YAHYA AFRIDI, J.---Through this single judgment, this Court shall decide the quashment petitions filed by Haji Abdullah Jan (Q.P. No,65 of 2010) and Ehsanullah (Q.P. No,67 of 2010), as they both arise out of common facts and identical questions of law.
2. The brief and essential facts leading to the present petitions are that admittedly property measuring seventy 'kanals' situated in 'Khasrat' Nos.211 to 283 in 'Mauza' Hargoni, Peshawar ("disputed property") was recorded, in the Revenue Records, as property of Professor Burhanuddin Rabbani.
3. Hamid Mehmood Zuberi instituted a civil suit against Professor Burhanuddin Rabbani seeking declaration for ownership of the disputed property based on sale-deed dated 31-12-1997. The trial Court passed an ex parte decree in favour of Hamid Mehmood Zuberi vide judgment dated 13-5- 1999. Based thereon, mutation was entered and attested in the Revenue Record in favour of Mr.Zubairi, as owner of the disputed property.
4. The present petitioners, Haji Abdullah Jan Marwat along with his sons purchased the disputed property from Mr.Zubairi and the same was duly transferred in their names in the Revenue Record vide Mutation No,691 attested on 25-6-2002.
5. The petitioners on 7-2-2008 filed a complaint under section 145 Criminal Procedure Code, 1898 ("Cr.P.C."), wherein they specifically took the stance that Imdad and Nadir Khan had intruded in the disputed property and demolished certain built up structure thereon and also threatened the petitioners of the dire consequences, if they attempted to enter the disputed property. This they claimed took place ten days prior to the filing of the said complaint.
6. The report was sought by the Judicial Magistrate from the local police, which was submitted on 26-2-2008. The said report confirmed that breach of law was threatened in the area due to the said dispute. Accordingly, the preliminary attachment order was passed by the Judicial Magistrate on 27-2-2008.
7. During the pendency of the criminal complaint and while the attachment order dated 27-2-2008 was in the field, the petitioners again complained vide application dated 3-9-3008 against the illegal actions carried, out by Messrs Imdad, Jabir Khan and Abdul Qayyum. The report, which was sought, when submitted by the local police, again confirmed the contents of the complaint. This prompted the Judicial Magistrate to order the local police to initiate appropriate steps.
Accordingly, F.I.R. No, 746 dated 10-8-2008 for offence under section 188 of Pakistan Penal Code, 1860 ("P.P.C.") was registered against the said named intruders.
8. Professor Burhanuddin Rabbani, who was only added as a respondent in the complaint vide order dated 19-6-2008, filed three successive applications for dismissal of the main complaint of the petitioners, which were all dismissed by the Judicial Magistrate. Finally, Professor Burhanuddin Rabbani, impugned in revision, the decision dated 21-10-2009 of the Judicial Magistrate, rejecting his third application for dismissal of the complaint.
9. On the other hand, the petitioners, challenged in revision, the orders of the Judicial Magistrate dated 6-7-2009, whereby their second application for registering a case against the intruders on the disputed property under section 188 of P.P.C. Was dismissed.
10. Accordingly, both the revisions petitions, filed by the petitioners and Professor Burhanuddin Rabbani, were heard and decided through one consolidated judgment dated 2-2-2010.
11. The revision petition filed by the petitioners was dismissed. The revisional Court held that as the complaint was not filed by a Public Officer, section 188 of P.P.C. Could not be invoked. It was further pointed out that the petitioners had earlier moved an application, which was positively considered and an F.I.R. No,746 dated 10-10-2008 under sections 188/34, P.P.C. Was registered against the respondents for an earlier violation. However, the revisional Court was not convinced that any fresh material was on the record to confirm a subsequent violation, which would occasion registration of a second F.I.R.
12. The revision petition of Professor Burhanuddin Rabbani was accepted. Accordingly, the order of the Judicial Magistrate dated 21-10-2009 was set aside and the complaint filed by the petitioners under section 145, Cr.P.C., was dismissed. The revisional Court was influenced by the statement of the Patwari Halqa (P.W.1), who narrated that the petitioners were neither recorded as owners nor were they shown in possession of the disputed property. The revisional Court was also influenced by the various F.I.Rs, registered by the present petitioners against Hamid Mehmood Zuberi, wherein a specific plea of non-delivery of the possession of the disputed property had been taken. In addition thereto, the pending civil proceedings between the parties regarding the disputed property also prompted the revisional Court that the matter required to be decided conclusively be a civil forum.
13. Being aggrieved, the petitioners have impugned the order of the revisional Court in the present two quashment petitions.
14. The learned counsel for the petitioners vehemently contended that admittedly the possession of the disputed property was not with the petitioners, on the day of filing the complaint under section 145, Cr.P.C. And thereafter; that it was only when the possession of the disputed property was forcibly taken from the petitioners that they filed the complaint and hence their possession would not be reflected in the Revenue Records thereafter; that the police reports also confirmed that the law and order situation warranted that preventive action be taken by the Judicial Magistrate under section 145, Cr.P.C.; that the possession of the disputed property being with the present petitioners could also be confirmed from the order sheet of the execution petition filed by Yousaf Khan Afridi executing a money decree against professor Burhanuddin Rabbani, particularly the order sheet dated 14-6-2002; that the possession of the property was duly transferred to Mr.Zuberi by Professor Burhanuddin Rabbani on 31-12-1997 from whom the .Petitioners then acquired title and hence the same was validly in possession of the present petitioners. Reliance was placed on Malik Fateh Muhammad Khan Tiwana v. The Crown (PLD 1949 Lah. 397) and Arshad Mehmood v. Masood Khan (PLD 1969 Lah. 74).
15. The learned counsel for Professor Burhanuddin Rabbani rigorously disputed the assertions of the learned counsel for the petitioners and contended that the dispute was civil in nature and in this regard two civil suits were pending adjudication which would appropriately- resolve the dispute between the parties.
16. The learned State counsel did not support the claim of the petitioners. He argued that the issue could have been easily resolved by invoking section 437 read with section 506 of P.P.C. Or a complaint under the Illegal Dispossession Act, 2005 instead of a criminal complaint under section 145 of the Cr.P.C.
17. Valuable arguments of the learned counsel for the parties heard and the available record of the case thoroughly considered.
18. Before this Court consider the factual aspect of the present case, it would be pertinent to review the legal regime provided under section 145 of Cr.P.C. The close reading to the said provision reveals that the matter before the adjudicating Magistrate proceeds through various stages and the same may be generally categorized as follows:-- STAGE 1.
A competent Magistrate, on receiving information or on a police report, regarding the following two conditions precedents that;
(i) The matter relates to land or water or boundaries thereof within his jurisdiction and
(ii) Apprehension of dispute is to lead to breach of peace.
' In case the adjudicating Magistrate is satisfied that the two conditions precedent have been fulfilled then he has to pass an order stating his reasons of being so satisfied. However, in case, no such order is made by the adjudicating Magistrate, it would not vitiate the entire proceedings. The said infirmity is curable. The Magistrate can pass the said order, at a later stage. Reliance is placed on The State v. Muhammad Azam and others (PLD 1960 Pesh. 470) and Chaudhri Munir v.
Mst.Surayya (PLD 2007 SC 189).
STAGE 2. The competent Magistrate, after being satisfied about the two conditions precedent, stated hereinabove, would seek written statements from the parties about their stance in regard to the possession of the disputed property, which is to be submitted within a specified time period. The competent Magistrate may, in cases of emergency, at any stage of the proceeding order interim attachment of the disputed property till the final decision on the complaint.
STAGE 3. After submitting their respective written statements, the parties are to produce their evidence in respect of their claims relating to possession of the disputed property. It would be important to note that the proceedings before the Magistrate under section 145, Cr.P.C.
Are 'quasi civil' in nature, as the offence is against 'property' and not against the 'person'. Thus while considering the claims of the parties, the competent adjudicating Magistrate has to decide the matter based on principles of civil dispensation of justice. Reliance is placed on Abdur Rahim v.
Jainuddin Sardar (1970 PCr.LJ 677) and Shahzada and 53 others v. Malik Shamstiddin and others (1978 PCr.LJ 431). Ownership of the disputed property does not play any role in resolving and determining the complaint under section 145 of Cr. P. C .
STAGE 4. In cases, where the adjudicating Magistrate, receives information and is satisfied about the two conditions precedent stated in Stage 1 above, he has to determine, who was in possession of the disputed property on the day the adjudicating Magistrate took cognizance of. Matter and passed the order regarding his satisfaction about the, fulfilment of the two conditions precedent. In cases, when a party files a complaint and claims to have been dispossessed, then the adjudicating Magistrate has to determine who was in possession of the disputed property two months prior to the filing of the complaint before the Magistrate. Reliance is placed on Muhammad Shafi v. Addl: District and Sessions Judge and others (2002 SCMR 1280) and Mst.Munira Khatoon v.
Ashfaque Zai and others (2003 PCr.LJ 918).
STAGE 5. In case, the adjudicating Magistrate comes to the conclusion that a party was wrongly and forcibly dispossessed of the disputed property, within two months prior to the filing of the complaint or when cognizance was taken by the Magistrate, then possession thereof, is restored to the said party. And that party is to retain the same until he is evicted by orders of a competent civil Court. The end result of proceedings under section 145 of Cr.P.C. Is to prevent breach of peace and not decide 'proprietary' or 'possessory' rights of the parties. However, the adjudicating Magistrate has the authority to hand over possession of the disputed property to a party, who has been dispossessed thereof. But the intention, scope and purpose of this provision of law is not to determine the title of the disputed property. For determination of title of the disputed property, the parties are to approach the competent civil Courts.
19. Thus the scheme of proceedings envisaged in section 145 of Cr.P.C. And as explained hereinabove, is in fact, a means to an end rather than an end in itself. Unfortunately, this provision has been abused.
20. The august Supreme Court of Pakistan has clearly laid down the guiding principles of application, scope and the intent of the said provision in its judgment titled Chaudhry Munir v.
Mst.Surraya (PLO 2007 SC 189), wherein the apex Court held that; "There is no cavil with the proposition that the prime object of the proceedings under section 145, Cr.P.C. Is to prevent a breach of peace and to maintain status quo till the controversy is decided by the civil Court of competent jurisdiction. The purpose of proceedings under section 145, Cr.P.C. Is to meet an emergent situation in order to maintain peace and further to enable the parties to set the controversy at naught through civil court qua the title or claim of the property in dispute. It is mandatory requirement of section 145, Cr.P.C. That there must not only a dispute but it is essential that a dispute is likely to cause breach of peace (Fazal Haq v.
Muhammad Latif PLD 1985 SC 294), and in case the dispossession of property is not coupled with apprehension of breach of peace then the parties concerned should approach the civil court for the redressal of their grievances.
This petition has been examined in the light of criterion as mentioned hereinabove and we are of the considered view that there was no immediate apprehension 'of breach of peace. Had it been so no civil suit would have been filed a decade ago which is indicative of the fact that the question of title was involved and there was no possibility of apprehension of breach of peace as no untoward incidents had taken place between the parties. We are, therefore, of the view that proceedings got initiated under section 145, Cr. P. C. Were to pressurize the respondents to hand over the possession of the premises in question to the petitioner."
21. Now referring to the facts of the present cases, this Court finds that there are two independent civil proceedings pending adjudication between the parties regarding the disputed property. The first case relates to the suit filed by Mr.Zuberi, where Professor Burhanuddin Rabbani had moved the trial Court for setting aside the ex parte decree, which was finally set aside by the trial Court vide order dated 14-11-2004. This was followed by cancellation of all mutations, which were based on the ex parte decree passed in favour of Mr.Zuberi. The present petitioners moved the trial Court for their impleadment as "necessary parties" in the said suit filed by Mr.Zuberi against Professor Burhanuddin Rabbani. The said application was not positively considered and hence the present petitioners have impugned the said order in appeal, which is pending adjudication. The second case is the civil suit instituted by the present petitioners independently, seeking, inter alia, their ownership and possession over the disputed property, based on their claims, which is also the basis of their complaint under section 145 of Cr.P.C., stated hereinabove. The said civil suit is also pending adjudication.
22. In view of the pending civil litigation between the parties relating to the title and possession of the disputed property, this Court following the 'ratio decidendi' laid down by the august Supreme Court of Pakistan in Chaudhri Munir's case (supra), finds that the revisional Court was, correct in ordering the dismissal of the complaint filed by the present petitioners.
23. Before parting with the judgment, it would be unfair not to note that the present petitioners have been mislead to seek remedies other than the most effective, being their pending suit for their title and possession over the disputed property. In the circumstances, the trial Court is directed to expeditiously proceed with the civil suit filed by the present petitioners and to conclude the same within a period of live months, if not earlier, from the date of receipt of this order. In case the defendants therein, delay the proceedings, the trial Court ought to take appropriate steps to ensure the disposal of the case, within the stipulated time, stated hereinabove. The trial Court is further directed to send the judgment in the said case to the Additional Registrar (Judicial) of this Court, to mark compliance of the order stated herein.
24. Accordingly, for the reasons stated hereinabove, the present petitions, being devoid of legal merits, are dismissed.