1999 PLP 1611 (YLR)

MIAN MUHAMMAD AJMAL, J,

Through this Constitutional petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 Sarfaraz Khan and others legal heirs of Haji Abdul Latif have sought declaration to declare the impugned judgment/order of the learned Additional Sessions Judge, Charsadda (respondent No.1), dated 23‑11‑1998, to be illegal and of no legal effect and for issuance of mandate to him to act in accordance with law.

2. Brief facts of the case are that Mst. Romania respondent No.2 herein through her attorney Haji Azmatullah Khan filed a complaint under section 145, Cr.P.C. on 28‑4‑1994 in the Court of EAC‑III, Charsadda to the effect that she was owner of land measuring 22 Kanals 16 Marlas bearing Khasra No.129 situated in village Ghunda Karkana on the basis of Mutation No.1741, dated 15‑2‑1993 and Haji Abdul Latif, predecessor‑in‑interest of the petitioners who was lessee was trying to reoccupy the land in dispute after having relinquished the possession in her favour. The complaint was referred to the police for inquiry and necessary action. On the receipt of the report, both the parties were bound down under section 107/51, Cr.P.C. The parties adduced their evidence in support of their respective claims, on the assessment whereof the S.D.M. Charsadda vide his order, dated 3‑4‑1995 held Abdul Latif (II party) to be in possession of the disputed land and, thus, entitled to retain the possession. Discontented with the same Mst. Romania respondent No.2 filed a revision petition which was accepted by the Additional Sessions Judge vide his order, dated 19‑6‑1995, who set aside the order of the S.D.M. Charsadda and attached the property in dispute and Tehsildar Charsadda was appointed as Receiver to lookafter the property in suit and to deposit the proceeds of its produce after sale in Court which can be realised by either of the party subject to decision of the Civil Court. Thereafter, Sarfaraz petitioner filed a petition under section 561‑A, Cr.P.C before this Court, which was dismissed vide judgment/order, dated 8‑5‑1997. Legal heirs of deceased Haji Abdul Latif dissatisfied with the order of this Court, dated 8‑5‑1997 filed a petition for leave to appeal before the Supreme Court of Pakistan. The Honourable Judges of the August Supreme Court of Pakistan vide order, dated 19‑2‑1997 passed the following order:‑‑ "This order was, however, set aside by the revisional Court of' the learned Additional Sessions Judge, with whom the High Court concurred. The perusal of the said judgment by the revisional Court, however, shows that the question as to whether an imminent apprehension of breach of peace in respect of the disputed property existed or not has neither been considered nor a finding given thereon either way. This aspect has not been adverted to by the High Court also. That being so, we are of the view that the ends of justice will be met, if the judgments of the High Court and the revisional Court are set aside and the matter is remanded to the revisional Court of the learned Sessions Judge, Charsadda, to decide the revision afresh regarding existence or otherwise of the imminent apprehension of breach of peace between the parties regarding the land in dispute and passing the order thereafter according to law. We further direct that till the matter is decided by the revisional Court, the property in dispute shall remain with the Receiver. We, therefore, convert this petition into an appeal and dispose it of in the above terms." After the remand of the case from the August Supreme Court of Pakistan, the learned Additional Sessions Judge, Charsadda after hearing the learned counsel for the parties, vide his judgment/order, dated 23‑11‑1998 set aside the order of S.D.M., Charsadda, dated 3‑4-1995 and attached the property in dispute and appointed the Tehsildar Charsadda as receiver to arrange for harvesting of the crops and proceed with the matter in accordance with law. Now the petitioners have impugned the judgment/order of the learned Additional Sessions Judge, Charsadda, dated 23‑11‑1998 through the instant writ petition.

3. We have heard learned counsel for the petitioners and the respondents on pre?admission notice.

4. The primary object of section 145, Cr.P.C. is to prevent breach of peace and when apprehension of breach of peace disappears during the proceedings, the Court thereafter cannot proceed ahead and it has to discontinue the proceedings. The trial Court in its order, dated 3‑4‑1995 did observe that on perusal of evidence on record, it revealed that there was no imminent apprehension of breach of peace between the parties as the preventive action taken under section 107/ 151, Cr,P.C. prevented the parties to take law in their own hands and consequently attachment order, dated 31‑7‑1994 was withdrawn. The trial Court in such circumstances proceeded rightly to discontinue the proceedings and in directing the parties to approach the Civil Court for settlement of their title. The revisional Court in the impugned order has referred to the report of the A.S.I. which is as back as of 1994 and the A.S.I. at that point of time viewed that if proceedings under section 145, Cr.P.C. are not undertaken, the parties may resort to blood feud but it escaped from its notice that since 1995 onward apprehension of breach of peace has vanished and there is no emergency in disturbance of peace. Since there was no continuously existing danger of breach of peace till the passing of final order, therefore, the Magistrate has correctly recalled the preliminary order. The revisional Court has not strictly followed the judgment of the apex Court of the Country in arriving in its conclusion, therefore, we accept this petition, set aside the impugned judgment/order of the learned Additional Sessions Judge, Charsadda, dated 23‑11‑1998 and remand the case back to him for decision afresh of the revision petition strictly in accordance with the judgment of the August Supreme Court of Pakistan, dated 19‑2‑1997, after allowing the parties to adduce further evidence if they so desire. N.H.Q./397/P Petition accepted.