1985 P Cr (PLP)

‑‑‑Ss. 145 & 439‑‑Revision petition heard and accepted by High Court with assistance of State Counsel in absence of petitioner or his counsel and respondents who were not present although registered notices were sent to them. H. Khurshid for Petitioner. Nemo for Respondents. Muhammad Rafi Siddiqi for A.‑G. for the State. Date of hearing: 30th April, 1985. This is a revision petition by A.A. Aziz, petitioner, against the order of a First Class Magistrate of Lahore, dated 26‑4‑1971, dismissing his complaint lodged under section 145, Cr.P.C.

2. The brief facts of the case are that the petitioner filed a petition under section 145, Cr.P.C. with the Ilaqa Magistrate regarding the dispute over the possession of a part of his property arising out of the action of Dr. M.A.A: Aziz and others, respondents Nos. 1 to 4, who had demolished his wall, trespassed about ten feet into his compound and started constructing another wall. The Ilaqa Magistrate visited the disputed spot and later appointed an Arbitrator to give his award on the question of possession. However, without waiting for the receipt of the award, the learned Magistrate suspended the proceedings on 26‑4‑1971 on the ground that as the petitioner had filed a civil suit, the proceedings before him deserved to be stayed. In this respect, the learned Magistrate cited Muhammad Akbar v. State P L D 1968 S C 281.

3. The name of Mr. H. Khurshid, Advocate for the petitioner, appears in the cause list for today's date of hearing, but he has not turned up. Registered A. D. notices were also issued to the petitioner and to all the respondents for today's date of hearing, but neither the petitioner nor any of the respondents has turned up. Mr. Muhammad Rafi Siddiqui, Advocate, appears for the State. With the assistance of the learned counsel for the State, I have gone through the record. Muhammad Akbar's case (supra) is not applicable to the case, as it does not deal with proceedings under section 145, Cr.P.C. The relevant case applicable to the matter is Shah Muhammad's case P L D 1970 S C 470, where the Supreme Court held that proceedings under section 145, Cr. P. C. can be suspended by a Magistrate as soon as a civil Court seized with the dispute has passed a declaratory decree declaring the rights of the parties therein, or has passed an order regulating possession of the subject‑matter of the suit. The revision petition shows that the suit instituted by the petitioner in the civil Court was one for a permanent injunction, but there is no indication either in the petition or from the file that any order was passed regulating possession of the "disputed property to justify the application of Shah Muhammad's (supra) case. In these circumstances, the order of suspension of proceedings by the learned Magistrate appears to have been illegally passed.

4. For the foregoing reasons, this petition is accepted and the order of the Ilaqa Magistrate, dated 26‑4‑1971, suspending the criminal proceedings, is set aside.

5. The file of this case shall now be sent to the District Magistrate, Lahore, so that the same may be marked to a competent Magistrate for necessary disposal, as is presently available to him under the law. M.Y.H. Case remanded.