' On 4-1-2001 respondents Nos.3 and 4 filed an application before Assistant Commissioner (City)
Islamabad. It was stated that they had purchased House No.18, Nazimuddin Road Islamabad, from present petitioner by means of registered salt-deed and possession was delivered to them and mutation has also been made in the CDA record. Later the petitioners acting maliciously interfered with the possession and stood their security guards on the house. The respondents Nos. 3 and 4 are entitled to the possession of the house as they are owners whereas the petitioners make a declaration of committing murder etc. And because of this dispute both the parties are in fear of death from each other. The prayer was made that the possession of the respondents Nos. 3 and 4 be restored. It was also Mentioned that the pendency of the suite already pending and proceedings under sections 107/150, Cr.P.C. Do not bar proceedings under section 145, Cr.P.C.
Learned Magistrate after hearing the parties proceeded to dismiss the said application vide order, dated 28-4-2001. I may note here that findings recorded by A.C. (City) Islamabad is that admittedly the petitioners took the possession of the house on 5-5-2000 when it was vacated by the tenant.
2. Feeling aggrieved of the said order respondents Nos.3 and 4 filed a revision petition which was heard by the learned District Judge, Islamabad, who allowed the same on 7-8-2003 and remanded case to the Illaqa Magistrate with direction that the proceedings under section 145, Cr.P.C. Be initiated.
3. Learned counsel for the petitioners contends that admittedly the possession has been taken by the petitioners from their tenants on 5-5-2000. Admittedly no breach of peace occurred. .Admittedly declaratory civil suits have been filed by the petitioners while respondents have filed suit for recovery of possession which is pending. In these circumstances, according to the learned counsel, impugned order of the learned Sessions Judge is without lawful authority. He refers to cases of Qazi Gran v. Muhammad Jan and another (PLD 1996 SC 541), Alam Sher v. Suba and others (2001 PCr.LJ 60) and Muhammad Rafiq v. Muhammad Siddiqe and another (2001 PCr.LJ 1515). Learned counsel for the respondents, on the other hand, contends that notwithstanding the pendency of the civil suits, regulation of possession by orders of Civil Court and binding of the parties under sections 107/150, Cr.P.C., there is imminent danger of breach of peace as recorded by the learned Sessions Judge as such impugned order is valid.
4. I have gone through the available records with the assistance of the learned counsel for the parties. There is on going dispute about title in the civil Court. So far as the possession is concerned it is admitted position that the petitioners are in physical possession and this possession they took over from the tenants on 5-5-2000. The application was filed in April, 2001. I am told yet another application was filed somewhere in November, 2000. However, it stands established that both the applications were filed more than two months after the said taking over of possession by the petitioner from tenant on 5-5-2000. In the meantime declaratory suit involving the title regarding the said property have been filed by the petitioners while respondents have filed suit for possession. The possession is being regulated by the interim orders passed by the Civil Court. In this view of the matter learned Sessions Judge has acted without lawful authority while passing the impugned order which cannot be sustained: The writ petition is accordingly allowed and the impugned order, dated 7-8-2003 of the learned Sessions Judge, Islamabad, is set aside.
5. A copy of this order be immediately remitted to the learned Session Civil Judge, Islamabad, where all the suits are stated to be pending. Learned Senior Civil Judge shall take all steps to conclude the proceedings within period of three months from the receipt of this order. Learned Sessions Civil Judge shall see to it that time schedule is adhered to even if he has to proceed on day to day basis.