2017 P Cr (PLP)

MUHAMMAD YOUNIS THAHEEM, J.

The petitioner Mukhtiar Alam, by invoking the inherent jurisdiction of this Court under section 561-A, Cr.P.C. has challenged the judgment/order dated 23.11.2015 passed by learned Sessions Judge/Zila Qazi, District Dir Upper, whereby the criminal revision filed by the respondents Nos. 2 to 5 against the order dated 18.8.2014 of the Executive Magistrate, Dir Upper was allowed, resultantly, complaint filed by the petitioner under section 145, Cr.P.C. was dismissed.

2. Brief facts of the case are that petitioner-cum-complainant filed a complaint under section 145, Cr.P.C. against the respondents Nos. 2 to 5 in respect of landed property situated in the local limits of Barawal Bandai, District Dir Upper detailed whereof given in the complaint mainly on the ground that the property in dispute is owned and possessed by him being his ancestral property and respondents have got no concern whatsoever with it and prayed that the respondents be restrained from any sort of interference in the same. The concerned Executive Magistrate referred the complaint to SHO concerned for inquiry and report and after submission of report and hearing of the parties, the respondents were restrained from any sort of interference in the disputed property by learned Magistrate vide its order dated 18.8.2014. Feeling aggrieved, the respondents filed criminal revision before the Court of learned Sessions Judge/Zila Qazi, Dir Upper, which was allowed vide impugned order dated 23.11.2015, resultantly, complaint of the petitioner was dismissed. Hence, instant quashment petition.

3. Arguments heard and record perused.

4. From the perusal of record it reveals that civil suit No. 57/1 was instituted on 10.5.2014, which was pending adjudication before the Court of learned Civil Judge-II/Illaqa Qazi, Dir Upper amongst the parties and was dismissed on 07.12.2015. Against order, judgment and decree of dismissal, the present petitioner preferred civil appeal on 12.12.2015 by challenging the judgment/decree of learned Civil Judge-II, Dir Bala, which is now fixed for arguments on 04.5.2016.

5. It further transpired from perusal of record that the actual dispute between the parties is with regard to inherited property fully described in the plaint, in respect of which a suit for declaration, possession and permanent injunction was filed on 10.5.2014, while the complaint under section 145, Cr.P.C. was filed by the petitioner after institution of aforesaid civil suit on 12.6.2014 before the Executive Magistrate, Dir Bala, who forwarded it to the SHO Dir Bala for inquiry and report, whereafter, SHO concerned submitted its inquiry report on 15.6.2014 and thereafter the Magistrate passed the impugned order dated 18.8.2014 and restrained the respondents from any sort of interference in the suit property despite of the fact that civil litigation was already sub judice before the competent Court of law.

6. The respondents challenged the aforementioned order of the Magistrate dated 18.8.2014 before learned Sessions Judge, Dir Bala, who after hearing both the parties vide its order dated 23.11.2015 set aside the order of Magistrate concerned. Relevant portion of its judgment is reproduced as under:- "Undeniably the civil suit was instituted prior to complaint under section 145, Cr.P.C. and ultimate arbitrator to determine the ownership or right to possess the subject of dispute is thus the Civil Court and not the Executive Magistrate. Therefore in the present facts and circumstances the case falls outside the jurisdiction of Magistrate under section 145, Cr.P.C. So far as the apprehension of breach of peace is concerned, it is mentioned in inquiry report that preventive measure for keeping peace between the parties are initiated. During the course of arguments learned counsel for the parties submitted at the bar that parties are already bound down under section 107, Cr.P.C. Hence in the present scenario the attachment of property till the decision of Civil Court is not sustainable in the eye of law. In view of aforesaid reasons, the instant criminal revision petition is accepted and the order of learned Executive Magistrate dated 18.4.2014 is set aside and complaint under section 145, Cr.P.C. is dismissed. The requisitioned record be returned to the quarter concerned forthwith while file of this Court be consigned to record after its completion and compilation.

7. Now the question for determination before this Court is as to whether when civil suit about the same immovable property is sub judice before the competent Court, then the petitioner can initiate the proceedings under section 145, Cr.P.C. for same cause about same property and whether the Executive Magistrate can take cognizance of matter pertaining to immovable property relating to civil dispute.

8. From the perusal of the record, it reveals that the possession is lying with the respondents and civil suit filed by the petitioner was sub judice before the competent Court of law and Mukhtiar Alam, one of the plaintiffs filed complaint under section 145, Cr.P.C. before Executive Magistrate, Dir Bala. It transpired from perusal of civil suit that it was suit for possession in respect of inherited property, so, such like disputes for declaration, possession and permanent injunction are triable under section 9 of the C.P.C. before the Civil Court.

9. So, the learned Sessions Judge while seized of the matter brought before him for adjudication has rightly and correctly set aside the order of Executive Magistrate by holding that the litigation about the property for seeking decree of declaration, possession and permanent injunction squarely comes within the jurisdiction of civil Court and falls outside the jurisdiction of Magistrate under section 145, Cr.P.C. In this respect reliance is placed on the judgment of Sindh High Court in case of "Hafiz Muhammad Hussain v. The State and another"(1990 PCr.LJ 827 Karachi), wherein dispute about immovable property and litigation between the parties in respect of suit house was pending in civil as well as criminal Courts and the criminal Court under the law could not make order about the possession of the disputed property in favour of one party or the other and it is the sole jurisdiction of Civil Court to decree the suit for possession after adjudication and proceedings under section 145, Cr.P.C. were quashed. As in the instant case, learned Sessions Judge had quashed the proceedings initiated upon complaint under section 145, Cr.P.C. and order passed by the learned Executive Magistrate. Relevant portion of the judgment is given below for guidance:- "It is a settled position of law that the powers of Criminal Courts in proceedings under section 145, Cr.P.C. in respect of the immovable property, which is subject matter of such proceedings, are subordinate to the powers of the civil Courts, which have dealt with the same property. In the case of Shah Mohammad v. Haq Nawaz PLD 1970 SC 470, it was held that a Magistrate cannot under section 145, Cr.P.C act in violation of a decree of the terms of an order passed by a Civil Court during the trial of a suit and that the proceedings under section 145 Cr.P.C are subordinate to a decree or order passed by a Civil Court in respect of the property in dispute before the Magistrate."

10. Same principles as discussed above, that it is civil Court, which can ultimately resolve the controversy regarding possession and the controversy regarding possession could not be put to an end under section 145, Cr.P.C. In this regard the judgment of Hon'ble Lahore High Court titled "Allah Ditta and others v. Muhammad Amin and others" (2005 YLR 644 Lahore) can be referred for guidance. Operative part of the judgment supra is reproduced as under:- "It is an admitted position that the suit had been filed by Allah Ditta, petitioner prior to the initiation of the proceedings under section 145, Cr.P.C. and order regulating possession of the parties was also passed by the learned Civil Judge, therefore, if any dispute had arisen with regard to the possession or dispossession of the property in dispute that could be resolved through moving the learned Civil Judge by an application inviting his attention to the matter in dispute and getting/obtaining the proper orders from that Court. The commencement of proceedings under section 145, Cr.P.C. was mala fide move on the part of the SHO as to disrupt the orders of the Civil Court. It is settled law that when the Civil Court is seized of the matter and had passed an order with regard to the possession. It has to be given free hand to regulate the possession or to pass any appropriate order in accordance with the circumstances of the case. No other authority has got any power to interfere into the jurisdiction of the Civil Court through this mechanism."

11. Thus, in view of the above discussed factual and legal position of the case, the instant quashment petition being bereft of merits stands dismissed. SL/260-P Petition dismissed.