' MAZI-IAR ALAM KHAN MIANKHEL, J.---Through instant petition under section 561-A, Cr. P.C., the petitioners herein/second party in proceedings under section 145 Cr.P.C., before the Judicial Magistrate have impugned the concurrent findings with regard to dismissal of their application for dismissal of complaint under section 145, Cr.P.C. And order dated 27-4-2010 vide which the revision petition of the petitioners against the order of attachment of the property dated 18-3-2010 by the Judicial Magistrate was dismissed.
2. Learned counsel for the petitioners submitted that the very complaint of the respondent No,1 under section 145, Cr.P.C. Was not competent as the possession of the properties was with the petitioners throughout and there was no imminent danger of breach of peace between the parties.
He further submitted that the properties in question were the ancestral properties of both the parties to the proceedings under section 145, Cr.P.C. And two civil suits between the parties were also pending adjudication in the competent civil Court. Learned counsel for the petitioners further submitted that the complaint of the respondent requires outright dismissal without further proceedings and the subsequent order of attachment dated 18-3-2010 is also against the law and is liable to be set aside.
3. As against that, learned counsel for respondent No, 1/the first party, submitted that there was a dispute with regard to the ancestral properties between the parties and apprehension of breach of peace was very much there for which he had filed the complaint under section 145, Cr.P.C. The Judicial Magistrate had rightly dismissed the application of the petitioners for dismissal of his complaint and their revision against the same was rightly dismissed by the learned Additional Sessions Judge/Izafi Zilla Qazi, Swat. He further submitted that as the petitioners have denied the right of the respondent in their ancestral properties, so in the circumstances of the case, attachment of the properties by the Judicial Magistrate vide order dated 18-3-2010 was within the jurisdiction of the Judicial Magistrate and revision against the same of the petitioners was rightly turned down by the Additional Sessions Judge/Izafi Zilla Qazi, Swat vide judgment/order dated 27- 4-2010 and requested for dismissal of the instant petition for quashment.
4. The submissions made by the learned counsel for the parties were considered and record of the case was perused with their assistance.
5. The record of the case would reveal that the parties to the proceedings are real brothers inter se and a dispute over the property cropped up between the parties after the death of their predecessor Haji Shah Room. It has also come on the record that inheritance mutations of the landed properties have also been attested in favour of the parties to the proceedings. It is an admitted fact that civil litigation between the parties with regard to their ancestral properties is also pending adjudication in the competent Court of law.
6. The record of the instant petition would reveal that the petitioners have impugned two different sets of orders, one with regard to dismissal of their application for dismissal of complaint/proceedings under section 145, Cr.P.C. And the other is against the attachment order of the properties passed by the Judicial Magistrate. Being independent orders passed at different stages and in different situations should have been challenged through separate petitions before this Court but keeping in view the circumstances of the case and litigation between the parties, this Court while exercising jurisdiction under section 561-A, Cr.P.C. Ignores this irregularity to meet the ends of justice.
7. Now comes the question of maintainability of complaint under section 145, Cr.P.C. Between the parties. Once the complaint of respondent No,1 was dismissed by the Judicial Magistrate without summoning the petitioners vide his judgment/order dated 1-10-2009 by holding that there is no likelihood of any breach 'of peace between the parties and the matter involved between the parties is of civil nature but the Additional Sessions Jusdge/Izafi Zilla Qazi, Swat vide his judgment/ order dated 9-12-2009 while exercising revisional jurisdiction, accepted the revision and remanded the case back to the Judicial Magistrate for a decision on merits. After the remand of the case, the petitioners applied for dismissal of the complaint on the plea that the dispute between the parties is of civil nature and there is no imminent danger of breach of peace but their such request was turned down by the Judicial Magistrate and then the learned Additional Sessions Judge/Izafi Zilla Qazi, Swat vide his judgment/order dated 6-2-2010 while dismissing the revision of the present petitioners, maintained the judgment/order of the Judicial Magistrate. Then the Judicial Magistrate passed an, order of attachment of the properties.
8. The perusal of the record would reveal that there is nothing to suggest that the parties are at the risk of breach of peace and the dispute between the parties on the face of it appears to be that of civil nature and the same cropped up after the death of their predecessor. The pendency of two civil suits between the parties wherein interim injunctions have admittedly been granted would be another factor to strengthen the cause of the petitioners, As the properties, being the ownership of their predecessor, are of joint character between the parties which would require proper partition between them. There is a claim of ownership by one party on the basis of gift made in its favour by their predecessor. So, in the given circumstances proceedings under section 145, Cr.P.C. Would not be appropriate rather it would amount to abuse of process of Court. The very prayer of the first party would suggest that the same was initiated with some purpose behind the same. Such proceedings would not resolve the disputes between them. As the main purpose of the proceedings under section 145, Cr.P.C. Is to protect the lawful possession of a party who was unlawfully dispossessed and to prevent breach of peace between the parties which has nothing to do with the resolution of actual dispute of their entitlement. When one of the parties is admittedly in possession of the joint property then the recourse for the other party would not he under section 145 Cr.P.C. As it appears from the bare perusal of the main complaint under section 145 Cr.P.C. That the first party in the complaint has admitted the possession of the second party. So, to claim one's rights and entitlement in the property, the better and proper course is a civil suit and partition of property instead of its attachment and appointment of Receiver under section 145 Cr.P.C. The Judicial Magistrate while exercising such jurisdiction should have been conscious of all these facts.
The Judicial Magistrate under section 145, Cr.P.C. Sans jurisdiction to enter into disputes of the nature. The civil Court being the Court of ultimate jurisdiction has the powers to resolve all kinds of civil disputes. During such process, a civil Court can make an order of attachment of property before decree and can also appoint Receiver of the property if the need be.
9. So, the exercise of jurisdiction by the Judicial Magistrate in the circumstances of the case amounts to an unlawful exercise of jurisdiction and continuation of such proceedings would certainly amount to abuse of process of Court. Hence, this Court in exercise of its inherent jurisdiction has left with no option but to allow instant petition to secure the ends of justice between the parties. So, the judgments/orders of the Courts below are set aside and the complaint under section 145, Cr.P.C. Is hereby dismissed.