1983 P Cr (PLP)

Sayeb Khalid, Advocate for Respondent. . Kh. B. A. Farooqi for Respondent. ABDUL MAJEED MALLICK,J.‑These appeals arise out of the proceedings under section 145, Cr. P. C. Although impugned orders of the High Court were recorded on different dates yet the proposition raised therein being common and identical it is deemed fit to decide them by a single judgment.

2. The immediate need for deliberation over the matter has emerged from the conflicting and divergent views of the High Court recorded in different cases under section 145, Cr. P. C: The latest instance is of such a conflicting view. As in Suleman Khan's case (decided by Mr. Justice Sardar Said Muhammad Khan) it has been held that the jurisdiction of a Magistrate to attach the subject of dispute under section 145, Cr. P. C. is not excluded even in presence of a recent decree of civil Court for perpetual injunction or an order relating to possession passed in the terms of an interim injunction, upholding the possession of one of the parties to the proceedings. The relevant part of the findings recorded in the impugned order, dated 28th April, 1979, is reproduced below :‑ "It cannot be held that merely because a decree for perpetual injunc tion has been passed or civil proceedings are in progress, therefore, the proceedings are incompetent. This depends upon the facts of each case and the Magistrate has to see whether there is danger of breach of peace or not and once the Magistrate comes to the conclusion that there is serious danger of breach of peace and the case is that of emergency, the learned Magistrate is perfectly within his powers to initiate proceedings under section 145, Cr. P. C. It is nowhere laid down under section 145, Cr. P. C. that Magistrate is divested of his powers under section 145, Cr. P. C. if there are civil proceedings pending between the parties. Even in case where the possession has been regulated by a temporary injunction and the Magistrate finds that even after such injunction, the rival parties are bent upon to create mischief and thus pose danger to peace, the Magistrate can proceed under section 145, Cr. P. C. and make an order of interim attachment."

3. The counter view, as expressed in Abdul Latif's case, per Mr. justice Muhammad Yusuf Saraf, Chief Justice, (as he then was), is that in s1rder to avoid conflicting decisions on the same matter ‑proceedings under section 145, Cr. P. C. should not be allowed when the matter is simultaneously taken to a civil Court. The impugned order dated 30th May, 1979, is quoted below :‑‑ "This is a reference by the learned Sessions Judge Rawalakot as well as a revision by Abdul Latif. A case has been instituted under section 145, Cr. P. C. but a civil suit is already pending. It has been laid down in many cases by us that in order to avoid conflicting decisions on the same matter, proceedings under section 145, Cr. P. C. should not be allowed when matter is simultaneously taken to a civil Court." Besides the cases under consideration our attention was invited to few other cases wherein conflicting decisions were recorded by the learned Judges of the High Court in the terms of the impugned orders. It has, therefore, become necessary to resolve the conflict by settlement of the controversy.

4. One of the primary characteristics of our judicial set up is that jurisdiction of civil and criminal Courts is classified and prescribed in such a fashion that in no case overleaping or overrunning of jurisdiction of each other may be permitted. The legal scheme or system is so much explicit that there are least chances of conflict between civil and criminal Courts in exercise of their respective powers.

5. In the instant controversy our attention is invited to streamline the scope of power and jurisdiction of a Magistrate under section 145, Cr. P. C. to make attachment of the subject of dispute in presence of a decree for perpetual injunction or where the civil Court is simultaneously seized with the matter and has regulated the possession of the land in dispute by appointing a receiver or through an ad interim injunction.

6. The legislature in its wisdom incorporated special provisions in the Code of Criminal Procedure to provide expeditious remedy in matters of dispute likely to cause problem of law and order, relating to immovable property. The enacting provision for expeditious settlement of such disputes is laid down under section 145, Cr. P. C. In this section it is contained that whenever a Magistrate having local jurisdiction over the immovable property in dispute is satisfied from a police report or other information that a dispute likely to cause breach of the peace exists concerning any land or water or the boundaries thereof, he shall make an order in writing containing the grounds of his satisfaction to initiate the proceedings and shall require the parties concerned in such dispute to attend his Court in person or by pleader, on the date fixed and to put in written statements of their respective claims in respect of actual possession of the subject of dispute. The Magistrate is authorised to hold inquiry in order to know as to who was in actual possession of the property in dispute on the date of preliminary order or two months next before the date of such order. On completion of inquiry if the Magistrate was satisfied by the evidence on record that one of the parties was in possession of the subject, he shall issue an order declaring such party to be entitled to possession thereof until evicted there from in due course of law and forbid ding all disturbance of such possession until such eviction. In case of attachment of subject of dispute, the Magistrate shall restore possession to the party dispossessed or where such party was forcibly and wrongfully dispossessed in the light of first proviso to subsection (4). But the Magistrate while passing final order has to confine himself to the factum of actual possession of the subject of dispute without reference to the merits or the claims of any of such parties to a right to possess the subject of dispute. Subsection (4) of section 145, Cr. P. C. places a restriction on the jurisdiction of the Magistrate and thereby lays a condition precedent that while making inquiry into the questioner of actual possession of the subject of dispute the Magistrate shall refrain from giving a finding in respect of a right to possess the property by virtue of any merit or claim of any one of such parties. The exception to such restriction is available only in cases where the right to possess the subject of dispute is not controverted. In such like position the Magistrate is free to consider the title or claim of any of such parties while deciding the question of possession.

7. Again, the language used by the Legislature suggests that the proceedings under the section are summary in nature and this being the position the Magistrate has to reach to a tentative decision concerning the possession of the subject of dispute. This view finds support from the words if possible used in subsection (4) in respect of the decision of the Magistrate as to whether any and which of the parties was at the date of the order (preliminary order) was in such possession of the disputed property. Reference to the words `if possible' is indicative of the position that the Magistrate was not duty bound to enter into detailed inquiry so much so to insist for sufficient evidence in order to reach to a definite conclusion in respect of the factum of possession. What he has to do is to summon the patties for filing written statements concerning their claim to possession and to record evidence, available or produced by the parties, and then to dispose of the matter forthwith. In case of insufficient, or un‑satisfactory evidence, if the Magistrate was not in a position to reach to a definite conclusion concerning the possession of the subject of dispute he was to proceed in the light of provisions of section 146, Cr. P. C. The purpose to reflect the aforesaid position is to explain that the proceedings prescribed by the section itself are summary in nature, as the only object sought to be achieved is to eliminate likelihood of breach of the peace by provisionally maintaining, possession of one of the parties until such party was evicted from the property in due course of law and to direct prohibition and forbidding all disturbance of such possession until such eviction. 8: The legislature keeping in view the nature of the proceedings of section 145, Cr. P. C. and the duty assigned to a Magistrate, vas conscious of the situation where in absence of sufficient and convincing evidence the Magistrate would not be able reach to a definite conclusion as to which party was in actual possession of the subject at the relevant‑time. To meet to such a situation the Legislature introduced section 146, Cr. P. C. which contemplates that if the Magistrate reached to the conclusion that none of the parties was then in such possession or finds himself unable to. satisfy as to which of them was then in such possession of the subject of dispute he may attach it until a competent Court determines the rights of the parties thereto or persons entitled to possession thereof. Thus, the; revisions of‑ section 146, Cr. P. C., which are to continuation of the provisions under section 1145, Cr. P. C., are the enabling provisions to resolve the, controversy in the terms of the section and to leave the final settlement of the dispute to the discretion of competent civil Court. The matter does not end there as the section further provides that when a Magistrate attaches the subject of dispute or appoints a receiver .of the subject the possession of the subject of dispute shall be made over to a receiver appointed by any civil Court subsequent to the order of attachment or appointment of the receiver by Magistrate.

9. We have already noticed that under subsection (4) of section 145, Cr. P. C. the introduction of the words 'if possible' and incorporation of the proviso under subsection (2) of section 146, Cr. P. C. clearly reflect that the order of the Magistrate, whether under section 145, Cr. P. C. or 146, Cr. P. C., is not only subject to the decision of a competent civil Court, but it also provides that the moment civil Court takes a step to, regulate the possession of the subject of dispute by appointment of a receiver, the order of the Magistrate automatically gives way to the order of civil Court as the civil Court is vested with power as final arbiter. Therefore, it i wrong to suggest that it is nowhere laid down under section 145, Cr. P. C. that the Magistrate is divested of his power in presence of civil proceeding or when the possession is regulated by a temporary injunction or in presence of a recent decree for perpetual injunction. The Magistrate acting under section 145, Cr. P. C. is under an obligation to respect any recent decision concerning possession of the subject, given by a competent civil Court. In case such a decision is not given due consideration and weight the action of Magistrate shall not only be derogatory to the norms of administration o justice, but it may also culminate in disastrous results. To give importance to the recent decree of the civil Court or an interim order in the terms of appointment of the receiver or issuance of ad interim injunction, is also question of judicial propriety: Thus, the position finally comes to this that the Magistrate is, of course, competent to initiate proceedings under section 145, Cr. P. C: when he is satisfied from any information that there exists likelihood of breach of the peace concerning the possession of land o water on the boundaries thereof and he is within his jurisdiction t constitute an inquiry in order to determine the question of factum o possession, but the power of the Magistrate is restricted in the manner that he is excluded to advert into scrutiny of the merits or the claims of the parties to a right to possess the subject of dispute. Secondly, when merits or claim to a title or right to possess the subject is recently settled by competent civil Court the Magistrate shall give effect to such a recent decree concerning the question of possession and shall maintain the possession acquired by either party in the light of such decree and its execution in due course of law. Likewise, the Magistrate shall avoid interference into possession of the subject by having a recourse to attachment in presence of an order of competent civil Court of appointment of a receiver or issuance of ad interim injunction. But mere institution of a civil suit may not necessarily stop the hands of the Magistrate to inquire into the question of possession when other conditions contained under the section are fulfilled.

10. The next question pertinent to the proposition is as to what remedy is available to avoid likelihood of breach of the peace in presence of the recent decree of the civil Court concerning the possession or an order regulating the possession for interim period? The proper answer is that when the question of possession of the subject is settled by the decision of a competent Court or its possession is regulated in one of the aforesaid manners, during the pendency of the civil proceedings, on information of likelihood of breach of the peace, the Magistrate is within his power to g proceed against the disturbance maker under section 107, Cr. P. C. It is well‑admitted that the provisions of section 107, Cr. P. C., which are general in character, are even attracted in such like cases. Besides that in case of a trespass or forcible dispossession of the rightful owner the Magistrate is equally competent to proceed against the accused for commission of substantive offence.

11. The learned counsel for the parties cited various authorities in favour and against the proposition. The authorities cited at the bar are Hafiz Muhammad Hussain v. The State and another (I), Abdul Qudoos v. Mangta (2), Syed Gul Muhammad and another v. Ulus Killi Nasozai and another. (3), Anwar Javed and another v. Ikramul Haq and three others (4), Shah Muhammad v. Haq Nawaz (5), Shah Muhammad v. Haq Nawaz and another (6), Mst. AsJa Sultana .v. The State and another (7),. The State v. Abdul Sattar and others (8), Imdad Khan and 7 others v. Syed Muhammad Iyas and 2 others (9) and Shah Muhammad v. The State and 3 others (10).

12. We have examined the case law cited at the bar and we find ourselves in complete agreement with the view of . Supreme Court of Pakistan expressed in Shah Muhammad's case. As we have enunciated the principle applicable to the cases that proceedings are carried before a Magistrate under section 145, Cr. P. C. and in the civil Court about a common subject of dispute and between the same parties simultaneously, next we proceed to decide the cases in hand. First we take .up the case of Suleman Khan v. Abdul Aziz. In this case the proceedi4s were initiated by the A.D.M., Rawalakot, (I) P L D 1974 Note 47 at p. 8 (2) P L D 1980 Azad J & K 17 (3) P L D 1979 Quetta 154 (4) P L D 1976 Lah. 1378 (5) 1971 P Cr. L 1 610 (6) P L D 1970 S C 470 (7) .P L D 1972 Lah. 478 (8) P L D 1965 Kar. 305 (9)1971SCMR581 (10)1983SCMR1173 on the application of Abdul Aziz Khan, dated 5th June 1978. It was alleged that the applicant was in possession of the land in his own right. It was admitted that the parties were pursuing their claims over the property in civil Court where counter suits were in progress. The ex parte decree for perpetual injunction already passed in favour of the applicant was partly set aside to the extent of Muhammad Ashraf and Khurshid, respondents. The application was controverted by the opposite party, who made parallel claim of possession of the land in dispute. The attachment order made by the trial Magistrate was chal lenged in revision before the Sessions Judge, who made a reference to the High Court with recommendation that the entire proceedings were likely to be quashed as the same were unwarranted in presence of counter civil proceedings between the parties. The learned single Judge of the High Court disagreed with the Sessions Judge and recorded his opinion in the terms already reproduced in preceding paragraphs.

13. A perusal of the record reflects that the attachment order, dated 11th June, 1978 has never seen its implementation; even by this time. It is interesting to note that on failure of the applicant‑respondent to get the order of attachment implemented he moved another application under section 145, Cr. P. C. in the same Court on 7th October, 1979, The learned Magistrate dismissed the application on merits on lst August, 1982. This order not having been challenged in the superior Courts has become final. In that order the learned Magistrate came to the conclusion that Abdul Aziz, applicant‑respondent failed to prove his possession on c the date of preliminary order. In addition to that the learned Magistrate also proceeded to reject the application in the light of civil proceedings already pending between the parties. The fact that the order of attach ment, dated 11th June, 1978 was never implemented, coupled with the subsequent events including the counter civil proceedings, hardly justify to allow the case under section 145, Cr. P. C. to continue further. It is, therefore, ordered that the proceedings instituted on 5th June, 1978 are unwarranted and they are become infructuous in the light of the order of the Magistrate, dated 1st August, 1982 and the same are hereby quashed.

14. In Abdul Latif and others v. Muhammad Ashraf the proceedings under section 145, Cr. P. C. were initiated by the local Magistrate on the application of Abdul Latif and others. The applicants alleged that they were in possession of the suit land comprising survey No. 144 min in their own right whereas the non‑applicants, respondents Nos. 1 and 2, who manoeuvred to secure a sale‑deed from Sher Muhammad and Faqir Muhammad, co‑sharers, were threatening to occupy the land forcibly, Thus, the act of the respondents caused likelihood of breach of the peace. The opposite party denied the allegation and made a counter claim that they have entered into possession of the land 8/9 months prior to the filing of the application by virtue of sale‑deed. It was further claimed that applicants prior to the filing of the application under section 145, Cr. P. C. filed a civil suit for cancellation of the sale‑deed and possession of the land. On dismissal of their suit by the civil Court and after filing an appeal before the District Judge, which was awaiting the decision' the applicants took second step by moving the Magistrate in order to dispossess the respondents. The learned Magistrate attached the property but his order was challenged in revision before the Sessions Judge, who made reference to the High Court with the recommendation of quashment of proceedings on account of simultaneous proceedings in the Civil and Criminal Courts. The learned Chief Justice, who recorded the impugned order, was persuaded to quash the proceed ings in the terms of the impugned order reproduced in earlier part of the judgment.

15. On perusal of the record it has transpired that the order of attachment in this case too was never implemented. Applicants first instituted a civil suit for cancellation of the sale‑deed and on dismissal of their suit they went in appeal to the District Judge, but at the same time felt advised to invoke the jurisdiction of the Magistrate under section 145, Cr. P. C. and to get the land attached till completion of the inquiry. The second course was obviously adopted to seek dispos session of the opposite‑party. In this case the unavoidable conclusion emanating from the record is that the appellant's made an attempt to achieve their object of dispossession of the other party through resort to the provision of section, 145 Cr. P. C. It appears that the trial Magistrate passed attachment order without apply ing his mind to the facts of the case as well as without realising the effect of the order of attachment. As a matter of fact the learned Magistrate came forward, to aid in dispossession of the respondents. This approach of the trial Court is undesirable as the law does not enjoin upon a Magistrate to become a party to the proceedings; so much so to help in deprivation and dispossession of the party who has been declared rightly in possession by a competent Civil Court. Despite the fact that we may not agree with the broad principle laid down by the learned Chief Justice, but keeping in view the facts of the case in band we do not find ourselves in disagreement with the ultimate result of the impugn ed order. The appeals are, therefore, dismissed. M. Y. H. Appeals dismissed.