' Order passed by the learned Additional Sessions Judge, Faisalabad, dated 18-10-2004 whereby the revision petition filed by the petitioner qua an order passed by the Special Judicial Magistrate, Faisalabad sealing the property in dispute, was dismissed has been assailed through this petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973.
2. The order has primarily been assailed on the ground that a civil suit qua the property in dispute was pending before the Civil Court wherein a status quo order had been granted by the Civil Court but despite the same the property has been ordered to be sealed where valuables of the petitioner are lying and no such order could be passed under section 145 or 146, Cr.P.C. In this connection reference has been made to Shah Muhammad v. Haq Nawaz and another (PLD 1970 SC 470), Shera and others v. Mst. Fatima and another (1971 SCM R 449), Shah Muhammad v. The State and 5 others (1983 SCM R. 1173), Mehr Muhammad Sarwar and others v. The State and others (PLD 1985 SC 240) and Muhammad Yousaf v. The State and others (1992 PCr.LJ 1370). The learned counsel for respondent No,4 at whose instance the proceedings were taken by the learned Judicial Magistrate, contends that the learned Judicial Magistrate as also the learned Additional Sessions Judge have passed orders in proper exercise of their jurisdiction, which should not be interfered in writ jurisdiction. It is contended that the conduct of the petitioner was such as would not entitle him to relief. He wanted a further adjournment to produce some material, but I am not inclined to adjourn the matter as the case was adjourned on his request for today and can even be decided without any further material.
3. The filing of a suit for injunction by the petitioner and its pendency wherein respondent No,4 is one of the defendants, cannot be disputed as attested copy of the plaint has been brought on record wherein decree for the grant of perpetual injunction "restraining the defendants from interfering with the possession of the plaintiff over building" has been prayed for. The suit was instituted on 2-8-2004 when the learned trial Judge ordered the maintenance of status quo regarding the suit property till further orders. The undisputed position thus is that the suit is still pending and the temporary injunction of maintenance of status quo is also operative. On 12-8- 2004 a case was registered at the instance of the petitioner against the nominated persons including respondent No, 4 under sections 448/511, 148/149, 427, P.P.C. On 15-8-2004 Bashir Ahmed respondent No,4 made an application before the duty Magistrate, Faisalabad for proceedings under section 145, Cr.P.C. When the order for sealing the property was passed. For the vacation of that order an application was made by the petitioner before the learned Judicial Magistrate, which was dismissed by the learned Judicial Magistrate on 23-8-2004 with the direction to the parties to produce evidence in support of their assertion as to possession. The said order was assailed by the petitioner in revision, which was initially consigned to the record room by the learned Additional Sessions Judge, Faisalabad in view of a status quo order; dated 14-9-2004 passed in W.P. No,134- R/04. To assail that W.F. No, 15968 of 2004 was filed before this Court, which was disposed of on 1- 10-2004 clarifying that the learned Additional Sessions Judge should proceed to hear and dispose of the revision petition in accordance with law after hearing all concerned. The order impugned has been passed in this context wherein the view taken by the learned Additional Sessions Judge is that "mere pendency of a civil suit or revision or appeal before Board of Revenue does bar the jurisdiction of learned Court of concerned Magistrate to proceed under section 145, Cr.P.C. It was further observed by him that "The title documents showing the petitioner as allottee of a part of property P-143 were declared bogus and forged by the Court of Member Board of Revenue. After the said findings of learned Court of Member Board of Revenue, it appears that parties to this revision tried at their level best to have the possession of property in dispute by all means and this resulted in the gross apprehension of breach of peace." Suffice it to observe that the order of the Member, Board of Revenue, which finds mention in the impugned order is subject-matter of W.P.
No,134-R of 2004, which is pending before this Court and status quo order has been passed therein.
The application of respondent No,4 to be impleaded as party to that writ petition is also pending. In these circumstances when the very order of the Board of Revenue/Chief Settlement Commissioner is subject of challenge before this Court and status quo has been ordered to be maintained and there is a suit for injunction wherein also a status quo order has been passed by the Civil Court the question arises as to how for the learned Judicial Magistrate was justified in passing the order of sealing of the property by invoking the provisions of section 145, Cr.P.C. For this purpose reference to few precedents in which section 145 of the Criminal Procedure Code of 1898 was construed and interpreted may be appropriate. In Shah Muhammad v. Haq Nawaz and another (PLD 1970 SC 470) an order passed by the Additional District Magistrate under section 145 of Criminal Procedure Code of 1898 when the civil suit was pending and there was order about maintenance of status quo was set aside observing that "It becomes apparent at once that the proceedings initiated 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". It was further observed that" section 145 therefore, proceeds, on the premises that the Magistrate will cease to deal with the possession of 'land' or 'water' in dispute before him as soon as a Civil Court is seized with the dispute and has passed a decree declaring the rights of the parties therein or has passed an order regulating possession of the subject-matter of the suit. In such a case, if apprehension of breach of peace prevails, the Magistrate can take action under sections 107 and 151, Cr.P.C. And bind down the party threatening to act in violation of the decree of the Court or the terms of an interim order appointing a receiver or requiring the parties to maintain status quo. A contrary position will indeed lead to anomalous results. In view of the pendency of the civil suit the order passed by the Additional District Magistrate, Gujranwala was se aside. Such principle was followed in Shera and others v. Mst. Fatima and another (1971 SCM R 449), Shah Muhammad v. The State and 5 others (1983 SCM R 1173), Mehr Muhammad Sarwar and others v. The State and others (PLD 1984 SC 240) and Muhammad Yousaf v. The State and others (1992 PCr.LJ 1370). In an unreported judgment in C.P.L.A. No,1806- of 2000, dated 17-6-2002 as well it was observed that "It is well-settled that once a Civil Court is seized of a dispute with regard to possession of an immovable property and has passed an interim order regulating the possession with respect to such property, no Criminal Court shall exercise jurisdiction under section 145 or section 146, Cr.P.C. Civil Court, being the Court of ultimate jurisdiction is always vested with powers to decide all dispute's of civil nature between the parties and the preventive proceedings before a Magistrate are always subject to the decision by a Civil Court. In the case in hand, learned Civil Judge had passed a specific order protecting the possession of petitioner, My. Safia Rehmat, who claimed to be in possession of two rooms in the property by passing an injunctive order against the defendants. This order was in operation, when respondent, Mian Inamul Haq, not a party to the suit, without joining the proceedings before the Civil Court, invoked the summary jurisdiction of the Magistrate First Class and succeeded in obtaining an order of the attachment of the property in violation of the settled law. Prima facie, Magistrate should have acted with care and circumspection on his part after coming to know that dispute was already sub judice before a Court of competent jurisdiction and refrained from passing a contradictory and conflicting order as he lacked jurisdiction in the given circumstances. Alternatively; best course for the Magistrate was to refer the dispute to the Civil Court, instead of assuming the jurisdiction and adding to the agony of the parties. Reference may be made to Shah Muhammad v. Haq Nawaz (PLD 1970 SC 470), Shah Muhammad v. State (1983 SCM R 1173) and Abdul Razzaq v. Barkat Ali (1985 SCM R 1235)".
It was thus concluded that "pending the decision of the suit, interim order passed by the Civil Court ought to be maintained rather than leaving it to the wisdom of the Magistrate to decide the fate of the property with regard to the possession, as claimed by respective parties". This being the settled position of law the sealing of the property on the ground of alleged apprehension of breach of peace by the Judicial Magistrate was not warranted in presence of the status quo order passed by the Civil Court in the pending suit. The learned counsel for the respondent has himself pointed out that there is another civil suit filed by a competing party qua the same property wherein also temporary injunction was granted by the Civil Court. This itself lends support to the 'view that the parties were quite conscious that the matter was of a civil nature and civil remedy was being availed by them. I am consciously avoiding to make any reference to a report of the District Police Officer. Faisalabad, dated 3-9-2004, which contains some remarks about the partisan conduct of the then Station House Officer as the legality of the order passed by the Judicial Magistrate as maintained by the learned Additional Sessions Judge, could be examined and adjudged on the touchstone of the settled position of law as observed above. The objection of the respondent as to the conduct of the petitioner hardly holds the ground as the pendency of the civil suit and writ petition is not in dispute nor the orders passed therein.
' Thus declaring the order passed by the learned Judicial Magistrate as affirmed by the learned Additional Sessions Judge, Faisalabad vide his order, dated 18-10-2004, as illegal and unwarranted the same is vacated. It is, however, observed and added that the parties should respect the order passed by the Civil Court so long as it is in force. The trial Court will take all possible steps to decide the suit within six months. No order as to costs. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.