2010 PLP 812 (YLR)

S. ALI HASSAN RIZVI, J.

Dildar Khan (late) father of Asghar Ali petitioner had on 10-12-2007 filed an application under section 145, Cr.P.C. praying that appropriate orders be passed to avoid possible breach of peace. It was alleged in the application that 40 years ago, Bulanda Khan who was uncle of Dildar Khan deceased, had installed a tube-well in Square No.23, in which Dildar Khan deceased was a Hissadar; that all the expenses were borne pro rata; that Bulanda Khan died 30 years ago and was succeeded by Khadim Hussain and Nazar Hussain; that whereafter the tube-well continued to remain in joint occupation of the legal heirs of Khadim Hussain, Nazar Hussain and Dildar Khan deceased; that two months before filing of the petition under section 145, Cr.P.C. Mst. Sarwar Bibi (real sister of Akram, Shamshad and Asghar respondents Nos.4, 5 and 6 in the said application) had got registered a false case against Akbar son of Dildar Khan etc. vide F.I.R. No.709/07, dated 24-8-2007 under sections 302/148/149, P.P.C, that Akbar was declared innocent during investigation, that thereafter Akram, Shamshad and Asghar sons of Nazar Hussain joined hands with Mubasher Hayat, Shaukat Ali and Liaqat Ali son of Khadim Hussain (respondents Nos.1,2 and 3 in the said application) and stopped the operation of the tube-well; that thereafter they also demolished the Khal (watercourse) leading to square No.22 wherein Dildar Khan had owned land and that in these circumstances, there was serious apprehension of breach of peace. The prayer made in application was that "Karwai" may be made under section 145, Cr.P.C. by appropriate orders.

2. The learned Magistrate vide his order dated 10-12-2007 after taking report from the local police, refused to attach the subject property (tube-well) observing that appropriate orders would be passed after taking evidence.

3. In revision preferred against the aforesaid order dated 10-12-2007, the learned Additional Sessions Judge, Tandlianwala vide his order dated 3-3-2008 observed that the petitioner Dildar Khan had failed to produce any document from revenue record to show his joint ownership qua the subject property; that the electric meter was installed in the name of Bulanda Khan deceased and that there was no solid proof to support the claim of the petitioner. Consequently, he dismissed the revision petition.

4. I have heard the learned counsel for the petitioner and gone through the record appended to the writ petition.

5. Asghar Ali the writ petitioner is son of Dildar Khan deceased. It was Dildar Khan deceased who had filed the application under section 145, Cr.P.C. He had only alleged that there was likelihood of breach of peace and that appropriate action under section 145, Cr.P.C. be taken. If there was danger of breach of peace resort to preventive measures in terms of sections 107/151, Cr.P.C. was the appropriate remedy. It was not alleged in the application moved by Dildar Khan deceased that the tube-well which was installed originally in the name of Bulanda deceased be attached. Bulanda Khan deceased as per para 10 of the writ petition, B had died somewhere after 3-3-2008 when his revision petition was dismissed by learned Additional Sessions Judge, Tandlianwala. Dildar Khan deceased has admitted other legal heirs also but they were not impleaded in the writ petition. If the tube-well, which was claimed to be the joint ownership of Dildar Khan or for that matters, his legal heirs, was intended to be attached, then all the legal heirs of Dildar Khan were necessary party and had to be impleaded in the writ petition. It was not done. The male legal heirs of late Khadim Hussain and Nazar Hussain were impleaded in the writ petition. Khadim Hussain and Nazar Hussain were sons of Bulanda Khan.

6. The learned Additional Sessions Judge was right in observing that Dildar Khan had failed to produce any document from the Revenue Record to show his joint ownership qua the tube-well in question. In any case, tube-well is installed for irrigation purposes and it would not be in the interest of any party to get the same attached or made inoperative. The police report did not find support from any document whether from the revenue department or otherwise. The learned Magistrate was justified in observing that appropriate orders under section 145, Cr.P.C. would be passed after recording of evidence.

7. Law will take its own course as far as criminal case forming the subject-matter of F.I.R. No.109, dated 24-8-2007 registered at Police Station Sadar Tandlianwala, District Faisalabad, was concerned. The petitioner is yet to prove through evidence that his (late) father or for that matter he was joint owner of the tube-well in-question along with respondents Nos.2 to 7 (male legal heirs of Khadim Hussain and Nazar Hussain both sons of Bulanda Khan). If watercourse was demolished as alleged by the petitioner by respondents Nos. 2 to 7 the remedy of the petitioner lay else-where.

8. After carefully considering the arguments advanced by learned counsel for the petitioner and perusing the record appended with the writ petition, I am satisfied that the two Courts below had passed the orders on 10-12-2007 and 3-3-2008 respectively within the mandate of law and in the light of the material available on record. There is absolutely no justification to interfere with the said orders in the exercise of writ jurisdiction. The writ petition is accordingly dismissed. H.B.T./A-5/L Petition dismissed.