Article 175-F(2) of the Constitution, therefore, heard and is being decided through this judgment. A leave to appeal is sought against the judgment dated 16.12.2024 [impugned judgment] passed by the Islamabad High Court, Islamabad, whereby, the Writ Petition filed by Zahoor Ahmad Malik [respondent No.1] was decided in the following manners:- "In view of the above, the instant petition is allowed and the Impugned Order as well as the Impugned Judgment are set aside. Resultantly, the possession of the commercial Plot No.11, situated in Sector I-8 Markaz, Islamabad shall be restored to both the Petitioner and the Respondent No.1 and in case their dispute regarding the Subject Property is likely to cause breach of peace the Magistrate shall proceed in accordance with the law."

2. Brief facts of the case are that the petitioner is a partner of Messrs Saifco Developers (Pvt.) Ltd., who purchased Plot No.11, measuring 1244 Sq. yards, [disputed plot] situated at I-8 Markaz, Islamabad, through open auction from Capital Development Authority [CDA]. On 26.06.2019, CDA transferred the plot to respondent No.1 and petitioner got the possession of the plot, got approved the site plan from CDA, installed electricity meter, completed its structure by bearing all construction expenses and also sold some shops with the knowledge of the respondent No.1. On 28.02.2022, suit for declaration, rendition of accounts and permanent injunction was filed by respondent No.1 and got the status quo order. On 18.07.2022, the respondent No.1 tried to take the possession of the constructed site with force and statedly also got the possession over a portion of the property. On 14.01.2023, the petitioner filed suit for possession under Section 9 of the Specific Relief Act, 1877 alleging that possession was illegally taken by the respondent No.1. On 04.02.2023 FIR No.162 was registered under Sections 489, 506(ii), 148, 149 P.P.C. at Police Station I-9, Islamabad by one Haider Khan on behalf of the respondent No.

1. On 06.02.2023, the police filed complaint under section 145 Cr.P.C. before the Magistrate Ist Class. On 14.04.2023, a report was submitted and the Judicial Magistrate restored the possession to the petitioner as last possessor and the proceedings under section 145 Cr.P.C were disposed of. On 03.01.2024, the Additional Sessions Judge, West-Islamabad, allowed the Criminal Revision, filed by respondent No.1, set aside the said order and remanded the case to the Assistant Commissioner/Magistrate Ist Class to finalize the proceedings after recording of evidence on the question of possession and also breach of peace. The Magistrate Ist Class again restored the possession to the petitioner and on 18.10.2024, the Crl. Revision filed by Respondent No.1 was dismissed by the Addl. Sessions Judge. However, the Islamabad High Court set aside the order of Magistrate Ist Class and Addl. Sessions Judge and restored the possession to both the parties vide the impugned order.

3. Admittedly, both parties have been in joint possession from the very beginning when the disputed plot was allotted to the respondent No.1 on 26.06.2019, whereafter the construction was undertaken by the petitioner in accordance with an agreement dated 26.03.2018 according to which it was to be completed by the petitioner within stipulated time without any additional demand of expenses. The dispute had statedly arisen when the shuttering was made and the petitioner displayed the banner for selling the shops only by him. The respondent No.1 who lodged said FIR No.162 on 04.02.2023 at Police Station I-9, Islamabad. Since, presence of the armed guards of both the parties had threatened the breach of peace, the police filed a complaint two days later before the Magistrate who had given the possession to the person last in actual possession i.e. the petitioner who was carrying out the construction. However, it is not denied that both are in joint ownership and had joint) spossession. Importantly, no one is in exclusive possession of the plot which fact was mandatory for handing over the possession of a semi-constructed plaza to the petitioner. The civil suit for possession under section 9 of the Specific Relief Act was filed by the petitioner and suit for declaration, rendition of accounts and permanent injunction was also filed by the respondent No.1 and as such both parties had landed their respective claim in the Civil Court.

4. The nature of order under section 145 Cr.P.C. is temporary and short lived only during the existence of imminent danger to the breach of peace. In these proceedings, rights and liabilities over such property are not finally determined1,2.

5. As far as the argument advanced by learned counsel for the petitioner that the construction could not be carried out unless the exclusive possession is handed over to the petitioner is concerned, suffice it to say that the rights and liabilities of the parties in the construction of the Plaza was to be determined on the basis of said agreement which does not show any clause to support it. It is trite law that a co-owner cannot be forcibly dispossessed from his own property. How much constructions were carried out and which side is to be sold for which price or retained by the petitioner are dependent upon the evidence on the basis of which the rights and liabilities will be finally determined by the Civil Court.

6. In view of what has been discussed above, this petition is dismissed and leave is refused with slight modification that the possession of the disputed constructions shall be regulated by the Civil Court where the suits are pending. MH/17/FCC Petition dismissed. 1 Saleem-ur-Rehman v. Faqir Hussain and others (2004 SCMR 667). 2 Mirza Abdul Razzaq v. Barkat Ali and others (1985 SCMR 1235).