'Petitioners through this application under section 561-A, Cr.P.C. Seek setting aside of the order passed by the learned Sessions Judge, Pishin dated 15-9-2003 whereby, the revision petition under section 439-A, Cr.P.C. Filed by respondents Nos.1 to 6/Petitioners was allowed by setting aside the order dated 8-8-2003 passed by the learned Judicial Magistrate, Barshore at Pishin regarding dismissal of the complaint under section 147, Cr.P.C.
2. Respondents Nos.1 to 6/petitioners presented a complaint under section 147, Cr.P.C. To the learned Judicial Magistrate against the petitioners/respondents and respondents Nos.7 and 8 on 19-7-2003. It is stated that the complaint was dismissed by the learned Judicial Magistrate but on a revision, the same was remanded by the learned Sessions Judge with certain directions. It is stated that the learned Judicial Magistrate after carrying out necessary proceedings again dismissed the complaint on 13-8-2003.
3. Feeling aggrieved, the respondents Nos.1 to 6/petitioners filed a revision petition under section 439-A, Cr.P.C. Against the order of dismissal of complaint by the learned Judicial Magistrate, Barshore at Pishin. It was the grievance of the respondents Nos.1 to 6/petitioners that the report had not been properly examined and a wrong conclusion had been drawn by the learned Judicial Magistrate. On the other hand, the order of dismissal made by the learned Judicial Magistrate was supported by the petitioners/respondents and it was also brought to the notice of learned Sessions Judge, that a civil suit has since been filed in the Court of Senior Civil Judge, Pishin and status quo order has been made by the Senior Civil Judge, Pishin.
4. The learned Sessions Judge, Pishin after hearing the learned counsel for the parties and perusing the map regarding the water channel and orchard in the light of report, dated 11-8-2003 of Naib Tehsildar allowed the revision petition vide his order in Criminal Revision No,7 of 2003 dated 15-9-2003, the operative part of the order is reproduced below for the sake of facility:-- "The respondents have now approached the Civil Court for redressal of their grievances, better they wait for the decision of Civil Court. Anyhow the present issue is due to persistent draught in the area which is temporary phenomena and in case of more rains there will be no such issue. Better the parties should not resort to drying the fruit bearing trees and use the scarce water by accommodating the genuine needs of each others orchards. The order dated 13-8-2003 is set aside. The revision petition is allowed and disposed of accordingly."
' This order of learned Sessions Judge, Pishin is the subject-matter of present petition which has been filed under section 561-A, Cr.P.C.
5. I have heard Mr. Abdul Wassay Tareen, Advocate learned counsel for the petitioners and Mr. Jamal Khan Mandokhail, Advocate for private respondents while Mr. Ghulam Mustafa Mengal, learned Additional Advocate-General appeared for the State.
6. The main contention put forth on behalf of the petitioners and supported by the learned Additional Advocate-General is that in presence of an order of status quo passed by the learned Senior Civil Judge, Pishin making an order by the learned Sessions Judge in exercise of revisional jurisdiction under section 439-A, Cr.P.C. Was not warranted by law. It has been submitted that when a matter is pending before the Civil Court, the Criminal Court has no jurisdiction, whatsoever, to interfere into the matter of civil nature. Reliance has been placed on the authority reported in 2000 PCr.LJ (Lahore) 559, the relevant portion of which is reproduced below for the sake of facility:-- ' "It is settled proposition of law that where the possession of the same property has been regulated by the Civil Court, the matter falls outside the jurisdiction of the learned Magistrate under section 145, Cr.P.C. Reliance is placed on case titled Shah Muhammad v. Haqnawaz and others PLD 1970 SC
470. The relevant portion of the judgment reads as follows:- "A case in which a civil Court is already seized with the subject-matter of dispute and has passed an order regulating possession thereof or a case in which a decree for possession has been granted or a permanent injunction granted restraining the opposite-party from interfering with the possession of the decree-holder fall outside the jurisdiction of a Magistrate under section 145, Cr.P.C. Action can, of course, be taken always under sections 107 and 151, Cr.P.C. To prevent breach of peace in case of this nature, but no order for the attachment of the property can be made."
7. Learned counsel for the petitioners submitted that jurisdiction of a Criminal Court under section 147, Cr.P.C. Can be invoked only on the ground of likelihood of breach of peace. In the instant case, the dispute was purely of civil nature and did not warrant to invoke the provisions of section 147, Cr.P.C. As rightly observed by the learned Judicial Magistrate and he was justified to dismiss the complaint. In view of order of status quo passed by the learned Senior Civil Judge, Pishin, the learned Sessions Judge was not justified to make such an order, therefore, the same is not sustainable. Learned counsel has relied upon the authority reported in PLD 1996 SC 541, the relevant para. Of the same is reproduced below for the sake of facility:-- "(3) We have considered the submissions made by the learned counsel for the parties. We do not persuade to agree with the learned counsel for the appellant. It is well-settled that jurisdiction of a Criminal Court under section 145, Cr.P.C.. Could be invoked except on the ground of likelihood of breach of peace. Learned counsel for the appellant has frankly admitted that since 1991 till today no untoward incident took place between the parties and the peace never breached. The record of the case does not suggest any imminent danger of peace necessitating continuation of proceedings under section 145, Cr.P.C. In this case, the proceedings remained pending for a long time but there was no breach of peace. Section 145, Cr.P.C. Deals with the procedure where dispute concerning immovable property is likely to cause breach of peace. It does not suffer for proceedings under this section that there should be a dispute but it is necessary also that there should be a dispute likely to cause a breach of peace. The primary object of provision is the prevention of breach of public peace arising in respect of dispute relating to immovable property.
The settlement of dispute relating to property which is not likely to lead to a breach of peace is within the exclusive jurisdiction of the Civil Court. If there was/is no imminent danger to the public peace, the Magistrate need not take cognizance of an application under section 145,Cr.P.C. And also need not detriment the factum of actual physical possession of the disputed property/land.
The provisions of section 145, Cr.P.C. Have to be strictly followed when action is taken under it. In the instant case, we feel that the appellant has resorted to Criminal Court under section 145, Cr.P.C.
Only to harass the other party although the dispute, if any, between the parties was purely of civil nature."
8. Learned counsel for the petitioners/respondents has contended that proceedings under section 147, Cr.P.C. Are meant to prevent a breach of peace and to avert any dispute as precautionary measure but since in the instant case, there was no such apprehension of the breach of peace and the learned Judicial Magistrate was not satisfied therefore, he has rightly dismissed the complaint which was presented to him. Reliance has been placed on the authority reported in 1998 PCr.LJ (Lahore) 240 wherein, it has been held that:- "There may be a number of disputes between the parties claiming possession or ownership of certain property but every dispute does not give rise to proceedings under section 145, Cr.P.C.
Unless it is genuinely and reasonably apprehended that the dispute is likely to give rise to breach of peace."
9. The Magistrate should never permit civil litigation to be converted into criminal litigation. Where a 'civil dispute is brought before a Criminal Court, the proceedings before it are illegal and should be quashed by the High Court. In the circumstances of the present case, after observing that the respondents/petitioners have approached the Civil Court for redress of their grievance and status quo order was also made by the learned Senior Civil Judge, Pishin, the learned Sessions Judge was, therefore, not justified regarding setting aside the order of learned Judicial Magistrate and allowing the revision petition which in the peculiar circumstances of the case in hand would amount to abuse of process of law. The impugned order is, therefore, not sustainable and is liable to be quashed.
10. Having regard to the above-mentioned- factors, provisions of law, cited authorities and circumstances of the case, the impugned order, dated 15-9-2003 passed by the learned Sessions Judge is set aside and the petition is accordingly accepted.