HAFIZ ABDUL REHMAN ANSARI, J.---Through this constitutional petition petitioner Haji Gulzar Ahmad Gulshan son of Imam Bakhsh seeks annulment of the orders dated 11-11-2008 and 24-7-2009, respectively passed by Judicial Magistrate and Additional Sessions Judge, Taunsa Sharif in the proceedings initiated by Judicial Magistrate under section 145, Cr.P.C., on the report of S.H.O., Police Station Taunsa Sharif with A regard to the dispute of possession of some land. Through the former order the learned Judicial Magistrate directed the available Incharge of the Police Station, Taunsa to attach the entire plot measuring two kanals, whereas through the latter order dated 24-7-2009 the learned Additional Sessions Judge, Taunsa, dismissed the criminal revision filed by the petitioner and maintained the order of the Magistrate.
2. Precise facts of this writ petition are that the petitioner purchased land measuring 2-Kanals, out of two Khatas, i.e, 241 and 441, situated in Mauza Tub, Tehsil Taunsa Sharif, District Dera Ghazi Khan, from Imam Bakhsh and others through registered Sale-deeds Nos.69/1 and 70/1 dated 29-9-2008.
It is stated that said Imam Bakhsh and Muhammad Hanif had purchased the land from one Khata from Mst. Zohran through Mutation No,2639, and the said two Khatas are adjacent to each other.
The petitioner after purchasing the above said land constructed four walls and also made other construction for residential purpose. It is alleged in the petition that on 4-10-2008 at about 9 p.m.
Respondent No,5 Nazir Ahmad etc. Along with 60/70 persons armed with deadly weapons came to the property of the petitioner and also dismantled the main gate of the petitioners' property, for which he got registered F.I.R. No, 424 dated 9-10-2008 under sections 324, 427, 148, 149 P.P.C. With Police Station Taunsa Sharif respondent No,15/S.H.O. Arrested persons from both sides and prepared Qalandra under sections 107/151 Cr.P.C. It is stated that under the political pressure of local political figures the respondent S.H.O. Initiated proceedings under section 145 Cr.P.C, on 14-10- 2008 and sent the same to the Judicial Magistrate, and above said impugned orders were passed.
3. One Muhammad Iqbal filed a suit for permanent injunction against the petitioner and others on 7-10-2008 in respect of the above stated disputed plots. Counsel of said Muhammad Iqbal made a statement on 29-10-2008 that the suit be dismissed as withdrawn. The learned trial Court/Civil Judge, Taunsa Sharif on the above statement of the learned counsel dismissed the suit as having been withdrawn vide order dated 30-10-2008. On the other hand, present petitioner Hail Gulzar Ahmad Gulshan also filed a suit for permanent injunction against Nazir Ahmed etc. On 11-10-2008 wherein on the same day stay order was issued. In the said suit defendant-respondent No,5 Nazir Ahmad, defendants Nos.2 to 8 and 9 to 11 filed their separate written statements. It is also pertinent to mention here that Nazir Ahmad, respondent No,5 had also filed a suit for declaration against the petitioner and others on 15-12-2008 regarding the same property and in the said suit no stay application was filed. In the suit the petitioner filed a written statement on 10-1-2009. The defendants Nos.2 to 5 and 9 of the said suit also filed written statement on 17-1-2009. Both the suits were consolidated and the learned Civil Judge, Taunsa Sharif on 19-2-2009 ordered that status quo at the spot would be maintained till the final decision of the suit. Nazir Ahmad plaintiff filed an appeal against the said order dated 19-2-2009 titled as Nazir Ahmad etc. v. Gulzar Ahmad etc. On 21-2-2009 in the Court of Additional District Judge, Taunsa Sharif, who vide order dated 24-7-2009 dismissed the same. This is complete picture of litigation between the parties pending before the Civil Judge, Taunsa Sharif.
4. Learned counsel for the petitioner contends that as the matter was subjudice before the Civil Court about the land in dispute, both the parties had filed their suits and the learned trial Court/Civil Judge, Taunsa had directed both the parties to maintain status quo with regard to the possession of the property. Further contended that there was no breach of peace and no incident ever took place requiring the proceedings under section 145, Cr.P.C. By the Judicial Magistrate; the report submitted by the S.H.O. Was politically manoeuvred on the pressure of local political high- ups and proceedings under section 145, Cr. P.0 . Were initiated on the Qalandra prepared by the local S.H.O. Under section 107/151, Cr.P.C. Submits that when an injunction or status quo order is passed with regard to the possession of the land in dispute proceedings under section 145, Cr.P.C.
Cannot be initiated and the matter then falls out from the competence of the criminal proceeding, Learned counsel for the petitioner places reliance on the cases reported as Qazi Gran, v.
Muhammad Jan and another PLD 1996 SC 541, Abdul Khaliq and another v. Muhammad Shafique and others 2007 SCM R 1953, Muhammad Siddique and another v. Muhammad Rashid and 3 others 2004 PCr.LJ 1096, and Mehr Muhammad Sarwar and others v. The State and others PLD 1985 SC 240.
Submits that in all these cited judgments it is observed that proceedings under section 145 Cr.P.C.
Are subordinate to a decree or order passed by the Civil Court in respect of the property in dispute.
Primary concern of the said proceedings under the Cr.P.C. Was to prevent breach of peace arising out of a dispute concerning land or water. Resolution of the dispute lay exclusively in the realm of the civil Court. If Civil Court would decide or through any interim injunction would regulate the possession of subject-matter of dispute, in such case if apprehension of breach of peace would prevail, Magistrate can take action under sections 107, 151, Cr.P.C. But he cannot take action under section 145 Cr.P.C. Proceedings under section 145 in such circumstances were illegal and without jurisdiction and inherent jurisdiction could be lawfully invoked to quash such proceedings.
5. On the other hand, the learned counsel for the respondents contended that Qalandra was prepared under sections 107/ 151 Cr.P.C. F.I.R. No,424 dated 9-10-2008 was also got registered. The learned Judicial Magistrate rightly initiated proceedings under section 145(4), Cr.P.C. And rightly attached the property in dispute. The learned counsel vehemently supported both the orders passed by the learned Illaqa Magistrate/Judicial Magistrate dated 11-11-2008 attaching the property in dispute and the order dated 24-7-2009 of the learned Additional Sessions Judge passed in Criminal Revision. Learned counsel for the respondents placed reliance on the cases of reported as Abdul Aziz and others v. Mian Rafiuddin through his legal heirs 1983 SCM R 928, Shah Muhammad v. Haq Nawaz and another PLD 1970 SC 470 and Mian Inamul Haq v. Mst. Safia Rehmat, etc. 2000 YLR 2271.
6. I have heard the learned counsel for the parties at length. Both the sides have cited case-law of the honourable Supreme Court and the Slagle Benches of the High Courts. After going through the judgments, I come to the conclusion that the judgment of the honourable Supreme Court reported as Mehr Muhammad Sarwar and others v. The State and others PLD 1985 SC 240 is the judgment of larger Bench comprising of four honourable Judges, which has been followed by the learned Single Judge. In the judgment reported as Azmatullah through LRs, v. Mst. Hameeda Bibi and others 2005 SCM R 1201 it has been categorically held by the honourable Supreme Court that a judgment of the larger Bench of the Supreme Court will be preferred over the judgment of smaller Bench.
7. The ratio settled in this judgment of the Supreme Court reported in PLD 1985 SC 240 is preferred in which it has been held that no proceedings can be ! Taken under section 145 Cr.P.C. Magistrate !
Is empowered to make inquiry under section 145 Cr.P.C, to regulate possession of property in dispute for the time being < only to avert apprehension of breach of peace; further where possession of same property is regulated by a civil Court, even through a temporary injunction, matter falls outside jurisdiction of Magistrate under section 145 Cr.P.C.
8. After going through the judgments cited by both the parties, I have come to the conclusion that the Magistrate was competent to take action on the Qalandra prepared by the local S.H.O, under sections 107/151, Cr.P.C. No further proceedings for attachment of the property in dispute could be taken as it was the subject-matter of a civil suit before the Civil Court. It was beyond the jurisdiction of the Magistrate to pass an order under section 145(4) Cr.P.C, for attachment of the said property.
9. For the reasons discussed above, this writ petition is accepted and the order dated 11-11-2008 passed by the learned Judicial Magistrate, Taunsa and the order of the Additional Sessions Judge dated 24-7-2009 passed in the criminal revision upholding the order of the Magistrate, are hereby declared to be illegal, void ab initio, without lawful authority and the same are set aside. As the attachment order of the property is set aside, the property in dispute will be de-sealed and status quo order passed on 11-10-2008 by the civil4 Court will be restored.