' CH. MUHAMMAD IBRAHIM ZIA, J.---The captioned appeal, with the leave of the Court is addressed against the judgment of the High Court dated 30-5-2008 whereby the revision petition against the order of the Additional Session Judge Rawalakot dated 6-6-2005 has been dismissed.
2. The precise summary of facts necessary for disposal of this appeal is that both the parties are facing litigation relating to immovable property comprising new Survey No,376 measuring 16 marlas along with 17 shops constructed thereupon allegedly situated in Koyian Bazar. It is depicted from the record that some dispute regarding this property due to entries in Revenue Recqrd made during the settlement, arose between the parties. On the application of the respondents, the local police submitted a report to the Sub-Divisional Magistrate Rawalakot for attachment of the property under section 145, Cr.P.C. The Magistrate initiated proceedings for attachment and appointed Muhammad Sharif Khan as a receiver. After recording evidence of the parties the Sub- Divisional Magistrate recorded findings that the property before attachment was in possession of Muhammad Khurhsid, thus the possession was restored to him. The order was challenged by the respondents in revision petition before the Sessions Judge, which succeeded and the case was remanded to the Sub-Divisional Magistrate for decision afresh after proper inquiry. However, the order of the Sessions Judge was not confirmed by the High Court, consequently the order of the Sub-Divisional Magistrate was upheld. The respondents, challenged the order of the High Court in appeal before this Court which was finally disposed of vide judgment dated 12-10-2001 by setting aside all the orders of the subordinate Courts. The matter was remanded to the Magistrate concerned with the direction to pass fresh order in the light of the observations and thereafter proceed afresh according to law. It was further observed that if the Magistrate comes to the conclusion that there is immediate danger of breach of peace, he may pass a fresh order of interim attachment and hand over the possession of the disputed shops to any other independent person as receiver. After remand, the Sub-Divisional Magistrate observed that the parties have also approached to the Civil Court for determination of their rights relating to the disputed property, thus the proceedings on application for 'attachment were dropped. However, the order of Sub- Divisional Magistrate was set aside in revision by the Additional Sessions Judge and the Sub- Divisional Magistrate was directed to proceed in the light of the observations of this Court as expressed in para.8 of the judgment dated 12-10-2001. The appellant feeling aggrieved challenged the order of the Additional Session Judge dated 12-2-2002, in revision petition before the High Court which failed through the impugned judgment thus this appeal is brought before this Court for adjudication.
3. Kh. Muhammad Nasim, the learned counsel for the appellant, after stating brief case history focused his arguments on the point that both the parties have approached the Civil Court for determination of their civil rights according to law and the Civil Court has regulated the possession of the property by issuance of the interim injunction in both the suits filed by both the contestant parties. In previous round of litigation in this Court neither the possession was regulated by the Civil Court nor this development was brought to the notice of this Court. Thus at that time the directions issued by this Court were quite in accordance with the principle of law but due to subsequent developments and even in the light of principle of law enunciated by this Court in the judgments reported as 1997 M LD 2055 and 1983 PCr.LJ 2590, the continuation of the proceedings under the provisions of section 145, Cr.P.C. Is unwarranted. Both, the learned Additional Session Judge as well as the learned High Court remained unsuccessful to properly appreciate the spirit of law rather it appears that both the Courts took unnecessary, influence from the previous judgments of this Court. He contended that the judgment of the High Court as well as the Additional Sessions Judge are not consistent with the principle of law and justice, therefore, this appeal merits acceptance.
4. Syed Nazir Hussain Shah Kazmi, the learned counsel for the respondents, while controverting the arguments of the learned counsel for the appellant, defended the impugned judgment with full vehemence. Although he has admitted the factual position that both the parties have filed civil suits and the Civil Court has issued interim injunction regulating the possession of the disputed property, however, according his version, the proceedings under section 145, Cr.P.C before the Magistrate simultaneously be continued along with the civil suits. He contended that issuance of interim injunction .By the Civil Court doesn't bar the proceeding before the Magistrate as the section 145, Cr.P.C. Deals with the special, situation when there is dispute over the possession of immoveable property causing breach of peace. However, he couldn't refer to any authority that after regulation of possession by Civil Court, the continuation of proceedings under section 145, Cr.P.C. Has been approved by the superior Courts. Both the learned counsel also conceded that since last more than a decade's period there not a single incident of breach of peace occur due to dispute of possession over the suit property. According to the version of the learned counsel for the respondents this appeal has no merit and may be dismissed.
5 . We have heard the learned counsel for the parties and also perused the record. In our considered opinion without detailed discussion OP merits and facts of the ease the only legal question of public importance requires resolution in this appeal is; whether after issuance of interim injunction by the Civil Court relating to the possession of the property, the Magistrate should continue the proceedings under section 145, Cr.P.C. Are not? For convenience, section 145, Cr.P.C. Is reproduced herein below:-- "145. (1) Procedure where dispute concerning land, etc., is likely to cause breach of peace--- Whenever a Magistrate of the First 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 ground's of his 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 put in written statements of their respective claims as respects the fact of actual possession of the subject of dispute.
(2) For the purposes of this section the expression "land or water" includes buildings, markets, fisheries, crops or other produce of land, and the rents or profits of any such property.
(3) A copy of the order shall be served in manner provided by this Code for the service of a summons upon such person or persons as the Magistrate may direct, and at least one copy shall be published by being affixed to some conspicuous place at or near the subject of dispute.
(4) Inquiry as to Possession.--The Magistrate shall then, without reference to the merits or the claims of any of such parties to a right to possess the subject of dispute, peruse 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, and, if possible, decide whether any and which of the parties was at the date of the order before mentioned in such possession of the said subject: Provided that, if it appears to the Magistrate that any party has within two months next before the date of such order been forcibly and wrongfully dispossessed, he may treat the party so dispossessed as if he had been in possession at such date: ' 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.
(5) Nothing in this section shall preclude any party so required to attend, or any other person interested, from showing that no such dispute as aforesaid exists or has existed; and in such case the Magistrate shall cancel his said order, and all further proceedings thereon shall be stayed, but, subject to such cancellation, the order of the Magistrate under subsection (1) shall be final.
(6) Party in possession to retain, possession until legally evicted.--If the Magistrate decides that one of the parties was or should under the first proviso to subsection (4) be treated as being in such possession of the said subject, he shall issue an order declaring such party to be entitled to possession thereof until evicted therefrom in due course of law, and forbidding disturbance of such possession until such eviction and when he proceeds under the first proviso to subsection (4), may restore to possession the party forcibly and wrongfully dispossessed.
(7) When any party to any such proceeding dies, the Magistrate may cause the legal representative of deceased party to be made a party to the proceeding and shall thereupon continue the inquiry, and if any question arises as to who the legal representative of a deceased party for the purpose of such proceeding is, all persons claiming to be representatives of the deceased party shall be made parties thereto.
(8) If the Magistrate is of opinion that any crop or other produce of the property, the subject of dispute in a proceeding under this section pending before him, is subject to speedy and natural decay, he may make an order for the proper custody or sale of such property, and upon the completion of the inquiry, shall make such order for the disposal of such property, or the sale proceeds thereof as he thinks fit.
(9) The Magistrate may, if he thinks fit, at any stage of the proceedings under this section, on the application of either party, issue a summons to any witness directing him to attend or to produce any document or thing.
(10) Nothing in this section shall be deemed to be in derogation of the powers of the Magistrate to proceed under section 107." (Underlining is ours)
The plain reading of this legal provision makes abundantly clear that the main purpose of proceeding Under this section is to maintain the peace and tranquility and avoid the breach of peace. The Magistrate proceeds only after satisfaction that there exists a dispute over possession of immovable property likely to cause breach of peace. The proceedings under this provision before the Magistrate are not the ultimate solution of the problem, in fact, these are of preventive nature for the time being and subject to the final resolution of the controversy by the Court of competent jurisdiction. At the same time the legislature has vested the Civil Court with vast powers not only for issuance of interim injunction but including the powers of attachment of the property and appointment of the receiver under the provision of section 94 read with Order XL of the C.P.C.
Section 94, C.P.C. Is as under:- "94 Supplemental proceedings:---In order to prevent the ends of justice from being defeated the Court may, if it is so prescribed,--
(a) issue a warrant to arrest the defendant and bring him before the Court to show cause why he should not give security for his appearance, and if he fails to comply with any order for security commit him to the civil prison;
(b) direct the defendant to furnish security to produce any property belonging to him and to place the same at the disposal of the Court or order the attachment of any property;
(c) grant a temporary injunction and in case of disobedience commit the person guilty thereof to the civil prison and order that his property be attached and sold;
(d) appoint a receiver, of any property and enforce the performance of his duties by attaching and selling his property;
(e) make such other interlocutory orders as may appear to the Court to be iust and convenient."
(Underlining is ours)
' The legislature has under the referred provision of law vested the. Civil Courts with vast powers to issue any order to prevent the ends of justice from being defeated including one the appointment of a receiver of a property and to enforce the performance of duties by attaching and selling his property and all other interlocutory orders as may appear to the Court to be just and convenient.
The comparison of the legal provision of section 145, Cr.P.C. And section 94, C.P.C. In juxtaposition helps us to observe that the powers of attachment under section 145, Cr.P.C. Are limited and bound by certain limits Whereas, the powers vested under section 94, C.P.C. Are much wider and comprehensive, thus if at any stage of proceeding a situation arises, demanding the attachment of property and appointment of receiver the powers can be the best used by the Civil Court. The parties are always at liberty to apply to the Civil Court in this regard and if they succeed in making out a case for applications of the provision of section 94, C.P.C. Read with Order XL, C.P.C., the Court may proceed according to law. Whereas, simultaneous continuation of proceeding under section of section 145, Cr.P.C. Along with civil suit will not serve any just cause or to be fruitful or beneficial for any of the parties.
6. Admittedly both the parties have approached the Civil Court through independent suits. On the application of the parties, interim injunction has been issued by the Civil Court and reportedly not a single incident of breach of peace has occurred during the last decade's period. The continuation of proceedings under section 145, Cr.P.C. In such situation not only amounts to misuse of process of law and Courts and wastage of time but also to drag the parties into uncalled for litigation.
Moreover, there may be apprehension of conflicting findings of the Civil Court and Criminal Court.
For the ends of justice and avoiding such hardships and an anomalous situation, we are constrained to hold that the proceedings in civil and criminal Court cannot run simultaneously. It is now celebrated principle of law that when the possession of the disputed property is regulated by Civil Court the continuation of proceedings under section 145, Cr.P.C. Are not approved. This principle of law has already been enunciated by this Court in Muhammad Nazir Khan's case 1997 M LD 2055, wherein the paras 8 and 9 of the judgment speak as following:-- "8. It is indeed correct that section 145, Cr.P.C. Is so coached as not to be appreciated easily by the Magistrates performing their functions in far-(lunged backward areas. At a time there used to be divergent views of the High Court of Azad Jammu and Kashmir recorded in different cases under section 145, Cr.P.C. One view was that the 'jurisdiction of Magistrate to attach the subject of dispute under section 145, Cr.P.C. Is not excluded even in presence of recent decree of Civil Court for perpetual injunction or an order regulating the possession passed in terms of ad interim injunction, upholding the possession of one of the parties to the proceedings whereas the counter view was that in order to avoid conflicting decisions on the same matter proceedings under section 145, Cr.P.C. Should not be allowed when the matter is simultaneously taken to a Civil Court but by now this controversy stands settled by a reported judgment of this Court in a case titled "Suleman Khan v. Abdul Aziz and 33 others" 1983 PCr.LJ 2590, wherein it was held at pages 2094 and 2095-of the report in the following manner:-- ' We have already noticed that under subsection (4) of section 145, Cr.P.C. The introduction of the words "if possible" and incorporation of the proviso under subsection (2) of section 146, Cr.P.C.
Clearly reflect that the order of the Magistrate, whether under section 145, Cr.P.C. Or 146, Cr.P.C., is not only subject to the decision of a competent Civil Court, but it -also provides that the moment civil Court takes a step to regulate the possession' of the subject of the dispute by appointment of a receiver, the order of the Magistrate automatically gives way to the order of Civil Court as the Civil Court is vested with powers as final arbiter. Therefore, it is wrong to suggest that it is nowhere laid down under section 145, Cr.P.C. That the Magistrate is divested of his power in presence of civil proceedings or .When the possession is regulated by a temporary injunction or in presence of a recent decree for the perpetual injunction. The Magistrate acting under' section 145, Cr.P.C. Is under an obligation to respect any recent decision concerning possession of the subject, given by a competent civil Court. In case such a decision is not given due consideration and weight the action of Magistrate shall not only be derogatory to the norms of administration of justice, but it may also culminate in disastrous results. To give importance to the recent decree of the civil Court or an interim order in the terms of appointment of the receiver of issuance of ad interim injunction, is also a question of judicial propriety. Thus the position finally comes to this that the Magistrate is, of course, competent to initiate proceedings under section 145, Cr.P.C. When he is satisfied from any information that there exists likelihood of breach of the peace concerning the possession of land or water or the boundaries thereof and he is within his jurisdiction to constitute an inquiry in order to determine the question of factum of possession, but the power of the Magistrate is restricted in the manner that he is excluded to advert into scrutiny of the merits or the claims of the parties to a right to possess the subject of dispute. Secondly, when merits or claim to a title or right to possess the subject is recently settled by a competent Civil Court the Magistrate shall give effect to such a recent decree concerning the question of possession and shall maintain the possession acquired by either party in the light of such decree and its execution in due course of law. Likewise, the Magistrate shall avoid interference into possession of the subject by having a recourse to attachment in presence of an order of competent civil Court of appointment of a receiver of issuance of ad interim -injunction. But mere institution of a civil suit may not necessarily stop the hands of the Magistrate to inquire into the question of possession when other conditions contained under the section are fulfilled."
"The next question pertinent to the proposition is as to what remedy is available to avoid likelihood of breach of the peace in presence of the recent decree of the Civil Court concerning the possession or an order regulating the possession for interim period? The proper answer is that when the question of possession of the subject is settled by the decision of a competent court or its possession is regulated in open of the aforesaid manners, during the pendency of the civil proceedings, on information of likelihood of breach of the peace, the Magistrate is within his power to proceed against the disturbance maker under section 107, Cr.P.C. It is well admitted that the provisions of section 107, Cr.P.C. Which are general in character, are even attracted in such like cases. Besides that in case of a trespass or forcible dispossession of the rightful owner, the Magistrate is equally competent to proceed against the accused for commission of substantive offence."
' In the case reported as "Shah Muhammad v. Haq Nawaz and others!' (PLD 1970 SC 470), the Supreme Court of Pakistan spoke for the relevant proposition at page 481 in the following way:- "The provisions of the two Codes set out above have a material bearing on the question whether a Magistrate can, under section 145 of the Criminal Procedure Code, act in violation of a decree or - the terms of an order passed by a Civil Court during the trial of a suit. It becomes apparent at once that the proceedings initiated under section 145, Cr.P.C., are subordinate to a decree or order passed by a civil Court in respect of the property in dispute before the Magistrate. The primary concern of the proceedings under the Criminal Procedure Code is to prevent breach of peace arising out of a dispute concerning 'land or water'. These proceedings though concerning the subject-matter of dispute between the contending parties, do not concern themselves with the adjudication of their rights in the property. The resolution of the dispute lies exclusively in the realm of a civil Court. The orders passed by a Magistrate for attachment of the subject-matter of dispute are therefore of a transitory nature. That is why a Magistrate will not appoint a receiver if the property in dispute is already in the possession of a civil Court through a receiver appointed by it and the receiver appointed by a Magistrate must make over possession to the receiver appointed by a Civil Court subsequently. Section 145 therefore proceeds on the premises that the Magistrate will cease to deal with the possession of "land" or "water" in dispute before him as soon as a Civil Court is seized with the dispute and has passed a decree declaring the rights of the parties therein or has passed an order regulating possession of the subject-matter of the suit. In such a case, if apprehension of breach of peace prevails, the Magistrate can take action under. Sections 107 and 151, Cr.P.C., and bind down the party threatening to act in violation of the decree of .The - Court or the terms of an interim order appointing a receiver or requiring the parties to maintain status quo.
A contrary position will indeed lead to anomalous results."
' In the case reported as "Mehr Muhammad Sarwar and others v.' The State and 7 others" PLD 1985 SC 240 the Supreme Court of Pakistan observed at page 241 as under:-- "It requires to be mentioned that in an inquiry under section 145, Cr.P.C. All that a Magistrate is ultimately empowered to do is to regulate the possession of the property in dispute for the time being, so that the apprehended breach of peace is averted. But as held by this Court in Shah Muhammadv. Haq Nawaz and another (PLD A970 SC 470) where the possession of the same property has been regulated by a Civil Court, even through a temporary injunction, the manner falls outside the jurisdiction of the learned Magistrate under section 145, Cr.P.C."
(9) From the case-law cited above, it becomes abundantly clear that in order to avoid conflicting decisions on the same matter proceedings under section 145, Cr.P.C. Should not be allowed when the matter is simultaneously taken to a civil Court. Another substantial reason is that ultimately the decision of the Civil Court is to prevail either with regard to the possession or right to possess certain property. Thus in presence of both the litigations, the civil litigation should be resorted to wherein the rights of parties are conclusively resolved. The learned counsel for the respondents also relied on the reported case Suleman Khan v. "Abdul Aziz and 3 others which is reported in 1983 PCr.LJ 2590 which we have already discussed and the same is reported in PLJ 1984 SC (AJK) at page'47 = 1983 PCr.LJ 2590."
7. The above laid down principle of law is fully attracted in this case and we have no reason to depart from the celebrated principle of law. The learned counsel for the respondent could not succeed by referring to any case-law for drawing a different conclusion. Thus, we are constrained to accept this appeal by setting aside the impugned judgment of the High Court as well as Additional. Session Judge Rawalakot. Consequently the order passed by the Sub-Divisional Magistrate is restored and the proceedings under section 145, Cr.P.C. Stand dropped.