' KHALID MEHMOOD, J.---Through this Writ Petition baring No,169 of 2010 filed under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, petitioners Amin Gulgee son and Zarmeen Gulgee daughter of A.M. Ismail Gulgee have challenged judgment and order of learned Additional District Judge-H. Abbottabad dated 1-2-2010 and order dated 29-6-2009 passed by learned Maga Magistrate Abbottabad on the application of respondent No,3 and seek restoration of possession of property bearing Nos.76 and 76-A (old No,53 and 54) of Nathiagali in their favour whereas Galliyat Development Authority through Director have assailed the above said judgment of learned Additional District Judge-II, Abbottabad dated 1-2-2010 and seek its quashment through Criminal Miscellaneous Quashment Petition No,5 of 2010. As both the matters have substantially arisen out of impugned judgment dated 1-2-2010, therefore, these are proposed to be disposed of by this single judgment.
2. Briefly stated facts of the case as per contents of writ petition are that predecessor-in-interest of petitioners namely A. M. Gulgee being renowned international naturalistic Portrait Painter and Calligraphic artist was owner of various properties in Pakistan including suit properties i,e, Plot Nos.
76 and 76-A (old Nos.53 and 54) measuring 4 kanais, situated at Nathiagali, Abbottabad, as these properties were leased out to him by the competent authority for an initial period of 30 years, which was subsequently extended on 8-8-1988 for a period of 99 years by the Hazara Hill Tract Improvement Trust. The lessee was enjoying the peaceful possession of said properties and he had also improved these properties considerably where precious portraits and valuable paintings are housed. On 16-12-2008 A.M. Gulgee was murdered along with his wife by some unknown assailants, who left behind two surviving legal heirs, the petitioners.
3. Petitioners are permanent residents of Karachi and they are travelling/living abroad in connection with their business and mostly not remained in Pakistan. On 28-1-2008 the petitioners came to know that one Col. (Retd) Syed Habib Shah with the help of.Armed persons by misrepresenting himself as a so-called legal representative of the present petitioners, broke locks of the suit properties. Later on he filed a suit on the basis of forging the signatures of A.M. Gulgee and his wife. Petitioners were impleaded and contested the suit by filing written statement, which was dismissed on 18-6-2009. Said Habib Shah instead of challenging the above said judgment and decree before competent court filed another suit, which too was dismissed by the Civil Court
4. Petitioners sent application addressed to Director GDA to look after the disputed bungalow so that miscreant or land grabbers could not interfere in the said property. Copy of the said application was also sent to DIG, DPO and SHO. The GDA instead of looking after the said property on behalf of petitioners issued a letter vide which SHO was asked to seal the property on the pretext that the same is ownership of GDA. The Magistrate ordered for sealing of the property of petitioners.
Respondent No,1 without impleading the petitioners as necessary parties filed a review petition, which was turned down on 7-9-2009 and respondent No,1 filed revision petition against the said order, which was allowed vide impugned judgment and order. Hence, this writ petition as well as the quashment petition.
5. Learned counsel for petitioners argued that respondent No,2 did not take notice that revision petition was barred by time and impugned orders have been passed without affording opportunity of hearing to the petitioners, therefore, these are liable to be set aside. Learned appellate court on the basis of fictitious and concocted deed directed the bailiff to associate respondent No,1 for taking over the possession of the disputed bungalow. Counsel for the petitioner pointed out that imugned stamp paper has been obtained from Stamp Vendor of Mardan and also apparently seems to be scribed at Mardan, which on face of it is bogus, fictitious and concocted one.
' Learned counsel argued that the people of the country cannot ignore the heroes, specially late A.M. Gulgee's whose contributions in the shape of arts, which can be witnessed all over the country and our nation cannot ignore his hectic efforts devotion commitment calligraphic and artistic contributions, which can be seen i,e, the famous Faisal Mosque, Islamabad. Late Gulgee was also awarded Pride of Performance, Sitara-e-Imtiaz (twice) and Hilal-e-Imtiaz by President of Pakistan.
6. On the other hand, learned counsel for respondent No,1 refuted the contentions of petitioners and supported the impugned judgment and order of revisional Court. However, learned counsel for respondent No,1 admits ownership of petitioners subject to payment of outstanding dues.
7. Arguments heard and record perused.
8. The suit bungalow is the ownership of late A.M. Ismail Gulgee a well-known international naturalistic Portrait Painter and Calligraphic artist and was national asset of the country. It is admitted fact that the suit bungalow is still ownership of legal heirs of late A.M. Ismail Gulgee, the present petitioners. After the tragic murder of late A.M. Ismail Gulgee, the petitioners had sent an application to the GDA to look after their bungalow as they being residing at Karachi or abroad and were unable to look after the same and similar applications were sent to SHO, DPO and DIG concerned. Instead of looking after the property by GDA, the SHO Donga Gali submitted an application before the Judicial Magistrate for sealing or the suit property, as some persons wanted to take over the possession of the disputed property as well as the personal belongings and precious paintings of late A.M. Gulgee. On the same day i,e, 29-7-2009, Judicial Magistrate, without any inquiry and examining the original application moved by the petitioners, ordered to prepare inventory of entire articles/property/art gallery situated at Plots No,76 and 76-A and thereafter to seal the said bungalow. It is pertinent to note that Judicial Magistrate can only invoke the jurisdiction for such like case when there is complaint filed under section 145, Cr.P.C. Complaint under section 145, Cr.P.C. Can only be entertained if there exists any dispute regarding the immoveable property wherein there is apprehension of breach of peace.
"Section 145, Cr.P.C. Procedure where dispute concerning land etc. Is likely to cause breach of peace.---(1) Whenever a Magistrate of the 1st Class is satisfied from a police-report or other information that a dispute likely to cause breach of the peace exists concerning any land or water or the boundaries thereof: within the local limits of his jurisdiction, he shall make an order in writing stating the grounds of being so satisfied, and requiring the parties concerned in such dispute to attend his Court in person or by pleading.
(2) .
(3) ..
(4) Inquiry as to possession.---The Magistrate shall then, without reference to the merits or the claims of any such parties to a right to possess the subject of dispute, pursue the statements so put in, hear the parties, receive all such evidence as may be produced by them respectively, consider the effect of such evidence, take such further evidence (if any) as he thinks necessary..
' Provided that....................
' Provided also, that if the Magistrate considers the case one of emergency, he may at any time attach the subject of dispute, pending his decision under this section.
' In the case of Qazi Gran v. Muhammad Jan and another reported in PLD 1996 Supreme Court page 541 (relevant at page 543). It was held:-- "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 here 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 determine the faction 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".
9. For attachment of disputed property there is one provision under section 145(4) second provision and other under section 146, Cr.P.C. Magistrate can only attach the disputed property when Magistrate after enquiry is unable to satisfy himself as to which of them was then in possession of disputed property.
Section 146, Cr.P.C. Power to attach subject of dispute.--- (1) If the Magistrate decides that none of the parties was then in such possession, or is unable to satisfy himself as to which of them was then in such possession of the subject of dispute, he may attach it until a competent Court has determined the rights of the parties thereto, or the person entitled to possession thereof.
10. In the present case Judicial Magistrate neither conducted any enquiry nor satisfied himself regarding any apprehension of breach of peace over the disputed property whereas on the same day without giving any reason directed sealing of suit property. The very order/action of learned Judicial Magistrate was illegal.
11. Respondent No,1 on the basis of a stamp paper allegedly executed by late A.M. Gulgee on 18-10- 2007 claimed to be owner in possession of the suit property and prayed for handing over of the disputed premises but the same was turned down by the Judicial Magistrate. It is also admitted fact that without arraying the petitioners, a revision was filed before the learned revisional court that too after lapse of four months of the said impugned order. Learned revisional court without appreciating the facts and legal aspect of the present case ordered de-sealing of the disputed property and directed the bailiff to hand over the possession of the property in favour of respondent No, 1.
12. Learned lower appellate court did not bother to note that the revision filed by respondent No,1 was barred by time as review Petition of respondent No,1 was dismissed on 7-9-2009 whereas revision was F filed on 7-1-2010 after lapse of four months.
13. Respondent No,3 GDA admitted at the bar that the suit property is still ownership of the petitioners but alter the death of late A.M. Gulgee the same has not been transferred in the names of petitioners and about more than eight lac rupees are outstanding against the petitioners.
14. It is developing practice of the day, especially in Galiyat and Abbottabad area wherein valuable property has been purchased by outsiders for their seasonal residence is 'being grabbed by the land grabbers on the basis of fictitious and fraudulent deeds. On the basis of said fictitious and concocted deeds frivolous civil and criminal litigations are initiated before the courts in order to blackmail the real owners of the properties. Now the time has come to check all these illegal acts depriving owners from their valuable properties. In the present case, it is an example, which indicates that what is going on, now a days in the area.
15. The learned revisional court also did not bother to appreciate the legal and factual aspects of the present case and without appreciating the fact that the alleged agreement deed, itself was executed outside the District and there was civil litigation pending between the parties. Moreover, no reference has been given to the application which was moved by the petitioners to GDA for looking after their valuable disputed property. Learned revisional court not only overlooked limitation period for entertaining the revision petition but also neglected the legal aspect of the case that petitioners were not arrayed as party. Learned revisional court unilaterally had ordered for the handing over the possession of the property to respondent No,1, which amounts to grave miscarriage of justice on the said court.
16. In the light of the above stated facts and legal aspect of the case, this writ petition is allowed.
Impugned order dated 29-6-2009 of respondent No,3 and judgment and order dated 1-2-2010 of revisional court are hereby set aside and respondent No,3 is directed to look after the disputed property in the light of application submitted by petitioners and in aid, if assistance of local police is required, the police is directed to assist them in the matter.
17. In the present case we were surprised when we gone through the record especially the agreement deed produced by respondent No,1 and conduct of courts below. We direct Additional Registrar to send a copy of this judgment to Registrar, Peshawar High Court Peshawar for taking action against the Judicial Officer(s) and any other person(s) who is/are found involved in the illegal actions stated, hereinabove. Moreover, the office is also directed to send a copy of this judgment to D.I.-G. Hazara to probe into the present case and file its final report before the Additional Registrar of this court at Abbottabad. As police is custodian of life and properties of the citizens of Pakistan and we hope that in the same esteem the action will be taken.