SAYYED MAZAHAR ALI AKBAR NAQVI, J.---With the concurrence of learned counsel for the parties, the instant petition is being dealt as Pakka case.
By means of instant petition filed under section 561-A, Cr.P.C. Iqbal Shafique petitioner has assailed the vires of impugned judgment dated 2-10-2003, passed by learned Additional Sessions Judge, Lahore; whereby his criminal revision petition filed against the order dated 23-1-2003, passed by learned Judicial Magistrate, Lahore, was dismissed.
3. Facts of the case, succinctly required for determination of the petition in hand, are that Teepu Sheikh/respondent No.3 "hereinafter to be referred as the respondent" owned a factory in the name and style of Socker Garments (Pvt.) Limited. In the year 2001, he got the partnership with Naila Iqbal wife of the petitioner as a result of. Which Mst. Naila Iqbal became the Chief Executive of the firm..Subsequently dispute arose between the parties and a punchayat was convened; wherein, it was decided that the petitioner would, vacate the premises during the month of August 2002 after receiving payment from the respondent. However, the parties could not settle the mode of payment and the petitioner did not vacate the factory. Thereafter, the respondent occupied the firm on which the parties became at dagger drawn for having possession over the property. The local police; with an apprehension of heinous offence, on 14-10-2002, vide Rappat No.3, made a Qalandra under sections 107/151, Cr.P.C. Later on due to rash attitude of both the parties, Qalandra under section 14i. Cr.P.C. Was also prepared and submitted before the learned Area Magistrate.
The respondent appeared before the learned Magistrate and filed his reply and stated that due to dispute between him and wife of the petitioner; proceedings were pending adjudication before the Company Judge of this Court. It was further asserted that Mst. Naila Iqbal, wife of the petitioner, had also filed civil suit against him seeking possession of the suit property, however, the same was withdrawn, therefore, she had no right qua possession of the suit property. That he had filed a civil suit; wherein wife of the petitioner had filed an application under Order I, Rule X, C.P.C., which was subsequently withdrawn. The respondent raised objection that as the parties had submitted surety regarding proceedings under sections 107/151, Cr.P.C., therefore, the proceedings under section 145, Cr.P.C. Should not have been initiated and also sought its dismissal. The learned trial court after affording hearing to both the parties, in terms of order dated 23-1-2003, while discussing certain aspects of the case especially pendency of civil suit between the parties, dismissed the Qalandra filed under section 145, Cr.P.C. The petitioner being aggrieved of the order of the learned Magistrate, preferred criminal revision .Petition, however, the same .Could not born fruit and the learned Additional Sessions Judge, Lahore in terms of judgment dated 2-10-2003, dismissed the same. Both the judgment and order of the learned courts below have been assailed by means of instant petition.
4. Learned counsel for the petitioner submitted that in the judgment and order of the learned courts below grave injustice has been done. Learned counsel further submitted that both the learned courts below 'committed misreading and non-reading of material available on the record in the shape- of suit filed by Mst. Naila Iqbal, wife of the petitioner in which status quo had been granted and the suit filed by the respondent against his nephew in which neither the petitioner, nor his wife had been arrayed as defendant. Challenging the findings of the learned courts below with regard to observation that as the civil suit was pending, therefore, the criminal proceedings are not called for, learned counsel vehemently contended that it is well settled by now that criminal. And civil proceedings can proceed side by side especially when the Qalandra proceedings under section 145, Cr.P.C. Clearly disclose the commission of a cognizable offence. Learned counsel next argued that ...Act of the respondent of taking possession is a criminal liability. The findings of the learned court below that no breach of peace is continuing, therefore, there was no need of the proceeding- under section 145, Cr.P.C., learned counsel vehemently contended, are contrary to law and material available on the record. Learned counsel next stated that while passing the impugned judgment and order, the learned courts below have patently failed to apply independent judicious mind and the same are entitled to be set aside.
5. As against above, learned DPG assisted by learned counsel for the respondent has vehemently opposed the contentions raised by learned counsel for the petitioner. Learned counsel stated that the dispute is purely of civil nature regarding which civil suits including suit for rendition of accounts is also pending before this Court. Learned counsel further argued that the learned trial court rightly observed that during the pendency of proceedings under section 145, Cr.P.C. From October 2002 to January 2003, not a single untoward incident took place attracting provisions of section 145, Cr.P.C. The concurrent findings of facts arrived at by the learned courts below, learned counsel lastly argued, are based on cogent reasons and any adverse order passed at this stage i.e. After about eight years, may lead to a new controversy resulting into breach of peace. To substantiate his case, learned counsel for the respondent placed reliance on following case-law:-- 2007 M LD 1535 Muhammad Afzal v. Muhammad Bashir and 2 others.
PLD 2007 SC 189 Chaudhry Munir v. Mst Surriya and others PLD 1996 SC 541 Qazi Gran v. Muhammad Jan and another
6. I have given my anxious consideration to the arguments advanced from all corners. I have also gone through the record available on file with the able assistance of learned counsel for the petitioner, learned counsel for the respondent as well as learned DPG.
7. The dispute between both the parties is qua number of shares and ownership regarding which admittedly Mst. Naila Iqbal had earlier filed-civil suit, which was later on withdrawn on account of compromise between the parties. Case F.I.R. No.527 of 2002, lodged by ,Nayab Khan, Manager of Sockers Private Limited was also subsequently compromised. It is also an admitted fact that originally Teepu Shaikh was the owner of M/s. Socker Garments (Pvt.), Limited and thereafter Mst.
Nada Iqbal joined as partner and she became Chief Executive of the Firm and in this regard Form- 29 was deposited with Registrar of Companies as per the Companies Ordinance XLVII of 1984.
Subsequently after having arisen dispute, punchayet was convened; wherein both the parties agreed that on payment of certain amount, the premises shall be vacated by the petitioner in August 2002, however, the decision of the punchayat could not be acted upon stricto senso and the respondent allegedly took the possession over the factory and proceedings regarding rendition of accounts are still pending before the company Judge of this Court. Thereafter, both the parties submitted surety in the proceedings initiated under sections 107/151, Cr.P.C. And thereafter proceedings under section 145, Cr.P.C. Were also initiated. It is pertinent to mention here that after initiation of proceedings under section 145, Cr.P.C, in October 2002 to January 2003, no untoward incident had taken place.
Before proceeding further, it would be advantageous to go through section 145(1), Cr.P.C, relevant portion of which reads as under:-- "145. 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 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 pleader, within a time to be fixed by such Magistrate, and to put in written statement of their respective claims as respects the fact of actual possession of the subject of dispute."
Bare perusal of section supra reveals that its object is the prevention of breach of public peace arising in respect of dispute relating to immovable property, however, settlement of dispute relating to property which is not likely to lead to a breach of peace is within the exclusive jurisdiction of Civil Court. The Magistrate having taking cognizance of proceedings under section 145, Cr.P.C. Need not determine the factum of factual physical possession of the disputed property.
Guidance in this, regard is sought from the ratio decidendi of august Supreme Court of Pakistan in the case of Qazi Gran v. Muhammad Jan and another (PLD 1996 SC 541).
8. Now the question arises whether the learned courts below were justified in dismissing the Qalandra under section 145, Cr.P.C. Admittedly such proceedings are initiated only when there is immediate apprehension of breach of peace. In the instant case both the parties had not only tiled civil suits against each other rather proceedings are also pending before the learned Company Judge of this Court, where question with regard to number of shares is under adjudication. So when there was no untoward incident between the parties for a considerable time, the learned Magistrate was well within his jurisdiction to dismiss the proceedings and learned revisional court also rightly upheld the order of the learned Magistrate. Guidance in this regard is sought from the ratio. Decidendi of august Supreme Court of Pakistan in the case of Chaudhry Munir v. Mst. Surriya and others (PLD 2007 SC 189); wherein this question was dealt with in detail. It would be advantageous to reproduce the relevant part of the above judgment, which reads as under:-- "16. We have also adverted to the proceedings got initiated Under section 145, Cr.P.C. By the petitioner. 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 (Fazat 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 grievance.
17. 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 bfeach 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."
9. While adverting to contention of learned counsel for the petitioner that civil and criminal proceedings can proceed side-by-side. I must say that no doubt the same can progress simultaneously but in the cases where offence under the Criminal Procedure Code and under the Civil Procedure Code have taken separately. On the risk of repetition I am constraint to oberve that the case in hand is purely of civil nature,- which is already under adjudication at proper forum.
10. I may also add here that power conferred upon this Court under section 561-A, Cr.P.C. Is required to be exercised in exceptional cases where it is apparent that continuation of proceedings complained of would amount to gross abuse of process of Court or that it is absolutely necessary to exercise inherent powers to secure the ends of justice. D Moreover, these powers being extraordinary in nature must be exercised sparingly with utmost care and caution and it should not be exercised in a casual and cursory manner because inherent jurisdiction under section 561-A, Cr.P.C. Is neither alternative nor additional in its character and is to be rarely invoked. I am fortified in my view by the dictates of law of the august Supreme Court of Pakistan in the cases of Maqbool Rehman v. The State (2002 SCM R 1076), Mahmood Saeed v. Amir Nawaz Khan (1996 SCM R 839), Fazal Karim v. State (1986 SCM R 483) and Muhammad Sharif v. Muhammad Javed (PLD 1976 SC 461).
11., It would not be out of context to mention here that while giving finding on any point, utmost care and caution should be exercised qua the aftershocks of such order. In the instant case of its unique character, the matter is pertaining to January 2003 and after lapse of about eight years if any order adverse to earlier order, which is still in field, is passed, it may create a new wave of controversy compelling the parties to cause breach of peace.
12. For the foregoing reasons, 'I find no lacuna/apparent illegality in the impugned judgment and order of the learned courts below inviting interference by this Court. The instant petition being devoid of force, is hereby dismissed: