This is a petition under section 561-A, Cr. P. C. By Haji Abdul Khaliq and eight others, petitioners 1 to 9, for quashment of proceedings under section 436/148/149, P. P. C. Pending against them in the Court of Magistrate Section 30 at Jauharabad.
2. The brief facts of the case are that through a mutation entered in the revenue record on 16-12- 65, one Abdul Majid sold 106 kanals and 6 marlas of agricultural land, bearing Khasra Nos. 1602/6, 1640/10-9, 1641/7, 6, 3, 2, 1642/5, 1776/5, 4, 2, 1, 1777/5, 7 and 1870/1, 2, 10/1 in Khewat No. 204, Khatuni No. 225, situate in village Hadali, to Haji Ata Muhammad father of petitioners Nos. 1 and 2. Some time later the said Abdul Majid sold the same land to one Nazar Muhammad, father of respondent No. 2, for Rs. 24,000, through an oral sale and said Nazar Muhammad on 31-1-66, obtained a consent declaratory decree from a Civil Judge at Jauharabad in his favour against the said Abdul Majid to the effect that the land had been purchased by him from the latter for a consideration of Rs. 24,000 through an oral sale. On the strength of the said consent decree, Nazar Muhammad, father Of respondent No. 2 got mutation No. 1057 entered in the revenue record on 9-2-66. Later, both the mutations, i.e. 1052 and 1057, were placed before A. C. II, for attestation, who after going through the report sanctioned mutation No. 1052 in favour of Haji Ata Muhammad, father of petitioners I and 2, and rejected Mutation No. 1057, being bogus. In February, 1966, 8aji Ata Muhammad also filed a civil suit in the Court at Jauharabad, for cancellation of the consent decree obtained by Nazar Muhammad behind his back and to restrain him and also Abdul Majid from interfering with his rights as the owner of the land in question, which suit is still pending. Against the order of A. C. II dated 14-2-1966, Nazar Muhammad, father of respondent No. 2, and Haji Ata Muhammad, father of petitioners 1 and 2, went in separate appeals before the Additional Deputy Commissioner (Cons.) Collector, Sargodha, who by his order dated 5-5-1966, set aside the impugned orders and remanded both the mutations for fresh orders, in the light of the decision of the civil Court to be given in the matter, after hearing the parties. Subsequently, village Hadali came within the jurisdiction of AC-II (Revenue), instead of AC-II (Consolidation). The AC-II (Revenue) without keeping in view the facts of the case and the remand order of the Additional - Deputy Commissioner mentioned above (for remand of both the mutations), without hearing the petitioners, rejected mutation No. 1052 and accepted mutation No. 1057. Petitioner No. 1 then went in appeal before the Collector (Thal) who again remanded both the mutations, with the observation that the mutations would remain pending till the decision of the civil case between the parties, pending in the Civil Court at Jauharabad. In -1970, the father of Jehangir complainant died and another mutation No 1527, was attested on the basis of mutation No. 1057. On appeal, the Tehsildar, Jauharabad, recommended cancellation of the said mutation, but the Collector, by his order dated 3-4-1972, held the final order in abeyance pending the final deci--sion of the civil case pending between the parties.
3. On 22-6-1976, Muhammad Jehangir son of Nazar Muhammad, respondent No. 2, instituted a case against the petitioners at Police Station, Mitha Tiwana, under sections 436/148/149, P. P. C.
Alleging that he was owner in possession of the property in dispute, that he had a small kotha on the land in question, which the petitioners had burnt down. After necessary investigation, the petitioners were challaned. Being aggrieved by the criminal proceed--ings instituted against them, the petitioners moved a petition for quashment, which is now before me for disposal.
4. The learned counsel for the petitioners has submitted that the case against the petitioners has been registered due to enmity between the parties over the civil dispute which is pending with regard to the disputed agricultural land, and that respondent No. 2 was trying to get possession and title and had maneouvred to implicate the petitioners in a false case. It was further submitted that at the time of the purchase of the land in dispute by la Haji Ata Muhammad, father of petitioners 1 and 2, the possession of the la in dispute was given to the petitioners' father and the same is with the continuously without interruption up till present. It was also submitted the according to the Khasra Girdawaris from 1966 to 1978 (Annex. B) filed with petition, neither Muhammad Jehangir respondent No. 2 nor his father la Nazar Muhammad, were ever in possession of the disputed land. It was a maintained that the revenue records did not reveal that any kotha or existed at the spot at the time of alleged occurrence in 1976. It was a urged that the revenue record did not reveal that Muhammad Jehan respondent No. 2, or Muhammad Sabir or Ata Muhammad had ever in possession of the property in dispute, as alleged in the F. I. R. Lastly, it contended that as the dispute between the parties was of a civil nature a sub judice before a civil Court at Jauharabad, the criminal proceedings against the petitioners were an abuse of the process of the Court. In the light of the cumulative facts it was prayed that the criminal proceedings deserved to quashed.
5. The learned counsel for respondent No. 2, who strongly opposed the petition, submitted that mutation No. 1527 dated 24-1-68, which related to the inheritance of late Nazar Muhammad, clearly showed that Muhammad Jehangir, respondent No. 2, was the owner in possession of the disputed land. Learned counsel referred to Roznamcha Waqiati dated 3-6-68 to show that the possession of the land was delivered to Nazar Muhammad. Lastly, it was submitted that the petitioners had intermittently not been appearing in the Court of the magistrate at Jauharabad and were indefinitely delaying the proceedings and had forfeited their right to any relief under section 561-A, Cr. P. C. Lastly, it was urged that there was a prima facie case against the petitioners and interference by this Court was not called for.
6. I have given my anxious consideration to this case. There is no doubt that the dispute between the parties regarding the land in dispute Is. Sub judice before a civil Court at Jauharabad. 1t is also not disputed at one of the opposing Mutations Nos. 1052 or 1057 has yet to be finally sanctioned and both have been kept pending to await the decision of the civil Court, in the light of the Collector's order dated 5-5-1966. Apart from this khasra girdawaris fur the years 1966 to 1978 (five sheets Annex. B to the petition) relating to the disputed land do not show Muhammad Jehangir or his late father Nazar Muhammad as being in physical possession. From Kharif 1967 till 1979 Amir son of Haji Ahmad's name appears as tenant of Atta Muhammad in possession of the land. The report entered in the roznammcha waqiati dated 3-6-1968 may presumably have been made in the light of inheritance mutation No. 1057. In any case, the raznamcha waqiati of 1968 can hardly show who wet in possession in 1976 when the occurrence took place, which is the subject-matter of criminal proceedings, which are being sought to be quashed by this petition. On the contrary, the report entered in the roznamcha waqiati on 12-6-1976 shows that Atta Muhammad secured a decree for batai against his tenant Amir son of Haji Ahmad with regard to the same land in dispute. Further, no dera appears recorded in the khasra girdawari for Kharif or Rabi 19/6 relating to the disputed land. Without making any observations or comments in the nature of a finding as regards which party was in possession of the disputed land in 1976 or whether any dera existed thereon in that year, notwithstanding the khasra girdawarls placed on record by the petitioners, it will be sufficient for the case to say that the question of title to the disputed land is a matter in dispute between the parties and since common questions arise in both the civil and criminal proceedings, it is necessary in the interest of justice the criminal proceedings be stayed till the civil suit is decided.
7. For the foregoing reasons this petition is partly accepted. The criminal proceedings pending against the petitioners before the Magistrate Section 30 at Jauharabad are stay pending the decision of the civil suit.